Ritchie v Transport Accident Commission
[2021] VCC 894
•7 July 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-05037
| ARTHUR MAXWELL RITCHIE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TSLALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 June 2021 (eHearing) | |
DATE OF JUDGMENT: | 7 July 2021 | |
CASE MAY BE CITED AS: | Ritchie v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 894 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Transport accident – serious injury – paragraph (a) of the definition of “serious injury” – injury to lower back, neck, left shoulder and right knee – aggravation – separation of consequences
Legislation Cited: Transport Accident Act 1986, s93(17)
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; R J Gilbertson v Skorsis [2000] VSCA 51; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Philippiadis v Transport Accident Commission [2016] VSCA 1
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC with Mr G Taylor | Arnold Thomas & Becker |
| For the Defendant | Mr W Middleton with Mr S Martin | HWL Ebsworth Lawyers |
HER HONOUR:
Preliminary
1Mr Ritchie is a 76-year-old man who was injured in a transport accident on 25 August 2014, when he was a passenger in a stationary vehicle which was struck from behind (“the 2014 transport accident”). Mr Ritchie claims that in this accident, he suffered injury to his lower back, neck, left shoulder and right knee.
2Prior to this accident, Mr Ritchie had suffered intermittent back pain for many years, as well as some neck pain, and on a few occasions had complained to his local general practitioner of left shoulder pain. However, Mr Ritchie said despite these occasional health complaints, he was an active man for his age, and at the time of the 2014 transport accident, was working full time as a plumber and enjoyed body surfing, swimming and fishing in his leisure time.
3In order for Mr Ritchie to be entitled to claim common law damages for the injuries he suffered in the 2014 transport accident, the impairment of his spine or left shoulder must satisfy paragraph (a) of the definition of “serious injury” contained in s93(17) of the Transport Accident Act 1986 (“the Act”).
4In considering this application, I am only permitted to consider the consequences arising from the aggravation of his pre-existing impairments. Further, such impairments must be considered separately and cannot be aggregated in my assessment as to whether the consequences to Mr Ritchie, from each impairment, can be described as “at least very considerable”.
5Only Mr Ritchie was called to give evidence, and he was cross-examined. Also in evidence were medical reports and other material, including an affidavit from his son. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those aspects of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my judgment.
6For the reasons which follow, I am satisfied that the consequences to Mr Ritchie from the aggravation of his spinal impairment in the 2014 transport accident can be described as “at least very considerable,” such that he should be granted leave to commence common law proceedings.
Mr Ritchie’s life before the 2014 transport accident
7Mr Ritchie is a qualified plumber who set up his own business a few years after completing his apprenticeship. He ran the business for many years and was working full time at the time of the 2014 transport accident.
8Mr Ritchie lives on Phillip Island and he said that in his leisure time, he enjoyed activities including swimming, body surfing, walking and, at times, running. Mr Ritchie also said that he enjoyed playing golf and used to play up to four times per year.
9In addition, Mr Ritchie said that he enjoyed fishing and that he and his partner had participated in fishing competitions around Australia. Mr Ritchie said that he owned his own boat and was a member of various fishing clubs. Mr Ritchie said that he would take his boat out to fish on the Westernport Bay almost every other weekend, when the weather permitted. Further, on occasions, he said he would fish in Bass Strait. In addition to fishing from his boat, Mr Ritchie stated that he also did onshore and river bank fishing.
10Prior to the 2014 transport accident, Mr Ritchie had some health problems, including having suffered injuries in two previous transport accidents. Notwithstanding these injuries which troubled him occasionally, Mr Ritchie described himself as being “as fit as a Mallee bull” prior to the 2014 transport accident.
11For approximately thirty years, Mr Ritchie had a “grumbling” lower back condition which he described as “plumber’s back”. Mr Ritchie said that his back pain would flare up from time to time if he performed an activity that was too heavy or beyond his capacity. On such occasions, he attended upon his general practitioner, Dr Eric Choo, and received treatment, including numerous cortisone injections, as well as prescription medication, including Panadeine Forte. Mr Ritchie said that despite those flare ups, he had always been able to continue working as a plumber, and said that flare ups did not persist for any ongoing period.
12In June 1997, Mr Ritchie was involved in a transport accident which resulted in an injury to his shoulder, neck and lower back. Mr Ritchie said he could not recall which shoulder was injured, but he believed it was his right shoulder. Mr Ritchie said that after seeking treatment from his doctor, and having some investigations performed, he subsequently returned to full-time unrestricted employment.
13In 2004, Mr Ritchie said that he attended upon Dr Choo in relation to right knee pain. Mr Ritchie said that he was subsequently referred to orthopaedic surgeon, Professor Peter Choong, and following right knee surgery, made a good recovery.
14In 2010, Mr Ritchie attended upon Dr Choo in respect of pain in his neck and left shoulder. When the clinical records of Dr Choo were put to Mr Ritchie in cross-examination, he said that he could not recall having previous problems with his left shoulder, but accepted the accuracy of the records, including a reference to him being given two or three cortisone injections in 2010 and 2011.
15Mr Ritchie said that notwithstanding these complaints, he was able to continue in full-time unrestricted employment.
16On 22 April 2012, Mr Ritchie said that he was involved in a transport accident when the car that he was driving rolled as he drove through excess water from a storm (“the 2012 transport accident”). Mr Ritchie said that he was taken to the William Angliss Hospital, at which time he complained of increased back pain, neck pain and right shoulder pain.
17Mr Ritchie said that after this transport accident, he received treatment from osteopath, Dr Paul Evans. Mr Ritchie explained that he attended approximately ten sessions over at least a twelve-month period. In addition, Mr Ritchie said that he attended Dr Choo, who, on 12 October 2012, noted slight tenderness in the lower lumbar spine and both sacroiliac joints but did not pursue any active treatment.
18On 12 October 2012, a CT scan was taken of Mr Ritchie’s lumbosacral spine. It was reported as demonstrating multi-level disc and facet joint degenerative changes with central canal stenosis, worse at L4-5. There was also noted to be minor anterior wedging at L1 with a loss of height of 15 per cent. It was considered that this may represent an osteoporotic compression fracture with no acute fracture or dislocation identified.
19At an appointment three days later, on 15 October 2012, Mr Choo noted an easing in the muscle aches in the legs and noted that the results of the CT scan accorded with Mr Ritchie’s description of his symptoms.
20Mr Ritchie said that after the 2012 transport accident, he returned to working full-time hours, although he avoided the heavier and harder plumbing duties.
21Mr Ritchie said that he believed his neck and right shoulder condition eventually recovered from this transport accident but he continued to have some ongoing lower back pain. However, Mr Ritchie said his lower back pain did not impact upon his social and recreational activities, such that he was able to return to body surfing, swimming (up to one to two kilometres at a time), fishing and unrestricted walking.
22In the thirteen months prior to the 2014 transport accident, Mr Ritchie consulted with his general practitioners, Dr Choo and Dr Edward Lam, on five occasions. Given the substantial emphasis which the defendant placed upon Mr Ritchie’s pre-existing conditions, the details and nature of these attendances are worth noting:
(i) 29 July 2013 – Mr Ritchie complained of pain in his right lower chest and pain in his right lower back. On examination, it was noted there was no localised tenderness but that Mr Ritchie was tender around his right sacroiliac joint. He was treated with an injection;
(ii) 20 August 2013 – On this occasion, Mr Ritchie was contacted by telephone regarding the MRI scan which indicated an L1 vertebral fracture. The record on this date indicates that Mr Ritchie was advised to attend for osteoporosis screening;
(iii) 3 February 2014 – Mr Ritchie attended as he had sore ribs after leaning over a sewer bin. At the time, he complained of pain in his lower back with radiation into the lateral upper left thigh. It was also noted that he had a cramping type of pain when he tried to run and that his symptoms had been on and off for twelve months but were getting worse. When this record was put to Mr Ritchie in cross-examination, he accepted the accuracy of the record;
(iv) 7 May 2014 – Mr Ritchie attended for a check of his blood pressure, and numerous blood tests were ordered. This attendance made no reference to any back pain;
(v) 24 June 2014 – Mr Ritchie attended with a complaint of left-sided chest pain, and it was noted that such pain could be reproduced by arm movement and neck movement. Dr Choo considered that this was a musculoskeletal problem. It was noted that at the time, Mr Ritchie said that he had spent time in “pick and shovel work over the last week”. At this time, Mr Ritchie was just reassured and no medication was prescribed.
23Mr Ritchie said that in the three to four months prior to the 2014 transport accident, he did not have any pain in his lower back, that his back was in good condition and said that he was doing normal activities in life.
The 2014 transport accident and its consequences to Mr Ritchie
24Mr Ritchie said he was a passenger in a vehicle being driven by his son, Brad, which was stationary at traffic lights when it was struck from behind. Mr Ritchie said that the force of impact was significant, such that he hit his head. Mr Ritchie said that he suffered almost immediate pain in his lower back, neck and left shoulder, and that he was tearful due to this pain.
25Mr Ritchie was taken to Box Hill Hospital for investigations. Mr Ritchie’s recollection is that he was suffering very intense pain in his left shoulder which he understood was dislocated but was then put back into its place. However, when the record of Box Hill Hospital’s triage nurse and admitting doctor was put to Mr Ritchie in cross-examination, it was noted there was no reference to any left shoulder pain and no reference to a dislocation. Notwithstanding the absence of any reference to left shoulder pain in those medical records, Mr Ritchie maintained that his left shoulder was intensely painful following this accident.
26The admitting doctor specifically wrote that there was no head strike in the accident. In cross-examination, Mr Ritchie maintained that he had hit his head on the windscreen. Further, it was noted by the admitting doctor that there was no cervical tenderness and a full range of movement in Mr Ritchie’s neck. Arrangements were then made for there to be an x-ray of Mr Ritchie’s thoracic and lumbar spine and for him to be reviewed by a physiotherapist the following morning.
27The physiotherapy notes from 26 August 2014 prior to discharge noted that Mr Ritchie reported minimal pain at rest but there was a note of complaint of left cervical spine pain radiating to the shoulder. It was again noted that from T10- L5, there was pain, with some radiation into his buttocks on movement and also some numbness over his left quadriceps tendon after standing. The physiotherapist recommended Mr Ritchie use heat for pain relief and that he undergo gentle mobilisation as tolerated. Mr Ritchie was then subsequently discharged home.
28On 2 September 2014, Mr Ritchie re-attended Box Hill Hospital’s Emergency Department and complained of backache. At this time, arrangements were made for an x-ray to be taken of his left shoulder and CT and MRI scans to be taken of his lumbar spine.
29The left shoulder x-ray taken on that day demonstrated mild glenohumeral and AC joint degeneration but no fractures and no abnormal soft tissue calcifications.
30On 15 September 2014, an MRI scan was taken of Mr Ritchie’s lumbar spine and it was reported as demonstrating a soft tissue injury between the spinous processes of L3-4 and, to a lesser extent, at L4-5. Multilevel mild lower thoracic and lumbar disc degeneration without significant central canal or neuroforaminal stenosis was noted.
31On 22 September 2014, Mr Ritchie attended upon Dr Choo, who noted that Mr Ritchie had been a passenger in a car and had suffered injuries to his left shoulder and lower back. It was noted that he had pain radiating down his left leg.
32Mr Ritchie said that he did not return to his employment for a period of approximately twelve months after this accident. He said during that time, he took pain medication which had been previously prescribed to him, but otherwise did not seek any medical treatment.
33Mr Ritchie’s next attendance upon Dr Choo was on 5 August 2015, at which time Dr Choo noted that Mr Ritchie was “still getting back pain with radiation pain down the left leg to the foot”. It was also noted that there was a lump in his left shoulder, and at that time, Dr Choo arranged for an ultrasound of Mr Ritchie’s left shoulder.
34On 16 December 2015, Mr Ritchie attended Dr Choo and complained of right knee and lower back pain and was prescribed Panadeine Forte.
35On 2 August 2016, an ultrasound was taken of Mr Ritchie’s left shoulder and was reported as demonstrating a full thickness tear of the supraspinatus tendon, together with hypertrophy of the capsule of the AC joint.
36Mr Ritchie said that when he returned to his plumbing business, he mostly did office and administrative duties. Mr Ritchie said that he relied on his son, who had done an apprenticeship with him in his business, to do the heavier plumbing work.
37In late June or early July 2017, Mr Ritchie suffered injury when standing on a small stepladder. In the fall, Mr Ritchie said that he suffered pain to his right shoulder and his left knee.
38Over time, Mr Ritchie said he has received several injections into his lower back to relieve his pain. He said he has had approximately eight to ten injections since the 2014 transport accident. He said they have provided some relief but, on almost all occasions, the pain has returned and persisted. In particular, following an epidural steroid injection on 16 May 2019, Mr Ritchie received symptomatic relief for only two days.
39At about that time, Dr Choo referred Mr Ritchie to neurosurgeon, Mr Ales Aliashkevich. In a letter dated 28 May 2019 to Dr Choo, Dr Aliashkevich noted that when Mr Ritchie attended upon him for the first time, he complained of chronic low back pain with bilateral leg pain. Dr Aliashkevich considered Mr Ritchie’s bilateral sciatic leg pain was consistent with probable L5 radicular compression, which he recommended be treated with ongoing conservative management, repeated injections and possible surgery.
40In a report dated 27 April 2021, Dr Aliashkevich noted Mr Ritchie had attended on him on four occasions in 2019, two occasions in 2020, and two occasions to date in 2021. In reference to an attendance on 16 November 2020, Dr Aliashkevich stated that despite Mr Ritchie’s chronic pain issues, he was able to swim 1-2 kilometres and go fishing. However, when this was put to Mr Ritchie in cross-examination, he said that he was in the hydro[therapy] pool and trying to walk but was definitely not swimming 1-2 kilometres.
41In relation to an attendance on 2 March 2021, Dr Aliashkevich noted that Mr Ritchie was suffering from a progressive loss of mobility and an increase in lower back pain despite multiple steroid injections, such that it may warrant surgery on his lumbar spine. At that time, Dr Aliashkevich suggested that an L2-L5 decompression, with L2-3 laminectomy and L3-4 and L4-5 lateral recess decompression, augmented by interspinous L3-5 fixation would be appropriate.
42I note, however, that Mr Ritchie did not give evidence in respect of whether he intends to undergo such surgery. There was no suggestion that the undertaking of surgery was imminent, nor that Mr Ritchie’s injuries were not stable.
43In September 2019, Mr Ritchie said that he was admitted to the Epworth Hospital after what he understood was a reaction to two steroid injections into his spine and one into his right knee over the course of a week. Mr Ritchie said that he was in the Epworth Hospital for fourteen days, during which time his heart condition and blood pressure was monitored. He was then subsequently transferred to the Epworth Rehabilitation Hospital, where he attended hydrotherapy and a gym to assist him in his rehabilitation. Mr Ritchie said that he was so weak at the time that he attended the rehabilitation hospital, that he was in a wheelchair and could not walk.
44Whilst at the Epworth Rehabilitation Hospital, Mr Ritchie came under the care of rheumatologist and geriatrician, Dr Christopher Fong. In a letter dated 1 October 2019 to Dr Choo, Dr Fong noted that Mr Ritchie was independent, drove, worked as a plumber, swum three times a week, and was a surfer. When this aspect of Dr Fong’s letter was put to Mr Ritchie in cross-examination, he said that the reference to swimming was his attendance at the hydrotherapy pool three times a week, but he denied that he was surfing at that time.
45Dr Fong noted that at the time of Mr Ritchie’s admission, his issues were pain and deconditioning. Following his period in rehabilitation, Dr Fong discharged Mr Ritchie with the aim of his future goals to be to decrease his pain and improve his mobility with exercises.
46Mr Ritchie said that following his discharge from the Epworth Rehabilitation Hospital, he continued to attend upon Dr Choo with complaints of back pain into both legs, together with neck pain, left shoulder pain and right knee pain.
47Mr Ritchie said that he continued to undergo hydrotherapy, although during restrictions imposed due to the COVID-19 pandemic in 2020, he was unable to attend as he used to. Mr Ritchie said, however, that he tried to perform home exercises to keep fit and alleviate his pain. Mr Ritchie said that when the COVID‑19 restrictions eased, he was able to return to hydrotherapy, and he currently attends up to three times per week.
48Mr Ritchie said that he ultimately retired from his plumbing business in early 2019 due to his injuries, as well as his age. Since that time, Mr Ritchie said that he has only done light plumbing jobs for mates, and a couple of times, has attended businesses for a small job when his son was unable to attend.
49In a report dated 16 April 2021, Dr Choo detailed Mr Ritchie’s relevant past history, as well as his attendances upon him following the 2014 transport accident. Dr Choo stated that Mr Ritchie suffers constant and persistent pain in the lower lumbar region and both sacroiliac joints, with radiation of pain down his left leg and often both legs. Dr Choo noted that although Mr Ritchie already had some pain from degenerative disease prior to the 2014 accident associated with his work as a plumber, such back pain recovered with or without treatment within a short period of time and with rest. Dr Choo said that following the high impact transport accident, Mr Ritchie now suffers back problems which can be described as “chronic back pain”, which means there is a very remote chance for recovery with or without surgery.
50Dr Choo was also of the opinion that Mr Ritchie had sustained a whiplash injury to his neck in the 2014 accident.
51In addition, Dr Choo stated that Mr Ritchie’s left shoulder, which he understood was dislocated at the time of the 2014 accident, no longer had any mechanical problems and there was no restriction in the movement of it.
52In a supplementary report dated 21 May 2021, Dr Choo was asked to clarify his opinion in respect of Mr Ritchie’s left shoulder. He again stated that there should be no restriction of movements in the shoulder, although he noted any limitations were associated with soft tissue damage. He noted that movements involving the damaged soft tissue “will never be free from pain”.
53Dr Choo’s report in respect of Mr Ritchie suffering no restriction of movement in his left shoulder was put to him in cross-examination. He disputed this and said that he continued to have pain and restriction of movement in his left shoulder.
54Dr Choo noted that at the time of writing his report in April 2021, he noted that Mr Ritchie’s present complaints included waking up every morning with pain on the left side of his neck and shoulder, and lower back pain with radiation down both legs, as well as sleepless nights. Dr Choo noted that Mr Ritchie performed exercises to reduce joint stiffness in his body and also did exercises in the hydrotherapy pool.
55Dr Choo stated that he prescribed Mr Ritchie Lyrica (75 milligrams bd) to reduce his neuropathic pain in his back, together with Prednisolone (5 milligrams daily) to reduce his muscle aches and pain. In addition, Dr Choo said that he offered intra-articular injections of steroids when Mr Ritchie’s pain became unbearable.
56Dr Choo made a final comment in relation to Mr Ritchie’s pre-existing lower back pain, and the pain which he has suffered since the 2014 accident. Dr Choo noted that, prior to this accident, Mr Ritchie only suffered lower back pain after hard physical work, from which he recovered quickly, and that he would not experience further pain until he “stressed his back again from heavy physical work”. Dr Choo noted that since the 2014 transport accident, Mr Ritchie’s lower back pain has become more severe, constant and persistent, such that he is now never free from pain, and also experiences numbness in his back and legs.
57In addition, Dr Choo noted that Mr Ritchie suffers from a persistent stiff neck, headaches and shoulder pain, which Dr Choo attributed to whiplash injuries sustained in the 2014 transport accident.
58In respect to Mr Ritchie’s prognosis, Dr Choo considered his future was guarded and that his lower back would never recover fully, even if surgically treated.
59Mr Ritchie said that he takes Prednisolone every night and when his pain is bad, he takes up to six Panadeine Forte tablets per day.
60Mr Ritchie said that he suffers almost constant pain in his lower back. He said on a good day he rates his pain levels as 5 out of 10, and on a bad day, he rates his pain as 8 out of 10. Mr Ritchie said he has one or two bad days per week.
61Mr Ritchie said as a consequence of his spinal impairment, he has difficulty walking for as long as he used to and, due to his right and left leg pain, he feels unstable on his feet.
62Mr Ritchie said he has not been able to return to the activity of body surfing, which was a pastime that he enjoyed prior to the 2014 transport accident. He said he used to body surf at least once a week, but has not been able to return to this activity.
63Mr Ritchie said that he is no longer able to swim the distances that he used to and he is no longer able to swim in the sea like he did prior to the 2014 transport accident. He said when he goes to the beach in Cowes, he can only stand and swim in the calm sea. Further, he said when he goes to a pool, he is now limited to eight to ten laps of breaststroke and kicking.
64Mr Ritchie said he is now limited in the type of fishing that he can undertake. He still owns his boat and sometimes goes out with friends, who are able to assist him in getting the boat from the shore and into the water. Mr Ritchie said, however, that he does not fish for as long as he used to, and he also is now able to only fish in the bay and not in Bass Strait.
65Mr Ritchie said he has not been able to play golf since the 2014 transport accident.
66Mr Ritchie said he finds sitting for too long and standing for too long difficult and painful.
67In addition to his spinal impairment, Mr Ritchie also claimed that he suffered persisting restriction of movement in his left shoulder, such that he had problems performing activities at or above shoulder height. Mr Ritchie also said that increased activities cause him an increase in pain, and that he has suffered a loss of strength and loss of muscle bulk in his left shoulder.
68In addition, Mr Ritchie claimed that he had persisting symptoms in his right knee, although he did not claim that the consequences from it satisfied the threshold under sub-paragraph (a).
69In support of his application, Mr Ritchie also relied upon an affidavit from his son, Bradley. In this affidavit, Mr Bradley Ritchie described his father’s past medical condition and noted that after he had suffered injury in the 2012 transport accident, he was not hindered in the work he could perform in the plumbing business and he was able to participate in recreational activities including swimming, body surfing, fishing and golf. Mr Bradley Ritchie said that after the 2014 transport accident, his father struggled to perform the heavier and manual plumbing duties, and he performed more office duties. Further, Mr Bradley Ritchie said that he had not been body surfing, swimming or played golf with his father since the 2014 transport accident.
Medico-legal evidence
70Mr Ritchie was examined by neurosurgeon, Professor Peter Teddy, in March 2020 and March 2021. In his first report dated 17 March 2020, Professor Teddy detailed Mr Ritchie’s past medical history and noted he understood that Mr Ritchie had made a good recovery from the 2012 transport accident. Professor Teddy considered that it was “extraordinarily difficult to obtain a clear, concise and chronologically ordered history” from Mr Ritchie in relation to his symptoms following the transport accidents in 2012, 2014 and the fall off the stepladder in 2017.
71Ultimately, Professor Teddy was of the opinion that Mr Ritchie had suffered soft tissue injuries to his cervical spine, shoulder and lumbar spine in the 2014 transport accident, together with an exacerbation of previously asymptomatic, or of minor symptomatic, cervical and lumbar spondylosis.
72In his most recent report dated 23 March 2021, Professor Teddy noted Mr Ritchie’s history, including that he had suffered “plumber’s back”.
73At the time of the examination, it was noted that Mr Ritchie was taking the anti-inflammatories, Prednisolone, Panadol Osteo and Methotrexate. On examination, Professor Teddy noted that Mr Ritchie walked with a “somewhat laborious gait” and in a “somewhat crouched position”. Professor Teddy noted that Mr Ritchie’s neck movements were accompanied by expressions of pain, and that he repeatedly grabbed his left shoulder.
74Professor Teddy considered there was no muscle wasting in any limb and Mr Ritchie’s reflexes were normal in all four limbs. Further, straight leg raising was unimpaired and Mr Ritchie was able to bend to touch his ankles and do up his shoes.
75Professor Teddy concluded that Mr Ritchie had suffered spondylosis affecting his spinal column in the cervical, thoracic and lumbar areas. Professor Teddy noted that, according to Mr Ritchie, the symptoms from his spondylosis had been relatively quiescent until the time of the 2014 transport accident. Professor Teddy noted that the accident had aggravated particularly Mr Ritchie’s cervical and lumbar spondylosis. Professor Teddy recommended that Mr Ritchie adopt a more sedentary lifestyle and avoid surgery. As to his future, Professor Teddy was of the opinion that Mr Ritchie’s symptoms will continue to a varying degree of severity and constancy for the foreseeable future.
76In May 2020, orthopaedic surgeon, Mr Garry Grossbard, examined Mr Ritchie. In a report dated 11 May 2020, Mr Grossbard detailed Mr Ritchie’s past medical history, which included him having suffered a longstanding back problem which he described as “plumber’s back”. Mr Grossbard noted that this had resulted in intermittent episodes of pain, but this did not prevent him from undertaking heavy plumbing activities such as roofing and trenching for more than ten years.
77Mr Grossbard then obtained a history of the 2012 transport accident, and that Mr Ritchie had injured his neck, shoulders and back in that accident. He noted that Mr Ritchie was ultimately able to return to simple maintenance plumbing, although he avoided the larger jobs in construction. It was noted that, as at the time of the 2014 transport accident, Mr Ritchie’s neck and right shoulder pain had settled completely, and he only suffered intermittent exacerbations of lower back pain related to activity.
78On examination, Mr Grossbard noted that there was almost full cervical spine flexion but pain with extension in relation to his lumbar spine. There was tenderness to palpation on both sides and good flexion, but marked pain and difficulty with extension. It was also noted that Mr Ritchie was able to stand on his toes and heels.
79Mr Grossbard then expressed the opinion that Mr Ritchie had a long history of intermittent low back pain, which had been exacerbated in the 2012 transport accident and subsequently in the 2014 transport accident. Mr Grossbard then noted the treatment which Mr Ritchie had received subsequently, including a multitude of corticosteroid injections into the lumbar spine during 2019.
80In Mr Grossbard’s conclusion, he stated that he understood there had been a full recovery between the 2012 and 2014 transport accidents and that, therefore, the whole of Mr Ritchie’s impairment related to the 2014 transport accident.
81In April 2021, orthopaedic surgeon, Mr Stephen Doig, examined Mr Ritchie. In his report dated 1 April 2021, Mr Doig noted that Mr Ritchie had a past history of “chronic low back pain”, as well as some prior pain in his right knee, and left shoulder troubles.
82Mr Doig then undertook a physical examination of Mr Ritchie, and noted tenderness on examination of the cervical spine with some limited movements in it. In relation to his thoracolumbar spine, there was also some limitation in movement, however, the power in his lower limbs was normal. It was noted that examination of his right shoulder was normal, but there was some restriction in movement of the left shoulder.
83Mr Doig diagnosed Mr Ritchie as suffering aggravation of pre-existing significantly symptomatic lumbar spondylosis, aggravation of previously asymptomatic cervical spondylosis, soft tissue injury to the right knee, now clinically healed, and presumed left shoulder dislocation with ongoing stiffness and pain.
84Mr Doig considered that Mr Ritchie’s prognosis was guarded and that it was unlikely he will ever be free of back or neck pain. Mr Doig also considered that Mr Ritchie’s left shoulder was still very restricted.
Mr Ritchie’s credibility and reliability
85The Transport Accident Commission (“TAC”) challenged Mr Ritchie’s credibility and reliability on a multitude of matters, from the extent of his pre-existing medical complaints, to the circumstances of the accident, and his claimed consequences.
86It was apparent that Mr Ritchie was a poor historian, whose recollection of specific events was often unreliable. The following are examples of his memory being inconsistent with other evidence:
(a) Mr Ritchie was unable to recall any prior left shoulder problems, however, the records of Dr Choo indicate he received at least two injections into his left shoulder prior to the 2014 transport accident. When these records were put to Mr Ritchie, he maintained he could not recall treatment provided so many years before, but accepted the accuracy of the clinical records. In that respect, I considered Mr Ritchie a co-operative witness, but one with a poor memory;
(b) Mr Ritchie recalled that the police and ambulance attended the scene of the 2014 transport accident, however, his son stated this did not occur and instead he drove Mr Ritchie to the hospital after the accident. Mr Ritchie conceded that the accident was traumatic and his recollection of events was incorrect. I consider his concession on this was genuine and that his prior reference to police and ambulance was not done with a wilful intention to mislead or exaggerate the circumstances of the accident;
(c) Mr Ritchie recalled that he struck his head in the 2014 transport accident, however, the hospital records expressly state that there was no head strike noted. In cross-examination, Mr Ritchie maintained this was his recollection, notwithstanding the hospital record. Whether Mr Ritchie is mistaken or the hospital record is incorrect, on the injuries claimed, I consider nothing turns on whether or not this occurred;
(d) Mr Ritchie recalled his left shoulder was dislocated in the 2014 transport accident; however, the hospital records made no reference of a shoulder complaint on the day of admission, and the physiotherapy notes of the following day, only refer to pain from left cervical spine, radiating to Mr Ritchie’s shoulder. When the admission records were put to Mr Ritchie in cross-examination, he appeared genuinely adamant that his left shoulder was in excruciating pain at the time of his admission. Although it is difficult to reconcile that evidence with the absence of such a recorded complaint by either the triage nurse or admitting doctor, I am not satisfied that Mr Ritchie was intentionally misleading the Court in respect of this. It may be that he was mistaken, and possibly confused with a prior accident in which he may have dislocated his right shoulder. I consider this probable inconsistency in Mr Ritchie’s evidence, a reflection of him being an unreliable witness, rather than an uncreditworthy witness.
87The TAC also alleged that Mr Ritchie was unreliable in respect of his claimed consequences. In respect of Mr Ritchie’s claim his spinal impairment impacted upon work capacity, the TAC tendered a promotional video from Masters Hardware store filmed in approximately 2017 in which Mr Ritchie stated that he liked Masters as the prices were good. The relevance of this video was not apparent to me. Mr Ritchie admitted he was still working in his business at the time, and purchasing plumbing supplies at a hardware store was consistent with his evidence that by that time, he was doing lighter work and administrative duties for the business. I accept that over time, Mr Ritchie reduced his involvement in his business, and he admitted his retirement at aged 74, was related to his age as well as his injuries. In any event, Mr Ritchie did not claim any pecuniary disadvantage arising from his injury and in that sense, little turned on the lack of detail as to the dates Mr Ritchie claimed he was unable to work due to his injuries and the change in the duties performed.
88The TAC also referred to medical reports which indicated that Mr Ritchie had resumed his recreational activities after the 2014 transport accident. However, when each of these entries was put to Mr Ritchie in cross-examination, he explained it was a reference to his pre-accident activities and he was adamant as to the restrictions he had faced since the 2014 transport accident – namely, doing breaststroke or using a kickboard in a pool, not being able to go surfing, and fishing on the bay, but without launching his boat. I accept Mr Ritchie’s evidence on such matters and prefer his account of this, over what the doctors wrote in their reports.
89With Mr Ritchie being such a poor historian, it is of significance that his claimed consequences were corroborated by his son as well as Dr Choo. Such evidence supports Mr Ritchie’s credibility and accords with my assessment of him as a genuine plaintiff, who tried his best to recall the matters put to him in cross-examination.
Aggravation
90Given Mr Ritchie had previously suffered injuries to his spine, my assessment of his claim involves a comparison between Mr Ritchie’s pre-existing condition, with the aggravated state. Pursuant to the well-known principles enunciated in Petkovski v Galletti,[1] I must consider only the consequences arising from the aggravation.
[1] [1994] 1 VR 436
91Chernov JA, in R J Gilbertson v Skorsis,[2] summarises the task before me:
“In determining whether an injury which is an aggravation of a pre-existing injury is a ‘serious injury’, it is necessary first to make a comparison between the applicant’s condition before the accident that gave rise to the second injury and to his or her condition after that incident and thereby ascertain the degree of additional impairment that has been brought about by the second injury. It is then necessary to make an assessment of whether the additional impairment is serious and long term.”[3]
[2] [2000] VSCA 51
[3] (Ibid) at paragraph [40]
92I am satisfied that Mr Ritchie suffered some impairment in his spine prior to the 2014 transport accident. Notwithstanding Mr Ritchie’s failure to recall in any detail the nature and extent of his pre-existing problems, based upon the clinical records and reports provided by his longstanding general practitioner, Dr Choo, I am satisfied of the following:
· he suffered occasional lower back pain, which flared up from time to time, and required him to avoid the heavier plumbing duties, but he was still able to do pick and shovel work over a week in June 2014, which I consider demonstrates the impairment in his spine was only modest at that time;
· he only used occasional medication, and had occasional injections;
· he was still able to body surf, swim up to 2 kilometres, play golf, and fish without restriction.
93In comparing Mr Ritchie’s pre-existing condition with his post-accident condition and persisting impairment, and looking only at the consequences which arise from the 2014 transport accident, it is appropriate that I have regard to what Mr Ritchie says about the pain; what he does about the pain; what the doctors say about the extent and intensity of the pain, and what the objective evidence demonstrates about the disabling effects of the pain.[4]
[4] Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
94Notwithstanding my reservations as to Mr Ritchie’s reliability as to specific events and times, I generally considered him credible in respect of his claimed consequences. I accept that he now suffers ongoing pain in his spine, whereas before the 2014 accident, his pain was only occasional. I accept that Mr Ritchie’s sitting and standing tolerances are now limited and I also accept that Mr Ritchie’s sleep is now disturbed on a consistent basis. Further, I am satisfied that Mr Ritchie is restricted in the recreational activities he can perform, and that this is of particular significance to him as he lives on Phillip Island, a place where he had previously enjoyed swimming, body surfing and unrestricted fishing. I am also satisfied that Mr Ritchie now takes medication on a daily basis and undergoes hydrotherapy approximately three times per week.
95As stated previously, I note that these consequences, arising from his aggravated spinal impairment, were corroborated by his son.
96I was most assisted in my assessment of Mr Ritchie’s application by the medical opinion of the doctor who knows him best, Dr Choo. I note that Mr Ritchie had attended Dr Choo for many years prior to the 2014 transport accident, and he has continued to be his general practitioner through to the current time. Dr Choo was aware of Mr Ritchie’s prior medical conditions, including the occasional pains in his lower back, neck and left shoulder. Notwithstanding those pre-existing conditions, Dr Choo was of the opinion that the 2014 transport accident was an ongoing cause of Mr Ritchie’s now constant lower back pain, as well as the pain in his neck.
97I note that Professor Teddy did not have as fulsome a history of Mr Ritchie’s spinal impairment prior to the 2014 transport accident as he might have had if he had been provided with Dr Choo’s clinical records, or if Mr Ritchie had been able to provide more precise details as to the extent of his attendances and treatment previously received from Dr Choo. However, overall, it is apparent that Professor Teddy was aware of Mr Ritchie suffering “plumber’s back” with some symptoms in his spine prior to the 2014 transport accident. Ultimately, Professor Teddy was of the opinion that the 2014 transport accident contributed to the symptomatic aggravation of his spondylosis, resulting in the ongoing complaints of lumbar and cervical pain. In this sense, Professor Teddy is relatively consistent with the opinion provided by Dr Choo regarding the cause of Mr Ritchie’s worsened spinal condition.
98Mr Grossbard’s opinion that Mr Ritchie had made a full recovery after the 2012 transport accident, is inaccurate in circumstances where Mr Ritchie said he suffered intermittent lower back pain from that time on, and had somewhat modified his plumbing duties to avoid the heavier work. Notwithstanding this, I consider a fair reading of Mr Grossbard’s report is that he considers there has been a substantial aggravation of Mr Ritchie’s pre-existing spinal impairment as a consequence of the 2014 transport accident.
99Overall, I consider the medical opinions relatively consistent in supporting Mr Ritchie’s claim that he suffered a persisting aggravation of his spinal condition in the 2014 transport accident, and that he suffers ongoing impairment from this.
100The test for serious injury is subjective, in that it is the effect on the individual plaintiff that must be considered. However, that determination must be made by me objectively, in considering the seriousness of the impairment.[5]
[5] Philippiadis v Transport Accident Commission [2016] VSCA 1 at paragraph [24]
101Mr Ritchie has satisfied me that when compared to other cases in the range of possible impairments, the consequences to him from his aggravated spinal impairment can be described as “at least very considerable”.
Mr Ritchie’s left shoulder impairment
102As I am granting Mr Ritchie leave to commence proceedings, as he has satisfied me the aggravation of his spinal impairment is “serious”, it is not necessary for me to separately consider whether his left shoulder impairment also satisfies that narrative test.
103I will therefore make the consequent orders.
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