Rivas v Transport Accident Commission
[2020] VCC 1037
•20 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-05604
| CARLOS CERNA RIVAS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 and 5 June 2020 | |
DATE OF JUDGMENT: | 20 July 2020 | |
CASE MAY BE CITED AS: | Rivas v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1037 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – whether injuries caused by transport accident – credit of plaintiff – whether consequences of transport accident “serious” – relevant principles – paragraph (a) case
Legislation Cited: Transport Accident Act 1986
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Demmler v Transport Accident Commission [2018] VSCA 284; Petkovski v Galletti [1994] 1 VR 436; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission [2005] VSCA 1; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Halpin v Wilson Transformer Co Pty Ltd [2012] VSCA 235
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Purcell SC with Mr C A Sidebottom | Slater and Gordon Lawyers |
| For the Defendant | Mr J Batten with Ms C A Kusiak | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s93(4) of the Transport Accident Act 1986 (“the Act”) for injury suffered by the plaintiff in a transport accident which occurred on 10 February 2018 (“the transport accident”).
Relevant legal principles
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The application is brought pursuant to paragraph (a) only of the definition of “serious injury”.
4 The definition of “serious injury” as set out in s93(17) of the Act is, relevantly, as follows:
“Serious injury means—
(a) serious long-term impairment or loss of a body function;
… .”
5 The plaintiff’s case is that by reason of the transport accident, he has suffered injury to the function of his spine.
6 In forming a judgment as to whether the consequences of an injury are “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’”.[1] It has been held that the relevant consequences to a plaintiff will relate to pecuniary disadvantage and/or pain and suffering.[2]
[1]Humphries & Anor v Poljak [1992] 2 VR 129 at 140
[2]Humphries & Anor v Poljak (ibid); see also Demmler v Transport Accident Commission [2018] VSCA 284 at paragraphs [52] and [56]-[57]
7 In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of a “serious injury”, as set out in s93(17), the relevant injury must also be long term.
8 The plaintiff bears the burden of proof on the application. The standard of proof is on the balance of probabilities.
9 The Court must assess whether the injury is “serious” for the purposes of the Act, as at the time the application is heard.[3] In assessing the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the transport accident.[4] The task of assessing the pain and suffering consequences of an injury, has been held to be largely a question of impression and value judgment.[5]
[3]See s93(6) of the Act, which states that leave must not be given by a court unless the court “is satisfied that the injury is a serious injury”. I take that expression to mean that the injury is “at the time at which the application is heard,” a serious injury for the purposes of the Act
[4]Petkovski v Galletti [1994] 1 VR 436 at 442; Demmler v Transport Accident Commission (supra) at paragraph [52]
[5]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
10 In determining the application, the Court must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[6]
See generally HuntervTransport Accident Commission [2005] VSCA 1 at paragraphs [23]-[26]
11 It is well understood that a person who is injured is to be compensated only for such injuries as are proven to have resulted from the relevant accident.[7]
[7]Petkovski v Galletti (ibid)
12 Applying the principles set out in Petkovski v Galletti,[8] in an application like this, where it is alleged that the plaintiff may have had a relevant pre-existing condition, it is the consequences of the additional injury or the aggravation of the existing injury which must be assessed. To undertake this task, the plaintiff must establish what injury was caused by the transport accident. I must then determine the consequences of that injury to the plaintiff, by comparing the plaintiff’s condition before and after that injury.[9] If I am satisfied that the additional impairment is “serious” and “long term,” then the plaintiff will have demonstrated that he is suffering from a “serious injury” under the Act.[10]
[8](ibid) at 443
[9]Petkovski v Galletti (ibid) at 444
[10] Petkovski v Galletti (ibid)
13 The plaintiff relied upon three affidavits, gave viva voce evidence and was cross-examined. The plaintiff also relied upon an affidavit from his son, Carlos Alberto Cerna Ortiz. Mr Ortiz was not required to attend for cross-examination.
14 In addition, both parties relied upon medical reports and other materials which were contained within Court Books tendered in evidence.[11] The defendant did not require any of the plaintiff’s treating medical practitioners or medico-legal experts to attend for cross examination.
[11]The Plaintiff’s Court Book was marked as exhibit (“Ex”) P1; the Defendant’s Court Book was marked as Ex D1
15 I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered materials.
The Plaintiff’s background and medical history
16 The plaintiff was born in El Salvador in May 1946. He is currently seventy-four years of age. He is married and lives at home with his wife. They have five adult children, who live independently.[12]
[12]Ex P1, p8
17 He spent his childhood in El Salvador. In early May 1991, when he was forty-four, he moved to Australia with his wife and children. After he arrived, he found work as a cleaner and then as a process worker in a factory. He worked on a full-time basis up until approximately 2010, when he retired. He currently receives the Aged Pension.[13]
[13]Ex P1, p8
18 The plaintiff deposed to the following prior health and other medical issues:
(a)in 1988, when he was living in El Salvador, he suffered a fracture to his left wrist in a transport accident. He had a surgical repair and plates were inserted. He had further surgery in Australia in March 1992 with a bone graft and re-plating. After that second surgery, he believes he made a good recovery. He was able to regain reasonable function in his left wrist and did not experience any significant ongoing issues with it;[14]
(b)he was involved in a further transport accident in the 1990s when he collided with another vehicle at an intersection. He lodged a claim with the Transport Accident Commission in respect of that accident. He does not recall sustaining any significant injuries in that accident;[15]
(c)he underwent a splenectomy in about August 2010;[16]
(d)he suffers from high blood pressure and diabetes, both managed with medication. In or about 2014, he was diagnosed with gastric reflux and in 2016, he was diagnosed with glaucoma;[17]
(e)over the past sixteen years, he has suffered from a heart arrythmia and atrial fibrillation. He has also been diagnosed with lung disease. These conditions did not restrict his recreational activities;[18]
(f)he has been suffering from sleep apnoea for many years and at the time of the transport accident, he was using a CPAP machine at night. The CPAP machine was beneficial and he was able to sleep well;[19]
(g)as a result of attending at the Dandenong Hospital following the transport accident, he was diagnosed with an iron deficiency anaemia. He had a blood transfusion and was then discharged into the care of his local doctor in respect of that condition;[20]
(h)in or about August 2018, he underwent a gastroscopy and colonoscopy. He believes nothing significant was found.[21]
[14]Ex P1, pp8-9
[15]Ex P1, p9
[16]Ex P1, p9
[17]Ex P1, p9
[18]Ex P1, p9
[19]Ex P1, p9
[20]Ex P1, p9
[21]Ex P1, p9
19 Despite the health issues to which he deposed, he maintained that he was still active prior to the transport accident. He enjoyed fishing and going for walks with his son. He also enjoyed spending time with his grandchildren. In his first affidavit, he deposed to the fact that he was “independent, active and had no restrictions on my mobility”. He said that all that changed after the transport accident.[22]
[22]Ex P1, p9
The accident
20 The plaintiff described the transport accident in the following terms:
“The accident occurred on 10 February 2018. I was travelling on the Princes Domain Drive in Hallam and as I was stationary at an intersection another car that was coming from my right on the Princes Highway collided with me.
After the accident, I was in shock. I immediately noticed pain in my right shoulder, chest, neck, back, and hips. I was trapped and had to be extricated from the car.
Police and ambulance attended the scene. I was transported by ambulance to the Dandenong Hospital. Upon arrival at hospital I was admitted as an inpatient. I underwent multiple radiological investigations of my neck, chest, and pelvis. I understand that these scans did not reveal any fracture. I was discharged to South Eastern Private Hospital on 12 February 2018, where I attended physiotherapy and occupational therapy. On 5 March 2018, I was transferred to the Valley Private Hospital due to chest pain. I had a CT scan of the chest. I believe the scan was normal and I was transferred back to South Eastern Private Hospital. I was then discharged home on 7 March 2018.”[23]
[23]Ex P1, pp9-10
21 Following his discharge, he continued to attend physiotherapy and occupational therapy at South Eastern Private Hospital as an outpatient, until approximately 7 June 2018.[24]
[24]Ex P1, p10
22 He continued to experience significant pain, so he attended his local general practitioner, Dr Sam Micut, at the Hallam Family Practice. He was still struggling to walk and was using a walking frame to get about. At that stage, he was referred to physiotherapy at Endeavour Hills Physiotherapy.[25]
[25]Ex P1, p10
23 His injuries were slow to heal and he began to struggle emotionally. He was referred to psychologist, Mr Andrew Dunhill, at the Hallam Family Practice on 11 April 2018.[26]
[26]Ex P1, p10
24 He continued to experience ongoing symptoms in his back and right leg. He was referred for further investigations and on 17 September 2018, he underwent scans to his thoracic and lumbar spine. He understands that the scans revealed mild loss of disc height at T12-L1 as well as moderate facet joint sclerosis at L4-5 and L5-S1.[27]
[27]Ex P1, p10
25 After he had the scans, he returned to see his general practitioner, Dr Micut. On 18 September 2018, Dr Micut referred him to a pain specialist, Mr Gavin Weekes, at Precision Brain, Spine and Pain Centre. He saw Mr Weekes on 17 October 2018. Mr Weekes recommended that the plaintiff have an MRI scan of his lower back. Mr Weekes also recommended that the plaintiff take Norflex.[28]
[28]Ex P1, p10
26 Following his discharge home, due to his pain levels and reduced mobility, a ramp and rails were installed to allow access to the front door as he was unable to manage the steps. In or about late 2018, despite the ramp, he fell and fractured some ribs.[29]
[29]Ex P1, p10
Current symptoms
27 The plaintiff described his current symptoms in the following manner:
Experience of pain and treatment
(a)there has been little change to or improvement in his symptoms.[30] He continues to be troubled by chronic pain and discomfort in his back and neck on a daily basis;[31]
[30]Ex P1, p10
[31]Ex P1, p16
(b)at present, his back pain is giving him the most problems. He has a heavy, dull aching pain across his lower back every day. The pain is constant and affects nearly everything he does, although the level of his pain does go up and down throughout the day;[32]
[32]Ex P1, p16
(c)the medication that he takes helps to dull some of the pain, but when it begins to wear off, he generally feels his back start to throb and ache more;[33]
[33]Ex P1, p16
(d)occasionally the pain can be so severe that he has to lie down. He has to be very careful managing sitting or standing for any length of time;[34]
[34]Ex P1, p13
(e)he suffers regular flare ups of sharp pain in his back that can be quite severe and feel like someone is placing a knife in his lower back. In addition, his back feels stiff and tight much of the time and his ability to sit, bend, twist, turn and lift has been significantly compromised by his pain;[35]
[35]Ex P1, p16
(f)the pain in his back also radiates into his legs on and off most days. In particular, he tends to get referred symptoms and pain into his right hip and down into his right thigh quite regularly. This leg pain can feel sharp and like an electric current is being passed through his leg;[36]
[36]Ex P1, p17
(g)he now lacks confidence when on his feet and sometimes it feels like his leg is weak and is about to give way;[37]
[37]Ex P1, p11
(h)he has been referred for MRI scans of his neck and back to further investigate his ongoing symptoms. On 24 April 2020, he had an MRI scan of both his cervical and lumbar spine. He understands that the scan of his neck was reported to show degenerative changes including problems at his C4-5 and C5-/6 disc levels. He further understands that the MRI scan of his back was reported to show a disc problem at his L4‑5 level;[38]
[38]Ex P1, p16
(i)ever since the transport accident, he has also struggled with chronic neck pain and stiffness. Most of the time, he experiences a dull ache around the back of his neck; [39]
[39]Ex P1, p17
(j)his neck feels very tight and rigid much of the time. This makes twisting and turning his head around quite uncomfortable;[40]
[40]Ex P1, p17
(k)he also struggles tilting his head and looking down for long periods, such as when reading or using a computer, as this can aggravate his neck pain;[41]
[41]Ex P1, p17
(l)the pain in his neck seems to radiate into his right shoulder and arm from time to time. Occasionally, he suffers from sharp shooting nerve type pain down his right arm and into his hand. When this occurs, he also develops some pins and needles into the fingers in his right hand which is annoying and can limit his grip strength;[42]
[42]Ex P1, p17
Ability to mobilise
(m)before the transport accident, he was living independently with his wife;[43]
[43]Ex P1, p11
(n)as a result of his back and referred leg pain, he has continued to require mobility aids. His walking capacity has been significantly reduced because of the transport accident and he now needs the support of a four-wheeled walking frame or an elbow crutch whenever he leaves the house. He struggles to walk without his frame or crutch at present and feels quite unsteady without them;[44]
[44]Ex P1, p17
(o)his mobility issues have slowed him down and impacted on his independence.[45] These issues have severely limited his ability to perform the domestic chores which he and his wife were sharing before the transport accident. His wife was also injured in the transport accident. Due to his lower back pain and reduced mobility, he has difficulty with his own personal care and also that of his wife. He now needs to sit down to shower, which is something that he did not need to do in the past;[46]
[45]Ex P1, p11
[46]Ex P1, p11
(p)his lack of mobility has also impacted heavily on his self-esteem and self-confidence. He feels like an invalid because of his need to use a walking aid;[47]
[47]Ex P1, p17
(q)before the transport accident, he was able to do some maintenance work around the home. For instance, he was still climbing the ladder to clean gutters and trim trees in the backyard. He was also able to wash the cars. He can no longer do those activities;[48]
[48]Ex P1, p11
Sleep
(r)his sleep quality continues to be poor. Whilst the medication that he takes seems to help him get to sleep, once he does fall asleep, his sleeping patterns are very interrupted. He tends to toss and turn and wake a number of times during the night, due to back and neck pain. This is very frustrating; [49]
[49]Ex P1, p18
(s)during the day he feels drowsy and tired much of the time. He understands that this in part due to the side effects of the medication that he takes to help control his pain; [50]
[50]Ex P1, p18
(t)whilst he did have some sleep apnoea that predated the transport accident, the quality of his sleep has noticeably deteriorated since the transport accident;[51]
[51]Ex P1, p18
Psychological impact of physical injuries
(u)his mental health is currently in quite a bad way. He continues to experience profound anxiety and depression and suffers frequent mood swings. His mental health has deteriorated in 2020, especially since funding for his psychological counselling was stopped;[52]
[52]Ex P1, p16
(v)he is sad, demoralised and frustrated much of the time. The pain in particular gets him down; [53]
[53]Ex P1, p18
(w)at times he is tearful and feels overwhelmed due to his pain and it causes him to become quite irritable. He is also frustrated by the lack of improvement in his condition since the transport accident and by the restrictions that his pain imposes upon his life: [54]
[54]Ex P1, p18
(x)the combination of his physical pain and his depressed mood has caused him to become quite socially withdrawn and he now spends much of the time at home; [55]
[55]Ex P1, p18
(y)he struggles with severe anxiety and he worries excessively. In particular, he remains concerned about whether his pain will ever improve. He gets little enjoyment out of life these days. He has lost interest in many of his prior activities and feels like his pain now dominates his life. He feels useless, hopeless and worthless and feels like he has become a burden to his wife;[56]
[56]Ex P1, p18
(z)he feels like a dark cloud is hovering over him constantly. In recent times, he has experienced lots of dark and disturbing thoughts. At times, he has contemplated suicide and he finds himself often questioning whether life is worth living any more. Although he has not sought to act upon these thoughts, they are still very disturbing and upsetting for him. He feels like he is in a deep, dark hole that is very hard to climb out of. He would like to have more counselling and help to work through these issues, but the Transport Accident Commission stopped funding treatment for his psychological issues in 2019 and he has been left to deal with these problems by himself;[57]
[57]Ex P1, p19
Activities of daily living
(aa)his ability to undertake domestic, recreational and social activities remains heavily restricted. In particular, his ability to undertake domestic chores around the house is quite limited. He finds that he cannot perform any of the physical cleaning tasks such as vacuuming, mopping or cleaning the bathrooms, as this provokes too much pain. Instead, he now relies on a cleaner funded by the Transport Accident Commission to undertake most of the household cleaning, as his wife was also injured in the accident and has her own health issues;[58]
[58]Ex P1, p19
(bb)he now does very little in the garden. The Transport Accident Commission pay for someone to help maintain the garden at home. Sometimes, one of his sons will come around and help with looking after the plants and his lawns, because he can no longer manage to do so himself. He used to enjoy spending time outside doing some gardening, but gardening activities are now beyond his capacity;[59]
[59]Ex P1, p19
(cc)prior to the transport accident, he also enjoyed going fishing, cooking and spending time playing with his grandchildren. Each of these activities has been significantly impacted;[60]
[60]Ex P1, p20
(dd)he now cooks less often due to the fact that the meal preparation aggravates his neck and back pain. When he does try to cook, he prepares the meals from a seated position;[61]
[61]Ex P1, p20
(ee)he no longer goes fishing or on long walks with his son due to his neck and back pain and mobility issues. He misses the relaxation and enjoyment that these activities used to bring him;[62]
[62]Ex P1, p20
(ff)he sees his grandchildren less often nowadays and when he does, he cannot play with them or join in many of the games like he used to.[63] He is now unable to bend down to pick up his grandchildren as he would like to.[64] This is particularly upsetting for him and it breaks his heart whenever he sees them;[65]
[63]Ex P1, p20
[64]Ex P1, p12
[65]Ex P1, p20
(gg)family gatherings are very important in the plaintiff’s culture. Before the transport accident, every Sunday, the plaintiff’s family would come to his house and in the summer months, he would cook on the barbecue. While the plaintiff and his wife still try to have the family over regularly, he does not enjoy it as much. Now he just sits around and every 20 to 30 minutes, he has to go and have a lie down to rest;[66]
[66]Ex P1, p12
Medication
(hh)he presently takes a range of medications to help manage his symptoms. For his pain, he uses Lyrica, 150 milligrams, and Palexia, 50 milligrams, every day. In addition, he takes six tablets of Panadol Osteo most days;[67]
(ii)whilst these medications help to take the edge off his pain, they do not completely remove it and he is rarely pain free. In addition, he takes Nexium to help him with some reflux and abdominal issues that he understands are side effects of his medication;[68]
Treatment
(jj)he remains under the care of his treating general practitioner, Dr Micut. Prior to the recent Coronavirus outbreak, he was seeing him on average once per week, but he has been attending him less often due to the lockdown and social distancing requirements; [69]
(kk)he ceased seeing his psychologist in October 2019, because the Transport Accident Commission elected to stop funding that treatment. He would like to restart this treatment;[70]
(ll)as a result of his ongoing back problems, he continues to wear a back brace for support most days. This is not something he ever recalls requiring prior to the transport accident;[71]
[67]Ex P1, p20
[68]Ex P1, p20
[69]Ex P1, p20
[70]Ex P1, p20
[71]Ex P1, p17
Comparison with pre-transport accident presentation
(mm)whilst he had some other health issues prior to the transport accident such as diabetes, high cholesterol, atrial fibrillation and hypertension, he was still able to maintain a reasonable level of activity and quality of life. He did not have chronic pain and the mental health issues that he has now;[72]
(nn)prior to the transport accident, he did not need the strong painkillers like Lyrica and Palexia that he now needs every day just to control his pain;[73]
(oo)prior to the transport accident, he did not need a back brace or a walking frame or a crutch just to get around; [74]
(pp)prior to the transport accident, he did not need home help and gardening assistance from strangers to help maintain his own household. Prior to the transport accident, he did not feel so completely overwhelmed by anxiety and depression like he now does, where thoughts of suicide live inside his head;[75]
(qq)before the transport accident, he recalls having some shortness of breath and right knee pain which did slow him down a little, but he could still walk independently. His shortness of breath and knee pain did not stop him from doing gardening, fishing and doing more than his share of housework and cooking. The accident and the injuries that he sustained in it, have robbed him of being able to do many of these activities;[76]
(rr)the transport accident has impacted heavily upon him and turned his life “upside down”. It has had a great impact on his mobility, his independence, his psychological health and his physical wellbeing. He feels like the transport accident has aged him many years and destroyed whatever good years he had left.[77]
[72]Ex P1, p21
[73]Ex P1, p21
[74]Ex P1, p21
[75]Ex P1, p21
[76]Ex P1, p21
[77]Ex P1, p21
28 Under cross-examination, the plaintiff gave the following relevant evidence:
(a)Dr Sam Micut has been his main general practitioner;[78]
[78]Transcript (“T”) 13, Lines (“L”) 12-13
(b)since 2002, he has had pain in his right knee. The diagnosis was osteoarthritis;[79]
[79]T13, L18-23
(c)he was starting to feel pain in his left knee as well;[80]
[80]T13, L24-25
(d)he has been seeing Dr Micut for more than fifteen years in respect of issues with his heart. He has been told by Dr Micut that he has an arrythmia and atrial fibrillation. He also has had high blood pressure and high cholesterol. In 2009, he was diagnosed with problems with his lungs, being pulmonary fibrosis, with shortness of breath;[81]
[81]TT13-14
(e)he has had ongoing treatment in respect of that condition from specialists from time to time;[82]
[82]T14, L7-8
(f)in 2009, he was diagnosed with Type 2 diabetes;[83]
[83]T14, L9-10
(g)he has been using a CPAP sleep apnoea mask for more than fifteen years. He agreed that he had been being treated by Dr Paul King, respiratory physician, in respect of that condition;[84]
[84]T14, L13-16
(h)he had surgery for a bowel obstruction in 2014 and in February of that year, had been diagnosed with gastro-oesophageal reflux disease;[85]
[85]T15, L1-4
(i)in 2015, he saw Dr Rusli, a physician, who treated him for iron deficiency and anaemia;[86]
[86]T15, L6-7
(j)in 2014, he started having problems with his eyes and cataracts, leading to cataract surgery in 2019;[87]
[87]T15, L8-11
(k)throughout his past medical history, he has consistently had an issue with his weight, for example weighing in at 147 kilograms in January 2013;[88]
[88]TT12-17
(l)in the year 2000, he was diagnosed with a dilated ascending aorta, for which he was seen by Dr Quy Nguyen, cardiologist;[89]
[89]T15, L18-24
(m)he can read English but does not understand it;[90]
[90]T16, L3-5
(n)he agreed that prior to the transport accident, the list of medications that he was taking included aspirin, Atenolol, Diabex, Diamicron, Lipitor, Micardis, Nexium and Panadol Osteo;[91]
[91]T16, L10-25
(o)in 2014, he had a disability parking permit issued to him because of his right knee problem;[92]
[92]T17, L4-10
(p)he agreed that due to the problem with his right knee, he was having pain and problems with walking at that time. He also suffered from pulmonary fibrosis and obesity, which caused difficulties with walking;[93]
[93]T17, L9-15
(q)he recalls attending at the Dandenong Hospital approximately three weeks before the transport accident, complaining of a sharp onset of pain in his chest on the left side. He agreed that he had given a history to the hospital that he had been waking up at night with shortness of breath and chest tightness over the past few months and whenever he was stressed;[94]
[94]TT17-18
(r)he agreed that at this time, he had longstanding shortness of breath and that he could only walk for about 30 minutes at a time before stopping;[95]
[95]T19, L1-5
(s)it was put to him that contrary to what he had sworn in his first affidavit, prior to the transport accident, he was not independent or active. To this he replied: “Everything I did in my own time, I would do something and stop. I would do something and stop.” When pressed on this, in particular on whether it was accurate to say that he had no restrictions on his mobility prior to the transport accident, he agreed that that was not correct;[96]
[96]TT19-20
(t)he agreed that when he attended at the Dandenong Hospital prior to the transport accident, he was diagnosed with having an abnormal heart rhythm with rapid and irregular beating of his heart. He agreed that following this admission to the Dandenong Hospital on 26 January 2018, he was sent back to his cardiologist for assessment;[97]
[97]T20, L18-31
(u)prior to the transport accident, twice a year he attended the Monash Medical Centre Respiratory and Lung Disease Centre;[98]
[98]T21, L6-10
(v)when he was asked whether or not there was anything that he wanted to add to the matters in his affidavit in respect of his medical history prior to the transport accident, he replied: “No. That I was happy before the accident;”[99]
[99]T22, L23-27
(w)he agreed that in his affidavit he had made no mention of previous low back pain;[100]
[100]T22, L28-29
(x)he agreed that he had been to see a physiotherapist in 2011. It was put to him that at that time, he had told the physiotherapist that he had experienced ongoing lower back pain for many years. To this he replied: “Not for a long time … I fell off … on the deck and I hit my lower back, and that’s why I went there;”[101]
[101]T23, L4-15
(y)he said that following the fall, he had x‑rays taken and “there was nothing wrong”. He said the fall occurred at home. He fell backwards down two stairs onto his buttocks. He said that as a result, he had three physiotherapy sessions. He was doing the gardening at home at the time that the fall occurred.[102]
[102]T24, L1-27
(z)he said that it is “possible” that he had ongoing pain and problems in his lower back following the fall at home. He said that a CT scan was performed but it did not show anything. When asked why he had not included this information in his affidavit, he said that he was only just remembering those things now under questioning;[103]
[103]TT25-26
(aa)it was put to him that in March 2013, he was having problems with his right knee and right leg “giving way”. He denied this. He replied “I did not fall. I could walk;”[104]
[104]TT26-27
(bb)he was asked whether or not the fall at home had occurred because his right knee gave way, to which he replied: “No, I was going to drop the scissors … I was trying to prevent them from falling. So I lost my step and this happened;”[105]
[105]T27, L14-18
(cc)he did not recall telling his general practitioner in 2013 that his right leg had given way on three occasions, due to pain;[106]
[106]T27, L19-21
(dd)he said that since the transport accident, he has fallen on two occasions in the course of doing physiotherapy. He said that these falls had occurred because he was dizzy, rather than his right knee giving way;[107]
[107]TT27-28
(ee)he denied that he had had any falls since the transport accident because his right knee has given way: “… because I use … an aid to walk”;[108]
[108]T28, L24-27
(ff)he said he had sometimes had falls while playing football with his grandchildren, perhaps two or three times prior to the transport accident. He said that none of those falls had caused him to go to the doctor;[109]
[109]T29, L11-28
(gg)he said that he was taking Panadol Osteo prior to the transport accident for his right knee;[110]
[110]T30, L2-6
(hh)some Facebook photographs were put to him during cross-examination. He was asked whether or not he had taken his grandson for walks to the beach in September 2018. He was asked whether or not he had been to the Australian Open Tennis. He said that it had been approximately three years since he had been to the beach and that the last time he went to the tennis was in January 2014. He said that because the Australian Open final was happening, he had republished a photograph that had been taken at that time. He said that the photograph of him with his grandson was more than six years old: “I just like to reminisce on moments that I enjoy and put them on Facebook;”[111]
[111]TT32-33
(ii)he agreed that in December 2018, which was about ten months after the transport accident, he had been able to begin walking without a stick and without a crutch for up to three or four metres. He said, in response to this line of questioning: “Well, my dreams (sic) is to be able to walk again, to be happy again … I was doing physio, and the physiotherapist told me to try and walk without these aids;”[112]
[112]T34, L1-23
(jj)it was put to him that in October 2018, the main source of his pain was in his right knee. He disagreed with this and said: “The base pain I have is on the back;”[113]
[113]T34, L24-27
(kk)he agreed that since 2002, he has had considerable ongoing problems with his right knee joint;[114]
[114]T36, L14-26
(ll)he was unsure whether or not his right knee was injured in the transport accident. He noted that prior to the transport accident, he did not need to use any walking aid to be able to walk;[115]
(mm)he was pressed about the fact that his right knee continues to give him ongoing, progressively worsening problems, to which he replied: “I used to walk or ride with pain but I did walk or ride;”[116]
(nn)he agreed that his walking had been severely restricted by the end of 2017, by reason of his lung problems;[117]
(oo)he was pressed about his mental health as it had been prior to the accident, in particular the fact that in February 2015, he had reported certain stressors to his general practitioner, Dr Micut. In response to this line of questioning, he replied: “Everybody has to have ups and downs in his life;”[118]
(pp)he agreed that since his discharge from hospital in March of 2018, he had been complaining of widespread pain all over his body. He agreed that he had been prescribed Palexia for this pain;[119]
(qq)he agreed that when he attended at hospital on 26 January 2018, he had a son who was living at home and was experiencing mental health issues, which was then causing him stress and anxiety. He said that his son does not live at home anymore;[120]
(rr)it was put to him that he uses a walking frame or a crutch because of his problems in his right knee. To this he replied: “Around the lumbar area, that’s where I have more pain.” He was pressed on this matter and it was put to him that the walking aids were necessary because of his weight and his instability due to his knee. In response to this, he answered: “… before the accident I was heavier and I did not need these aids;”[121]
(ss)it was suggested to him that the issues that were causing him psychological problems were in fact to do with the many physical health problems he was suffering from, particularly his heart, his lungs and his right knee. In response to this proposition, he replied: “The deterioration is that neither my wife nor myself [can] do anything and that makes us very sad… ;”[122]
(tt)he agreed that he has not been prescribed any medication to assist with his stress or depression or anxiety.[123]
[115]T37, L6-9
[116]T37, L16-18
[117]T37, L19-22
[118]T39, L1-23
[119]T41, L3-29
[120]T42, L10-19
[121]T46, L1-14
[122]T46, L15-31
[123]T47, L27-29
29 Under re-examination, the plaintiff gave the following relevant evidence.
(a)when the Transport Accident Commission suspended his appointments with his psychologist, his mood was “bad”. When asked why it was bad, he said: “I need a psychologist … because it helps me a lot, he gives me advice on various things which help me to change the way I think.” When asked again what was making him feel “bad,” he replied “not being able to do anything … I used to be free before and I was able to do all the things I needed to do, slowly, but I did them;”[124]
(b)when asked to explain what he meant by being able to do all the things he needed to do, he replied: “Your Honour, I was able to … look after my garden. During the summertime, perhaps twice during the summer, I would go fishing with my son. When my grandchildren did visit me at home, we used to play in the back garden … we would eat and we would enjoy ourselves. I would go out with my wife to the shopping centre, not necessarily to shop but just to stroll and look around and that was a way of enjoying ourselves;”[125]
(c)he said that he was doing these types of activities in the six months prior to the transport accident. He said that he has been unable to do them at the same level or frequency since the transport accident, “because of my difficulty of mobility, I walk less, not because of my lung, it is because of the pain that I walk less”. When asked what pain he was describing in that sentence, he confirmed that he was talking about pain in his spine;[126]
(d)he said that when he went to the physiotherapist in about 2011, it was about a “problem with a muscle”. He said that there was no ongoing problem in the years leading up to the transport accident;[127]
(e)he wears his back brace almost every day. He said that prior to the transport accident no one had ever recommended that he wear a back brace;[128]
(f)the walking aids with which he was supplied were given to him by South Eastern Rehabilitation Hospital because he “couldn’t move about by myself”. He confirmed that he has continued to use those aids up until now. He agreed that in November of 2018, at the encouragement of his practitioners, he was trying to go short distances without the stick or a crutch, “probably 5 to 10 metres … but always trying to hold onto a wall;”[129]
(g)he confirmed that when he was prescribed Lyrica and Palexia by Dr Micut, he had a conversation about those medications. He said: “They were meant to control severe pain.” When asked what pain that was, he said: “Well, the back;”[130]
(h)he said that he has never been referred to an orthopaedic surgeon for his knee problems. He said that his knee problems are “50 per cent worse” than they were prior to the transport accident;[131]
(i)he said that when the family comes over now, he is unable to cook the barbecue because “I cannot stand for a long time. I would have to be sitting or leaning on something;”[132]
[124]T49, L19-31
[125]T50, L1-13
[126]T50, L16-25
[127]TT50-51
[128]T51, L3-12
[129]TT51-53
[130]T53, L11-19
[131]T53, L20-30
[132]T54, L14-18
The lay witness
Carlos Alberto Cerna Ortiz
30 The plaintiff relied on an affidavit sworn by his son, Carlos Alberto Cerna Ortiz, on 17 April 2020. In his affidavit, Mr Ortiz deposed to the following relevant matters:
(a)he is the plaintiff’s son;[133]
[133]Ex P1, p23
(b)he is aware that his father was involved in a transport accident in February 2018. He believes that his father suffered injuries mainly to his neck and lower back;[134]
[134]Ex P1, p24
(c)he is very close to his father and they see each other four to five times per week. Before the transport accident, he would either go to his parents’ house or they would come to visit him. Since the transport accident, his father no longer comes to his house and he is the one travelling to his parents’ place;[135]
[135]Ex P1, p24
(d)prior to the transport accident, he recalls that his father was frequently joking and laughing. His son considered him to be a cheerful, happy and positive person;[136]
[136]Ex P1, p24
(e)since the transport accident, he has noticed that his father’s personality has changed. He no longer seems happy. When he speaks with him, his father frequently mentions that he is in pain, including in his neck and lower back. His father’s lifestyle has also changed significantly and he seems to be more physically limited;[137]
[137]Ex P1, p24
(f)prior to the transport accident, his father had some health issues; however, none of those conditions prevented him from mobilising, gardening, fishing or socialising. He does not recall his father complaining of any issues with his neck or lower back before the transport accident;[138]
[138]Ex P1, p24
(g)since the transport accident, he has observed his father experiencing a significant amount of physical pain. His father complains of frequent pain affecting his neck and back. His father’s main issue seems to be his low back pain, which radiates down his right leg. He has observed that his father has restricted movement and function in his lower back. He has seen his father rubbing his back on numerous occasions and grimacing in pain. He has also seen him crying in pain. His father seems to have lost confidence in himself;[139]
[139]Ex P1, pp24-25
(h)his father’s mobility has been significantly reduced. His walking tolerance is restricted, as well as his sitting tolerance. Before the transport accident, his father was independent and able to walk freely, without assistance. Since the transport accident, as a result of the pain in his lower back and leg, his father requires the use of a walking frame or crutches. At home, he has observed that his father has great difficulty sitting in the same position for extended periods of time, and he has observed him moving positions regularly;[140]
[140]Ex P1, p25
(i)since the transport accident, his father’s emotional state has deteriorated. He seems to be down most of the time. He has become irritable and short tempered. He gets frustrated easily and argues a lot with his wife. He seems to withdraw from people and on some occasions when his son visits, the plaintiff does not want to come out of his bedroom;[141]
(j)prior to the transport accident, his father used to help his wife with the household chores. He now struggles due to the pain in his lower back and he is aware that the Transport Accident Commission is providing assistance with home services. He has seen his father trying to do some light cleaning, but he will usually lie down afterwards because of the pain he is in. If his father and his mother need to do a big shop, his father will stay home and Mr Ortiz with go with his mother to do the shopping;[142]
(k)as a result of his pain levels and the impact on his mobility, his father struggles to take the rubbish bin out. Mr Ortiz now goes to his parents’ house every Monday night to take their bin out;[143]
(l)since the transport accident, he has noticed that his father has difficulty with his personal care. He has seen him struggling with bending to tie his shoelaces. He now wears slip-on shoes;[144]
(m)he has noticed that his father has difficulty getting up from a seated position and if he is around, Mr Ortiz helps his father to get up;[145]
(n)prior to the transport accident, his father enjoyed gardening. He now struggles with any activity that requires him to bend, squat or crouch. Because of this, his father hardly does any gardening now. His father and his mother now receive assistance from the Transport Accident Commission for gardening;[146]
(o)prior to the transport accident, his father enjoyed fishing very much. The two of them would go fishing at least three times a month. It was their “father/son time”. They used to go surf fishing. They would get to the beach two hours before the high tide, and stay for about four to five hours. They would bring all their equipment with them, and his father had no difficulty walking or carrying the recliner chairs, boxes and fishing lines;[147]
(p)his father now tends to withdraw and avoids going out. They have not gone fishing since the transport accident because of his low back pain and his reduced mobility. Mr Ortiz has stopped asking his father if he wants to try fishing again, as the last time he asked him if he wanted to go, which was about seven months ago, his father cried;[148]
(q)before the transport accident, their family would gather at his parents’ house every Sunday. His father would cook for everyone on the barbecue. His father very much enjoyed this and no one else was allowed to cook on the barbecue. Mr Ortiz has noticed that his father has reduced his cooking because of his low back pain and difficulties standing for prolonged periods of time. While the family still gathers at his parents’ house every Sunday, his father no longer does the cooking. Instead, his brothers and he now bring the food;[149]
(r)his father has many grandchildren. As a result of the transport accident, he is unable to interact with them like he used to do. During their Sunday gatherings, his father used to kick the ball with the grandchildren, but he no longer does this.[150]
[141]Ex P1, p25
[142]Ex P1, p25
[143]Ex P1, p26
[144]Ex P1, p26
[145]Ex P1, p26
[146]Ex P1, p26
[147]Ex P1, p26
[148]Ex P1, p26
[149]Ex P1, p27
[150]Ex P1, p27
Medical evidence
31 There were numerous medical reports contained in the tendered materials. Both sides filed reports from medico‑legal experts. A précis of the relevant medical material is set out below.
The Plaintiff’s medical evidence
32 The plaintiff’s medical practitioner, Dr Sam Micut, provided two reports as part of the Plaintiff’s Court Book. In the latest report dated 19 February 2020, Dr Micut noted the fact that the plaintiff had been involved in a transport accident in February 2018 and that subsequently, his recovery was quite slow. Dr Micut noted that the plaintiff suffered from persisting pain, particularly in the back and lateral lumbar areas, which interferes with his mobility. He said that since his first report, the plaintiff had experienced ongoing back pain, especially in the lumbar area, radiating to both legs. The plaintiff is also getting pain in the neck. He said that the plaintiff has tenderness over his whole cervical spine, lower thoracic spine (from T8 down) and whole lumbar spine, with moderate to severe restriction of movement.
33 An MRI scan of the cervical and lumbar spine performed on 21 March 2019 showed degenerative changes in the cervical spine, with mild foraminal stenosis and nerve root impingement at the C4-C7 level, and degenerative changes throughout the lumbar spine, with impingement of the right L4 and L5 nerve roots. He also noted that the plaintiff is getting “periods of low mood, anxiety, hopelessness, helplessness related to his injuries and the ongoing pain, with no significant improvement”.
34 Dr Micut diagnosed the plaintiff as suffering from:
(a)aggravation of cervical spondylosis, with nerve impingement;
(b)aggravation of lumbar spondylosis with nerve impingement; and
(c)Adjustment Disorder with Anxiety/Depressed Mood.
35 Dr Micut thought that in the future, the plaintiff was likely to need physiotherapy to try to maintain or improve mobility. He said that he ought to remain on his current medication, which was, at that time, Voltaren Gel, Panadol Osteo and Lyrica. He thought that other medications may be required if the pain gets worse. He thought that the plaintiff required psychological treatment on an ongoing basis. In terms of prognosis, he observed: “At the moment his condition can be regarded as having stabilised, but given the lack of progress since [my] last report, it is my opinion that his condition is unlikely to improve … ;”[151]
[151]Ex P1, pp42-43
36 The plaintiff was seen by Dr Gavin Weekes, pain specialist, on 17 October 2018. In a report of the same date, Dr Weekes said that upon presentation, the plaintiff’s “main pain issue that has arisen from [the transport accident] is lower back pain radiating down into his right leg to the knee level. He … gets some intermittent mild pain going down the left leg but … the right side is worse affected. Back pain is worse than leg pain. He gives severe pain scores.”[152]
[152]Ex P1, p38
37 Dr Weekes noted that upon examination, he observed bilateral paraspinal tenderness of his lower lumbar region and over the sacroiliac joint, which seemed to be worse over the left side. At that time, Dr Weekes thought it was important to rule out a nerve root compression or spinal cord compression and made a request for an MRI scan to be conducted of the lumbar spine.[153] As to this, I note (as recorded by Dr Micut),[154] that an MRI scan of the lumbar spine performed on 21 March 2019 demonstrated nerve root impingement in both the cervical and lumbar spine.
[153]Ex P1, p39
[154]see paragraph 33 above
38 The plaintiff was treated by Mr Andrew Dunhill, psychologist, on twenty-two occasions between 17 April 2018 and 28 August 2019. In a report dated 18 February 2020, Mr Dunhill expressed the view that the plaintiff had experienced a significant deterioration in his mental health over the past two years, after suffering soft tissue injuries to his upper body in a transport accident in February 2018. After noting that part of the plaintiff’s psychological issues were related to the Transport Accident Commission’s handling of the plaintiff’s claim, Mr Dunhill said:
“… The other significant factor in his psychological distress is the deterioration of his physical health and associated loss of physical capacity. [The plaintiff] is clearly finding it difficult to deal with his ongoing physical pain, reduced mobility, and increasing uncertainty about his physical health … .”[155]
[155]Ex P1, pp50-54
39 The plaintiff was examined for medico‑legal purposes by Professor Richard Bittar, neurosurgeon and spinal surgeon, in February 2019. Professor Bittar said that the plaintiff complained of the following symptoms:
“… lower back pain. This is constant and is generally sharp in character. It radiates bilaterally throughout the entire lumbar region with an average severity of 9/10 and a maximum of severity of 10/10.
His back pain is exacerbated by a variety of activities including bending, twisting, lifting, pushing or pulling, coughing, sneezing or straining. His back pain deteriorates if he sits, stands or walks for more than a few minutes, or if he lifts more than very light objects. It improves with recumbency, frequent postural changes and medications.
… leg pain. He experiences pain radiating through his right buttock and hamstrings to his knee … his leg pain is constant and is generally aching in character. It has an average severity of 8/10 with a maximum severity of 10/10. His leg pain has the same relieving and exacerbating factors as his lower back pain.
He also experiences constant pins and needles and numbness in the same distribution as his leg pain.
… neck pain. He experiences constant pain in his neck which varies in character between sharp and aching. His neck pain radiates to the back of his head. His neck pain has an average severity of 8/10 and the maximum severity of 10/10.
His neck pain is exacerbated by sudden or repetitive neck movements, maintaining his neck in a fixed position for prolonged periods, repetitive arm movements, using his arms above shoulder height and any sustained or extreme neck extension or flexion. It improves with medications. His neck pain prevents him from reading any significant material and also has a significant detrimental impact on his ability to concentrate … .”[156]
[156]Ex P1, pp 65-66
40 Professor Bittar diagnosed the plaintiff as suffering from:
(a)aggravation of cervical spondylosis with neck pain and arm pain, as well as cervicogenic headaches;
(b)aggravation of lumbar spondylosis with lower back pain and leg pain.[157]
[157]Ex P1, pp 67-68
41 Professor Bittar was of the opinion that the transport accident was the dominant contributing factor to the plaintiff’s injuries. He felt that the plaintiff’s prognosis was, at that stage, poor.[158]
[158]Ex P1, pp 65-68
42 The plaintiff was examined for medico‑legal purposes by Dr Clayton Thomas, consultant in rehabilitation and pain medicine, on 14 February 2019. On that occasion, Dr Thomas noted that the plaintiff was tender throughout his spine and that the plaintiff was not able to stand unaided in order for his lumbosacral movements to be examined. Dr Thomas noted that “gentle axial compression and gentle pelvic rotation aggravated his pain”.[159] Dr Thomas concluded that the plaintiff was a seventy-two-year-old man complaining of “diffuse and widespread pain … and diffuse and widespread tenderness in the presence of some non-organic components but otherwise presents as being markedly deconditioned …”.
[159]Ex P1, p 59
43 Dr Thomas accepted that the plaintiff’s current condition had occurred as a result of the transport accident. He thought that it was appropriate at that time to obtain a psychiatric assessment in order to assess the origin of the plaintiff’s pain, which he had been unable to do satisfactorily because of the difficulties with examining the plaintiff. Dr Thomas was of the opinion that the plaintiff’s condition could be considered to have substantially stabilised.[160]
[160]Ex P1, pp 59-60
44 In a report dated 22 August 2019, Dr Thomas considered documents that had been supplied to him including the records from the Dandenong Hospital following the transport accident. He noted that the medical notes recorded:
“Right sided pain worse on the right clavicle, thorax and pelvis. He also complained of neck pain and headache.”[161]
[161]Ex P1, p 63
45 He again raised the possibility of the existence of a Somatic Sensory Disorder. He acknowledged that there could well be an underlying organic component to the plaintiff’s presentation which is being overshadowed by the plaintiff’s overall presentation and the difficulties with examination. He again expressed the opinion that the plaintiff would continue to suffer from prolonged pain and disability.[162]
[162]Ex P1, pp 65-64
46 The plaintiff was examined for medico‑legal purposes by Dr Richard Sullivan, interventional pain specialist and specialist anaesthetist, in about February 2020. In a report dated 4 May 2020, Dr Sullivan provided the following opinion:
“… following [the transport] accident, he developed pain affecting his low back, his right shoulder and his right knee.
His pain has persisted since this time.
He reports that the pain is impacting on his functional capacity, again as detailed in my previous report.
Examination on the date of initial assessment revealed scarring and changes around his left upper limb consistent with his previous accident, limited range of lumbar movement and sensory attenuation in his lower limbs.
I noted an x‑ray of the thoracolumbar spine dated 17 September 2018 that concluded [that there was] some spondylitic change at L4/5 and loss of disc height at T12/L1.
In the context of his whole presentation, I recommended further investigations including MRI scan of the cervical spine and lumbar spine …
The MRI of the cervical spine is reported to demonstrate moderate to severe loss of disc height and mild broad-based disc osteophyte complexes at C4/5 with moderate right neuroforaminal stenosis and moderate to severe left neuroforaminal stenosis.
Additionally, there is loss of disc height and posterior disc osteophyte complex at C5/6 with moderate to severe right neuroforaminal stenosis and moderate left neuroforaminal stenosis.
There are also minor changes noted at C6/7 and C7/T1.
MRI of the lumbar spine of the same date notes in its report spondylolisthesis at L4/5 though without pars defects and a left paracentral annulus tear and mild bilateral L4 neuroforaminal stenosis. There was also facet joint arthropathy noted at L4/5.”[163]
[163]Ex P1, p94
47 On the basis of the MRI scan performed on 24 April 2020, Dr Sullivan observed that “[the] findings of the scans would be consistent with … [the plaintiff] suffering aggravation of both cervical and lumbar spondylosis”.[164] In relation to the plaintiff’s neck pain, he thought that “[the] neural irritation indicated on the cervical spine report could provide an explanation as to why he would have ongoing right upper limb pain”.[165] In relation to the plaintiff’s lower back pain, he said “[the] neuroforaminal encroachment noted on the lumbar MRI scan could explain why he has persisting lower limb pain”.[166]
[164]Ex P1, p94
[165]Ex P1, p94
[166]Ex P1, p94
48 In a report dated 26 February 2020, Dr Sullivan expressed the view that the plaintiff’s condition had stabilised and was neither likely to deteriorate nor to improve substantially in the future.[167]
[167]Ex P1, p92
49 The plaintiff was examined for medico‑legal purposes by Dr Nathan Serry, consultant psychiatrist, in February 2019 and again in February 2020. In the most recent report provided by Dr Serry dated 25 February 2020, he observed that the –
“… subject accident and the physical and psychological injuries sustained have continued to impact quite substantially on the claimant’s lifestyle and he now presents as somewhat worn out and drained by his persistent symptomatology.”
50 In Dr Serry’s view:
“From a diagnostic viewpoint, the claimant … would be considered to have a now moderately severe chronic adjustment disorder with anxious and depressed mood and with features of traumatisation … His condition has stabilised and his prognosis in my opinion is guarded. There appears to be a nexus between the physical and psychiatric aspects of his presentation … .”[168]
[168]Ex P1, p86
51 Dr Serry did not diagnose the plaintiff as suffering from a “somatic sensory disorder,” nor did he suggest that a psychiatric condition was causing the plaintiff’s pain.
52 The plaintiff relied upon a report from Dr Gregor Schutz, consultant psychiatrist, dated 24 April 2020. This report was originally obtained by the defendant. In that report, Dr Schutz was of the opinion that the plaintiff was suffering from a moderate Adjustment Disorder with Anxious and Depressed Mood. He did not think the condition had resolved. He thought that in terms of causation, this condition had arisen secondary to various factors, with a significant contributing factor being his development of pain from the transport accident, which he experiences as overwhelming and demoralising. He thought that in terms of the anxiety, his symptoms could reasonably be attributed to the transport accident, with a degree of anxiety as a passenger and occasional flashbacks being reported.[169]
[169]Ex P1, p101
The Defendant’s medical evidence
53 The defendant relied on the two reports from Dr Clayton Thomas which were contained in the Plaintiff’s Court Book. Reference has been made to the relevant content of those reports above and will not be repeated here.
54 The defendant also included the report of Dr Gregor Schutz dated 24 April 2020, which was also relied upon by the plaintiff and has been referred to above. I will not repeat that content here.
55 The plaintiff was examined for medico‑legal purposes by Dr Brett Halliday, consultant orthopaedic surgeon, on 5 March 2020. Dr Halliday noted that at that time, the plaintiff’s weight was 131.9 kilograms. He made reference to various imaging reports with which he had been supplied. No reference was made to the most recent MRI examination of the lumbar and cervical spine.[170]
[170]The list of documents with which Dr Halliday was supplied makes no reference to this MRI being supplied to him.
56 As a result of his examination of the plaintiff, Dr Halliday stated that the plaintiff has had –
“… soft tissue injuries to his cervical, thoracolumbar spine and right hip area. He reports ongoing symptoms in all these areas. It would appear that none of the conditions have resolved. There are signs of overstatement and inconsistency … [The plaintiff] reports that … his injuries have had [a] significant effect on his domestic situation and recreational activities as a result of his motor vehicle accident. His level of reported disability appears to be out of proportion to any demonstrable injuries … There were significant signs of overstatement and inconsistency in the level of pain reporting compared with the demonstrable pathology both clinically and radiologically as a result of the accident. I cannot explain this discrepancy based on any injury from the accident … .”[171]
[171]Exhibit D1, pp20-25
57 Dr Halliday expressed a similar opinion in his second report which was dated 26 May 2020.
58 I note that in providing this opinion, Dr Halliday neither acknowledged the findings on the 2019 MRI scan of nerve root impingement in both the cervical and lumbar spine, nor sought to explain his opinion that the plaintiff was overstating his symptoms, in light of those findings. For this reason, I reject Dr Halliday’s opinion that there was “overstatement and inconsistency in the level of pain reporting compared with the demonstrable pathology both clinically and radiologically”.
The issues
The Plaintiff’s credit
59 Attempts were made to discredit the plaintiff during cross-examination. The focus of the cross-examination was on whether the consequences of which the plaintiff now complains, were pre-existing, caused by his comorbidities, or caused by the transport accident.
60 For instance, it was suggested to the plaintiff that he had pre-existing pain in his right knee and that pain was starting to appear in his left knee as well. It was put to him that he has always had issues with weight and that he had a pre-existing heart and respiratory condition. It was suggested that he had a longstanding problem with lower back pain. It was put that the pain in his knees, the respiratory condition and his obesity, had all caused problems with his mobility in the past. The plaintiff was also challenged on the reasons why he is presently suffering from psychological symptoms.
61 In response to the cross=examination on the loss of mobility, the plaintiff said that prior to the transport accident, he had done things in his own time, but he was able to do them. He denied any persisting lower back pain, instead describing a specific incident which caused an acute lower back problem. He said that he had no lower back problems in the three years leading up to the transport accident.
62 As to the effect of his weight, he said that he was heavier prior to the transport accident, but he did not need a mobility aid at that time. An examination of the medical records demonstrates both aspects of this evidence to be true. He said that despite his weight and other medical issues, prior to the transport accident, he could walk or ride, he could garden, he could fish and play with his grandchildren, he could stand and cook the barbecue. He could go to the shopping centre and “stroll” with his wife: “I was able to do all the things I needed to do slowly but I did them … I walk less, not because of my lung, it is because of the pain that I walk less.”
63 Regarding the effect of his knee pain on his present ability to mobilise, the plaintiff consistently gave evidence that it was his back pain which was causing his present mobility problems.
64 As to the psychological issues from which he presently suffers, the plaintiff said that it is the deterioration in his health following the transport accident, which has affected him psychologically. He said that this is the reason why he wants to resume seeing his psychologist.
65 Having had the benefit of observing the plaintiff while he was giving evidence to the Court, I formed the view that he was a co-operative witness who appeared to be doing his best to give accurate responses to the questions asked of him. During cross-examination, he gave his evidence openly and without embellishment. He made concessions where necessary. Many of these concessions were adverse to his interests. His explanations were cogent and clear. I accept the evidence which the plaintiff gave in relation to each of the matters set out above.
66 I find that the plaintiff’s account of events and his injuries has remained consistent throughout the period in which he has seen his treating medical practitioners, consulted with the medico‑legal assessors and provided evidence to this Court. The content of the medical records and the medico‑legal reports corroborate the plaintiff’s account of events. The veracity of the plaintiff’s account of events and the consequences of the injuries which he sustained in the transport accident, is supported by the content of the affidavit from the plaintiff’s son
67 After a consideration of all of the evidence, particularly the evidence of the plaintiff as corroborated by the medical records and the evidence of his son, I consider that he was a credible witness, in the sense of being a truthful person. At no time did I gain the impression that he was attempting to mislead the Court or to exaggerate the consequences of his symptoms.
Stoic plaintiff
68 I also formed the view that the plaintiff is somewhat stoic in relation to his condition. An analysis of the evidence demonstrates that he has suffered constant pain since the transport accident in February 2018.
69 Despite this, I find that he has made a concerted effort to try to remain mobile, to the point where he attempted at one time to give up his mobility aids to try to regain the ability to walk independently. In addition, he continues to try to interact with his large family, notwithstanding that he no longer derives as much enjoyment out of this activity and that he has had to modify the manner in which this can take place.
Compensable injury
70 The details of the occurrence of the injury are not in dispute.
71 Similarly, there is no dispute that as a result of the transport accident, the plaintiff is suffering from injuries to his spine that are organic in nature.
72 On that basis, I am satisfied that the plaintiff suffers from the following injuries:
(a)aggravation of cervical spondylosis causing neck pain and arm pain;
(b)aggravation of lumbar spondylosis causing lower back pain and referred pain into the right leg.
Is the compensable injury “long term” for the purposes of the Act?
73 Having considered the relevant reports, in particular the reports from Dr Micut,[172] Professor Bittar,[173] Dr Thomas,[174] Dr Sullivan[175] and Dr Serry,[176] I find that the plaintiff is likely to suffer from the consequences of the injuries that he sustained in the transport accident, for the foreseeable future. Given this, I find that these injuries are “long term” for the purposes of the Act.
[172]Ex P1, p43
[173]Ex P1, p68
[174]Ex P1, p50
[175]Ex P1, p92
[176]Ex P1, p86
Are the consequences of the Plaintiff’s injury sustained in the transport accident “serious”?
74 Having regard to all of the relevant evidence, I find that as a result of the injuries to his spine alone, the plaintiff suffers from the following consequences:
(a)chronic throbbing and aching pain and discomfort in his back on a daily basis, which results in a feeling of stiffness and tightness much of the time. The pain is constant and affects nearly everything he does;
(b)regular flare ups of sharp pain in his back that can be quite severe and feel like someone is placing a knife in his lower back. Sometimes this pain is so severe that he has to lie down;
(c)back pain which radiates into his legs most days, also causing referred pain into his right hip and down into his right thigh quite regularly. This leg pain can feel sharp and like an electric current is being passed through his leg. He sometimes feels like his leg is weak and is about to give way;
(d)a compromised ability to sit, stand, bend, twist, turn and lift;
(e)chronic pain and stiffness in his neck, experienced as a dull ache around the back of his neck. His neck feels very tight and rigid much of the time. This makes twisting and turning his head quite uncomfortable;
(f)difficulty with tilting his head forward and looking down for long periods, such as when reading or using a computer;
(g)pain that radiates from his neck into his right shoulder and arm from time to time. Occasionally, he suffers from sharp shooting nerve type pain down his right arm and into his hand which causes some pins and needles into the fingers in his right hand, affecting his ability to grip;
(h)the need to use mobility aids whenever he leaves the house. He struggles to walk without his frame or crutch and feels quite unsteady without them. This has severely affected his independence;
(i)an ongoing limitation in his ability to perform the domestic chores and maintenance around the house, such as cooking, vacuuming, mopping, cleaning the bathroom, cleaning the gutters, trimming trees in the garden, general gardening or washing the cars;
(j)difficulty with his own personal care and also attending to that of his wife;
(k)poor quality of sleep due to his interrupted sleeping patterns. He tends to toss and turn and wake a number of times during the night due to back and neck pain. During the day he feels drowsy and tired much of the time;
(l)a loss of enjoyment of life, by reason of the social withdrawal caused by his experience of pain and depressed mood. In addition, his pain interferes with many activities which he used to find pleasurable, such as going fishing and walking with his son, spending time playing with his grandchildren and cooking on the barbecue for his family;
(m)a heavy impact on his self-esteem and self-confidence due to his mobility issues. He feels like an invalid because of his need to use a walking aid;
(n)a recent deterioration in his mental health, manifest in frequent mood swings and deep feelings of depression and anxiety. At times, he is tearful and feels overwhelmed due to his pain. He is quite irritable, sad, demoralised and frustrated much of the time. He feels useless, hopeless and worthless, and feels like he has become a burden to his wife. He worries excessively. In particular, he remains concerned about whether his pain will ever improve;
(o)the need to take daily medication such as Lyrica and Palexia and the need to wear a back brace for support most days;
(p)the need to seek regular treatment from his general practitioner. He also has an ongoing need for psychological treatment, although this is not presently being funded by the Transport Accident Commission.
75 In Haden Engineering Pty Ltd v McKinnon,[177] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of an injury. In particular, Maxwell P observed that the consequences of pain and suffering encompassed both the plaintiff’s experience of pain, as well as the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[178] Part of the process is for the Court to assess the intensity of pain which the plaintiff experiences, together with the frequency and duration of pain episodes. As set out above, ultimately, the question of whether an injury satisfies the relevant test under the Act is one of impression or value judgment. The weight to be attached to the plaintiff’s account of the pain experienced will depend upon an assessment of the plaintiff’s credibility.[179] It has been observed by the Court of Appeal that once it is accepted that the appellant is a truthful witness and especially where the plaintiff has been found to be stoic, there is no reason to reject his ongoing descriptions of the pain suffered by him.[180]
[177](2010) 31 VR 1 (“Haden”)
[178]Haden (supra) at paragraph [9]
[179]Haden (supra) at paragraph [12]; see also Halpin v Wilson Transformer Company Pty Ltd [2012] VSCA 235 at paragraph [44]
[180]ibid
76 I have already made observations about the plaintiff’s demeanour and presentation in Court. In particular, I have found that the plaintiff was both a witness of credit and also stoic in his presentation and attitude to managing his injuries.
77 It is undoubtedly the case that the plaintiff suffered from many comorbidities which affected his life and mobility prior to the transport accident. Notwithstanding this, the weight of the evidence satisfies me that prior to the transport accident, the plaintiff retained his independence and an ability to mobilise without a walking aid. He was also able to engage in his usual activities of daily living, and to maintain his recreational activities and interaction with his family and grandchildren. These were activities which gave him immense pleasure.
78 An analysis of the evidence clearly demonstrates that by reason of the consequences of his spine injury alone, many aspects of the plaintiff’s life have been adversely affected.
79 In particular, I am satisfied that the plaintiff endures permanent, daily pain in his spine, which causes him significant discomfort and restrictions in various aspects of his life. His ability to sit, stand, bend, twist, turn and lift is compromised. His spinal pain causes him constantly interrupted sleep, which in turn has severely impacted upon his mood. The level and nature of his pain is such that he is required to use mobility aids and to wear a back brace. He must also take daily medication in an effort to control the pain that he experiences.
80 As was stated by the Court of Appeal in Kelso v Tatiara Meat Co Pty Ltd:[181]
“… The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence … .”
[181](Supra) at 199, per Dodds-Streeton JA
81 Given this, and taking into account all of the evidence, I am satisfied that the pain and suffering consequences of the plaintiff’s injury to his lumbar spine alone are “very considerable” and certainly more than “significant” or “marked” and therefore satisfy the relevant test for “serious injury” as set out in the Act.
Conclusion
82 For the reasons set out above, I am satisfied that as a consequence of the accident which occurred on 10 February 2018, the plaintiff has suffered a “serious injury” as that term is defined in the Act, to the function of his spine. The application is granted.
83 I will hear the parties in relation to the question of costs.
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