Refael v TAC
[2024] VCC 703
•22 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-04100
| YEHOSHUA REFAEL | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14, 15 and 18 March 2024 | |
DATE OF JUDGMENT: | 22 May 2024 | |
CASE MAY BE CITED AS: | Refael v TAC | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 703 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – aggravation of pre-existing condition – injury to lower back only – injury fairly described at least as “very considerable”.
Legislation Cited: Transport Accident Act 1986 s 93(17).
Cases Cited:Humphries v Poljak [1992] 2 VR 129; Transport Accident Commission v Kamel [2011] VSCA 110; Richards & Anor v Wylie (2000) 1 VR 79; Petkovski v Galletti [1994] 2 VR 129; Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505; Jones v Dunkel (1959) 101 CLR 298; Meadows v Lichmore Pty Ltd [2013] VSCA 201.
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S McCredie with Mr R. Paoletti | Margalit Injury Lawyers |
| For the Defendant | Mr A. Moulds KC with Ms J. Clark | Transport Accident Commission |
HIS HONOUR:
Introduction
1Yehoshua Refael seeks leave to start a proceeding to recover damages for personal injuries as a result of a transport accident by establishing he suffered a “serious injury”. Although he suffered injuries to various parts of his body, Mr Refael relies only on the injury to his lower back. I will ignore the references in the material to examinations and treatment for those other injuries. Moreover, he no longer relies on paragraph (c) of the definition of ‘serious injury’.
Circumstances
2Mr Refael is now 57. At about 1.00pm on 10 March 2021, he was driving his motor vehicle east in Balaclava Road, St Kilda East. He entered the intersection with Orrong Road on a green light. Another motor vehicle travelling west in Balaclava Road, turned right to travel north in Orrong Road. Mr Refael’s vehicle struck the left side of the other vehicle. The paths taken by the vehicles are depicted in a diagram in the police incident report.[1] Mr Refael was injured, suffering lower back pain and pain radiating down both legs. He was taken to hospital by ambulance. At his request, Mr Refael was discharged on the day of his admission.
[1] Plaintiff’s Court Book (“PCB”) 55.
3Pausing there. Someone from Ambulance Victoria noted:
“…O/A pt c/o of lumbar region back pain, states has Hx of prolapsed disc, accident has aggravated injuries…”
4At the emergency department of the hospital, someone else noted:
“…complains of low back pain (exacerbation of previous pain).”
Both entries, especially the first, were given attention in this proceeding as the condition of Mr Refael’s lower back before the accident is a significant issue in this application.
5Dr Naomi Bronzite is a general practitioner. She treated Mr Refael both before and after the accident. On 29 October 2019, about 17 months before the accident, she saw him and noted:[2]
“Every couple of months putting out his back with severe back pain lasting 2-3w, not radiating down legs, central pain. When it happens can’t stand up straight…Suggest CT lumbar spine and review with results…”
[2]Defendant Court Book (“DCB”) 34.
6Scans were taken that day of the lumbosacral spine. After reporting on the state of each disc, the radiologist concluded:[3]
“There is annular disc bulging at several levels, as described. Mild central canal stenosis is present at L4/5. There is bony foraminal stenosis on the right at L4/5 and also bilaterally at L5/S1 with encroachment on the respective exiting nerve roots. Facet joint OA is present at several sites…”
[3] PCB 175.
7Five days after the accident, on 15 March 2021, Mr Refael attended Dr Bronzite. She arranged MRI scans of his lumbar spine. On 29 March 2021, the radiologist concluded:[4]
“Multilevel mild disc disease and annular fissures. Disc-osteophyte contact with bilateral L5 nerve roots in the neural foramina without definite neural compression.”
The radiologist also noted a mild broad based posterior bulge with annular fissure at L1-2, a small broad based posterior bulge with annular fissure at L4-5 and a small broad based posterior bulge apparently without annular fissure at L5-S1.
[4]PCB 177.
8On 1 June 2021, Gavin Davis, a neurosurgeon, examined Mr Refael. Mr Davis saw the MRI scans of the lumbar spoke and noted multilevel age-related degenerative changes but there was no acute pathology which would require surgery. He considered Mr Refael should start a rehabilitation programme aimed at controlling his symptoms and returning him to work. He referred him to Clayton Thomas at the Victorian Rehabilitation Centre. Mr Refael did not attend the Centre because it was too far away from where he lived.
9Dr Bronzite referred Mr Refael to another neurosurgeon, Chris Xenos, for a second opinion. His views are summarised in the last paragraph of his letter to Dr Bronzite, dated 9 July 2021:[5]
“I have explained to this gentleman that he does a physical job, he has had previous traumas, he has been fortunate to be involved in a motor vehicle accident where not a lot of major injury or neurology was sustained, and he still has back pain which has improved. It might be frustrating for him, but there is no neurosurgery that I can offer, there is no neurosurgery that will improve things quicker, so from one perspective, he has to be proactive with regards to the use of heat, massage and acupuncture to the lower back, a referral for physiotherapy hydrotherapy and Pilates all focussing on muscle strengthening, and if and when he decides to return to work, he will need to ease himself back to work because obviously bending, lifting and twisting may aggravate his spinal complaint. Conservative measures is what I advise.’
[5]DCB 66.
10On 27 July 2021, Mr Refael started physiotherapy. This continued into 2022 until the Commission ceased funding it. Nevertheless, he learnt exercises which he performed at home.
11Despite his inability to attend the Victorian Rehabilitation Centre earlier in the year, Mr Refael was referred to the Central Rehabilitation Group at the Masada private Hospital. On about 15 October 2021 he saw Matthew Tuminello, a rehabilitation physician, who organised a CT-guided bilateral L5/S1 foraminal injections to rule out any local inflammation as the cause of his pain.
12On about 26 November 2021, Dr Tuminello saw Mr Refael again. By then, he had received the injections. They gave him ten days’ relief from pain but his pain levels had returned to ‘baseline’. Dr Tuminello enrolled him in an outpatient pain programme at Epworth Brighton. He wanted to overcome Mr Refael’s chronic pain beliefs and reduce his boom-bust behaviours which seemed to be exacerbating his problems. He even thought Mr Refael was getting close to be able to do some limited work and tentatively suggested a vocational occupational therapy assessment.
13On 31 March 2022, Dr Tuminello saw Mr Refael again. By then, he had partly undertaken a 12-week pain rehabilitation programme at Epworth Brighton. He missed sessions. He cancelled several appointments, saying he was in too much pain. He refused to undergo the psychological part of the programme.
14At this appointment, Mr Refael was proving a difficult patient. He declined for the time being Dr Tuminello’s suggestion of a change of medicine to amitriptyline. He declined as unnecessary psychological treatment. He declined the pain-relieving option of radiofrequency ablation and other interventional pain reliving options. He declined ketamine infusions for desensitisation therapy. He did not think rehabilitation was of any benefit drawing on his own experience rehabilitating himself from a knee injury. Not unnaturally, Dr Tuminello considered there was a little more he could do, commenting:[6]
‘Given Shay is hard to engage and has fixed beliefs about his back…’
However, he suggested a quality Posturepedic bed for sleep and the gradual weaning off opioid therapy.
[6]PCB 67.
15In his first affidavit sworn on 23 November 2022, Mr Refael said he took as little medicine as he could but was then taking:
(a) A 5-milligram tablet of Endone, on average three times a week. Initially, he was instructed to take this medicine three times a day but takes it less frequently and at night for it makes him drowsy;
(b) Comforal Forte, usually three tablets a day;
(c) Citalopram, 10 milligrams;
(d) Voltaren, about one tablet a week when his muscles are really sore; and
(e) About once a fortnight, Prednisolone, 25 milligrams, when his pain is “really bad”.
16In his second affidavit, sworn on 3 November 2023, Mr Refael is prescribed Panafcortelone for when his pain is “particularly bad”. Despite the recommended daily dosage, while in Israel visiting his mother, he took the entire prescription in less than five days.
17By 7 November 2023, Mr Refael was taking an Endone tablet twice a week on average; and two or three tablets of Panadeine Forte, three or four times a week. In other words, he was taking strong pain-relieving medicines regularly.
18This regime is in keeping with the views of Dr Bronzite. In her report to the Commission, dated 22 July 2023, regarding his back, she observed his severe and continuing pain started after the accident even though there may have been pre-existing degenerative changes. She considered he was resistant to treatment and “although not formally diagnosed has probably developed central pain sensitisation syndrome”. I presume the expression “not formally diagnosed” means not diagnosed by a pain specialist. When using the expression ‘central pain sensitisation syndrome’, I believe Dr Bronzite is referring to an organic condition and not a psychological one.
19It appears the issue of an orthopaedic mattress was pursued by Mr Refael’s solicitors. In a letter dated 8 August 2023, Dr Bronzite explains the nature of such mattresses, adding ‘I have high expectation that Yehoshua’s pain symptoms would improve with an orthopaedic mattress.’
20At the request of Dr Bronzite, further MRI scans were taken of Mr Refael’s lumbosacral spine on 19 January 2024. The radiologist recorded the history as: [7]
“Progressive lower back pain radiation of pain down the right leg”.
Given the narrowness of the request, the radiologist reported on two discs: [8]
“L4/5 degenerative disc disease diffuse posterior disc bulge. No significant spinal stenosis. The disc bulge extends into the neural exit foramina bilaterally with there is potential impingement on the bilateral traversing L4 nerve roots.
L5/S1 degenerative disc disease diffuse posterior disc bulge no significant spinal stenosis. Extension of the disc bulge into the neural exit foramina bilaterally with potential impingement upon the bilateral traversing L5 nerve root”.
The radiologist concluded: [9]
“Multilevel degenerative disc disease potential nerve root impingement…”.
[7]PCB 182.
[8]Ibid.
[9]Ibid.
21Mr Refael has not returned to work. He sees Dr Bronzite regularly for reviews and for the prescription of medicines. Presently, he takes:
(a) Endone, about twice a week;
(b) Panadeine, two tablets about every second day;
(c) Panafcortelone, about once a week;
(d) Escitalopram, a table a day;
(e) Valium, about twice a week;
(f) Pantoprazole for heartburn.
When his pain is very bad, he takes a short course of Panafcortelone. At home, he still performs the exercises he was taught.
Legal considerations
22The meaning of “serious” in s 93(17) of the Transport Accident Act 1986 (“the Act”) is explained in Humphries v Poljak:[10]
“To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such a consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”
[10][1992] 2 VR 129 at 140 per Crockett and Southwell JJ.
23In Transport Accident Commission v Kamel, Kyrou AJA said:[11]
“[65]The definition of ‘serious injury’ in s 93(17) of the Act intends to maintain a division between injuries with physical consequences, which fall within paragraph (a) of the definition, and injuries with mental consequences, which fall within paragraph (c) of the definition. The inquiry that must be made under paragraph (a) focuses attention on whether the injury has produced an organic impairment or loss of a body function and whether, having regard to its consequences, that impairment or loss is serious and long-term. Where an impairment or loss of a body function is produced as a consequence of a mental disturbance or disorder, that impairment must be considered under paragraph (c) rather than under paragraph (a). Where the impairment of a body function is the product of both organic and mental conditions, it will not fall within paragraph (a) unless it is predominantly the product of the organic condition.’
[66]‘The ‘textual distinction’ between the physical and mental consequences of an injury that is maintained by the definition of ‘serious injury’ in s 93(17) of the Act does not preclude a mental or behavioural disturbance or disorder from being taken into account in determining the seriousness of an impairment or loss of a body function that is held to fall within paragraph (a) of the definition.”
[11][2011] VSCA 110 at [65] and [66].
The sentence of [65] expresses the principle stated in Meadows v Lichmore Pty Ltd.[12]
[12][2013] VSCA 201.
24The reasoning behind [66] comes from Richards v Wylie,[13] where Winneke P said:
“If, as a result of an injury, a person loses a limb, it will, no doubt, often occur that one of the consequences of such a loss or impairment will be the development of a mental response to that impairment or loss. That is one of the consequences which, along with others, the court will need to evaluate in determining whether the loss or impairment of a body function, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as ‘serious’….Thus, the ‘serious injury’ defined in para (a) of subs (17) can, I think, have its seriousness measured in part by a mental response to the physical impairment. What it will not recognise is that the mental disorder can itself constitute or be the producer of the impairment of a body function.”
[13] (2000) 1 VR 79 at 87-88. See also Buchanan JA at 90.
25For the purposes of this kind of application, where an injury is an aggravation of a pre-existing condition, then the principle in Petkovski v Galletti applies. The principles is captured in the headnote:[14]
“In an application to bring proceedings under s 93 of the Transport Accident Act, where the case is one of aggravation of a pre-existing condition, the applicant must establish what injury was caused by the accident. An analysis must be made of the extent of the impairment of the body function before and after the relevant injury, and the additional impairment must involve serious long-term impairment of a body function.”
[14] [1994] 1 VR 436.
26The defendant raised the factual assumptions made by Mr Miller in particular. I used the expression “fair climate”, which the parties did not disagree. That expression comes from Paric v John Holland Constructions Pty Ltd where Samuels JA said:[15]
“…This is a reference to a Wyoming case, Culver v Sekulich (1959) 80 Wyoming 437 at 458. It is in these terms:
‘From our analysis of the record it appears to us that there was some evidence to support every hypothetical question to which objection was made. Such evidence was not always complete, was sometimes hazy as to time, distance and other vital words, but in general, furbished a fair climate for the consideration of the views of the expert witness’.
I would respectfully adopt that last statement as exactly in point and its application disposes of both aspects of the problem which I have earlier referred. It is a question of whether the hypothetical material put to the expert witness represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided; and certainly it cannot be contended that there was no evidence upon which the opinion could be based.
Discrepancies may be fatal: in some cases even slight discrepancies may be fatal; in other cases even broad discrepancies are not likely to affect the force of the expert opinion…”
[15] [1984] 2 NSWLR 505 at 509-510.
Discussion
27In his closing submission, the defendant’s senior counsel put the issue succinctly:[16]
“…the plaintiff has to establish on the balance of probabilities…that this accident caused a sufficient aggravation of a pre-existing condition as to be resulting, in the requisite sense, in the consequences which could be said to be serious within the meaning of that definition in s 93…”
[16] Transcript (“T”) 83.
28He added that it depended to a large extent on the credibility and reliability of Mr Refael as a witness.
Credit
29Dealing then with Mr Refael’s credit as a witness. Part of the defendant’s focus was on the state of his lower back before the accident.
30First, there was an entry in the clinical records of Dr Bronzite on 29 October 2019, which I have already quoted. When asked about the entry, Mr Refael recalled the incident:[17]
“Q: And I suggest to you again that you’re not a man that would attend a doctor and give that kind of history unless you’re in real trouble with your back. What do you say to that? – It’s nothing major like that I suffered for my back just as in from probably hardworking in the same time but nothing that was going on and on and on. I kept on – I was a painter up to the day of the accident. If I had a pain I wasn’t working.”
Curiously, he could not remember the taking of the scans or discussing the radiologist’s report with Dr Bronzite, adding he was very fit.
[17] T28.
31What Mr Refael said about his activities is supported by his wife and daughter, whose evidence I have no reason to reject:
(a) Before the pandemic she joined a gym and her father exercised at the gym also. After the accident, he stopped going to the gym.
(b) During the lockdowns caused by the pandemic, she bought equipment which they used together. After the accident, he stopped exercising as before. He did not use the weights and she finally sold them.
(c) Both mother and daughter say he has stopped kayaking which, before the accident, he did virtually every weekend with friends. The posted instances of kayaking are insufficient for me to conclude his evidence, and that of his daughter, is untrue in this respect. For an enthusiast, a few instances do not negate the thrust of the evidence, namely he has given up this pastime.
(d) Since the accident, he no longer practises martial arts. His wife refers to him doing only some stretches now.
(e) Since the accident, he struggles with walking. He limps and he looks like he does not have the balance he had before the accident. His wife does not speak of a limp but somewhat vaguely that he walks differently since the accident.
(f) At times, his daughter helps put on his shoes and tie up his shoelaces. Sometimes she helps him put on slide or slip on shoes. She noted his difficulty getting into and out of his utility. His wife also helps him with his shoes and picking up things dropped on the floor. These matters support his evidence of impaired back motion, especially flexion. This coincides with the measurements made by various specialists of the limitation of that particular spinal movement. His wife speaks of his difficulty bending and crouching. Bending is consistent with impaired flexion. I am uncertain where crouching fits in unless it relates to his leg symptoms.
(g) Mr Refael admits trying to walk his dog after the accident but has stopped.[18] His oral evidence of not walking the dog since the accident is inconsistent. The evidence of his wife and daughter presupposes an attempt or attempts in order to discover his inability due to the nature of the animal. I would not interpret Dr Tuminello’s comment of Mr Refael being hard to engage as having anything to do with his truthfulness or accuracy. From the doctor’s perspective, he was a difficult patient. I would view his oral evidence on this point as careless, not a deliberate untruth. I have already noted his daughter implicitly supports his reason for no longer walking the dog. His wife speaks of the dog being too strong.
(h) His daughter attributes less ability to his mowing the lawn than he does, saying he tries but she has seen her mother step in and take over. His wife’s version is she offers to mow the lawn because she wants to do it to lessen the effect on his feelings. His wife remarks that cleaning the gutters was a task he did before the accident but not since. This supports his evidence on the point.
(i) Again, his daughter downplays his contribution to housework by saying her mother steps in and takes over, and the women do most of those tasks since the accident.
(j) His daughter is aware of his difficulty sleeping, having woken herself and becoming aware of his moving about.
(k) He spoke of putting on weight since the accident. His wife is blunter – he looks different now and his belly sticks out.
(l) His inability to work since the accident despite being a hard worker. His wife says he is now worried and anxious because he is not working. She budgets now because of the loss of income.
[18]Affidavit sworn 23 November 2023 at [57].
32Neither his wife nor daughter was cross-examined. Although the drafter of the affidavits has taken them through each of the items of consequence, what they say rings true. Each makes observations and comments upon them but from their own perspective. There is no suggestion of collusion.
33Mr Refael pointed to his earnings as evidence supporting his credibility. In the financial years ending on 30 June 2018, 2019 and 2020, he earned from painting $82,300, $64,300 and $63,720 respectively. He saw Dr Bronzite in October and November 2019 regarding his lower back. If he were significantly disabled in that period, it should be reflected in his financial statement indicating the involvement of two persons in the business rather than one.
34The response of Mr Refael to the nature of his answers given to questions in cross-examination is the nature of the questions: they are too wide.
35The unsatisfactory evidence of Yoad about working with his father does not provide any probative evidence about the extent of that work. It is not evidence of him providing considerable assistance. I was invited to draw a Jones v Dunkel[19] type of inference – the vague recollections of father and son is explained by counsel’s submission:[20]
“Or, they don’t want to, if I could use the expression, cough up the fact that both were working as hard as each other. Who knows?”
[19](1959) 101 CLR 298.
[20] T86.
36It is the question “Who knows?” which points to the invalidity of the reasoning I am invited to adopt. If I disregard the evidence of one or other or both about employment, then there is a vacuum. It does not enable drawing an inference of “working as hard as each other”. It is no basis to reject Mr Refael’s evidence of continuing to work after knowing about the scans on “pretty much the same basis”.
37The note of Dr Davis is so brief, I would not be prepared to interpret the entry to mean at the time Mr Refael saw the doctor he was kayaking weekly for about an hour. There are also two statements of Mr Refael about kayaking. Each made after this accident. Both express his joy at the experience of kayaking on those occasions. Neither says much of his ability to kayak except on those occasions he has done so. They rebut the evidence he has not kayaked since the accident.
38In some respects, Mr Refael is a weak historian. His inability to remember undergoing CT scans in 2019 is unusual given the nature of the process of that type of scanning. As to his truthfulness, I have no reservations of substance because so much of what he says is corroborated by his wife and daughter. Their corroboration is acceptable, not simply because they were not cross-examined but because their respective affidavits read as though it is their own words being recorded.
Factual assumptions
39The Commission challenged a factual assumption made by Mr Miller that there was no previous low back pain. At his first examination of Mr Refael, Mr Miller was unaware of the October 2019 scans. He became aware of them at the next examination on 24 May 2023. Under the heading ‘Past history’, Mr Miller records[21]
“He states he could not recall any prior problems with low back pain and could not recall the circumstances that led to the imaging on the 29/10/2019 detailed below.”
The same entry appears in the report of his last examination of Mr Refael on 25 January 2024.
[21]PCB 108.
40Mr Miller was aware of the radiologist’s report of the scans because he summaries some of the findings. His apparent failure to discuss the scan’s finding with the history given by Mr Refael does not alter his diagnosis of the injury: injury to the thoracolumbar spine, including musculoligamentous strain and aggravation of degenerative disease. Nor does it alter his identification of pre-existing disease in the lumbar spine as being a factor in the spinal injuries and the accident or his conclusion the current clinical status is substantially related to the accident.
41Whether Mr Miller assumed Mr Refael’s lumbar spine was pain free or not in October 2019 and leading up to the accident is unclear. Certainly, Mr Refael’s evidence of it being asymptomatic leading up to the accident means if Mr Miller made that assumption, he was correct. It seems to me the point does not provide a basis to reject Mr Miller’s opinions.
42It is probably incorrect to say Dr Bronzite does not deal with Mr Refael’s attendance upon her on 29 October 2019 or the results of the scans. In her report dated 22 July 2023, she says:
“I would like to reiterate that I have known Yehoshua for many years, also prior to his injury. Before his injury I would see him once or twice every one to two years. He was working with pleasure and following his many hobbies such as karate, kayaking and roller blading. I saw him in 2019 with a short episode of back pain from which he fully recovered. I did not see him with back pain again until his injury following his TAC accident.”
Dr Bronzite wrote this report in response to Dr Menz’s report dated 14 June 2023. In his report, Dr Menz noted Mr Refael as ‘stated that he had never had any hip or back pain before.’
43Immediately before the accident, Mr Refael’s lumbar spine was degenerative. That much is demonstrated by the CT scans of October 2019. It had been symptomatic at about that time, prompting his attendance upon Dr Bronzite. Those symptoms resolved. In the passage I have just quoted from her, this is implicit, his back was not causing him problems. This conclusion is borne out by her clinical notes. After 5 November 2019, there are three attendances in 2020. On 27 May 2020, there is a passing mention of his back but the focus was on his neck and shoulder. The reference to the back may be to that part of the back constituted by the neck. One cannot say. After hat, there are two further attendances. Neither raises the lumbar spine or lower back.
44The Ambulance Victoria entry is interesting in referring to a prolapsed disc. In my experience, the expression “prolapsed disc” is variously understood. It could refer to the extrusion of discal material through the wall of the disc. It could refer to a disc which bulges to the extent of impacting on nearby nerves. If Mr Refael used the expression “prolapsed disc”, it is difficult to know where he came by it. The report of the 29 October 2019 scans describes annular disc bulges. In her reports, Dr Bronzite does not refer to a disc prolapse. Perhaps someone used that expression in speaking with Mr Refael. There is nothing to suggest he had a prolapsed disc at some time earlier than October 2019, for instance, 30 years earlier. There is no probative value in the Ambulance Victoria note in that regard.
45The hospital’s record of exacerbation of pain is largely correct. He did experience pain in his lower back in the past. It adds nothing.
46There is no basis to reject Mr Miller’s opinions for he enjoyed a ‘fair climate’ of assumed fact.
Injury
47In her reports, Dr Bronzite does not diagnose Mr Refael’s injury. Since I cannot see any evidence she was asked to do so, that is reasonable. Indirectly, she comments on the 2019 CT scans by saying:[22]
“I would like to reiterate that I have known Yehoshua for many years, also prior to his injury. Before the injury I would see him once or twice every one to two years. He was working with pleasure and following his many hobbies such as karate, kayaking and roller blading. I saw him in 2019 with a short episode of back pain from which he fully recovered. I did not see him with back pain again until his injury following his TAC accident.”
[22] Report to the defendant dated 22 July 2023.
48From her clinical notes, Dr Bronzite recorded on 29 October 2019:[23]
“Every couple of months putting out his back with severe back pain lasting 2-3w, not radiating down legs, central pain. When it happens can’t stand up straight…”
Initially, Mr Refael seemed to deny the accuracy of this entry, saying:[24]
“No, I remember this instance. It was like I had a really full-on work which, like, stretches my back, you know, as a painter but nothing more than that.”
When asked again whether that was what he told Dr Bronzite, twice he said he could not recall before returning to the tenor of his original answer.
[23]DCB 34.
[24] T27.
49On 5 November 2019, she saw Mr Refael again. She noted:[25]
“Currently pain has just improved in lower back after 2w … Now working as painter and overworking triggers his back pain.”
After discussing the results of the CT scans, she added:[26]
“Suggest conservative management to start regular exercise for back and core, to try to work less intensively, heat packs, physio. If any acute symptoms with radiation down leg, weakness to come back.”
Mr Refael could not recall undergoing the CT scans. Nor could he recall Dr Bronzite’s recommendations about exercise, use of heat packs, seeing a physiotherapist when needed, taking it easier at work and seeing her if the pain radiates into his leg or there is weakness in the leg.
[25]DCB 34.
[26]Ibid.
50Only part of the clinical notes of Dr Bronzite’s practice was exhibited. What was exhibited lent weight to Dr Bronzite’s statement about a full recovery.
51Mr Russell Miller is an orthopaedic surgeon. He examined Mr Refael at the request of the parties on 20 May 2022. His diagnosis of the injury to the thoracolumbar spine includes musculoligamentous strain and aggravation of degenerative disease.
52In his second examination on 24 May 2023, Mr Miller was given the report of the October 2019 CT scans. When he asked Mr Refael about earlier problems with his lower back, he recorded:[27]
“… He states he could not recall any prior problems with low back pain and could not recall the circumstances that led to the imaging on 29/10/2019 detailed below.”
[27] Report dated 28 May 2023 at [3.3].
53In the same report, under the subheading “Relationship to Accident”, Mr Miller said (excluding the mention of the right hip):[28]
“The relationship between the … spinal injuries and accident is a complex and multifactorial, the relevant factors include: (i) pre-existing disease in the lumbar spine and I note there were pre-existing imaging (ii) … (iii) the described accident (10/03/2021), (iv) significant physical work over a protracted period of time and (v) subsequent development of a chronic pain syndrome. The current clinical status is regarded as being substantially accident related.”
[28] At [5.1].
54A little earlier, Mr Miller noted:[29]
“There has been an adverse mental state reaction which includes anxiety, depression and development of a chronic pain syndrome. This complicates the assessment and management of his condition and would benefit from additional assessment by a psychiatrist.”
[29] At [4.0].
55In his last report, dated 26 January 2024, Mr Miller considered the back injury had substantially stabilised. He maintained his original diagnosis. He expressed no view as to improvement or deterioration unlike the right hip.
56Robyn Horsley is an occupational physician. At the request of Mr Refael’s solicitors, she examined him on 8 May 2023.[30] Her diagnosis appears in her first report as the aggravation of the underlying pre-existing lumbar spondylosis. The development of annular fissures at L1/2 and L4/5 she ascribed to the impact of the accident. It appears her diagnosis of the lumbar condition is a mixture of a simple injury (the annular fissures) and an extended injury (aggravation of the pre-existing condition). She considered his symptoms were likely to persist because of the length of time since the accident and the continuation of the symptoms.
[30]Report dated 8 May 2023.
57Dr Anthony Menz is an orthopaedic surgeon. He examined Mr Refael at the Commission’s request on 6 June 2023.[31]
[31] Report dated 14 June 2023 and 5 February 2024 (incorrectly stated to be 2023).
58Dr Menz considered the accident caused mild soft tissue injury to the lumbar spine. This injury aggravated the pre-existing degenerative changes. Most of Mr Refael’s continuing symptoms are related to the pre-existing pathology of his back. The soft tissue injury should have resolved within three or four months (6 to 12 weeks in his supplementary report) of the accident. Dr Menz believed there was a significant functional component associated with the ongoing lumbar symptoms:[32]
“I believe there are significant inconsistences on the radiology of his lumbar spine which shows mild age-related degenerative changes only and could not explain this man’s severe complaints of pain which on some occasions he rates as 10/10.”
He considered Mr Refael had a capacity for work. The prognosis for a full recovery was good.
[32] At p 7.
59Curiously, Dr Menz did not see the report of the October 2019 CT scans. Whether the extent of the pre-existing injury would have made a difference in his assessment of longevity of the soft tissue injury and aggravation is unknown.
60Mr Refael has been interviewed by psychiatrists for the purposes of litigation. David Weissman is a consultant psychiatrist. He interviewed Mr Refael on 22 January 2024 at the request of his solicitors.[33] He diagnosed a mild post-traumatic stress and anxiety syndrome, a moderate Chronic Adjustment Disorder with depressed, anxious and frustrated mood. Finally:[34]
“Most probably some symptoms and features of a Somatic Symptom Disorder with predominant pain, persistent (DSM-5), previously known as a Chronic Pain Disorder associated with psychological factors and a general medical condition (DSM-4).”
The general medical condition is the organic injury to his spine. It appears Dr Weissman does not diagnose a somatic symptom disorder for he notes some of the symptoms and features associated with it.
[33] Report dated 22 January 2024.
[34]At page 11.
61As to the effect on his capacity for work, Dr Weissman said:[35]
“Again, on purely psychiatric grounds alone, I could not necessarily state that Mr Refael is currently totally psychiatrically incapacitated for all work (so-called suitable duties). He may possibly be partially incapacitated for work on account of his at least moderate group of accident-related psychiatric conditions and mental injuries, particularly his moderate chronic adjustment disorder and his quite marked frustration and irritability.”
[35] Report dated 22 January 2024 at [5].
62Associate Professor Sadj Damodaran is also a consultant psychiatrist. He interviewed Mr Refael on 12 January 2024 at the Commission’s request.[36] He diagnosed an adjustment disorder with depressed mood and a chronic pain disorder associated with general medical condition. In answer to questions posed by the Commission, Associate Professor Damodaran’s views are:
(a) Psychiatrically, he is not incapacitated from working as a painter or in engaging in the activities of daily living. However, his psychological state does reduce his endurance and consistency and may reduce his ability to work as a painter on a consistent basis.
(b) The incapacity for work and the limitations of his daily living activities are due to his organic injury. It is these limitations which give rise to his adjustment disorder.
[36] Report dated 25 January 2024.
63On the basis of the opinions of the psychiatrists, I would see Mr Refael’s psychological condition as having a much lesser effect on his perception of pain and the consequent effect on his capacity for work and performing his other activities.
64Returning to the original issue of the nature of his organic injury, Mr Refael’s counsel described it as a symptomatic aggravation of pre-existing largely asymptomatic changes in his spine. Mr Miller diagnosed the injury to his thoracolumbar spine more broadly to include two components. From his counsel’s statement, Mr Refael disowns a musculoligamentous and relies on the aggravation. I would accept that aspect of Mr Miller’s diagnosis. On the basis of his report, I accept the impairment is long term. It has persisted since the accident and the prognosis is for its continuation for the foreseeable future.
Consequences
Pain
65In his first affidavit, Mr Refael said he suffered “virtually constant” lower back pain, which tends to shoot down his right leg. His back pain had one of two aspects. It is either like an “electric pain” or like an “ache”. When he suffered the shooting pain in his right leg, it is the “electric pain”. When his back pain is particularly bad “my muscles tend to lock up in my lower back and around to the front”.
66When examined by Mr Miller on 25 January 2024, he complained:[37]
“…low back ache, discomfort, and pain, it radiates into the buttocks, groin, and thighs particularly on the right side with intermittent feelings of numbness and tingling. The symptoms fluctuate, there has been no pattern towards improvement.”
When Dr Menz examined him on 6 June 2023, he recorded:[38]
“On a good day, he rates his back pain as 3/10 and on a bad day as 10/10 and he said he would have two bad days a fortnight.”
In her report dated 17 February 2024, Dr Bronzite said:[39]
“Since the accident Yehoshua has had variable symptoms of lower back pain (and more recently with pain referred down his right leg) from severe and incapacitating to mild.”
On 8 May 2023, Dr Horsely said:[40]
“Mr Refael experiences chronic back pain which varies on the visual analogue scale from 2 to 3 out of 10 to 10 out of 10. Most of the time, it is 3 to 4 out of 10. He stated that when it is 10 out of 10, it can occur every ten days and can last for three or four days. It is ‘like a plug of electricity – he cannot breathe’. He finds the pain ‘unbearable’. It progressively decreases over the three to four days from 10 out of 10 back to 3 to 4 out of 10. If it is ‘really bad’, he can experience right foot discomfort down the lateral side, which lasts a short period and tends to occur when he experiences ’10 out of 10’ pain in the lumbar spine.”
[37]PCB 115.
[38]DCB 11.
[39]PCB 69.
[40]PCB 77.
67In summary, Mr Refael suffers from chronic pain. It is almost always present, whether as an ache or as a sharp pain. The latter can last for days and is “unbearable”. More recently, he suffers referred pain in his right leg, which also varies in intensity.
68At present, Mr Refael takes a variety of pain-relieving medicines including Endone. Endone is a strong pain-relieving medicine, which he takes about three times a week.
Employment
69At the time of the accident, Mr Refael was a self-employed painter. This work involved bending, twisting, crouching, kneeling, standing for more than a short time, climbing and descending ladders, walking for greater than a short time and carrying heavy buckets of paint. He believes the nature of his work is too much for his back now.
70As with businesses in this State, Mr Refael’s business was adversely affected by the restrictions caused by the pandemic. He did not work during the times of lockdown due to the virus. In 2020, he worked and his son, Yoad, assisted him. As to the extent of Yoad’s help, Mr Refael could not recall exactly, saying:[41]
“I was giving him jobs, you know, just so he can make a few bucks, but I was – I was the business, I was working. It wasn’t like an ongoing thing that he’s working with me. Sometimes he gives me a hand but I can’t recall when he gave me a hand or not.”
[41] T42-43.
71Yoad started helping Mr Refael in his painting business when he was 14. He helped about once a month. The father was critical of the son’s work: while Mr Refael was efficient, Yoad was not. Before the accident, Mr Refael painted the whole floor of a house. It took about three days and Yoad helped on the last day.
72Mr Refael has had problems with his shoulders. These problems have not prevented him working. Even now, one of his shoulders is sore. Recently, he has had a Cortisone injection into it.
73On 14 September 2021, Dr Bronzite recorded in part:[42]
“Still in pain worse at L5/S1 area and pain R hip … In, worst pain on 2ce a week … Pain on and off but always in the background … Not working because of lock down. V frustrated…”
The underlined passage implies Mr Refael would have worked as a painter except he was prevented from doing so by the lockdown. When put to him, his answer was he could not recall saying that.
[42]DCB 68.
74Mr Refael’s son, Yoad, did help in his business before the accident. His son did painting. He could not recall whether his son helped in 2020 between the periods of lockdown. Yoad himself was questioned about his involvement in the business. He was a most unsatisfactory witness. His main answer to questions was he could not recall. However, it was clear he made no attempt to think about the question before answering. Even his attempt to recall the work he did at the time of the accident reflected this attitude, saying he was potentially a kitchen hand in a restaurant. His answers were the equivalent of refusing to answer. His evidence, including most of that contained in his affidavits, is valueless.
75Mr Refael said he kept working normally after the CT scan in the latter part of 2019. The defendant submits that evidence should not be accepted. I do not accept the submission because Mr Refael said he continued working after the CT scan results were known and this is impliedly corroborated by the evidence of Dr Bronzite.
76In his teenage years in Israel, Mr Refael performed very heavy physical work. He was also a soldier, performing the duties of a commando. This involved physical work.
77After he arrived in Australia, Mr Refael worked as a salesman for a clothing company. He was successful as a salesman. He then worked as a commission agent supervising eight staff in two petrol stations. He described this as responsible work because of the large amounts of cash taken. In 1992, he was injured in a transport accident and off work for a year. He returned to the work as a commission agent until 1995 when he travelled to Israel.
78Mr Refael started rollerblade skating in Australia to restore his injured knee. Since the knee recovered, in Israel he opened the business to help others by selling rollerblade skates. It was moderately successful.
79In 1998, Mr Refael returned to Australia and became the Victorian Regional Manager for United Petroleum for its carwash section. He managed 11 sites. He ensured the sites were properly stocked. He did the bookkeeping and banked the takings.
80Mr Refael then returned to Israel and opened a convenience store. After the birth of his son, he returned to Australia and started his own business as a painter. As he is good with his hands, his business involved the work of a handyman also.
81The history of Mr Refael’s employment shows a person who obtained employment when well. This employment was continuous. At times, it was hard, physical work. It implies a person who is seriously concerned to be employed and it would take a significant impediment for him not to be working. I accept his reason for rejecting the possibility of ‘light work’:[43]
“… I have to move it, I – like now I have to get up and do things, otherwise it flares up.”
It is understandable he has not applied for any job since the accident.
[43] T65.
Domestic duties
82Mr Refael is not prevented from performing domestic household duties by the injury to his right arm, saying:[44]
“…No, I am a very stubborn guy. I can do it with my left arm as well.”
[44] T66.
83He vacuums when he is not in pain. Before the accident, he could vacuum the entire house in a single session. Now, he breaks up his vacuuming into smaller tasks. Again, before the accident, he cleaned up and washed the dishes. Now, he does less and it depends on him not being in pain. Despite his background, he does not do handyman work in or about the house. He still mows his front and back lawns. Before the accident, he mowed both lawns in the same session. Owing to the state of his back, he usually mows the lawns in separate sessions.
Walking the dog
84Mr Refael has a border collie dog, aged about six. Since the accident he has not walked the dog. Despite an entry in Dr Bronzite’s notes on 7 February 2022, and a sentence in Dr Weissman’s report of the interview on 10 May 2022, he steadfastly denied walking his dog, saying ultimately:[45]
“No, I never walk the dog. The dog is too – too excited. I can’t take him, he will pull me straightaway. I can’t take the dog.”
The matter became confused in re-examination. It may be Mr Refael told Dr Bronzite about the matters in her entry but only relating to kayaking.
[45] T63-64.
85Although this evidence concerns a consequence, it also concerns Mr Refael’s credit. Mr Refael’s reason for not walking the dog is supported by his daughter, Aiden. She speaks about the dog being “very energetic and jumpy” and she and her mother now walk the dog.[46] For the reason he gave in above passage, I accept he has not gone walking with the dog since the accident.
[46] Affidavit 8 November 2023 at [16].
Sporting activities
86Before the accident, Mr Refael trained in the Japanese martial art of Kyokushin. It is a style of karate. He started at about the age of 15. He competed until the time of his army service in Israel. He holds a black belt. He practised at least twice a week at home. Since the accident, he stopped practising except for light stretches because of the pain in his lower back and right hip. He no longer punches or kicks. Owing to his inability to practise this past time, he has been deprived of an activity which gave him pleasure and assisted in his fitness: something which he valued and, as a result, he has put on weight.
87Before the accident, Mr Refael engaged in ocean kayaking a “couple” of times a week even during winter. He started kayaking about a year before the accident. He tried ocean kayaking after the accident but stopped after about 10 minutes due to his back pain. He is upset at his inability to kayak.
88Mr Refael saw the neurosurgeon, Mr Davis, on 10 August 2021. A copy of his handwritten notes was produced. In a section which appears to deal with Mr Refael’s current situation, Mr Davis records:
“—kayaking – w’kly
~ 1 hr”
Although a cryptic entry, it could be interpreted as recording in about August 2021 Mr Refael undertook kayaking once a week for about one hour. When asked, he denied it was possible.
89Mr Refael posted images of himself on social media: on 1 August 2021 a video of 26 seconds; on 23 September 2021 a video of 29 seconds; and 5 February 2022 an image. The video on 23 September 2021 is accompanied by Mr Refael’s comment:
“What a sea! Like a pool of waves. May his name be praise for ever”.
90Under cross-examination, despite the impression conveyed by [55] of his first affidavit, he maintained he had gone kayaking only three times since the accident and agreed there is no suggestion in the videos of him being in pain. I accept his evidence of those occasions only and the circumstances in which he kayaked. Notwithstanding those episodes, kayaking, as Mr Refael knew it before the accident, is denied to him.
91Although Mr Refael did rollerblade skating, it does not figure in his sporting activities in a reasonable period before the accident. I would not consider it as a loss.
Intimate relations
92As sometimes happens in these applications where an injury interferes with a person’s sexual relations with their partner, the mention is brief and there is no or little cross-examination. This is so even in the affidavit of his wife although she is slightly more expansive.
93As one would expect, the issue is discussed in the psychiatric reports, again briefly.[47] I daresay the brevity is due to delicacy and not insignificance. I consider this consequence is significant, involving the intimate relations between married persons.
[47]Report of Dr Weissman dated 10 May 2022 at p [9]; report dated 17 May 2023 at [7]; report dated 22 January 2024 at [10]; and the report of Dr Damodaran dated 24 January 2024 at [9].
Loss of motion
94Each of Dr Horsley, Dr Menz and Mr Miller measured Mr Refael’s loss of motion in his thoracolumbar or lumbosacral spine. On 8 May 2023, Dr Horsley found flexion at 70 degrees, extension less than 20, lateral flexion and rotation less than half the normal range. On 6 June 2023, Dr Menz found with the lumbosacral spine, flexion at 60 degrees, extension zero lateral flexion to the right and left 20 and rotation to the right and left at 60. Straight leg raising for both legs was 20. On 26 January 2024, Mr Miller found with the thoracolumbar spine, flexion at 40 degrees, extension 10, lateral flexion at left 30, lateral flexion at right 25, rotation at left 30 and rotation at right 25.
95These results are reasonably consistent and show a significant loss of motion for the relevant area of the spine. The loss of motion translates into the widespread restrictions identified by the occupational physician, Dr Horsley: avoiding repetitive over-reaching; avoiding repetitive pushing and pulling; avoiding truncal rotation; avoiding static postures involving the lumbar spine, particularly forward flexion; avoiding lifting items greater than eight to 10 kilograms except on an occasional basis; avoiding lifting items up to five to eight kilograms on a repetitive basis; avoiding repetitive bending; avoiding repetitive lifting; and using a good manual lifting technique even when lifting light items.
96The loss of motion and the limitations described by Dr Horsely in particular, spelt the end of Mr Refael’s ability to work as a painter. This is an occupation he has engaged in for many years. Its loss is a very considerable consequence for Mr Refael. However, he does retain some capacity for work. His history of previous occupations points the way to the possibility of non-physical and sedentary work. He has been a versatile worker, both for himself and others.
97I have referred to Dr Horsley’s opinion rather than Mr Miller, Dr Bronzite and Dr Tuminello because she is an occupational physician with particular expertise in determining the functional limitations of injured persons.
Petkovski’s case
98Having established the injury was caused by the accident, I must assess the extent of the impairment of the body function before and after the relevant injury, and the additional impairment must involve serious long-term impairment of a body function.
99The evidence of Mr Refael’s wife and daughter portray him as an active person until the occurrence of the accident. The circumstance giving rise to the 2019 CT scans is treated by Dr Bronzite as an event without continuing disabling consequences. Her recommended treatment was essentially care at work and exercise.
100Before the accident, the consequences to Mr Refael of the impairment of his lumbar spine were relatively minor. Occasionally, it causes him pain and prevented him from working. These effects disappeared within a short time. Compared with the consequences of the impairment to his lumbar spine after the accident, the pre-accident consequences were relatively minor.
Range
101In my experience of serious injury applications, it is a sign of a properly working system that the cases which come up for adjudication are those about which much can be said on both sides. Plainly, those cases which clearly satisfy the test in Humphries v Poljak and those which do not never reach the court. This case is placed at the threshold of the “very considerable” test. It is important to remind oneself of the range of injuries which can be suffered in a transport accident.
Conclusion
102With that in mind, I consider Mr Refael has suffered a “serious injury” in that he answers positively the question posed in Humphries’ case: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as “very considerable” and certainly more than “significant” or “marked”. The impairment or loss of a body function is long-term.
103I will grant him leave and hear the parties on the form of my orders and the question of costs.
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