Riddell v Transport Accident Commission
[2022] VCC 563
•5 May 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-05759
| DAVID RONALD RIDDELL | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CLARK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 March 2022 | |
DATE OF JUDGMENT: | 5 May 2022 | |
CASE MAY BE CITED AS: | Riddell v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 563 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – pain and suffering – spinal impairment – causation – range – credit
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Richards & Anor v Wylie [2000] 1 VR 79; Humphries and Anor v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143; Dordev v Cowan & Ors [2006] VSCA 254; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Johns v Oaktech Pty Ltd [2020] VSCA 10; Archer v Garcia [2022] VSC 57
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C J Blanden QC with Mr O T Lesage | Henry Carus & Associates |
| For the Defendant | Mr W R Middleton QC with Ms E Golshtein | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1The plaintiff in this proceeding, David Riddell, is now sixty-three years of age. On 12 May 2016, he was riding a motorbike north on Waterdale Road in West Heidelberg when another vehicle travelling in a southerly direction executed a right-hand turn across his path. As a result of the collision, the plaintiff was thrown from his motorbike and landed heavily on his back on the roadway (“the accident”).
2There is no argument that the accident occurred, nor is there argument that the plaintiff suffered injury in the accident.
3The plaintiff claims as a consequence to have suffered a “serious injury”, namely a serious long-term impairment or loss of body function by way of injury to the spine pursuant to s93(17)(a) of the Transport Accident Act 1986 (“the Act”).
4At the commencement of the proceedings, Mr Blanden QC, on behalf of the plaintiff, advised that:
(a) the matter was proceeding as a s93(17)(a) application only. The ss(c) application was not being pursued;
(b) the psychiatric consequences suffered by the plaintiff would be relevant only to the extent set out in Richards & Anor v Wylie;[1]
(c) the matter was essentially “a range case”.
[1][2000] 1 VR 79
5At the commencement of the proceeding, Mr Middleton QC, on behalf of the defendant, identified the following issues as relevant in this application:
(a) That issues of credit “loom very large”;
(b) Causation – what has caused the consequences complained of by the plaintiff;
(c) That the plaintiff has suffered no pecuniary disadvantage; and
(d) That the plaintiff does not satisfy the statutory level for pain and suffering damages as a result of physical injury to his spine (a range case).
The evidence
6The plaintiff relied on three affidavits, sworn by him on 30 June 2019, 2 June 2020 and 20 January 2022, and gave viva voce evidence. He was cross-examined. He also relied on affidavits of his wife, Roslyn Riddell, sworn 28 May 2020 and 17 January 2022; his daughter, Aleece Booker, sworn 28 May 2020, and two affidavits from his friend, Luke Gandolfo, sworn 22 July 2020 and 19 January 2022. In addition, both parties relied on medical reports and other material (including video surveillance) which was tendered in evidence. I have read and viewed all the tendered material.
The statutory scheme and legal principles
7The application is brought under the definition of “serious injury” contained in s93(17)(a) of the Act which requires the plaintiff to prove that he has suffered a serious long-term impairment or loss of body function.
8The question of whether an injury is “serious” for the purposes of s93(17) is to be answered according to the narrative test laid down by the Full Court in the Supreme Court of Victoria in Humphries and Anor v Poljak:[2]
“… 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 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’?”[3]
[2][1992] 2 VR 129 (“Poljak”)
[3]Poljak (ibid) at [140] per Crockett and Southwell JJ
(Emphasis added.)
9Crockett and Southwell JJ identified in Poljak, many disturbances are considerable, in the sense that they are “important or substantial” without being “very considerable”.
10The weight to be attached to the plaintiff’s account of his or her pain and suffering will be affected by an assessment of the plaintiff’s credibility.[4] A plaintiff’s credibility is relevant also to the reliability of the medical evidence. The opinions of doctors depend on the credibility and reliability of the history given to them by a plaintiff.[5] Medical opinions by experts may be of reduced weight if the plaintiff is shown to be an inaccurate historian.
[4]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 (“Haden”) at 5, paragraph [12], citing Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (“Dwyer”) at paragraph [8]; Sejranovic v Berkeley Challenge Pty Ltd (2009) VSCA 108 at paragraph [171]; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143 at paragraphs [142]-145]
[5]Dordev v Cowan & Ors [2006] VSCA 254 at paragraph [14] per Chernov JA (Maxwell P and Neave JA agreeing)
11In undertaking the required assessment, regard must be had to what is retained by the plaintiff as well as what is lost.[6] Where a plaintiff can continue to work or return to work, it will ordinarily be difficult to conclude that the pain and suffering consequences are “at least very considerable”.[7] However, a stoical plaintiff who puts up with pain and suffering should not be treated less favourably than another person who, being of less strength of character, simply resigns him or herself to his or her injury.[8]
[6]Dwyer (supra) at paragraph [27], Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181(“Stijepic”) at paragraph [44]
[7]Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 at paragraph [24]; Stijepic (ibid) at paragraph [47]; Haden (supra) at paragraph [15]
[8]Dwyer (supra)
Credit – preliminary observations
12As in a great number of cases of this kind, the credit of the plaintiff is critically important.[9] Indeed, Mr Middleton QC opened that issues of credit “loomed very large”. Having heard and considered all of the evidence in this case, I agree.
[9]See for example Johns v Oaktech Pty Ltd [2020] VSCA 10 at paragraphs [76] and [77]
13In this matter, in order for the plaintiff to succeed, I need to be persuaded that the plaintiff’s evidence about causation and the extent of his injury is credible and reliable. These findings will also impact upon my assessment of the medical opinions and on the lay witness affidavit evidence.
14In order to assess the matters touching upon the plaintiff’s credit, it is necessary to undertake a review of the evidence.
Overview of the evidence
The Plaintiff’s work at the time of the accident
15At the time of the accident, the plaintiff was aged fifty-seven years. The plaintiff was working:
(a) at Eastern Victorian General Practice Training (“EVGPT”);
(b) as a gym instructor.
Previous back problems
16The plaintiff, in his affidavits sworn 30 June 2019 and 2 June 2020, deposed that prior to the date of the accident, he was of good health and did not have any debilitating injuries or illnesses that he was aware of.[10]
[10]Plaintiff’s Court Book (“PCB”) 8 and 14
17The medical records of the Mediq Wallan Medical Clinic (“the Wallan Clinic”) were tendered by the defendant. The plaintiff has been a long time patient at this clinic. These clinical records form part of defendant Exhibit “D”. The first consultation referred to in those records is 15 June 2005. On that date, the plaintiff is recorded as consulting Dr Selim Ali Shubbar. While over the years the plaintiff intermittently consulted alternate doctors at this clinic, Dr Shubbar has been the plaintiff’s regular general practitioner.
18There are entries relating to the plaintiff’s health prior to the accident which are relevant. In particular, there are records of injury to the plaintiff’s spine predating the accident:
(a) 9 November 2007 – the plaintiff consulted Dr Sam Hermiz, general practitioner. Dr Hermiz records, inter alia:
“History:
suffers from chronic back pain.
seeing physio on a regular basis.
plays golf, wants a letter to allow him to use a car.”
The reason for contact was recorded:
“Chronic back pain.”
(b) 29 March 2008 – the plaintiff consulted Dr Shubbar. On this day, Dr Shubbar notes, inter alia:
“[C]hronic on and off low back pain, with no radiation or numbness or weakness, wishes to have a rept for brufen which he use it PIN.”
(sic)
A prescription for Brufen (an anti-inflammatory) was provided.
(c) 30 June 2008 – the plaintiff consulted Dr Shubbar. Dr Shubbar records, inter alia:
“L[eft] hip pain, low back pain radiating down to his L[eft] thigh, numbness, difficult to cross his L[eft] leg over his R[ight] leg, no trauma or falls.”
The plaintiff was referred for x‑rays of his lumbosacral spine.
(d) 21 July 2008 – the plaintiff consulted Dr Shubbar. The plaintiff is advised of results from the 1 July 2008 x‑rays. The x‑rays were reported, inter alia:
“There is a shallow scoliosis convex to the right. Body heights are maintained.
L3/4 disc space is mildly narrowed associated with anterior osteophytic lipping.
… .”[11]
[11] Defendant’s Court Book (“DCB”) 50
The plaintiff was referred for physiotherapy.
(e) 6 August 2013 – the plaintiff consulted Dr Shubbar. Dr Shubbar records:
“[H]irt (sic) his back by lifting a heavy tire (sic) on [S]unday, he has low back pain, no radiation, no weakness or numbness in the leg.”
On that day, the plaintiff was prescribed Panadeine Forte, and it was recorded:
“[C]ontinue with physiotherapy.”
19The plaintiff had suffered, prior to the accident, injury to his back for which he had sought medical treatment, been prescribed medication, undergone radiological investigation and received physiotherapy treatment. The plaintiff failed to disclose these matters in his affidavits. Further, the plaintiff failed to disclose his previous back injury to all of the medico-legal assessors except for Associate Professor John Laidlaw, neurosurgeon. The histories record, for example:
(a) Associate Professor Bruce Love, orthopaedic surgeon:[12]
[12]PCB 85
“He did say that he had a nervous breakdown shortly after the motor vehicle accident and has had help from a psychological point of view.
There is no other relevant history.”
(b) Mr Thomas Kossmann, orthopaedic surgeon:[13]
[13]PCB 90
“PAST HISTORY
Mr Riddell told me that he was fit and well and had no previous injury or illnesses.”
(c) Dr David Middleton, occupational health and rehabilitation consultant:[14]
“Mr Riddell stated that prior to the motorbike accident on the 20th of May 2016, he was extremely fit and well and had no history of any significant injury or illness up to that date.”
(d) Dr Anthony Menz, orthopaedic surgeon:[15]
“He stated that prior to the accident he had never had any back, right knee or left hip problems before.”
[14]PCB 115
[15]DCB 6
20These histories can be contrasted to what the plaintiff told Associate Professor Laidlaw on 12 January 2022:[16]
“David said to me that he has had back pain on and off since middle age … .”
[16]DCB 106
21What the plaintiff told Associate Professor Laidlaw can be contrasted to the plaintiff’s evidence under cross-examination when questioned about past back problems:[17]
Q:“In terms of prior injuries, do you say that you did have a back problem in the past, or not?---
A:As far as I was aware, um, I didn’t really have – Well, what-what I would consider to be a back problem, no.”
[17]Transcript (“T”) 16, Line/s (“L”) 17-22
22When questioned further whether he had had any issues with his back at any period of time, the plaintiff answered:
“Uh, occasionally, I may have had a sore back, and I went and seen the doctor about it. But apart from that, no, not really. No.”
23When questioned about the 1 July 2008 x‑ray, the plaintiff attributed the need for that x‑ray to hip problems and did not concede suffering back pain at the time of that referral.[18]
[18]T20, L30 – T21, L2
24I find the plaintiff’s evidence in respect to his previous back injuries and treatment unreliable.
Weight
25The plaintiff, in his affidavits sworn 30 June 2019 and 2 June 2020, deposed that at the time of the accident he weighed approximately 85 kilograms. The plaintiff, in his affidavit sworn 20 January 2022, annexed a photograph (“the photograph”)[19] which he said represented his pre-accident level of fitness and weight. The photograph showed him in a white T-shirt looking very fit.
[19]PCB 152
26But in his oral evidence, the plaintiff conceded the photograph had in fact been taken when he was in his “early fifties”, somewhere around 2010-2012 or thereabouts;[20] that is, many years prior to the accident. Indeed, under cross-examination, the plaintiff was taken to a different photograph[21] taken in or about April 2016. In this photograph taken a very short time before the accident, his appearance was significantly different. The plaintiff conceded that shortly before the accident he probably weighed about 98-99 kilograms.[22]
[20]T54, L20
[21]DCB 58
[22]T49, L3
27The plaintiff’s use of the photograph was misleading. The plaintiff’s sworn evidence in his affidavits in respect to his weight at the time of the accident was untrue. He exaggerated his level of fitness at the time of the accident which impacts his credit.
The accident
28I accept that the plaintiff was exposed to significant trauma in the accident. This was the type of incident that may lead to very serious consequences. Indeed, the plaintiff was admitted to the Austin Hospital. Initially at the Austin Hospital the plaintiff was diagnosed as suffering an L3 fracture (see the Austin Hospital Discharge Summary).[23] The plaintiff was discharged from the Austin Hospital to the care of his general practitioner. The plaintiff consulted Dr Shubbar.
[23]PCB 66
29Referring to the Wallan Clinic records post the accident:
(a) On 22 May 2016 – the plaintiff consulted Dr Shubbar. The accident was noted. Dr Shubbar recorded, inter alia, that the plaintiff had fractured his L3 spine and was suffering on-and-off pins and needles on the lateral side of his left thigh. It is recorded under “Plan” that the plaintiff was to be referred for an MRI scan of his lumbar spine and “physiotherapy from next week”.
(b) On 29 May 2016 – the plaintiff consulted Dr Shubbar. Dr Shubbar recorded:
“[L]ess bruises, less low back, much less numbness and weakness and it[’]s come when stands for 10 minutes or more, his back is mainly stiff with minimum pain.”
(c) On 23 June 2016 – the plaintiff consulted Dr Shubbar. Dr Shubbar confirmed that the recent CT scan revealed a transverse process fracture at L3 and L4. The CT scan taken on 21 June 2016 reported:
“CT LUMBAR SPINE
Clinical Notes :
Fracture L3 left transverse process.
Report:
Scanning has been performed from T12/L1 to L4/5.
Vertebral body alignment normal. Vertebral body height preserved. Intervertebral disc spaces appear normal.
T12/L1: Normal.
L1/2: Normal.
L2/3: There is a tiny 1mm fracture of the tip of the left transverse process of L2. No disc herniation. Central canal lateral recesses and neural foramina adequate.
L4/5: There is a fracture of the left transverse process with 5mm of displacement present. A small amount of bridging new bone formation is present. No evidence of solid union. There is a mild generalised disc bulge. Central canal and lateral recesses are adequate. Neural foramina reduced but adequate.
L4/5: There is a fracture of the left transverse process of L4. There is about 3mm of widening of the fracture line. There is some bridging new bone formation present.
There is a minor generalised disc bulge. The central canal and lateral recesses are adequate. There is mild left foraminal stenosis.
Conclusion:
Fractures of the left transverse processes of L3 and L4 which show some displacement. A tiny fracture of the tip of the left transverse process of L2.
Mild left foraminal stenosis at L4/5.”[24]
[24] PCB 57
(Emphasis added.)
It is important to note that no disc herniation was noted at L2-3.
(d) On 20 July 2016 – the plaintiff consulted Dr Shubbar. Dr Shubbar recorded, inter alia:
“[H]e is coping with the return to work hours, has no pain during the day, only has occasional L[eft] leg tingling last[s] for [a] few minutes when stands, tingling stops as soon as he sits down.
[H]e wants to make his working days 4 days in one go.”
(e) On 10 August 2016, the plaintiff consulted Dr Shubbar. Dr Shubbar recorded, inter alia:
“[H]e feels OK with no symptoms, he wants clearance to pre injury duties and hours, …
Examination:
No tenderness on the back.
[G]ood ROM of the back and knees.
[S]quat freely.”
(Emphasis added.)
30Thus, by 10 August 2016, the plaintiff had sought a clearance to return to pre-injury duties and hours and was advising his general practitioner that “he feels OK with no symptoms”. (Emphasis added.)
31The plaintiff had in fact returned to playing 18-hole competitive golf by the time of the 10 August 2016 consultation with Dr Shubbar.
32Referring now to the excerpts from the Golf Australia subpoenaed records included in defendant Exhibit “D”, it is noted:
(a) that the plaintiff first returned to 18-hole competitive golf after the accident on 16 July 2016. On that day, he recorded a Stableford score of “20”;
(b) the next card was lodged with Golf Australia on 23 July 2016;
(c) there are nineteen further cards lodged with Golf Australia between August 2016 and the end of 2016;
(d) the plaintiff played golf at least twenty-one times between 16 July 2016 and the end of 2016.
Is the work clearance and return to golf by August 2016 consistent with multilevel transverse fractures?
33Associate Professor Laidlaw, in his report dated 22 January 2022, provided a detailed analysis of the aetiology of transverse process fractures. Associate Professor Laidlaw noted that such fractures occurring in the absence of other significant injuries typically have no association with neurological deficit or spinal structure instability. Associate Professor Laidlaw, referring to the literature, noted that such fractures are reported to settle between a few weeks and up to three months.
34Associate Professor Laidlaw noted that the plaintiff’s lumbar transverse process fractures had healed with restoration of their normal bony anatomy.[25] (Emphasis added.)
[25]DCB 147
35I note:
(a) The observations made by Associate Professor Laidlaw in respect to transverse fractures;
(b) The plaintiff’s advice to Dr Shubbar on 10 August 2016 that “he feels OK with no symptoms”;
(c) The plaintiff’s return to 18-hole competitive golf by 16 July 2016;
(d) The plaintiff’s clearance for work on 10 August 2016.
36This is all consistent with the transverse fractures healing and the plaintiff making a good recovery from the acute injuries sustained in the accident.
The Plaintiff’s progress between August 2016 and September 2020
Golf
37As mentioned, the plaintiff had returned to competitive golf in July 2016. Between the plaintiff’s resumption of competitive 18-hole golf on 16 July 2016 and 8 March 2020, the plaintiff lodged 188 cards with Golf Australia.[26] The plaintiff’s handicap at the time of the accident was 14.8. While the plaintiff’s handicap initially increased post the accident (it got out to 19.1 in late 2016/early 2017), by 18 February 2017, it was back to 14.0. By February 2019, it was down to 10.5. The plaintiff was playing a lot of golf.
[26]DCB 280-292
Ongoing medical treatment
38It is evident from the Wallan Clinic records that the plaintiff had, after his return to work, suffered problems with cognitive impairment (particularly memory/ concentration) and psychological distress. The plaintiff was referred to Dr Caroline Fisher, neuropsychologist, for neuropsychological assessment. The plaintiff was referred Dr Irina Kolesnikova, psychiatrist, for psychiatric assessment and treatment. The plaintiff had commenced seeing Dr Kolesnikova by, at the latest, 9 September 2016.
39Returning to the specific plaintiff consultations at the Wallan Clinic post-August 2016:
(a) On 6 February 2017 – the plaintiff consulted Dr Shubbar. On this occasion, Dr Shubbar recorded in the clinical records, inter alia:
“[H]e saw his psychiatrist. [S]he suggested gradual return back to work. [H]is memory improved, he thinks he is able to [get] back to his normal duties.”
(b) On 7 March 2017 – the plaintiff consulted Dr Shubbar. It is recorded, inter alia:
“… feels that he [is] confident with him self and feels he is able to work.”
(c) On 5 April 2017 - the plaintiff consulted Dr Shubbar. On this occasion, Dr Shubbar records, inter alia:
“TAC wishes to have a medical certificate, has no job yet, employment service in contact with him, concentration is average now, planning to apply for police force, involved with link in searching for jobs, meets old friend.”
In particular, is the notation that the plaintiff was –
“ … planning to apply for police force.”
(Emphasis added.)
(d) On 30 May 2017 – the plaintiff consulted Dr Shubbar. On this occasion, Dr Shubbar recorded, inter alia:
“[A]sked to have clearance certificate, he thinks he can do preinjury duties …”
(Emphasis added.)
40No medical reports were adduced in evidence from Dr Kolesnikova or Dr Fisher. However, Dr Middleton, who examined the plaintiff on behalf of his solicitors, had the benefit of medical reports from Dr Kolesnikova of 9 September 2016, 18 November 2016, 19 January 2017 and 22 September 2018.
41Referring to Dr Middleton’s summaries of Dr Kolesnikova’s reports, there are references by Dr Kolesnikova to the plaintiff’s self-reported level of physical function. Of particular note are:
(a) Dr Middleton’s reference to Dr Kolesnikova’s notation in her 19 January 2017 report that the plaintiff has –
“… resumed physical activities and regular exercises at the gym and the golf club.”[27]
(b) Dr Middleton’s reference that Dr Kolesnikova had reported that –
“Mr Riddell’s major depressive disorder and post-traumatic stress disorder have now been cleared and that he was able to return to usual day-to-day life activities, including gym, home maintenance, golf club, friends and family.”[28]
[27]PCB 127
[28]PCB 127
42The reports of Dr Kolesnikova were not adduced in evidence by the plaintiff.
43As noted by her Honour Justice Incerti in Archer v Garcia:[29]
“The unexplained failure of a party to call a witness may, in appropriate circumstances, allow the trier of fact to infer that his or her evidence would not have assisted that party’s case: Jones v Dunkel (1959) 101 CLR 298 … The failure may also allow a trier of fact to draw an adverse inference with greater confidence. … .”
[29][2022] VSC 57 at paragraph [74]
44I draw the inference that Dr Kolesnikova’s evidence would not have assisted the plaintiff. In the circumstances, the failure also allows me to draw inferences adverse to the plaintiff with greater confidence.
45Going back to the Wallan Clinical records. Between 30 May 2017 and 5 May 2020 (nearly three years), the only reference to back-related issues is 17 June 2018. On that day, the plaintiff consulted Dr Shubbar. The clinical notes record, inter alia:
“[O]n and off hot sensation on the lateral side L[eft] leg for the last 3 weeks, his back pain is worse for the last 2/12, driving trucks and delivers stuff in the last 4 weeks, no weakness, no trauma or falls … .”[30]
[30]DCB 42
46The plaintiff was seemingly referred to Professor Brian Chambers, neurologist, at this time.[31] No report was adduced in evidence from Professor Chambers.
[31]DCB 108
47There are no further references in the Wallan Clinic materials to back-related issues leading up to the consultation on 5 May 2020.
48On 5 May 2020, the plaintiff consulted Dr Shubbar. On this occasion, Dr Shubbar recorded, inter alia:
“[S]till working as truck driver, he is managing driving and has no problem. … .”[32]
(Emphasis added.)
[32] DCB 200
49Thus, the plaintiff’s treating doctor records, as at 5 May 2020, that:
(a) the plaintiff is working as a truck driver;
(b) the plaintiff has “no problem”.
50At the time of this consultation, the plaintiff was prescribed Valdoxan.
Work
51The plaintiff, in the period August 2016 to September 2020, worked:
(a) with his pre-accident employer, EVGPT;
(b) as a salesman for approximately eighteen months;
(c) from May 2018 as a truck driver with his current employer.
52It was the plaintiff’s evidence under cross-examination that:
(a) he was retrenched from EVGPT;
(b) he worked as a salesman for eighteen months but due to a disagreement with the owners of the business, it was decided the best way to resolve matters was to “part ways”.[33]
[33] T17, L18
53The plaintiff then obtained work as a truck driver with his current employer, working up to 60 hours per week.[34]
[34]T25, L14-18
54The plaintiff, in the period between August 2016 and September 2020, was able to obtain and undertake full-time employment. Indeed, the plaintiff conceded that since the time of the accident his income position had improved.[35]
[35]T33, L25
Holidays
55The plaintiff was cross-examined in respect to the holidays which he and his wife had taken subsequent to the accident. In particular, between August 2016 and September 2020, the plaintiff had gone on two overseas trips:
(a) In November 2017, the plaintiff went on a 20-day cruise. The plaintiff conceded, that whilst on this trip, he had participated in “simulated sky diving”;[36] that is, he had gone into a large tube cannister and air blew up from underneath, which lifted him off the ground.
(b) In April 2019, the plaintiff went on a cruise to Hawaii, New Zealand and Tahiti. The plaintiff conceded that in the course of this trip, he had ridden a jet ski. It was the plaintiff’s evidence:
“At the time when I was using the jet ski, I didn’t have a problem with my back. It wasn’t causing me any discomfort … .”[37]
(Emphasis added.)
[36]T49-50
[37]T52, L16-18
(c) In the course of the April 2019 cruise, the plaintiff agreed that he had participated in the activity of “swimming with the sharks”.
56In respect to his participation and enjoyment of activities while on holidays, it was the plaintiff’s evidence:[38]
Q:“And it’s clear enough that your back has not precluded you from holidaying and enjoying the activities that you wished to do on holiday. Do you agree with that?---
A:I go on holidays and try to do different things.
Q:Yes, well answer my question if you would please?---
A:Yes, correct.”
[38]T52, L22-27
The video
57It should be noted that the video surveillance, being defendant Exhibit “A”, was obtained two to three months prior to the plaintiff’s 5 May 2020 consultation with Dr Shubbar.
58I have viewed the February 2020 video. The video shows the plaintiff playing golf. In particular, the video shows the plaintiff swinging a golf club on numerous occasions. I appreciate that the video is no more than a snapshot of the plaintiff’s activities at a point in time. I also acknowledge that within the medical reports there are contrary views in respect to the interpretation of the video. For example Dr Middleton asserts that the video does show restriction in the plaintiff’s golf swing. This can be contrasted to Dr Menz, who asserts that there is no restriction, and indeed, opined:
“I observed him on multiple occasions hitting a golf ball and I do not believe anyone can have an easy and complete swing that Mr Riddell if they had any residual back problems or back pain.”[39]
(sic)
[39]DCB 13
59On my observations, the video depicts the plaintiff swinging the golf club freely and without apparent restriction.
60The video was shown to the plaintiff in the course of the hearing. When cross-examined in respect to the video, it was the plaintiff’s evidence:
Q:“…. There was nothing in your swing to suggest that there was any restriction in your ability to swing the club. Do you agree with that?---
A:By watching the video, yes.”[40]
[40]T43
Conclusions in respect to the Plaintiff’s pre-September 2020 function
61Based on my analysis of the evidence prior to September 2020, I find:
(a) The plaintiff had obtained a clearance to return to pre-injury work by August 2016;
(b) The plaintiff had returned to competitive 18-hole golf by July 2016 and from that time on was lodging cards with Golf Australia on a very regular basis. The plaintiff’s handicap came in to 10.1. The plaintiff was playing a lot of golf;
(c) The plaintiff consulted Dr Kolesnikova, psychiatrist, in 2016 and 2017. Dr Kolesnikova recorded that the plaintiff had been able to return to usual day-to-day life activities, including gym, home maintenance, golf club, and activities with friends and family;
(d) That the work issues in late 2016/2017 related either significantly or totally to cognitive and/or psychiatric issues which the plaintiff was having;
(e) That the plaintiff’s change of employment was not related to his alleged spinal injuries;
(f) The plaintiff, from May 2018, was undertaking truck driving work and working up to 60 hours per week;
(g) The plaintiff sought medical treatment for his lower back on 17 June 2018. At that time, Dr Shubbar recorded the plaintiff’s back pain was attributed to truck driving and undertaking deliveries;
(h) A referral was made to Professor Chambers in or about June 2018. No evidence was adduced from Professor Chambers;
(i) That between 2017 and 2019, the plaintiff enjoyed a number of overseas holidays participating in a range of activities;
(j) The video taken February 2020 depicted the plaintiff swinging a golf club in a free and unrestricted manner;
(k) As at 5 February 2020 when the plaintiff consulted Dr Shubbar, he advised Dr Shubbar that he was working and “has no problem”.
62The findings made in the preceding paragraph can be contrasted to the plaintiff’s affidavits which paint a picture of chronic pain on a daily basis. The plaintiff deposed of suffering pain at levels between 4/10 and 7/10. The plaintiff deposed of significant restriction and loss of enjoyment of life. The plaintiff identified a range of activities and, in particular, his participation in golf.
63I do not accept the levels of pain and impairment which the plaintiff deposed to in his affidavits as representing the true state of affairs.
15 September 2020 incident and subsequent medical assessment/treatment
64On 16 September 2020, the plaintiff consulted Dr Shubbar. Dr Shubbar obtained a history:
“Low back pain since yesterday after lifting 9 months grand child, constant 8/10, worse with movement, no Hx of fall or trauma, no radiation, no weakness or numbness, no bowel or urinary accident, no fever or sweating. [P]ast medical history of low back pain 2016 when had m[otor]bike accident.”[41]
[41]DCB 208
65At this consultation, the plaintiff was prescribed Panadeine Forte, and it is recorded “physiotherapy”.
66In cross-examination, the plaintiff conceded that he recalled the incident lifting his grandchild.[42]
[42]T23, L27-28
67On 4 October 2020, the plaintiff consulted Dr Shubbar again. The clinical records note, inter alia:
“[S]till has low back pain, sharp, been to osteopath.
[N]o radiation, no weakness or numbness.
…
[R]estricted forward movement to 40 degree[s]
painful L side to side … .”
68At the time of this consultation, a CT scan was requested for suspected lumbar disc protrusion.[43]
[43]T23, L27-28
69On 9 October 2020, the plaintiff underwent MRI scanning. The MRI scan was reported by Dr Piyusch Siwach, radiologist:
“Conclusion:
· Mild to moderate primary lumbar spinal canal stenosis.
· Moderate lumbar spondylosis.
· Mild to moderate multilevel facet joint degeneration.
· Diffuse disc bulge with left paracentral disc extrusion and inferior migration of herniated nucleus pulposus at L2/3 with likely compression of the L3 nerve root.
· Diffuse disc bulge with right foraminal/extraforaminal disc protrusion at L4/5 where mild impingement of the exiting right L4 nerve root is possible. Minor impingement of the traversing L5 nerve roots is also possible at this level.
· No significant neural impingement in the rest of the lumbar spine although focal disc herniation seen in right paracentral region at L3/4 and left paracentral region at L1/2.”[44]
[44]DCB 169
70On 19 October 2020, the plaintiff consulted Mr Yagnesh Vellore, neurosurgeon. Mr Vellore, in his report of 28 October 2021, noted a history of the plaintiff’s back injury being sustained in the accident and recorded:
“He had developed severe low back pain ever since then He also developed left-sided leg pain in the L2 and L3 distributions. … .”[45]
(Emphasis added.)
[45]PCB 73
71Mr Vellore went on to note that the plaintiff:
“… had managed to somehow continue working despite the severe amount of pain that he was in. … .”[46]
[46]PCB 73
72Neither the two reports of Mr Vellore to the plaintiff’s solicitors dated 4 April 2021 and 28 October 2021 or the report to the Transport Accident Commission (“TAC”) dated 18 December 2020 make reference to the incident involving the plaintiff lifting his grandchild on 15 September 2020; however, Mr Vellore noted (in the absence of this history) that:
“Obviously, in October of 2020, these symptoms exacerbated significantly and the MRI demonstrated the L2-L3 disc prolapse which has warranted the need for surgery. … .”[47]
(Emphasis added.)
[47]PCB 76
73Mr Vellore’s opinion, which is very supportive of the plaintiff, is predicated on a history obtained from the plaintiff, inter alia:
(a) of being only able to “transiently” play golf prior to October 2020;
(b) of having suffered “severe” low back pain ever since the accident;
(c) of having worked since the time of the accident whilst suffering a “severe” amount of pain.
74Mr Vellore’s opinion:
(i) is based on a history which I find to be incorrect;
(ii) notes, in October 2020, that symptoms were “exacerbated significantly” but makes no attribution to the precipitating incident where the plaintiff lifted his grandchild. This is an important omission.
75It is an appropriate time to review the plaintiff’s affidavit sworn 20 January 2022 (noting that the plaintiff’s earlier two affidavits predate the grandchild incident). Importantly, there is no reference in this affidavit to the grandchild incident. Indeed, in respect to the disc prolapse at L2-3 for which Mr Vellore sought approval for surgery from the TAC, the plaintiff deposed:
“6.In or around June 2018 I started to experience was (sic) having increased back pain and pain that radiated down my left leg. I was referred to a neurosurgeon by my GP who advised me I had a protruding disc and required surgery. Funding for this was sought from the defendant but this was denied.
7.After the TAC refused to fund surgery and some delay, I decided to seek a second opinion. I saw Dr Myron Rogers, a neurosurgeon who advised me to have another MRI. On receipt of the MRI in around August 2021 I was advised that the bulging disc had reabsorbed, and surgery was no longer required.”[48]
[48]PCB 22
76What the plaintiff has deposed to is not accurate. In June 2018, as noted in paragraph 45 of this judgment, the plaintiff attended Dr Shubbar, providing a history of work-related increased back pain. It is noted in the report from Associate Professor Laidlaw that at this time, the plaintiff was referred to Professor Chambers.[49] There were no further consultations in the Wallan Clinic records in respect to the plaintiff’s back until after the grandchild incident on 15 September 2020. It was not until the MRI scan of 9 October 2020 that the “protruding disc” was diagnosed.
[49]DCB 108
77I find that paragraph 6 of the plaintiff’s affidavit sworn 20 June 2022 and the history upon which Mr Vellore relies upon, to be:
(a) deficient, in that there is no reference to the grandchild incident;
(b) factually wrong;
(c) misleading.
78These matters go significantly to the plaintiff’s credit and the assistance which Mr Vellore’s reports are to the Court.
79As deposed by the plaintiff, he attended Mr Myron Rogers, neurosurgeon, for a second opinion on 26 August 2021. At that time, Mr Rogers referred the plaintiff for further MRI scanning of his lumbar spine.
80An MRI scan was undertaken on 26 August 2021. This was reported on by Dr Ivor Bernan, radiologist. Dr Bernan concluded:
“Conclusion:
Resolution of the previously demonstrated disc extrusion/sequestration at L2/3 level. Mild degenerative change at the other disc levels. No neural compromise demonstrated.”[50]
[50] DCB 254
81In his report of 12 October 2021, Mr Rogers noted that the update MRI scan performed on 26 August 2021 revealed that the disc prolapse previously seen on the MRI scan of 9 October 2020 had resolved. Mr Rogers noted in his report “The symptoms he described in October 2020 have persisted”. (Emphasis added.) Mr Rogers did not recommend surgical intervention and suggested that the plaintiff could be referred to Dr Terence Lim, consultant in rehabilitation and pain medicine. It should be noted that there is no reference in Mr Rogers’ report/history to the grandchild incident.
82In respect to the L2-3 disc prolapse, Mr Rogers, in his report of 12 October 2021,[51] expressed the opinion that –
“… The lumbar disc prolapse that occurred in October 2020 has no relationship to the transport accident.”[52]
[51]DCB 251
[52]DCB 252
83The plaintiff did not proceed to surgery. The plaintiff did not proceed to undergo rehabilitation and/or pain management as suggested by Mr Rogers.[53]
[53]T97-98
84On reviewing the Wallan Clinic notes, there is, post the 25 August 2021 consultation with Dr Shubbar, no further reference in respect to the plaintiff’s back.
What are the Plaintiff’s current circumstances?
Medical treatment
85The plaintiff’s current treatment for his back injury is very limited. He was cross-examined about his current treatment as follows:
Q:“So to sum up your treatment regime at the present time, you did exercises every second day, did I hear correctly?---
A:Yep.
Q:And you do stretches every day?---
A:Yes.
Q:You take irregular over the counter Voltaren. Irregular?---
A:I take Voltaren when I need them, yes.
Q:Yes. But you’re not having any physical therapy from any
source?---
A:No.
Q:You're not seeing Dr Shubbar for any reason associated with
your back?---
A:No.
Q:And you haven’t seen Mr Vellore for over a year or
so?---
A:Correct.
Q:And you’re not seeing any other medical practitioner or paramedical practitioner?---
A:No.
Q:And you’re working currently full time?---
A:Yes.”[54]
[54]T28, L18-31
86In respect to the plaintiff’s use of painkilling medication/Voltaren, he said, in cross-examination, that:
Q:“And you could have prolonged periods where you didn’t take any medication at all?---
A:Correct.”[55]
Q:“You don’t play golf, you don’t do gardening, you don’t take any painkillers?---
A:Correct.
Q:And you don’t take them to go to work currently?---
A:No.”[56]
[55]T27, L14
[56]T26, L29-31
87In respect to physiotherapy, osteopathy and chiropractic-type treatment, he said that he had not had any such treatment for probably two-and-a-half, if not three years.[57]
[57]T27, L19
Work
88The plaintiff currently works full time. He is undertaking office work and driving a truck approximately five hours per week.
89Referring to the plaintiff’s earnings subsequent to the accident, they are found in defendant Exhibit “B”. The plaintiff, subsequent to the accident, has had a taxable income greater than his pre-accident earnings. Importantly, in the course of cross-examination, the plaintiff conceded that his income position has “improved” since the accident.[58]
[58] T33, L25
90I find that the plaintiff has been able to return to and continue in full-time work including truck driving work and has been working up to 60 hours per week.
Golf
91The plaintiff, in his affidavits, relied upon the impact which his back injury had on his participation in golf as one of his significant consequences. Golf was clearly a passion for the plaintiff, both before and subsequent to the accident. As noted already in this judgment, the plaintiff, between July 2016 and 8 March 2020, submitted 188 cards to Golf Australia. The plaintiff’s handicap prior to the accident was 14.6. By December 2019, the plaintiff had reduced his golf handicap to 10.8.[59] The plaintiff, under cross-examination, deposed that his current handicap is 14.1 or thereabouts.[60] The plaintiff stated that he had played golf the weekend before the hearing and had played golf the preceding weekend.[61]
[59]DCB 281
[60] T44, L17
[61] T44, L18-24
92I find that the plaintiff has, since July 2016, played golf on a regular basis and, based on his own evidence, his handicap has in fact improved.
Gym
93The plaintiff also relied upon as an important consequence to him, his inability to undertake spin bike and gym as he had prior to the accident. However, under cross-examination, the plaintiff conceded:
(a) that no doctors had told him that he could not go back to the gym or that he could not do spin classes;[62]
(b) he could ride the static exercise bike which was in his garage “if I wish”;[63]
(c) that whilst he had not been to a gym for a number of years, he continued to undertake exercise every two days for 30 minutes.
[62]T34, L17-20
[63]T34, L28
94I note this evidence, in respect to gym, in the context of observations made by Associate Professor Laidlaw that:
“The other notable feature from the miscellaneous material is that Mr Riddell’s (sic) was significantly overweight at the times of the surveillance and photographs. This contrasts with his current state, and he has had very noticeable weight-loss particularly around the abdominal region, and he currently appears to be generally more fit. … .”[64]
[64]DCB 150
Domestic activities
95In respect to the plaintiff’s capacity to undertake gardening and domestic activities, it was the plaintiff’s evidence under cross-examination:
(a) that he still undertook gardening activities;[65]
(b) that he mows the lawns once per week;[66]
(c) that he continued to trim lower parts of trees and undertook Whipper-Snipping activities;[67]
(d) that he did not do the heavier pruning;[68]
(e) that there was nothing stopping him from undertaking mopping, scrubbing, sweeping and vacuuming.[69]
[65]T29, L30
[66]T30, L4
[67]T30, L16-19
[68]T30, L17
[69]T29, L26
Holidays
96It was the plaintiff’s evidence that his back did not preclude him from holidaying and enjoying activities that he wished to do while on holidays.[70]
[70]T52, L22-27
Credit – what can be drawn from the review of the materials?
97Before moving on to a review of the lay witness’ affidavits and various treating and medico-legal medical reports which have been tendered, it is appropriate that I draw some conclusions in respect to the plaintiff’s credit and his level of function.
98Having observed the plaintiff give evidence, reviewed the video and having analysed the medical records, I find:
(a) that the plaintiff was guarded in giving his evidence and at times reluctant to make concessions which were ultimately made;
(b) that there were important aspects of the plaintiff’s affidavit evidence and history to doctors which were:
(i)misleading;
(ii)inaccurate; and
(iii)untrue;
(c) The plaintiff overstated his disability or did not provide an accurate history in respect to:
(i)his pre-accident back problems;
(ii)his level of recovery by August 2016;
(iii)the amount and level of golf which he played;
(iv)the clearance which he received to return to work by August 2016;
(v)his pre-accident weight and fitness;
(vi)the level of restriction he had in fact for activities such as gardening and home duties;
(vii)the nature and extent of the holidays which he had enjoyed post-accident;
(viii)the incident on 15 September 2020 lifting his grandchild and particularly the failure to:
(A)disclose this incident in his affidavit sworn 20 January 2022;
(B)provide this history to Mr Vellore.
Affidavits of lay witnesses
99The plaintiff relied upon lay witness affidavits from:
(a) his wife, Roslyn Riddell;[71]
(b) his daughter, Aleece Booker;[72] and
(c) his friend, Mr Luke Gandolfo.[73]
[71]PCB 25 - 30
[72]PCB 31-35
[73]PCB 36-43
100Firstly, referring to the affidavits of Mr Gandolfo, they were supportive of the plaintiff and placed particular emphasis on the impact which the plaintiff’s injuries had upon his ability to:
(a) play golf;
(b) undertake gardening and domestic activities; and
(c) his general fitness.
101It was asserted by Mr Middleton QC that Mr Gandolfo’s affidavits, when compared to the plaintiff’s evidence, were unreliable and sought to put the plaintiff’s case in a better light than the true state of the affairs. I agree. For example:
(a) In paragraph 11 of his first affidavit, Mr Gandolfo asserted that the plaintiff’s game “is not as good as before the accident”.[74] On reviewing the Golf Australia records and based on the plaintiff’s own evidence that his handicap is now lower than it was at the time of the accident, that proposition is not borne out;
(b) At paragraph 14 of Mr Gandolfo’s first affidavit, he asserts that prior to the accident, the plaintiff was playing at a single figure golf handicap.[75] Referring to the Golf Australia records, and the plaintiff’s own evidence under cross-examination, that is not correct;
(c) At paragraph 11 of Mr Gandolfo’s second affidavit,[76] he refers to a photograph of the plaintiff and asserts that, “This is how I recall David looking prior to his accident”.[77] This photograph annexed to Mr Gandolfo’s affidavit is in fact the photograph. I refer to my findings at paragraphs 25, 26 and 27 of this judgment in respect to the photograph. By referencing the photograph, Mr Gandolfo sought to put the plaintiff’s case in a better light than the plaintiff’s own evidence at the hearing of the matter. The use of the photograph was misleading.
[74]PCB 37
[75]PCB 37
[76]PCB 41
[77]PCB 41
102With respect to the affidavits of the plaintiff’s wife and daughter, it was submitted by Mr Middleton QC that these were “self-serving statements”. When contrasting these affidavits to the plaintiff’s own evidence, there are inconsistencies.
The Plaintiff’s medical reports
The treating health service provider reports
103The plaintiff tendered the following medical reports from treating health service providers:
(a) Ambulance Victoria dated 12 May 2016;
(b) Austin Health Discharge Summary dated 16 May 2016;
(c) Five letters/reports from Mr Vellore.
104The plaintiff did not seek to adduce evidence from:
(a) His treating general practitioner, Dr Shubbar;
(b) His treating physiotherapist and/or osteopath;
(c) Professor Chambers;
(d) Mr Myron Rogers;
(e) Dr Kolesnikova;
(f) Dr Fisher.
105I am entitled to draw an inference that the evidence of the health service providers referred to in paragraph 104(b), (c), (e) and (f) would not have assisted the plaintiff’s case. The reports of Mr Rogers and Dr Shubbar were tendered by the defendant.
The Plaintiff’s medico-legal reports
106The plaintiff tendered medico-legal reports from:
(a) Dr Nicholas Ingram, psychiatrist, dated 30 July 2020;
(b) Associate Professor Bruce Love dated 16 April 2019 and 26 June 2019;
(c) Mr Thomas Kossmann dated 28 July 2020, 18 August 2021 and 3 March 2022;
(d) Dr David Middleton dated 21 September 2020.
Dr Ingram
107Dr Ingram concluded, inter alia, that the plaintiff was suffering a Chronic Adjustment Disorder with Depressed and Anxious Mood that is a secondary consequence to the accident and subsequent physical limitations. Dr Ingram’s prognosis for the plaintiff’s depression and anxiety was reasonably good and there may be further improvement when the case is settled. Dr Ingram concluded that the plaintiff’s psychological symptoms at the time of his assessment did not affect the plaintiff’s capacity for employment.
108I note Dr Ingram’s findings, in as far as they assist the plaintiff in accordance with Richards & Anor v Wylie.[78]
[78]Supra
Associate Professor Love
109Associate Professor Love, in his report dated 16 April 2019,[79] concluded:
“I include (sic) that Mr Riddell’s injury is principally that of a lumbar spine injury which involves transverse process fractures of three lumbar vertebra[e]. I have not formed the opinion that there are other significant injuries.”[80]
[79]PCB 85 and 86
[80]PCB 85
110Associate Professor Love related the plaintiff’s symptoms to the accident and described the injury to the plaintiff’s lumbar spine as being of “moderate intensity”.[81]
[81]PCB 85
111Associate Professor Love concluded that the plaintiff was capable of undertaking his pre‑injury duties. Associate Professor concluded there was no need for modification of his work as a result of the accident.[82]
[82]PCB 86
112Associate Professor Love, in response to questions in respect to the plaintiff’s capacity to undertake personal, social and recreational activities, advised:
“He does state that his personal leisure activities being those of golf and personal training have been compromised and that he has ceased personal training and now is required to use a golf cart.”[83]
[83]PCB 86
113These observations are reliant upon the history provided by the plaintiff. In particular that:
(a) the plaintiff’s participation in golf had been compromised;
(b) the plaintiff’s personal training had been compromised;
(c) he had “suffered relatively constant back ache”.
114Associate Professor Love concluded that the plaintiff’s condition was stable and there was unlikely to be any significant change in the foreseeable future.[84]
[84]PCB 86
Mr Kossmann
115Mr Kossmann examined the plaintiff on two occasions and provided reports dated 28 July 2020, 18 August 2021 and 3 March 2022.
116Mr Kossmann’s first report predates the plaintiff suffering injury lifting his grandchild and the referral of the plaintiff to Mr Vellore and Mr Rogers.
117At the time of the first assessment, Mr Kossmann concluded, inter alia:
(a) Having been provided with the video surveillance of 15 February 2020 and 22 February 2020, being defendant Exhibit “A”, that the plaintiff would be able to continue at the level of activity shown in the video into the foreseeable future;[85]
(b) That the plaintiff was working driving a 14-tonne truck and working between 38 and 50 hours per week. Mr Kossmann noted that the plaintiff coped with this employment and would be able to continue with this work unless he suffered a deterioration of his lumbar spine condition;
(c) That the plaintiff’s prognosis was guarded, and he would require further treatment by way of pain medication and anti-inflammatories;
(d) Mr Kossmann recommended further radiological investigations be undertaken.
[85]PCB 95-96
118Mr Kossmann’s second assessment of the plaintiff post-dated the incident of 15 September 2020 when the plaintiff suffered injury lifting his grandchild. At the time of this second report, Mr Kossmann noted, inter alia, that:
(a) “… since my last examination … [the plaintiff] was no longer able to walk the 18 holes and he was using a golf cart.”[86] (Emphasis added.);
(b) he had almost stopped playing golf;
(c) the plaintiff had been referred to Mr Vellore for assessment. He noted that Mr Vellore had recommended spinal surgery;
(d) the plaintiff continued to work 38 to 50 hours per week;
(e) the plaintiff took Voltaren before he did exercise or strenuous work, for example working in the garden;
(f) the plaintiff’s prognosis was guarded;
(g) the plaintiff will develop further degenerative changes in his lumbar spine and whilst the plaintiff may have had some degenerative changes prior to the accident, he suffered significant injuries in the accident which have progressed to degenerative changes;
(h) the plaintiff should be made aware that he had not exhausted all possible conservative treatment options. Mr Kossmann regarded surgery as the last resort if all of the conservative treatment approaches had been exhausted.
[86]PCB 100
119Importantly, in the report dated 18 August 2021, there is no reference to the plaintiff suffering injury to his spine whilst lifting his grandchild.
120Mr Kossmann provided a supplementary report dated 3 March 2022. This report was provided in response to a letter of instruction from the plaintiff’s solicitors dated 24 January 2022 which recited, inter alia:
“As you may also be aware the initial court hearing listed for July 2020 was adjourned after the TAC provided surveillance footage of David playing golf and extracts from his wife’s Facebook pages.
After the initial hearing was adjourned David started to have increased back pain radiating down his leg. He was referred by his general practitioner, Dr Shubarb (sic) to a neurosurgeon, Dr Vellore.
Dr Vellore recommended David have surgery and the funding for the same was requested.
After about five months the TAC denied funding. After funding was denied, David sought a second opinion regarding the surgery and he was sent for updated radiological investigations. He was advised the protruding disc had reabsorbed and surgery was no longer recommended.
Consequently, David has not undergone the proposed surgery and the matter is now listed for hearing on 18 March 2022.
We now seek an updated report form (sic) you in relation to David’s spinal conditions.”[87]
[87] PCB 111-112
121The letter of referral from the plaintiff’s solicitors enclosed a great deal of additional material by way of affidavits, radiological findings and medical reports. There was, however, no reference in the letter of instruction to Mr Kossmann of the 15 September 2020 incident when the plaintiff suffered injury lifting his grandchild. Mr Kossmann, in his report dated 3 March 2022, makes no reference to this incident (even though it was referred to the report of Associate Professor John Laidlaw which he had been provided). Mr Kossmann was provided with a copy of the plaintiff’s affidavit sworn 20 January 2022 which does not make reference to the 15 September 2020 incident when the plaintiff suffered injury lifting his grandchild.
122Mr Kossmann did not re-examine the plaintiff for the purposes of his 3 March 2022 report.
123In his supplementary report dated 3 March 2022, Mr Kossmann concluded that:
(a) the plaintiff, as a result of the accident, was suffering from symptomatic lumbar spondylosis in the form of multilevel degenerative changes;
(b) the plaintiff’s lumbar spine condition was impacting on his ability to perform personal, domestic and recreational activities, specifically gardening, playing golf and conducting exercise classes (specifically spin classes, in different ways and at different times);
(c) the plaintiff was now performing office duties with the requirement on occasion to drive a truck. Mr Kossmann made recommendations that the plaintiff avoid walking long distances, walking on uneven ground, walking upstairs and downstairs, walking on inclines and declines, kneeling, squatting or carrying heavy items weighing more than 5 kilograms;
(d) the MRI scan of 26 August 2021 had shown that the disc protrusion at L2-3 level had resolved and that surgery at this stage may not resolve the plaintiff’s lumbar spine condition;
(e) the plaintiff had not exhausted all conservative treatment options.
124I find that Mr Kossmann’s reports are of limited assistance. Many of the consequences which Mr Kossmann attributes to the plaintiff’s accident-related spinal injury:
(i) go beyond the consequences deposed by the plaintiff under cross-examination;
(ii) go beyond the plaintiff’s level of activities set out in the medical records and other materials;
(iii) are reliant upon the credit of the plaintiff being accepted.
125I further note that Mr Kossmann did not address the 15 September 2020 incident.
Dr Middleton
126Dr Middleton provided a report dated 21 September 2020, having examined the plaintiff on 15 September 2020. There are a number of matters in the history contained in Dr Middleton’s report which impact upon the weight I attached to his opinions. For example:
(a) the history that prior to the accident, the plaintiff was extremely fit and had no history of any significant injury or illness;[88]
(b) that the plaintiff cannot do gardening which he had previously enjoyed;[89]
(c) that the plaintiff’s injuries “significantly” impact upon his golf;[90]
(d) that the plaintiff continued to suffer a sharp, burning pain in his back with extension into his leg which Dr Middleton concluded was “clearly neuropathic”;[91]
(e) that the plaintiff could not vacuum;[92]
(f) that the plaintiff’s sitting tolerance on a chair on a good day is limited to 35 minutes and on a bad day 15 to 20 minutes;[93]
(g) that the plaintiff’s ability to lift was strictly limited to 5 kilograms on the occasion of a good day;[94]
(h) that Dr Middleton records that Elite Fitness for Women (the business run by the plaintiff and his wife) terminated his employment because he was unable to return to his pre‑injury duties. The plaintiff’s evidence under cross-examination was that the business ceased operating as it “went broke”;[95]
(i) that the plaintiff’s weight at the time of the accident was 85 kilograms.[96]
[88] PCB 115
[89]PCB 117
[90]PCB 117
[91] PCB 118
[92] PCB 119
[93] PCB 119
[94] PCB 119
[95] T31, L3
[96]PCB 123
127Dr Middleton, in response to the questions asked of him, concluded, inter alia, that:[97]
(a) the plaintiff had suffered a significant aggravation to what could have been a pre‑existing asymptomatic age-related degenerative disease of the lumbar spine for which the forceful traumatic injury did result in the onset of core lumbar instability which has never been adequately addressed by his treatment;
(b) the plaintiff no longer had a safe or reliable physical capacity to return to his pre‑injury duties on a full-time basis (notwithstanding the plaintiff’s work record with his current employer);
(c) that there was no current treatment plan and that the plaintiff’s pains and incapacity are likely to continue into the foreseeable future with the potential to deteriorate at a greater rate than would normally have occurred.
[97]PCB 140-142
128Dr Middleton concluded that the plaintiff had not deliberately exaggerated his incapacity at the time of the Zoom assessment.[98] However, there are many matters upon which Dr Middleton has relied which I find to be either incorrect or exaggerated, having regard to:
(a) the plaintiff’s viva voce evidence;
(b) an analysis of the balance of the evidence.
[98]PCB 120
129For completeness, I note that Dr Middleton’s examination of the plaintiff was undertaken by Zoom on 15 September 2020. This is the same day that the plaintiff reported to Dr Shubbar that he injured his back lifting his grandchild. Dr Middleton recorded a history from the plaintiff that:
“… he can’t lift his grandson, who weighs 6kg, as this results in a significant aggravation of back pain levels. … .”[99]
[99]PCB 117
130There was no evidence adduced in respect to the timing of the grandchild incident; that is, whether it occurred before or after the Zoom meeting with Dr Middleton.
Dr Menz
131Dr Menz, in his initial report dated 13 May 2020, provided support to the plaintiff. However, subsequent to being provided with the video of the plaintiff playing golf, Dr Menz provided a supplementary report dated 30 June 2020. In this report, Dr Menz changed his opinion and concluded that the plaintiff did not have any residual back problems or back pain. Dr Menz concluded that the video showed the plaintiff displaying normal spinal function.[100]
[100] DCB 13 and 14
132Dr Menz re-examined the plaintiff on 22 February 2022 and provided a further report dated 2 March 2022. Dr Menz advised:
“None of the enclosed material or my examination caused me to alter my opinion that I expressed in my IME of 13.05.2020, and the supplementary report of 30.06.2020.”[101]
[101]DCB 183
Associate Professor Laidlaw
133The plaintiff was assessed by Associate Professor Laidlaw on 12 January 2022. I have already in this judgment made reference to Associate Professor Laidlaw’s comments in respect to the transverse fractures suffered by the plaintiff. There are a number of matters of history in Associate Professor Laidlaw’s report which should be noted:
(a) The plaintiff advised Associate Professor Laidlaw that –
“… he has had back pain on and off since middle age.”[102]
[102]DCB 106
(b) In respect to the progress of his back injury, Associate Professor Laidlaw noted:
“Since the time of accident David said his back had never been back to normal, but he said that he ‘had a good run for three to four years’ and he was getting to have quite good lumbar movements and feeling more comfortable (although he says he always still had some ongoing back ache)”.[103]
[103]DCB 110
(Emphasis added.)
(c) In respect to the grandchild incident, that:
“His symptoms had slight improvement but persisted until about 12 months ago. He said at that time he was then leaning forward to talk to one of his grandchildren when he had sudden onset of severe mid lumbar back pain, localised centrally. He said he just could not straighten up and he was unable to go to work for a week. … He saw a physiotherapist … eventually an MR[I] scan was performed. David tells me that showed a disc problem with impingement of one of the nerves.”[104]
(Emphasis added.)
(d) With respect to the plaintiff’s current symptoms:
“Over the last few months the groin pain has subsided even further, and the left lateral thigh numbness does not bother him too much at all. However, although it is not nearly as severe as it was a year ago, David says the lower back pain in the central lumbar region is persistent all day, every day. He thinks the lower back pain has gradually improved over the last year but it is still always there. He feels now that his symptoms are almost back to where they were, prior to the flare up one year ago.”[105]
(Emphasis added.)
[104]DCB 111
[105]DCB 111
134Associate Professor Laidlaw opined that the motor vehicle accident was not a significant factor for the L2-3 disc herniation or the exacerbation of symptoms in 2020.[106] He concluded that the lumbar transverse process fractures have healed with restoration of the normal bony anatomy.
[106]DCB 146
135Associate Professor Laidlaw noted there were significant inconsistencies with the plaintiff’s histories and examination findings and those in some of the medical reports provided to him.[107]
[107]DCB 143
136In respect to the video, Associate Professor Laidlaw noted:
“I have reviewed the forensic material and surveillance report dated 02/03/2020. I agree that this demonstrates that at those particular times Mr Riddell seemed not to be incapacitated by back pain, or in any other way. However, I do not think that is necessarily inconsistent with his complaint of ongoing mid lumbar pain which is exacerbated at different times. It was also not inconsistent with his descriptions of his current activities to me, or with my clinical examination.”[108]
[108]DCB 150
137Associate Professor Laidlaw concluded that the accident, in addition to causing the fractures to the transverse process, also caused musculoligamentous injuries which, on the balance of probabilities, he felt were contributing to the plaintiff’s current level of reported pain.[109]
[109]DCB 144
138Associate Professor Laidlaw reported that the plaintiff’s golf, exercise (indoor cycling, gym work and instructing) and his gardening have all been restricted since the time of his accident by the chronic backache.[110]
[110]DCB 149
139Whilst, as set out in the preceding paragraph, Associate Professor Laidlaw provided the plaintiff with a level of support in respect to his reported functional limitations, he also observed:
“David appeared to be generally well and in no distress. He is well muscled and has normal posture. He is mildly overweight in the abdominal region, but in general is in good shape for his age, and noticeably less overweight than in the previous photographs and surveillance videos provided by TAC. He has normal gait, and he moves freely in and out of the chair and getting up and down off the couch and putting his trousers and shoes on and off.
During the long interview he remained sitting throughout (1.25 hours before the examination), did not complain of discomfort, and moved in the chair no more or less than I expect of healthy people (shifting from one buttock to the other every 10-15 minutes or so).”[111]
[111]DCB 117
What conclusions can be drawn from the various medical reports?
140The medico-legal reports vary in respect to the diagnosis of the plaintiff’s accident-related spinal injury and the consequences (if any). I note:
(a) Dr Menz: No accident-related impaired back function;
(b) Dr Middleton and Mr Kossmann: The plaintiff suffers an aggravation of lumbar spondylosis;
(c) Associate Professor Laidlaw: The plaintiff suffers a musculoligamentous injury.
141The value of these opinions is impacted by:
(i) the lack of a full and accurate history;
(ii) my observations in respect to the plaintiff’s credit.
142The report of Mr Vellore is very supportive of the plaintiff. However, for the reasons which I have outlined earlier in this judgment, I do not accept the conclusions drawn by Mr Vellore.
143Turning to the plaintiff’s long time general practitioner, Dr Shubbar. In addition to the clinical records from the Wallan Clinic, there is:
(a) a medical report dated 22 November 2021 addressed to the plaintiff’s solicitors but tendered by the defendant;[112]
(b) the letter of referral from Dr Shubbar to Mr Rogers dated 25 August 2021.[113]
[112]Exhibit C
[113]DCB 257
144In the report dated 22 November 2021, Dr Shubbar advises:
“In summary I beleive (sic), Mr Riddell’s transport accident in July has stabilized at this stage but it has not cured and he would continue to be on an off excurbation (sic) of his lower back pain.”[114]
[114] Exhibit C
145I interpret Dr Shubbar’s summary as expressing the opinion that the plaintiff will have some on and off exacerbations of lower back pain which may be referrable to the accident.
146I note that apart from Associate Professor Laidlaw, there was no real effort by the medico-legal examiners to disentangle between:
(a) the plaintiff’s pre‑existing lower back injury;
(b) the injury caused by the accident;
(c) the injury caused by the grandchild incident.
147I find the plaintiff:
(a) did have pre‑existing back issues of significance;
(b) did suffer a significant injury to the spine as a result of the accident;
(c) did suffer an injury to the spine, particularly an L2-3 disc prolapse, as a result of the grandchild incident.
148However, given the various medical opinions that the L2-3 disc herniation has resolved and the plaintiff’s evidence that his condition is now similar to pre-September/October 2020, I do not propose to take the issue of disentanglement further.
149Whilst I am prepared to accept that at times the plaintiff suffers from backache related to the spinal injury which occurred as a result of the accident, I do not accept that the plaintiff’s pain level is at the level:
(a) deposed to in the various affidavits sworn by him;
(b) reported to a number of the treating and medico-legal assessors.
Are the consequences to the Plaintiff “very considerable”?
150The starting point is that it is the plaintiff who has the onus to demonstrate the requisite level of consequence to satisfy the serious injury test.
151In measuring whether the injury is “serious”, as set out by Ashley JA in Dwyer,[115] the Court must draw a comparison between what the plaintiff has lost and what the plaintiff has retained:
“27.Finally, I agree with the submission for the respondent that in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”
[115]Supra
152I must consider the whole of the evidence in deciding this proceeding. Unlike the medico-legal examiners, I have had the benefit of all of the evidence upon which the parties rely. I have also had the benefit of assessing the evidence of the plaintiff when in the witness box, remembering that the credit of the plaintiff is an important factor in the assessment of the “seriousness” of the consequences to him.
153In contrasting what has been lost with what has been retained, I find:
(a) That the plaintiff suffers from intermittent mild lumbar back pain which may be exacerbated at different times. The plaintiff manages his pain with over-the-counter medication which he takes on an irregular basis. Indeed, the plaintiff may go for prolonged periods where he takes no medication at all;
(b) The plaintiff no longer attends his general practitioner for assessment and treatment of his lower back. The plaintiff no longer (and has not for a many years) attended other health service providers such as physiotherapists or osteopaths for treatment of his lower back;
(c) The plaintiff no longer attends his treating psychiatrist. The only report from a psychiatrist/psychologist tendered in the matter was from Dr Ingram dated 30 July 2020. Dr Ingram concluded that the plaintiff’s depression and anxiety may impact him in certain social circumstances, though the plaintiff “tried to get on with his life as best he can”.[116] The plaintiff’s lack of ongoing medical treatment, his evidence that he has played a lot of golf, his involvement in holidays and Dr Ingram’s conclusion that any psychological distress does not impact upon the plaintiff’s work capacity, leads me to the conclusion that the Richards & Anor v Wylie’[117] component is of limited consequence;
(d) That the plaintiff had obtained a clearance for work by August 2016. The plaintiff, but for the September 2020 grandchild incident, has continued to work. Indeed, the plaintiff has worked up to 60 hours per week. The plaintiff agreed that he is able to continue to work in his current job;[118]
(e) The plaintiff does not suffer pecuniary disadvantage. Indeed, the evidence is that since the accident, his income has improved;
(f) The impact on the plaintiff’s capacity to play and enjoy golf was an important part of his case. But, since July 2016, the plaintiff has continued to play 18-hole competitive golf on a regular basis. Indeed, his current handicap of 14.1 is now marginally lower than it was prior to the accident and was lower still prior to the grandchild incident. At its highest, the evidence reveals he now uses a golf cart, but the reality is he is a regular golfer;
(g) The plaintiff continues to undertake a range of gardening activities including lawnmowing, Whipper Snipping and the trimming of the lower branches of trees. The plaintiff identified his inability to trim the high branches of trees as a consequence of his ongoing back injury. The plaintiff is, however, clearly undertaking a range of strenuous activities in the garden;
(h) The plaintiff undertakes domestic activities such as mopping, scrubbing, sweeping and vacuuming;
(i) The plaintiff, in his affidavits and under cross-examination, asserted that he was no longer able to undertake gym activity as he had prior to the accident. The plaintiff did, however, concede that he continued to undertake light exercise every second day. It was the plaintiff’s evidence when challenged under cross-examination that he could ride an exercise bike if he wished;
(j) The plaintiff, since the accident, has had at least two overseas holidays. It is clear, that whilst on holidays, that the plaintiff participates and enjoys a range of physically demanding activities. For example simulated sky diving.
[116]PCB 81
[117]Supra
[118]T34
154To establish serious injury, the threshold is high. As set out in Stijepic,[119] while the evidence may disclose pain and suffering consequences which are both marked and significant, for the plaintiff to be successful, I have to be persuaded that the consequences due to the accident can fairly be described as being “more than significant or marked and as being at least very considerable”. Having considered all of the evidence, hearing and seeing the plaintiff and observing his demeanour, I conclude that the plaintiff has not demonstrated that the consequences to him are “at least very considerable”. I do so in the context, as I must, by reference of this matter to the range of impairments and impairment consequences and not just those that come before the Court. While I accept some ongoing consequences to the plaintiff which are of significance, I do not accept the plaintiff’s spinal injury consequential to the accident has been very considerable.
[119]Supra
Conclusion
155Taking into account all of the evidence, I am not satisfied that the consequences of any accident-related spinal injury are “serious”.
156Accordingly, the application is dismissed.
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