Roach v Transport Accident Commission
[2022] VCC 1163
•25 July 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-00714
| DANIEL ROACH | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 December 2021 | |
DATE OF JUDGMENT: | 25 July 2022 | |
CASE MAY BE CITED AS: | Roach v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1163 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious long-term impairment to the spine –neck injury – aggravation – whether aggravation serious
Legislation Cited: Transport Accident Act 1986
Cases Cited:Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Humphries & Anor v Poljak [1992] 2 VR 129; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Petkovski v Galletti [1994] 1 VR 436; Richards v Wylie [2000] VSCA 50; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181; Transport Accident Commission v Zepic [2013] VSCA 232.
Judgment: Application refused
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis with Mr D O’Brien | Zaparas Lawyers |
| For the Defendant | Mr J L Batten with Mr A Anderson | Wisewould Mahony |
HIS HONOUR:
Introduction and overview
1The plaintiff has a long history of playing and coaching rugby at very high levels. He was involved in a transport accident on 30 August 2014. A taxi in which he had been a passenger and from which he was about to alight was rear ended by another vehicle. There is no dispute about this. The plaintiff was taken to Alfred Hospital by ambulance.
2The plaintiff seeks the grant of a serious injury application pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”). He says that the consequences of the accident when judged by comparison to other cases in the range of possible impairments or losses, can fairly be described as at least very considerable in that they are more than significant or marked.
3The plaintiff was represented by Mr Valiotis leading counsel and Mr O’Brien of counsel. The defendant was represented by Mr Batten of leading counsel and Mr Anderson of counsel.
4The Application was pursued on the following basis:[1]
(i) Sub-section (a) of the definition of serious injury being injury to the plaintiff’s cervical spine, lumbar spine, neck, back and development of chronic pain syndrome; and
(ii) Sub-section (c) of the definition of serious injury occasioning a psychiatric condition including depression, anxiety, suicidal ideation, adjustment disorder, exacerbation of bipolar II Disorder and development of Chronic Pain Syndrome.
[1]The particulars of injury filed by the plaintiff rely upon:
5In the course of his opening address, Mr Valiotis abandoned reliance on limb (c) of the definition of serious injury. Nonetheless, in determining the seriousness of the physical consequences of the injury, Mr Valiotis submitted that it was permissible to take into account the psychological consequences that have resulted from it in the sense understood in law and explained, for example, in Richards v Wylie.[2] On the other hand, the defendant submitted that the plaintiff was afflicted by a poor mental state prior to the accident and this explains why the claimed injury under paragraph (c) was abandoned. Furthermore, the defendant submitted that I should and can strip away the alleged mental consequences from the accident and not treat them as a relevant consequence of the organic physical injuries sustained in the accident in assessing the injury under paragraph (a) of the definition.
[2] [2000] VSCA 50.
6The treatment of the plaintiff’s spine (the neck and back) as a single body function is not controversial.[3] The plaintiff presented his case on the basis that accident aggravated a pre-existing spinal condition or, as Mr Valiotis classified it, an aggravation of pre-existing spondylotic changes. If this be the appropriate classification of the plaintiff’s injury, and the defendant did not advance an alternative characterisation on the medicine, then the plaintiff must prove that the aggravation of his pre-existing spine condition caused by the accident is itself serious or causative of very considerable consequences on its own, after taking into account the plaintiff’s condition as it existed before the accident in 2014, and the position that now prevails.
[3]See: Transport Accident Commission v Zepic [2013] VSCA 232.
7The defendant contested the nature and the extent of the transport injury and submitted that the plaintiff had already suffered symptomatic pre-existing degenerative change to the spine that was of a degree greater than what might be anticipated from the bumps and knocks inevitably associated with the many years the plaintiff played rugby union and league. Ultimately, the defendant contended that I should be satisfied on the evidence that as a result of the accident, the plaintiff suffered a soft tissue injury against a significant pre-existing pathology and that the accident has not caused or left the plaintiff with consequences that are serious. In addition, the defendant put in issue the plaintiff’s reliability on certain aspects of his evidence.
The Plaintiff’s Evidence
8The plaintiff’s evidence in support of the application comprised the following:
Medical Reports
· Medical reports of Ms Victoria Bunting dated 21 April 2015[4] and 22 April 2015[5]
[4] Exhibit P2, PCB 24.
[5] Exhibit P2, PCB 25.
· Medical report of Dr Stewart Cameron dated 21 July 2016[6]
[6] Exhibit P3, PCB 26-27.
· Medical reports of Dr Ralph Mobbs dated 8 June 2017[7] and 21 June 2017[8]
[7] Exhibit P4, PCB 28-29.
[8] Exhibit P4, PCB 30.
· Medical reports of Dr Albina Della Bruna dated 27 June 2017[9] and 27 June 2017[10]
[9] Exhibit P5, PCB 32-33.
[10] Exhibit P5, PCB 34.
· Medical report of Mr Matthew Crawford dated 16 Aug 2018[11]
[11] Exhibit P6, PCB 36-37.
· Medical report of Dr Ken Patterson dated 27 Jan 2020[12]
[12] Exhibit P7, PCB 38.
· Medical report of Mr Paul Murray dated 26 Mar 2021[13]
[13] Exhibit P8, PCB 39-41.
· Medical report of Mr Rob Hill dated 20 July 2021[14]
[14] Exhibit P9, PCB 42-45.
Medico-legal Reports
· Report of Mr M A Khan dated 27 June 2017[15]
· Report of Mr Mohammed Awad dated 15 Aug 2018[16]
· Reports of Dr Richard Sullivan dated 12 April 2021[17] and 29 Nov 2021[18]
· Reports of Dr Jarrad Stevens dated 20 April 2021[19] and 25 Nov 2021[20]
Clinical Notes
· Clinical notes of Kevin Ivins[21]
[15] Exhibit P10, PCB 62-72.
[16] Exhibit P11, PCB 73-76.
[17] Exhibit P12, PCB 99-104.
[18] Exhibit P12, PCB 123-126.
[19] Exhibit P13, PCB 105-116.
[20] Exhibit P13, PCB 123-126.
[21] Exhibit P14, PCB 135-146.
Lay evidence
9The plaintiff swore three affidavits. [22] He adopted the truth of their contents. They comprised his evidence in chief.
[22]Exhibit P1, Affidavit of Daniel Roach sworn 20 March 2018, PCB 6-9, Further Affidavit of Daniel Roach sworn on 2 October 2021 PCB 10-12 and Third Affidavit of Daniel Roach sworn on 3 December 2021 PCB 13-14.
The Defendant’s Evidence
10The defendant relied on the following evidence in opposing the plaintiff’s application:
Medico-legal Reports
· Reports of Dr Anthony Menz dated 8 July 2021[23] and 22 Nov 2021[24]
[23] Exhibit D1, DCB 28-39.
[24] Exhibit D1, DCB 128-129.
· Reports of Dr John Laidlaw dated 7 Aug 2021[25] and 1 December 2021[26]
[25] Exhibit D2, DCB 40-75.
[26] Exhibit D2, DCB 130-136.
· Reports of Dr Justin Lewis dated 29 Jan 2019,[27] 26 Mar 2021,[28] and 28 April 2021[29]
[27] Exhibit D4, PCB 77-89.
[28] Exhibit D4, PCB 90-98.
[29] Exhibit D4, PCB 117-118.
Medical Reports
· Medical report of Dr David Sturrock dated 23 June 2017[30]
· Medical Report of Dr Errol Jacobson dated 2 August 2017[31]
Clinical Notes
· Extracts from East Ryde Family Medical clinic progress notes[32]
· Extracts from clinical notes from University of Sydney student profile[33]
· Clinical notes of Dr Louis Gallo[34]
[30] Exhibit D3, PCB 31.
[31] Exhibit D5, PCB 35.
[32] Exhibit D6, DCB 117-127.
[33] Exhibit D7.
[34] Exhibit D8.
Radiology
· Whole body Bone Study with SPECT & CT dated 16 July 2017[35]
· MRI spine dated 12 Dec 2019[36]
[35] Exhibit D9, PCB 133.0
[36] Exhibit D10, PCB 134.
11I have read and considered all of the evidence adduced by the parties. I have also had regard to the oral evidence of the plaintiff, the submissions and addresses of counsel, and the transcript of the proceeding. Insofar as the medical evidence is concerned, I have referred only to such parts of the records or reports that were tendered as has assisted me in the resolution of the issues.
The Plaintiff
12The plaintiff was born in Sydney. He completed year 12 at St Ignatius College, Riverview. His life revolved around sport but in particular rugby, both league and union. After school, he pursued a professional rugby playing career in France, Australia and New Zealand. He retired from playing professionally in 2013 and concentrated on coaching.
13The plaintiff commenced rugby coaching at St Ignatius College Riverview, Sydney, in 2013. In 2014 he moved to Knox Grammar School in Wahroonga, to coach rugby union on a full time basis. He had just completed his first full season coaching with Knox when the accident occurred.
14The plaintiff was the victim of an assault in 2015 when he was out with friends in Sydney. He sustained a head injury. He said he was left with a headache for a few days but otherwise recovered.
15Since 2019 the plaintiff has lived in Ireland. He presently resides in County Clare with his partner at her parent’s home.[37]
[37] Exhibit D2, DCB 45.
After the accident
16According to the plaintiff’s affidavit, following the accident, he was taken to the Alfred Hospital and fitted with a collar. He is uncertain how long he stayed in hospital before being discharged but believes it was a few days. He stayed with family in Melbourne before returning to Sydney.
After the Injury
17Over the course of the following few months the plaintiff says he struggled with his duties as a rugby coach at Knox Grammar because he was unable to demonstrate to his players what was required of them but he completed his contract there before returning to Melbourne in 2015 where he became assistant coach to the Footscray Bulldogs first grade rugby team.
18After finishing work as assistant coach with the Bulldogs the plaintiff returned to Sydney and worked as an Assistant Coach at The Scots College for the 2016 and 2017 seasons.
19In 2017 the plaintiff moved to Romania to take up a position as an Assistant Coach of the Saracens, however, after six months at the end of 2017 as a result of the Club’s insolvency, he returned to Australia.
Treatment
20In his first affidavit, the plaintiff deposed that he does not take pain killers and he has an aversion to them and instead tolerates his pain. Previously he took Mobic and Mersyndol Forte on an as needs basis. His mood and mental state had been a significant issue prior to the accident and he had been prescribed Cymbalta (60mg) and Lamotrigine (50mg).
21The plaintiff has received one cortisone injection to his lower back. He believes he was recommended nerve blocks although they were not followed through. He said he remains in constant pain.
22He deposed that he could not recall having previously suffered from back pain despite his many years of playing competitive rugby. He thinks he may have suffered neck pain in the past, however, at the time of the accident, other than a pre-existing psychological condition, he believed he was physically fit and capable.
23Despite the effects of the accident the plaintiff was able to return to study on a part time capacity in 2015 commencing a Masters’ Degree in Sports Coaching by correspondence at the University of Sydney. He said he was approved for a number of services by the Disability Support Services at university including additional one on one sessions, automatic two week extensions for the provision of course work and an automated dictation program. The plaintiff said that in 2016 he deferred his full-time university studies due to his back and neck injuries and constant pain. He said he found it difficult to sit and concentrate for long periods.
24The plaintiff obtained Level 2 coaching accreditation and adapted the way he went about coaching to accommodate his restrictions. The plaintiff said that high level coaches need to be able to demonstrate set plays, tactics and exhibit physicality none of which he can now comfortably do.
25The plaintiff overdosed on Oxycontin in late 2014. He maintains that the overdose was partly to do with the pain and restrictions that he was suffering after the accident as well as being psychiatrically unwell for reasons unrelated to the accident.
26Prior to the accident the plaintiff had been prescribed Epilim (400mg) as well as a tablet called Propranolol (10mg) which assisted with his restlessness.
27The plaintiff says that he has generally recovered from mental issues that had affected him prior to the accident and believes that the greatest problem in his life is his spinal pain and restriction of movement.
28The plaintiff said that in the past he has experienced sleep difficulties because of his mental state, however, his ongoing difficulty in getting to sleep or getting comfortable in bed has been made worse as a result of back pain experienced since the accident. He explained that he struggles to get out of bed in the mornings due to pain and stiffness.
29He said he continues to experience flareups of pain on a consistent basis.
30He struggles with physical activities such as gardening and or remaining stationery above a sink or a stove when cooking or washing dishes and that engaging in these activities can cause increased pain.
Second Affidavit
31In his second affidavit the plaintiff explained that having returned from coaching in Romania at the end of 2017, he coached The Scots College water polo team in term one of 2018 and he then commenced courier/transport work in around July/August 2018 which mainly involved parcel deliveries but was not a heavy job.[38]
[38] Exhibit P1, PCB 10.
32In August 2018 the plaintiff had nerve block injections performed by Dr Crawford, a pain management specialist. This provided him with temporary relief from pain. He continued with physiotherapy. He smokes cannabis as a form of pain relief. It is not medically prescribed.
33He said he continued his involvement with Scots, coaching rugby in winter and water polo in summer, until early 2019.[39]
[39] Exhibit P1, PCB 10.
34Between March and June 2019 the plaintiff said he was concentrating on his courier work and tried to do as much as he could to save money for his desired move to Ireland.
Emigration to Ireland
35The plaintiff moved to Ireland in the middle of 2019. There he commenced a logistics/courier business sourcing parcel work using a van. Occasionally the work has involved the need for him to load a pallet but not by hand. He also has established a separate business selling commercial cleaning cloths via phone sales.
36The plaintiff has received physiotherapy from Mr Paul Murray in Limerick and osteopathy treatment in London, however, at the time of swearing his second affidavit treatment had been restricted due to COVID.
37The plaintiff continues to smoke marijuana for pain relief and as an apparent balm for his mental health. He takes occasional Panadol, mainly when he is working or at the end of a working day, however, he said that generally this need would not extend to more than a few tablets per fortnight.
38The plaintiff says that he no longer is involved with rugby and this has been an enormous loss.
39Dr Patterson in England has recommended that the plaintiff undergo further injections. He has also discussed the possibility of a spinal fusion, however, the plaintiff said he is unlikely to proceed with such a procedure but instead to continue with conservative measures.
40The plaintiff says that pain continues to impact his sleep on a daily basis. He suffers from pins and needles and a burning sensation through the right side of his neck that travels downwards through his arm. The pins and needles are always present and he is never pain free. He says that he endures constant back and neck pain.
41He says that his ability to run has been compromised by back pain. However, he is able to swim in pools and in the ocean.
42The plaintiff says that spinal stiffness makes it much harder to start his working day but he is able to perform the administrative office duties associated with his businesses and these tasks do not cause him much of a problem, although he struggles at times with his concentration. If he has had a tiring day his ability to concentrate and complete paperwork needs to be put aside until he has rested.
43Occasionally he requires assistance if he is required to deliver an item of furniture, however, he says that usually there is someone at the point of delivery who can assist him if needed.
44The plaintiff says that his daily pain has contributed to a diminution in his normal functioning such as limited sitting and driving and standing and walking for prolonged periods. Weakness in his right arm has impacted his grip strength. He says he feels 20 years older than his age and is now doing a job that he would never have thought he would be doing in order to make ends meet.
Third Affidavit
45The plaintiff maintained that he does not recall previously having suffered back pain although he experienced neck pain in the past. He does not recall having received back treatment between 2010 and 2012 despite chiropractic records that he did.
46He does not believe he received any chiropractic treatment for his neck or back between 2012 and the date of the accident although between 2009 and 2013 he was still playing competitive, professional rugby and would certainly have received treatment for the knocks, aches and pains that were part and parcel of playing the game.
PLAINTIFF’S MEDICAL REPORTS
Ms Victoria Bunting, physiotherapist
47Ms Bunting provided a report dated 22 April 2015.[40] She recorded that the plaintiff had suffered “multiple disc bulges, whiplash and an annular tear in his lower back”[41] from a car accident. Ms Bunting noted that the plaintiff was experiencing a lack of strength, range of motion and severe pain in his back and neck. She recommended a mixture of clinical treatment and clinical Pilates, including a weekly physiotherapy session for 10 weeks along with a weekly clinical Pilates session for a minimum of 20 weeks.[42]
[40] Exhibit P2, PCB 25.
[41] Exhibit P2, PCB 25.
[42] Exhibit P2, PCB 25.
Dr Stewart Cameron
48Dr Stewart Cameron, General Practitioner at the East Ryde Family Medical Practice, NSW provided a report dated 21 July 2016.[43] His clinical notes for the period 23 June 2014 to 29 October 2019 were tendered by the defendant.[44]
[43] Exhibit P3, PCB 26-27.
[44] Exhibit D6, DCB 117-127.
49
Dr Cameron said he saw the plaintiff on 29 September 2014, some 4 weeks after the accident, and thought he had suffered whiplash and concussion but that he had “pretty fully recovered”[45] by a week later but that he was experiencing continuing pain around the left hip, iliac fossa and symphysis pubis since the accident and had been having physiotherapy. MRI of the lumbar spine in October 2014 showed a right L3/4 foraminal disc protrusion and annular tear. The plaintiff was complaining of left buttock and thigh pain into the back of his knee and up into the left abdomen and left hip. On 22 October 2014, a CT guided injection was given into the left L4/5 neural foramen and provided some temporary relief.
Dr Cameron reported lower back pain that was worse than neck pain.
[45] Exhibit P3, PCB 26.
50Dr Cameron noted that the plaintiff had been “king hit” on 7 September 2015 when intoxicated. He was found unconscious on the ground by friends. He “woke at home in his room the next day with right ankle pain, a painful nose and lump on the back of his head.”[46]
[46] Exhibit P3, PCB 26.
51Dr Cameron wrote that the plaintiff “did not complain of back, left hip or left leg pain after his phone call to me on 17 October 2014, until a visit on 11 January 2016 when he mentioned in passing that back and neck pains from the accident continue to limit the amount of physical activity he could undertake.”[47] Dr Cameron said that he was unaware whether the plaintiff continued to experience symptoms related to his concussion, whiplash and lumbar spine injuries but given the history he took he would not be surprised if they were continuing.
[47] Exhibit P3, PCB 26.
Dr Kevin Ivins, chiropractor[48]
[48] Exhibit P14, PCB 135-146.
52Before the accident the plaintiff had received chiropractic treatment 11 times from Dr Ivins between April 2010 to July 2012 and again in 2016. His clinical notes record the plaintiff having presented with cervical pain and back pain and stiffness throughout the treatments he received in 2011 and 2012.
53In 2016 the plaintiff also reported cervical pain and stiffness, headaches, lumbar pain and stiffness. Dr Ivins diagnosed “Acute on chronic post traumatic right C 3/4 and left C5/6 disc syndrome with associated parethesia complicated by C3/4 spondylosis / VF encroachment aggravated by sustained cervical flexion and B/L rotation. Acute on chronic post traumatic right L5/S1 joint syndrome. Protector rule out disc.”[49]
[49] Exhibit P14, PCB 141.
54Dr Ivins said that the plaintiff described a constant, dull aching pain, and pins and needles, in the Right C3/4; Left 5/6; Right L5/S1. He had aching pain in the paracervical musculature upper thoracic musculature right lumbar paravertebral musculature ligamentous structures encompassing sacroiliac joint, and pins and needles, corresponding to the right C3/4 left C5/6 dermatomes that had been present for years on and off and has become problematic again over the past
2 years that he believed was a result of the accident in August 2014.55Dr Ivins wrote that the plaintiff reported headaches that commenced after the accident that throb or pound on a daily basis. He walks more slowly because of his back. He will lie down to rest more often. He dresses more slowly because of his back. He will only stand up for short periods of time because of his back and he tries not to bend or kneel down. He finds it difficult to turn over in bed because of his back. His neck pain was very severe and the pain prevents him from lifting heavy weights, although he can manage light to medium weights if they are conveniently positioned.
56Dr Ivins commented on the imaging. He wrote that the CT of the thoraco lumbar spine performed the day after the accident identified mild anterior osteophytic tipping on the left at L1-2 and on the right L2-3 and minor bilateral dependent atelectasis.
57The MRI of the cervical spine on 1 September 2014 identified a degenerative right C3-4 foraminal disc osteophyte with moderate to severe right C3-4 neural exit foraminal stenosis.
58The MRI of the spine on 9 October 2014 found a L4-5 right foraminal disc protrusion with an annular tear. Dr Ivins found there was no definite neural compromise. MRI of the cervical spine of 30 April 2017 concluded that at C3/4, there is a right posterolateral disc osteophyte complex, which contacts and mildly displaces the cord, without cord signal abnormality. Small right posterolateral disc osteophyte complex at C5/6, without neural contact. MRI Lumbar cervical spine showed mild disc desiccation at L4/5. Mild to moderate bilateral facet joint arthrosis at L3/4. There was no evidence of neural compressive lesion.
59An MRI of the cervical spine on 30 April 2017 concluded that at C3/4, there is a right posterolateral disc osteophyte complex, which contacts and mildly displaces the cord, without cord signal abnormality and small right posterolateral disc osteophyte complex at C5/6, without neural contact.
60An MRI of the lumbar spine identified mild disc desiccation at L4/5, mild to moderate bilateral facet joint arthrosis at L3/4 and no neural compressive lesion.
61On 1 May 2017 the plaintiff had a left L4-5 foraminal OP steroid injection in the lumbosacral spine.
62On the 16 June 2016 a whole body bone study with SPECT and CT was conducted that showed mild degenerative spondylotic changes at the T9/10 level towards the right side and the T12/L1 level anteriorly. No other spinal pathology was evident. Mild degenerative changes were noted in both AC joints.
63An MRI Spine 12 December 2019 showed a large right foraminal disco osteophytic complex at C3/4 that was occluding the right intervertebral foramina at C3/4. There was mild multilevel degenerative disc disease from C4-T1 but no significant canal or foraminal stenosis.
Dr Ralph Mobbs
64Dr Mobbs, neurosurgeon provided reports dated 8 June 2017[50] and 21 June 2017.[51] His first report confirmed cervical spine C3/4 posterior disc herniation. At the lumbar spine at L4/5 there was facetogenic pain issues plus posterolateral annular tears. He advised non-surgical care and a trial of injections, RF neurotomies and a bone scan. On review after the bone scan, Dr Mobbs noted that the plaintiff “may well be suitable for further interventional techniques at the thoracolumbar level, that may provide him with a goodly deal of relief”[52] and to pursue ongoing physical therapy, swimming, and pain management techniques with a pain specialist, Dr Crawford.
[50] Exhibit P4, PCB 28-29.
[51] Exhibit P4, PCB 30.
[52] Exhibit P4, PCB 30.
Dr Albina Della Bruna
65Dr Della Bruna is a general practitioner in Sydney with whom the plaintiff commenced as a patient on 19 October 2016. Two reports were provided by
Dr Della Bruna, GP dated 27 June 2017.[53] She reported “severe persistent daily pain in the back and neck, often scoring 10 out of 10.”[54] Dr Della Bruna referred the plaintiff to Mathew Crawford, a senior pain management specialist, andDr Errol Jacobson, psychiatrist.[53] Exhibit P5, PCB 32-34.
[54] Exhibit P5, PCB 32.
Mr M A Khan, orthopaedic surgeon
66Mr Khan undertook a medico-legal examination of the plaintiff and furnished a report dated 27 June 2017.[55] He observed that the plaintiff had developed pain in his neck and back with some pins and needles in the fingers of his hands and low back pain, with pain referred to the left hip area. He had a past history of slipped capital epiphysis in the left hip which had been internally fixed previously and satisfactorily by his doctors using internal fixation.
[55] Exhibit P10, PCB 62-72
67Mr Khan wrote that the plaintiff has been left with significant residual after effects of his injuries, with pain in his back and neck, with referred pain going down the shoulder blade and some numbness and pins and needles in the fingers of his right hand and referred discomfort in his lower back, with numbness and pins and needles affecting both feet including the heels. He had a separate injury to his left ankle that had required arthroscopic management and removal of a loose body from the ankle.
68Mr Khan noted reports of a bulging disc in the plaintiff’s cervical spine as shown in the CT scan at C3/4 level and a disc bugle at L4/5 level.
69Mr Khan believed that the plaintiff had been left with residual after effects of his injuries due to a musculo-skeletal and ligamentous injury to his cervical and lumbar spine and probably was suffering discogenic pain, that he believed was confirmed by x-rays and the plaintiff’s history.
70The plaintiff reported that he has been left with residual after effects of the injuries and cannot undertake strenuous activities and required analgesics to control the pain in his neck and back, with referred symptoms to his right hand and both feet, but without radiculopathy.
71Mr Khan considered that the plaintiff’s long term prognosis is guarded and that he had been left with a residual partial permanent impairment injury.
Mr Mohammed Awad
72Mr Awad is a neurosurgeon and spinal surgeon who assessed the plaintiff and provided a report dated 15 August 2018.[56] He diagnosed the plaintiff to be suffering from traumatic aggravation of cervical spondylosis and traumatic aggravation of lumbar spondylosis.
[56] Exhibit P11, PCB 73-76.
73In Mr Awad’s opinion, taking into account an absence of previous history and nature of the accident and impact sustained on 14 August 2014, it has likely been the dominant contributing factor to aggravation of both the plaintiff’s cervical and lumbar spondylosis and that his symptoms and his ongoing pain and disability is a direct result of the accident.
74Mr Awad thought the plaintiff had the capacity to perform his employment as a rugby coach in which he was still engaged at the time of the examination although not to his maximum physical capacity and he thought it remained to be seen how long the plaintiff would be able to continue doing such a job consistently and reliably.
75As well as physiotherapy, Mr Awad thought it was possible that the plaintiff may require surgery in the future both in the form of anterior cervical discectomy and fusion for brachialgia and weakness and numbness as well as possibly a lumbar decompression.
76Mr Awad thought it likely that the plaintiff would continue to suffer from a degree of pain and disability into the foreseeable future.
Matthew Crawford
77Mr Crawford is a Pain Management Specialist who saw the plaintiff in June 2018 and provided a report dated 16 August 2018.[57] His account was that apart from back and neck pain the plaintiff had suffered since the transport accident he also had right shoulder pain around his scapula and was suffering from neck and lower back spasms. The plaintiff assessed his pain levels as 6/10 every day but they varied in intensity. He had undergone thoracic and lumbar neurotomies procedures at the T9/10, T12/L1 levels as well as the L4/5 and L5/S1 levels bilaterally.
[57] Exhibit P6, PCB 36-37.
78Mr Crawford explained that he had administered bilateral L4/5 facet joint blocks and paravertebral blocks as well as facet joint blocks at the C3/4 level and paravertebral blocks at that same level on 3 August 2018. These neurotomies, helped the plaintiff greatly but only for a short period of time.
Dr Patterson
79Dr Patterson is a GP in Ireland who arranged for an MRI scan of the plaintiff’s cervical spine. On 27 January 2020[58] Dr Patterson provided a referral to
Mr Poynton, a consultant spine surgeon in Dublin, to explore the possibility of surgery as he doubted a cervical epidural injection would likely provide the plaintiff with long-term pain relief. In his referral letter, Dr Patterson reported that the plaintiff presented with quite a large right sided C3/C4 disc.[58] Exhibit P7.
Paul Murray, physical therapist
80Paul Murray is a physiotherapist in Ireland on whom the plaintiff attended for 11 self-funded sessions for treatment of ongoing neck pain, left pectoral discomfort and low back pain. In a report dated 26 March 2021, Mr Murray wrote that in his opinion the plaintiff “suffered acute soft tissue injury of the cervical and lumbar spine consistent with his involvement in a road traffic collision. His condition has, over the years since the collision progressed to a chronic state resulting in ongoing pain and discomfort. He has been attending physical therapy and is quite diligent in carrying out his prescribed home care. This is lending to maintenance of his condition and helping with his symptoms. Going forward however, I feel he will need to attend physical therapy indefinitely in order to prevent regression of his injuries.”[59]
[59] Exhibit P8, PCB 39-41.
81Mr Murray further reported that the plaintiff’s current complaints are of ongoing neck pain, left pectoral discomfort and low back pain and they are a source of frustration and disillusionment to the plaintiff they are preventing him from comfortably getting on with his activities of daily living.
Mr Rob Hill[60]
[60] Exhibit P9, PCB 42-45.
82Rob Hill is an osteopath in England who saw the plaintiff on 5 February 2020 and diagnosed right lower cervical nerve root irritation (predominantly C5-7), right thoracic outlet syndrome (costo-clavicular space and inter-scalene triangle), left sternoclavicular dysfunction, left anteriorised sacroiliac joint leading to compression of left hip and diminished pelvis and lower limb loading capacity, left lumbrosacral rotation and facet joint/nerve root overload/irritation and left cuboid syndrome.
83Mr Hill recommended the plaintiff have regular treatment with the aim of stabilising his symptoms, reducing his pain, and improving his function before looking to extend the periods of time between sessions until settling on an optimum schedule for ongoing treatments.
84Mr Hill reported that based on the plaintiff’s account of his symptoms and the chronology with which he had been provided that, “I can see the relationship between his presenting conditions and the transport accident. The cervical symptoms can be consistent with an acceleration-deceleration cervical injury and the compensations adopted by his musculoskeletal as a result of such a collision would create his wider symptom picture. My examination revealed a pelvic torsion that has increased the loading through his lumbosacral joints which can elicit the peripheral nerve symptoms he suffers from and can be caused by a high velocity impact or ‘shunt’ that would be consistent with a road traffic accident”.[61]
[61] Exhibit P9, PCB 44.
85Mr Hill thought that the plaintiff will need some form of indefinite ongoing manual therapy to maintain optimum function which will ultimately reduce his symptoms and incidence of relapses.
86Mr Hill believed that the plaintiff’s regular episodes of low back pain will restrict the job roles he can pursue and an episode of acute back pain will inhibit his ability to do any form of work.
87Mr Hill reported that the plaintiff’s symptoms have significantly limited his recreational pursuits. He had previously played rugby, water polo and had frequently performed resistance training, and had led a very active life with a lot of walking and gardening. His vulnerability for an acute episode of pain has restricted him from playing contact sport as well as going on long walks and engaging in gardening pursuits.
Dr Sullivan
88Dr Richard Sullivan, Pain Specialist and Anaesthetist provided two medico-legal reports dated 12 April 2021[62] and 29 November 2021.[63] His consultation with the plaintiff was via videoconference link. In his first report Dr Sullivan noted that the plaintiff presented with the following issues:
(a) Low back pain. This pain is at best 6/10 on numerical rating scale with exacerbations up to 10/10 and he frequently operates with pain scores between 7-8/10. He reports his pain at the beltline and extending down into the gluteal region with the right lumbar area more problematic compared with and also pain experienced in the left hip.
Back pain is aggravated when sitting or standing for any more than few minutes. He is able to walk for approximately 40 minutes without aggravating pain and he can drive in a car for between 60 and 90 minutes. He has exacerbations of his pain if he tries to lift things from the ground or down when bending forwards.
(b) Neck pain. This pain is also between 6/10 and 10/10 on numerical rating scale that extends from the occipital region through the posterior aspect of the neck equal on both sides through into the upper portion of the thoracic spine extending out including the trapezius muscle region.
This pain is also exacerbated on maintaining postures such as standing or sitting or when lifting objects in excess of 5 to 10 kg.[64]
[62] Exhibit P12, PCB 99-104.
[63] Exhibit P12, PCB 123-126.
[64] Exhibit P12, PCB 100.
89Dr Sullivan reported that the plaintiff takes no prescribed medicines. He attends physiotherapy once per week. He undertakes home-based exercises including stretches and yoga. He uses a Theragun.[65] He swims on a regular basis.
[65] Massage device.
90Dr Sullivan reported that the plaintiff is reliant on his domestic partner to perform the more arduous chores around the house including scrubbing, washing of dishes, changing bedsheets and the like.
91Dr Sullivan reported that the impact on the plaintiff’s work has been that he drives two to three days per week, six to eight hours per day undertaking deliveries but tends to take short breaks between deliveries due to pain exacerbation. The plaintiff avoids lifting or moving objects or parcels in excess of 25 kg.
92Dr Sullivan provided this further account:
he enjoys about six to seven hours of effective sleep per night waking approximately once per night. He has ongoing issues of frustration, irritability and a sense of demasculinization. He feels that he has ongoing mental health impairment due to the constant pain, but does not suffer from a mental health perspective as much as he did in the first two years after the accident. He has mood swings that affect his day-to-day relationships with his partner. His pain also results in impaired intimacy[66]. He used to enjoy gardening, playing golf, playing social rugby and running and can no longer engage in such activities.”[67]
[66] Not a consequence or effect from the transport injury deposed to by the plaintiff.
[67] Exhibit P12, PCB 101-102.
93Dr Sullivan diagnosed the plaintiff to be suffering a post traumatic aggravation of cervical and lumbar spondylosis and as well a post traumatic chronic pain condition affecting his neck and his low back.
94In Dr Sullivan’s opinion, the transport accident caused an aggravation of cervical spondylosis and lumbar spondylosis.
95Although Dr Sullivan said that the aggravation of the plaintiff’s generalised anxiety disorder and major depressive disorder occurred as a consequence of the road traffic accident (or at least subsequent to the road traffic accident) but he acknowledged that a formal connection between the plaintiff’s mental health and the traffic accident should be corroborated by a suitably qualified psychiatrist.
96Dr Sullivan thought that the plaintiff is likely to see constitutive degeneration of his neck and low back but at no greater rate than he would otherwise experience having not had the road traffic accidents (in terms of anatomical change and radiological degeneration). He believed that a chronic pain condition is likely to continue into the foreseeable future and is likely to continue to adversely impact the plaintiff’s functional and vocational capacity.
97Dr Sullivan addressed the issue of the pre-existing pathology affecting the plaintiff’s cervical spine. Dr Sullivan said that this was mentioned, he thought possibly erroneously, in the discharge summary from the Alfred Hospital implying that the plaintiff had a pre-existing issue at C4/5 from "a rugby injury in his 20s"[68] however, Dr Sullivan said he had been unable to find any corroboration of this in subsequent documentation.
[68] Exhibit P12, PCB 103.
98Dr Sullivan wrote that although there is mention in the same notes of pre-existing paraesthesia in the plaintiff’s second and third fingers, the plaintiff denied the same on specific questioning.
99Dr Sullivan did not believe that the plaintiff was in a position to return to his pre-injury employment as a rugby coach and that this state of affairs could be considered permanent.
100Having been provided with additional medical history, Dr Sullivan’s second report recognised that the plaintiff had in fact likely sustained some form of soft tissue trauma to his neck in the early part of 2010 and also that he had some chiropractic manipulation and probably as a result experienced some paraesthesia in his hands. His history identified some mild changes at C3/4, but no significant foraminal encroachment.
101Although Dr Sullivan thought the further history may be relevant to the onset of the process of spondylitic change in the plaintiff’s cervical spine, it appeared that the plaintiff had made a complete recovery and he had no documentation of treatment extending beyond July 2011 to the date of the transport accident.
102Dr Sullivan said that the plaintiff sustained occasional soft tissue acute injuries to his neck or lower back in the context of his profession as a rugby union player and that these required presentation to a chiropractor on several occasions, but they had not specifically impacted his ability to function or to continue his career as a professional footballer and, therefore, the additional information he had been provided had not altered his opinion that the plaintiff’s presentation stemmed from the transport accident and not from prior injuries.
Dr Stevens
103Dr Jarrad Stevens is an orthopaedic surgeon who conducted a telemedicine review with the plaintiff and provided a report dated 20 April 2021[69] as well as a supplementary report on 25 November 2021.[70]
[69] Exhibit P13, PCB 105-116.
[70] Exhibit P13, PCB 119-122.
104In his first report Dr Stevens recounted that the plaintiff described neck pain, of between 6 to 8 out of 10 in severity, accompanied by movement restriction and headaches. He experiences pain extending to the left trapezius muscle and right radicular arm pain, distal limb paraesthesia and numbness. He has difficulty reading, difficulty turning the head, pain with prolonged static positioning and difficulty looking overhead.
105The plaintiff described constant low-level pain, which he assessed as 5 out of 10 in severity in his lower back, but can flare up to severe pain. He reported movement restriction, difficulty lifting and bending, pain at night, frequent exacerbations of back pain, radicular leg pain, distal limb paraesthesia and numbness, decreased standing tolerance, sitting tolerance and walking tolerance, pain with prolonged static positioning, though no abnormal bladder or bowel symptoms.
106Despite the plaintiff’s pain, Dr Stevens reported that the plaintiff remained independent in all personal activities of daily living, although he described difficulty with house maintenance and tasks that involve bending, cleaning at low level and linen changes. He enjoys gardening, but he has to do this in short bursts when his symptoms are manageable. He also enjoys walking and spending time in nature but a Covid lockdown in Ireland had made this difficult.
107The plaintiff said he had been restricted to bed for days with pain and that two weeks ago, severe neck pain had restricted him to bed for the day.
108He told Dr Stevens that previously he enjoyed rugby coaching and being active but is now limited in his capacity to undertake these activities.
109Dr Stevens diagnosed aggravation of cervical spondylosis, which has progressed to right disc osteophyte complex at C3/4 occluding the right intervertebral foramina at C3/4 and L4/5 and right foraminal disc protrusion with annular tear but with no neurological compromise along with the development of chronic lumbar back pain.
110Dr Stevens’ prognosis for a return to the pre-injury status was expressed as poor, and he said that the plaintiff is likely to continue to experience pain and functional limitation. He said there is a risk of deterioration of the plaintiff’s condition in the future and should this occur, is likely to impact the plaintiff’s capacity for employment, social, domestic and recreational activities. He may also require neurosurgical opinion in the future, and operative intervention may be required.
111Dr Stevens ventured that the plaintiff’s capacity for physically strenuous work is limited. His capacity for prolonged standing, use of steps, squatting, kneeling, walking and running is limited. This ongoing incapacity is likely indefinite. However, Dr Stevens also said that the plaintiff has a capacity for suitable employment, such as the work he was currently undertaking.
112In his supplementary report, Dr Stevens commented on additional information he had been supplied of past pain and an episode of neck and low back injury after a rugby game in May 2010 with the sites affected having been imaged and reported to reveal normal alignment with no fracture observed.
113Dr Stevens thought that because the plaintiff had been a professional rugby player, he could be expected to have sustained injuries of differing degrees of severity over the years. However, the history that had been described to him appeared to be self-limiting and on the documentation made available to him also appeared to have come to a natural resolution. Nonetheless, because the CT scan of 2010 provided a baseline of mild spondylotic changes C3/4, he believed that a diagnosis of aggravation was appropriate.
DEFENDANT’S MEDICAL EVIDENCE
Dr Anthony Menz, consultant orthopaedic surgeon
114Dr Menz provided two reports dated 8 July 2021[71] and 22 November 2021.[72] His assessments of the plaintiff were conducted via video conference as the plaintiff had relocated to Ireland.
[71] Exhibit D1, DCB 28-39.
[72] Exhibit D1, DCB 128-129.
115Dr Menz reported that over the years since the accident the plaintiff has had multiple injections into his cervical spine and lumbar spine giving but these had provided only temporary relief. He continues to complain of neck and lumbar spine pain.
116Dr Menz diagnosed the plaintiff to have sustained soft tissue injuries to his cervical spine and lumbar spine as a result of the motor vehicle accident.[73]
He thought there was significant pre-existing cervical degeneration and lumbar degeneration which could account for some of the plaintiff’s ongoing current symptoms.[74][73] Exhibit D1, DCB 33.
[74] Exhibit D1, DCB 34.
117Dr Menz said that because nearly seven years had elapsed since the transport accident and the plaintiff’s symptoms had remained the same or were possibly slightly worse, his prognosis for improvement was very poor.[75]
[75] Exhibit D1, DCB 34.
118As to the consequences of the accident interfering with a capacity to return to work, Dr Menz said that the transport accident injuries interfere with the plaintiff’s ability to return to his previous form of work, but that he owns two small businesses which he runs from home and was able to cope with.[76]
[76] Exhibit D1, DCB 35.
119Dr Menz considered that as far as domestic and leisure activities is concerned, it appeared as though the injuries the plaintiff sustained from the transport accident interfered with his domestic and leisure activities. He recorded that the plaintiff used to play rugby and other sports before the accident but now he cannot. He was a rugby coach which he can no longer undertake.
120Dr Menz believed that the plaintiff had significant pre-existing cervical and lumbar spondylosis which would be now interfering, to a degree, with his domestic and leisure activities, although he could not say to what degree.
121In his supplementary report, Dr Menz said that the clinical records of Dr Louis Gallo and Dr Kevin Ivins that he had been supplied had not caused him to alter his opinion.[77]
[77] Exhibit D1, DCB 128.
122In response to certain questions asked of him, Dr Menz said:
Mr Roach had chiropractic treatment for cervical and lumbar pain and discomfort prior to the accident in question and this occurred during 2010 through to 2012. X-rays at the time showed degeneration at the C3-4 level and at the L4-5 level.
An MRI scan of his lumbar spine done approximately a month after the accident revealed L4-5 degeneration and this certainly would have pre-dated the accident in question.
As such, there is strong radiological evidence that Mr Roach suffered with cervical and lumbar degeneration and had sustained injuries playing rugby prior to the accident in question.
The degeneration found at C3-4 and L4-5 would just progress with time and he would become more symptomatic going into the future.”[78]
[78] Exhibit D1, DCB 129.
Clinical records of Dr Louis Gallo[79]
[79] Exhibit D8.
123The clinical records of Dr Gallo for the period 17 December 2007 to 21 June 2012 were produced by the defendant.[80] On 18 May 2010 Dr Gallo recorded that the plaintiff had suffered an “injury to the neck over the weekend. Getting paraesthesia in the hands. States that this is happening all the time. Was asked by chiropractor to have a CT scan. Also injured lower back. States that he is getting paraesthesia in the feet, mainly in the heels”.[81]
[80] Exhibit D8.
[81] Exhibit D8.
124Clinical notes of 31 January 2012 documented some tingling on the face, sometimes burning and numbness on the back of the scalp and under the eye on the left side only for years. CT scan of the brain was advised.
125On 30 April 2012 it was reported that a brain CT showed faint basal ganglia calcification. The note included that the plaintiff “has had some head knocks in the past, rugby, also was attacked by baseball bats”, and also “face pains are not too bad and only occasional. Vertigo is fine now. Had been a rare thing”.[82]
[82] Exhibit D8.
Dr John Laidlaw
126Dr Laidlaw, neurosurgeon reported on 2 August 2021 following a videolink examination of the plaintiff. He reported that the plaintiff did not remember if he had any particular problems at the time of discharge from the Alfred Hospital after transport accident or after returning to Sydney. He said he did not go straight back to work as a rugby coach, but did so about six to eight weeks later. [83]
[83] Exhibit D2, DCB 48.
127The plaintiff explained that since the accident he has experienced neck, back and right upper limb pain. He could not say when the pain became bad, or how it affected him in his role as a rugby coach. He said that since the accident the pain was “constant 9 out of 10 all the time” until in August 2018 when he had “an injection in the back and a surgeon got out knots from my back”. [84] Although he thinks that procedure helped his symptoms somewhat, he says he has still constant pain that he rates as 7-9/10.[85]
[84] Exhibit D2, DCB 48.
[85] Exhibit D2, DCB 48.
128The plaintiff listed the problems he believed resulted from the accident:
· Lower back pain that is “constant and there all the time”. He said nothing makes it better or worse. It is not affected by sitting, standing, bending or moving. He described the pain as localised in the middle of the lumbar region. He said also occasionally he gets some “pain in the hips” (in the buttocks and out to the side of the hips). The back pain is not associated with any lower limb symptoms. He describes his lower limbs, gait and sphincter function as “quite good”. [86]
· Neck pain & right upper limb tingling. He said he has pain in the back of the neck and it is “constant all the time”. He said he also gets shooting tingling feelings down the right arm to the index and middle finger, and that he has numbness in the index and middle finger (and slightly in the thumb) on the right side only. Although the tingling shoots down the right upper limb, he says he does not have upper limb pain, and the pain is confined to the neck.[87]
[86] Exhibit D2, DCB 48.
[87] Exhibit D2, DCB 48.
129Because his examination was via a telehealth video consultation Dr Laidlaw was unable to undertake a physical examination. Dr Laidlaw commented that the plaintiff appeared tired but well during the one hour interview and did not seem to be in any particular distress and remained seated throughout the interview. Dr Laidlaw was unable to assess gait or posture. Dr Laidlaw said that the plaintiff appeared to be alert and orientated, articulate with no dysphasia or dysarthria, had no problems following the conversation and discussing issues in detail, and did not exhibit any features of significant cognitive dysfunction. Dr Laidlaw reported that “he did not demonstrate problems with recall or memory (other than following the accident), and he said that his memory is “not too bad” although he said he “struggles with little details” when it comes to short term memory, and sometimes his concentration and focus are not great. He said his long-term memory is very good.”[88]
[88] Exhibit D2, DCB 52.
130In assessing the cervical spine, Dr Laidlaw asked the plaintiff to perform observable cervical movements and he was able to demonstrate about 40° of rotation to the right and to the left, neck flexion was approximately 30°, extension approximately 10-20°, and lateral flexion seemed to be restricted to about 10° bilaterally. The plaintiff said he found lateral flexion quite uncomfortable. The thoracolumbar spine could not be examined adequately with video-link.[89]
[89] Exhibit D2, DCB 53.
131In his summary of findings Dr Laidlaw wrote that the plaintiff presented with some restriction of neck movements, predominantly lateral flexion. There was a suggestion that his back movements were accompanied by some restriction of lumbar movement. Nothing suggested any formal neurological deficit with the exception that the plaintiff did have sensory deficit in the tips of the radial three digits of the right hand and also numbness in the right great toe, but with no reported associated motor loss or wasting in the limbs.[90]
[90] Exhibit D2, DCB 53-54.
132Dr Laidlaw said that the plaintiff did not describe a significant past history of neck and back pain or limb symptoms prior to the motor vehicle accident. He said the Alfred Hospital files identified that the plaintiff had neck, back and flank pains, and that he had complained of tingling in the index and middle finger of the right hand. The imaging at the Alfred Hospital and subsequent imaging demonstrated a moderate degree of spondylotic change including disc degeneration and foraminal stenosis, but no evidence of acute injury.
133Dr Laidlaw thought that it would be expected that a man of the plaintiff’s age would have some spondylotic changes and, therefore, he considered the imaging findings in all probability to be chronic conditions. He thought the tingling sensation reported in the radial three digits could possibly be irritation of the right C6 or C7 nerve root. He noted that the scans demonstrated mild foraminal stenosis at C5/6 and C6/7. However, there had been no documentation of signs of radiculopathy (significant motor loss or absent reflexes or focal sensory loss as opposed to symptoms of tingling). He did not treat the right C3/4 osteophytes and foraminal stenosis as consistent with his upper limb symptoms. The plaintiff’s lower limb symptoms appeared to have been predominantly left sided, whereas the small right L4/5 foraminal disc protrusion with annular tear noted on the MRI report on 19 October 2014 was on the opposite side and thus Dr Laidlaw did not think the report of that MRI scan would account for the plaintiff’s left buttock or lower limb symptoms.[91]
[91] Exhibit D2, DCB 61.
134Dr Laidlaw commented that there was very little contemporaneous evidence of symptoms of neck and back pain in the period following the accident.
135Dr Laidlaw said that the plaintiff told him that his pain was 10/10 and constant ever since the accident but Dr Laidlaw thought that such an account appeared to be inconsistent with the plaintiff not having sought further medical attention for about four weeks after the accident and neither did it appear to be consistent with the plaintiff’s ability to return to work as a rugby coach after about just four weeks.
136In this respect Dr Laidlaw also commented that the report by Dr Cameron included that the plaintiff had not complained of back, left hip or left leg pain between
17 October 2014 and 11 January 2016.137Dr Laidlaw considered that the plaintiff’s psychiatric condition appeared to be chronic and an important health issue although at the date of examination he was not on medication and appeared to be managing well in his two business.
138Dr Laidlaw wrote that despite the multiple diagnoses that had been postulated, the administering of multiple facet injections and radiofrequency lesions, there was no good evidence he had been provided to support a specific tissue based organic cause of the neck and back pain. Dr Laidlaw thought the most appropriate diagnosis was neck pain-associated disorder (NAD), otherwise known as whiplash-associated disorder causing neck, back and shoulder pains.[92]
[92] Exhibit D2, DCB 61.
139Dr Laidlaw considered his diagnosis was also consistent with the limb symptoms that the plaintiff described as having arisen as a result of the motor vehicle accident. He wrote that the plaintiff had tingling involving the radial three digits of the right hand and some tingling in his big toe and the symptoms in the right hand were noted soon after the accident and still persist. Documentation excluded any specific signs of a radiculopathy, although Dr Laidlaw postulated that these symptoms may be due to some intermittent nerve root irritation secondary to mild chronic cervical spondylosis. He could not identify a cause of the numbness in the big toe.
140Dr Laidlaw said that the plaintiff has pre-existing cervical and spondylotic disease that is not severe and is consistent with his age. Dr Laidlaw reported that “the documentation and Daniel’s history provided to me indicates that these were not symptomatic prior to the accident.”[93] He said it was possible that the accident caused some irritation of the right C6 (but possibly C7 nerve root at the level of the chronic cervical spondylosis).
[93] Exhibit D2, DCB 70.
141Dr Laidlaw reported that in general the prognosis for whiplash-associated disorder particularly if chronic, is relatively poor in terms of symptom relief. However, there are features in the plaintiff’s case which suggested to him that the long term prognosis might well be more positive than usual in that the plaintiff was not requiring any medication other than paracetamol, and that he was self-employed with two businesses.
142Dr Laidlaw thought that the plaintiff’s future and further management would be best supervised by a pain management specialist, ideally in a multidisciplinary pain management clinic.
143Dr Laidlaw observed that the plaintiff “has not only returned to work, but is currently self-employed with two separate businesses and it seems that he is working much more than most people in fulltime employment would. It seems therefore, despite his considerable symptoms, it has not restricted his capacity to work.”[94]
[94] Exhibit D2, DCB 72.
144Dr Laidlaw wrote that the plaintiff’s ongoing neck and back pain appeared to interfere with his sleep and leisure activities and that “it seems that although there is not any specific activities that he cannot do, the ongoing pain does limit his ability to undertake many of them comfortably.”[95]
[95] Exhibit D2, DCB 72.
145On a final note in his first report, Dr Laidlaw reported that the plaintiff said he had suffered a concussion in the accident and that he had some minor problems remembering things. However, Dr Laidlaw said that it had been documented at the Alfred Hospital and by the ambulance services that the plaintiff had no loss of consciousness and was alert and orientation (Glasgow coma scale of 15) throughout, despite being very intoxicated at the time of the accident.
Dr Laidlaw thought that if any subtle cognitive problems existed, there were other more likely reasons in the plaintiff’s past history to account for them.[96][96] Exhibit D2, DCB 72.
146In his supplementary report, Dr Laidlaw said he had been provided the clinical notes of Dr Gallo and Dr Ivins that indicated that prior to the motor vehicle accident the plaintiff did experience clinical symptoms affecting his neck, back, upper and lower limbs, and also had previous injuries to the neck, back and head. Dr Laidlaw said that his previous opinion had been based on the belief that all of the plaintiff’s symptoms first became apparent at the time of the accident and had persisted since but that evidence from Dr Gallo and Dr Ivins of similar pre-existing symptoms and coupled with the other inconsistencies led him to conclude that the plaintiff’s current symptomatology existed prior to the accident, at least on an intermittent basis.[97] Dr Laidlaw thought the better analysis was that the transport accident aggravated the plaintiff’s pre-existing symptomatology.
[97] Exhibit D2, DCB 134.
147Dr Laidlaw concluded that the additional history he was furnished indicated that the plaintiff suffered from a pre-existing condition causing recurrent neck and back pain, and symptomatology in his arms and legs. The plaintiff did have and continued to have a relatively mild degree of degenerative spondylosis. He queried whether the spondylosis was the cause of the plaintiff’s symptoms, or whether he was having recurrent episodes of back pain, or whether his previous injuries (documented in the reports of Dr Gallo and Dr Ivins) had resulted in neck pain associated disorder, but ultimately he could not say. However, he thought that overall the present condition and the reports of the previous condition and imaging findings, suggested that a diagnosis of neck pain associated disorder was a reasonable one both prior to and subsequent to the transport accident.[98]
[98] Exhibit D2, DCB 135.
Dr David Sturrock
148Dr David Sturrock, psychiatrist, saw the plaintiff on 13 June 2017. In his report dated 23 June 2017,[99] he reported that the plaintiff had developed problems at age 16 with irritability, mood swings and feelings of isolation. He developed suicidal ideation at age 19 and he had seen at least 10 psychiatrists and 7 psychologists in the previous three years. Dr Sturrock suggested that the plaintiff commence Cymbalta 30mg daily and Lamotrigine 25mg daily and increase Lyrica to 75mg bd for pain. He wrote that the plaintiff had “made an appointment to see me at my Bondi Junction rooms on 16 June, but did not attend. He never called me to cancel, nor have I heard from him since.”[100]
[99] Exhibit D3, PCB 31.
[100] Exhibit D3, PCB 31.
Dr Justin Lewis
149
Dr Lewis is a consultant psychiatrist. He provided a permanent impairment assessment dated 29 January 2019[101] and two supplementary reports dated
26 March 2021[102] and 28 April 2021[103] at the request of the plaintiff’s solicitors. The reports were tendered by the defendant.
[101] Exhibit D4, PCB 77-89.
[102] Exhibit D4, PCB 90-98.
[103] Exhibit D4, PCB 117-118.
150Dr Lewis summarised the plaintiff’s position in these terms:
a 31 year old single man, living in shared rental accommodation in Lane Cove, New South Wales. Mr Roach presents with a rather complex psychiatric history. He gives a history of depressive symptoms and mood instability commencing in adolescence and becoming more manifest by age 20. His mood difficulties occur on a background of a number of personality difficulties including emotional instability, impulsivity, and comorbid substance misuse occurring in his early twenties. His depressive symptoms appear to have been more clearly aggravated in the context of the challenges of progressing his professional rugby career.
Notwithstanding Mr Roach's mood instability and personality vulnerabilities, he played professional rugby at an international level until 2012. Mr Roach gives a history of ongoing mood instability and possible hypomanic symptoms leading to a provisional Bipolar II diagnosis in August 2014. (See report of consultant psychiatrist, Dr de Monchy dated 20 August 2014.) I note that Mr Roach was first commenced on mood stabilising medication at that time.
Mr Roach was subsequently involved in a transport accident when rear ended in a stationary taxi. On the history available, there was no loss of consciousness. Following the accident, he gives a history of chronic lower back pain, left hip, and intermittent groin pain. Mr Roach's psychiatric status appears to have then destabilised significantly necessitating a psychiatric admission in July 2015, and two further admissions in 2016. I note the admissions generally occurred in the context of depression and increased suicidal ideation.
Mr Roach ceased coaching in 2018 and currently works as a full-time, self-employed van driver, predominantly undertaking deliveries. Mr Roach reported a sustained improvement in his psychological health over the past six months in the context of good sleep hygiene, structure, and a reduction in overall levels of stress. He is actively managing his back pain with very regular treatment, and is generally more accepting of his pain and functional limitations.
Mr Roach described a significantly more favourable outlook and is generally taking increased responsibility and direction over his life. His improved psychological state occurs in the context of having ceased alcohol approximately eight months ago. He utilises a small amount of regular Marijuana, which he finds to be helpful.[104]
[104] Exhibit D4, PCB 86-87.
151Dr Lewis diagnosed “an Adjustment Disorder with depressive and low-grade traumatisation symptoms consequent to the transport accident. He gives a history of depressed mood, motivational difficulties, sleep disturbance, and cognitive difficulties consequent to pain and functional limitations. The Adjustment Disorder has nearly fully remitted over the past six months with a number of very positive lifestyle adaptations. Mr Roach would also meet criteria for a probable pre-existing Bipolar 2 Disorder and Polysubstance Misuse Disorder, currently in remission”.[105]
[105] Exhibit D4, PCB 87-88.
152Of a relationship between the plaintiff’s transport accident and his injuries,
Dr Lewis thought that “on the balance of probabilities, the transport accident on 30 August 2014 likely had a contributory role to the destabilisation in Mr Roach's mental state necessitating three psychiatric admissions in 2015/2016.”[106][106] Exhibit D4, PCB 88.
153Dr Lewis wrote that the major restriction at this point in time is the plaintiff’s chronic pain symptoms that are relatively well controlled with active conservative treatment including physiotherapy, swimming, acupuncture, yoga and Pilates.[107] Dr Lewis reported that due to these treatments, the plaintiff is coping relatively well with recreational and domestic duties. The impact of his injury has resulted in him living a life that is governed by significant structure.
[107] Exhibit D4, PCB 88.
154As to capacity for employment, Dr Lewis wrote that from a psychiatric perspective:
Mr Roach has the capacity to undertake pre-injury employment or alternative duties within his physical capabilities. He is currently self-employed on a full-time basis undertaking predominantly courier work. Mr Roach could theoretically return to rugby coaching. However, he does associate this with significant stress, and he is currently enjoying working more independently.[108]
[108] Exhibit D4, PCB 89.
155Dr Lewis thought that the plaintiff’s psychiatric prognosis is somewhat uncertain.[109] He “presents with a probable pre-existing Bipolar II Disorder. Concerningly, he is not currently medicated with mood stabilising medication and is at risk of further mood episodes. On a more positive note he has made a number of lifestyle changes that support his mental health including improved structure, stress reduction, and sleep hygiene. I would be concerned about Mr Roach’s psychiatric state in the event of any potential future flareup in pain symptoms or functional decline. He remains at risk of substance relapse in the event of any significant external stress”.[110] As to future treatment, Dr Lewis considered that the plaintiff would benefit from monitoring by a consultant psychiatrist.
[109] Exhibit D4, PCB 89.
[110] Exhibit D4, PCB 89.
156Dr Lewis referred to the plaintiff’s sporting life professionally and as coach. He recounted that the plaintiff explained of first becoming aware of depressive and anxiety symptoms when he was trying to progress his rugby career and that he believed he had not received the right “mentoring”. The plaintiff “described professional rugby as very satisfying, however, over time simply felt “worn out”. He said that by 2012, he felt he was “over it”. He recalled feeling more clearly depressed at around that time. He recalled having experienced significant mood instability in his mid-twenties.”[111]
[111] Exhibit D4, PCB 78.
157The plaintiff told Dr Lewis that following the transport accident he suffered chronic back pain although Dr Lewis reported how the plaintiff had gone on to coach rugby both locally and internationally and taught at Knox Grammar and at Scots College in 2016. Dr Lewis noted that the plaintiff “signed a two-year contract to coach internationally in Romania but returned after six months due to the club’s financial difficulties. He said he was quite depressed when he returned to Australia. An uncle had died suddenly from throat cancer. He had been engaged to a woman whom he said had stolen money from him.”[112]
[112] Exhibit D4, PCB 79.
158The history Dr Lewis took included that in July 2018, at about the time when the plaintiff had an epidural injection, he was in a “very bad space”.[113] He said that he was struggling with high levels of depression, anxiety and pain symptoms and was struggling to get out of bed and he felt particularly suicidal.
[113] Exhibit D4, PCB 79.
159The plaintiff told Dr Lewis that he had made a decision to embark on a career change out of coaching because it had dawned on him that coaching rugby was taking a “toll” on him psychologically. The plaintiff told Dr Lewis that he had purchased a van and had become a self-employed courier in addition to undertaking what he referred to as “odd jobs” and was working approximately six days per week, 8-10 hours per day in work that did not require significant lifting.
160In his first report Dr Lewis recounted[114] how the plaintiff explained that he was taking increasing control over his life and there had been a significant improvement in his anxiety and depression, as he had “learnt to love myself” and had managed to “turn his life around”.[115]
[114] Exhibit D4, PCB 79.
[115] Exhibit D4, PCB 79.
161Dr Lewis noted that the plaintiff said he had been drinking relatively heavily until eight months ago, that his life was significantly more structured and his back pain had stabilised with conservative treatment.
162The plaintiff also told Dr Lewis that his mental state had significantly stabilised with improved sleep, a positive outlook, and increased independence. He told Dr Lewis that he had nearly completed a Masters in Sports Coaching but that he had no intention to immediately return to study.
Supplementary Report
163In his first supplementary report dated 16 March 2021,[116] Dr Lewis explained that the plaintiff was reviewed by via Zoom as he had returned to Ireland. Dr Lewis noted that there had been no significant improvement in the plaintiff’s pain symptoms since his previous assessment. He was continuing to describe persistent and disabling pain impacting his neck, back, and left hip and his pain symptoms were accompanied with recurrent headache, nausea, and dizzy spells.[117]
[116] Exhibit D4, PCB 90-98.
[117] Exhibit D4, PCB 96.
164Dr Lewis believed that the plaintiff continued to meet criteria for an Adjustment Disorder with depressive and low-grade traumatisation symptoms consequent to the transport accident. He had described to Dr Lewis, lowered mood and feelings of despair in a setting of pain, physical restrictions, and poor response to treatment. He had become progressively disillusioned, frustrated and irritable with the passage of time.
165Dr Lewis believed a temporal relationship existed between the transport accident and the development of the Adjustment Disorder with depressive and traumatisation features. He said that the Adjustment Disorder occurred in the context of chronic pain, physical restrictions, and the traumatic nature of the transport accident. Dr Lewis recognised that the plaintiff presented with a complex psychiatric history, noting in particular, that he was first diagnosed with a Bipolar Disorder in 2014, however, the plaintiff had described having a previously positive response to mood stabilising medication and was reportedly psychologically stable at the time of the transport accident.[118]
[118] Exhibit D4, DCB 97.
166Dr Lewis said that in his opinion the plaintiff’s psychiatric prognosis is inextricably linked to the course of his underlying medical condition and that he is likely to suffer from mood difficulties so long as he contends with chronic pain and physical restrictions. His psychiatric state is likely to be adversely impacted with any potential increase in pain symptoms. He thought the prognosis for the transport-related traumatisation symptoms to be guarded, taking into account that there had been no subjective improvement in traumatisation symptoms since his previous assessment of the plaintiff on 25 January 2019.[119]
[119] Exhibit D4, PCB 97.
167Of the plaintiff’s capacity for work, Dr Lewis said that from a psychiatric perspective the plaintiff presented with the capacity to undertake full-time unrestricted employment. He reported that the plaintiff was working on a full-time basis, managing a logistics company and as a self-employed director of the company, he had the benefit of taking brief time off during periods of intense pain.[120]
[120] Exhibit D4, PCB 97.
168Regarding the plaintiff’s domestic and recreational pursuits, Dr Lewis said the plaintiff described significant difficulties in a domestic sense and secondary to pain and physical exhaustion. He had given up previously enjoyable recreational pursuits including gardening and sporting activities. His social and recreational interests had been curtailed secondary to pain, physical restrictions.[121]
[121] Exhibit D4, PCB 97.
Second Supplementary Report
169In his second supplementary report[122] Dr Lewis said that the plaintiff’s psychiatric condition had stabilised.
[122] Exhibit D4, PCB 117-118.
Dr Errol Jacobson
170Dr Jacobson, consultant psychiatrist, provided a one page report dated 2 August 2017.[123] He documented the plaintiff’s formal psychiatric history of anxiety, depression and Bipolar Mood Disorder and that the plaintiff had been admitted to private hospitals on a few occasions and had experienced intense suicidal ideation during admissions. Dr Jacobson recorded that the plaintiff was being prescribed Lamotrigine 50 mg daily and Cymbalta 60 mg.
[123] Exhibit D5, PCB 35.
171Dr Jacobson wrote that the plaintiff described reasonably stable patterns with no current features of a Major Mood Disorder. He said the plaintiff had a history typical of Major Depression which at times would lead to at-risk behaviours, including high levels of alcohol use. His phases of mania were less clear, with most of his “highs” occurring for less than a few hours. He would become more energised at these times, but lacked any clear behavioural disinhibition or grandiosity. The plaintiff denied any significant anxiety, but on rare occasions would experience panic. He had no clear psychotic phenomena, eating disorder or current substance use disorder. He drank in a binge pattern at times and used cocaine intermittently. His thinking was reality-based, linear and logical. His affect was reasonably stable, although at times slightly anxious. He had no cognitive impairment, acute distress or distraction.[124]
[124] Exhibit D5, PCB 35.
172Dr Jacobson recommended that the plaintiff continue with psychological therapy, remain on Cymbalta 60mg and lamotrigine 50mg and to follow-up with him when needed.[125]
[125] Exhibit D5, PCB 35.
The Plaintiff Cross-Examined
173Mr Batten put to the plaintiff a number of the histories contained in medical reports of doctors upon whom the plaintiff attended with which either the plaintiff agreed or was willing to concede were accurate despite a lack of memory of the attributions accorded him in some of them.
174Regarding his work conducted in Ireland, the plaintiff said that Covid restrictions and lockdowns had not affected his business because transport was an exempt industry and he had been able to continue the work as a courier driver.[126]
[126] T17, L7-13.
175The plaintiff did not dispute that Dr Laidlaw reported on 2 August 2021 that he had not demonstrated any problems with memory in the examination he conducted and that he had told Dr Laidlaw that his memory was not too bad. The plaintiff accepted that his memory is “not too bad.[127]” He said he told Dr Laidlaw that he “struggled with little details when it comes to short-term memory and sometimes his concentration and focus are not great”.[128]
[127] T18, L10.
[128] T18, L11-14.
176The plaintiff was questioned about his attendance on Dr Gallo on 18 May 2010 in which it was recorded that he had suffered an injury to his neck over the weekend and was experiencing paraesthesia all the time and also had injured his lower back. The plaintiff was not willing to characterise what he had suffered at that time as an injury, and explained, “I was playing footie, it was bangs and bruises, a bit of stiffness, a bit of neck.”[129] He could not recall if he had been experiencing paraesthesia all the time and he had no recollection of having injured his lower back.
[129] T20, L24-25.
177Mr Batten asked the plaintiff about his attendances on Mr Ivins for chiropractic treatment in the period from 19 April 2010 to 12 July 2012. The plaintiff said he had attended on Mr Ivins after rugby matches and suffering stiffness and pain. He could not recall Mr Ivins suggesting that he should he have a CT scan and he could not remember if he had a CT scan in 2010, however, Mr Batten directed him to plain x-rays of 19 April 2010 and a CT scan of his neck of 19 May 2010 neither of which the plaintiff recalled.
221Mr Valiotis submitted that it was because of the transport accident that at the age of 26 the plaintiff found it necessary to cease a professional playing career. Thereafter, he continued on as a coach. He suffered a mental breakdown. He received treatment for the breakdown but he continued coaching.
222Mr Valiotis pointed out that following his discharge from the Alfred Hospital and on returning to Sydney, the plaintiff commenced treatment with Ms Bunting who commented that the plaintiff had assessed his pain as 7/10 and that his symptoms included his lower back locking up for no apparent reason and an associated difficulty in walking. She recommended a weekly physiotherapy session for 10 weeks along with a weekly clinical Pilates session for a minimum of 20 weeks.
223Mr Valiotis observed that throughout 2015 that although the plaintiff was undergoing treatment, he continued coaching rugby and was prescribed Lyrica, Mobic and Endone. His mental state was not of such a high order as to have impacted his work or everyday functioning.
224However, Mr Valiotis submitted that by the age of 31, as a result of the transport accident, the plaintiff was forced to surrender coaching because he was no longer able to demonstrate the techniques required of the game due to pain. Mr Valiotis said that the plaintiff could no longer run.
225Mr Valiotis submitted that the genuineness of the plaintiff’s impairment is reflected by him having funded his own treatment overseas by way of physiotherapy, osteopathy and specialist care.
226Mr Valiotis submitted that overall the plaintiff’s life has changed irrevocably as a result of the transport accident having aggravated the function of his spine. Mr Valiotis submitted that the plaintiff is still a young man but who because of back pain and neck pain has lost his chosen pursuits of rugby player and rugby coach that had been so important to him.
227Mr Valiotis contended that all the doctors who have seen the plaintiff including those who have reported on examination for the defendant accept that the transport accident continues to causatively impact him in his domestic and recreational sense.
Analysis and Findings
228Regardless for the moment that the plaintiff’s application for the grant of a serious injury certificate was pursued as an aggravation injury, the inquiry called for in an application for the grant of a serious injury certificate as a result of the transport accident, necessarily includes whether the consequences of the injury suffered by the plaintiff that “relate to pecuniary disadvantage and/or pain and suffering” satisfy the “very considerable” test.[147] The plaintiff is entitled to have his application considered by reference to the consequences that relate to both pecuniary disadvantage and pain and suffering. If the consequences of the plaintiff’s injury that relate to pecuniary disadvantage and pain and suffering are such that, when his injury is judged by comparison to other cases in the range of possible impairments or losses, it can be fairly described as at least “very considerable”, then he is entitled to succeed.
[147] See Humphries v Poljak [1992] 2 VR 129, 140.
229It is recognised that the pecuniary disadvantage consequence of having one’s chosen field of employment or means of earned income permanently limited from a young age is a very significant matter and, as the Court said in Stijepic v One Force Group Australia Pty Ltd[148] when judging the consequences for a particular applicant by comparison with other cases, it is relevant to look at the likely period for which those consequences will be experienced. In that case, the Court found that the applicant would endure a restriction on the range of work he can perform for, perhaps, decades and such a long-term loss of earning capacity must be recognised as a loss in significant dollar terms. All things being equal, impairment consequences which an applicant will have to put up with for decades might well be judged more serious than the same consequences which another applicant may have to put up with for a much shorter period of time.
[148] [2009] VSCA 181.
230The plaintiff adduced no evidence that an inability to coach rugby professionally to some age in the future or, in a college setting, as opposed for example, to the entrepreneurial skills he has commendably brought to bear in businesses that he currently operates in Ireland, and beforehand in Australia, compares or is likely to compare into the future.
231But I have taken into account as well that the plaintiff relied on the pain and suffering and loss of enjoyment of life consequences he said he has experienced since the transport accident including the loss of his involvement as player and coach in rugby and of the fact that despite having learned to adapt his coaching techniques, the reduced dexterity and accompanying pain he suffered as a result of the transport accident, meant he could no longer demonstrate the sporting skills and techniques associated with the game.
232I note that on 29 January 2019 Dr Lewis wrote that in his opinion and from a psychiatric point of view the plaintiff could theoretically return to coaching but that the plaintiff had associated coaching rugby with significant stress and that he was enjoying working more independently.
233On the question of the attribution of cause and effect, it is demonstrably plain on the evidence that the plaintiff retired from playing rugby professionally in 2013 before the transport accident and, thereafter, he concentrated on coaching. Thus the plaintiff’s decision to cease to play professional rugby was voluntary and not a consequence of the transport accident. I find that the plaintiff’s attitude to his playing of rugby professionally is reflected in the account he gave to Dr Lewis, which is that he first became aware of depressive and anxiety symptoms when trying to progress his rugby career but believed he had not received the right “mentoring”. He went on to describe to Dr Lewis that professional rugby was very satisfying, however, over time he simply felt “worn out”. He told Dr Lewis that by 2012, he felt he was “over it”. He recalled feeling more clearly depressed at around that time. He said he had experienced significant mood instability in his middle twenties. For these reasons, I am unable to accept the submission by Mr Valiotis that as a result of the transport accident the plaintiff found that at the age of 26 he was required to cease a professional rugby playing career.
234In my judgement an assessment of the claimed consequences of the transport accident as they were pursued in relation to the plaintiff’s sporting career are better understood in the context of whether any aggravation to the function of the plaintiff’s spine by way of pain and limitation affected his coaching skills and to do so by asking how they had been able to be deployed and demonstrated before the transport accident and afterwards.
235I am satisfied that the plaintiff presented immediately before the transport accident with degenerative changes in both his lumbar and cervical spine. I find that the plaintiff had degenerative spondylosis. I am satisfied that such changes were consistent with the plaintiff’s age and his long sporting life.
236I find that the plaintiff had chiropractic treatment for cervical and lumbar pain and discomfort prior to the transport accident and on occasions during 2010 and through to 2012.
237I find that X-rays showed degeneration at the C3-4 level and at the L4-5 level. An MRI scan of the plaintiff’s lumbar spine performed approximately a month after the accident revealed L4-5 degeneration. Dr Menz reported that this would have pre-dated the transport accident.
238I am satisfied on the balance of probabilities that the degeneration found at C3-4 and L4-5 would progress with time and also that the ordinary degenerative process would result in the plaintiff becoming increasingly symptomatic.
239I have been assisted by the clinical notes of Dr Ivins. On 13 April 2016 the plaintiff reported right cervical pain and stiffness with associated paraesthesia, paravertebral muscle hypertonicity and right frontal lobe headaches. Constant pain and pins and needles “in the right C3/4 and left C5/6”[149] were described. The note includes that “Mr Roach stated had been present for years on and off and has become problematic again, over the past two years, and was a result of an MVA DOI August 2014. It was more noticeable towards the end of the day and had been progressively worsening.”[150]
[149] Exhibit P14, PCB 142.
[150] Exhibit P14, PCB 142.
240I am satisfied that the absence of medical attendances by the plaintiff in the period of largely two years following the transport accident does not correlate with the comment recorded by Dr Ivins that the plaintiff’s symptoms had become problematic again over the past two years as “a result of an MVA DOI August 2014”. I have considered the reporting by Ms Bunting, physiotherapist, for example, who in a request for TAC approved physiotherapy dated April 2015 reported that the plaintiff was unable to walk pain free, was unable to ride a bike or sit pain free and experienced headaches. But if this was the plaintiff’s presentation at that stage then the position improved because thereafter he continued to be very substantially engaged in coaching at both school and at an elite overseas level.
241I am satisfied by reason of the notes of Dr Ivins and Dr Gallo that before the transport accident the plaintiff did have a significant history of previous neck, back and head injuries, repeated episodes of neck and back pains, and also intermittent symptoms in the lower limbs, upper limbs and head/facial region. Those symptoms are similar to some of the plaintiff’s present reported symptoms.
242I find that the plaintiff’s report of severe, constant pain in his back and neck since the transport accident and the records of Dr Cameron his local doctor in Sydney a month after the accident, coupled with Dr Cameron’s report that the neck and back problems had not been the subject of complaint for a significant period of time is more consistent than not with the plaintiff’s symptoms being better understood in the context of his pre-existing degenerative and probable progressive condition. The plaintiff’s presentation is as probable as not the result of ordinary progression as opposed to the transport accident having caused a serious aggravation to the plaintiff’s pre-existing condition.
243I accept that on the basis of an absence of medical or other attendances by the plaintiff that the state of his pre-existing spine whilst not asymptomatic before the transport accident appeared to be so from 2012 to the date of accident in 2014.
244I accept on the evidence that the state of the plaintiff’s spine before the transport accident had not interfered with his rugby playing.
245I am satisfied that the plaintiff suffered injury in the transport accident in the form of whiplash soft tissue injuries that resulted in the experience of additional pain to his neck and back.
246I am not satisfied the injuries from the transport accident amounted to a serious aggravation of the plaintiff’s pre-existing spine condition.
247The plaintiff explained that he was required to adapt how he went about coaching and was excluded from being able to coach at a professional level. As earlier mentioned, the plaintiff obtained Level 2 coaching accreditation. He adapted the way he went about coaching to accommodate his restrictions caused by back and neck pain. The plaintiff said that high level rugby coaches need to be able to demonstrate set plays, tactics and exhibit physicality, none of which he ultimately found he could do.
248The plaintiff said that after the transport accident in August 2014, and over the course of a few months that followed, he struggled with his duties as a rugby coach at Knox and was unable to physically demonstrate to his players what was required of them, however, according to his affidavit he carried through with his coaching and completed his contract obligation with that school. Then he returned to Melbourne in 2015. He commenced a Masters in Sports Coaching by correspondence. He secured the position of Assistant Coach to the Footscray Bulldogs First Grade Rugby team. Then he returned to Sydney and commenced work as an Assistant Coach at Scots College for the 2016 and 2017 seasons. In 2017 he moved to Romania and took up a position as an Assistant Coach of the Saracens. At the end of 2017 he returned to Australia because of that club’s insolvency and not because of an inability to continue as an Assistant Coach. Next, the plaintiff coached the Scots College water polo team in term one 2018 and he coached rugby in winter and water polo in summer, until early 2019, and then continued with his courier work because, he explained, he was saving money to move to Ireland.[151] He fulfilled this long held desire in the middle of 2019, and it is in County Clare, Ireland where he is now domiciled. In addition to his logistics/courier business sourcing parcel work using his van he established a separate business selling commercial cleaning cloths via phone sales.
[151] Exhibit P1, PCB 10.
249In Petkovski v Galletti[152] the Full Court of the Victorian Supreme Court accepted the proposition that:
A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused.[153]
[152][1994] 1 VR 436.
[153]Ibid 443 (Southwell and Teague JJ).
250A non-serious aggravation caused by a transport accident cannot be added to a prior condition such that in combination the plaintiff is to be assessed with a serious injury. It is necessary to isolate the plaintiff’s cervical spine condition and measure any consequences to it from the transport accident separate from any consequences occasioned to the plaintiff by his pre-existing but non-compensable spine condition.
251There is little evidence to support a finding that the transport accident injuries resulted in an aggravation to the plaintiff’s spine which has brought serious consequences from a rugby perspective. Let me explain. The evidence is that only a short number of weeks after the transport accident the plaintiff returned to Sydney and was coaching at Knox College where he had been coaching before the accident. Despite the plaintiff having said that over the course of the following few months he struggled with his duties as a rugby coach at Knox because he was unable to physically demonstrate to his players what was required of them, an attribute he said was especially acute for an assistant coach, nonetheless, he did so it seems until his contract with Knox ended. That is to say, despite the symptoms identified by Ms Bunting in her request to TAC, the limitations and pain that her request mentioned, did not interfere with the plaintiff completing his contract with Knox. Furthermore, continuing to coach rugby is precisely what the plaintiff did in a number of instances during 2015, 2016 and 2017 and 2018 including, in summer 2019 coaching water polo, and thereafter concentrating on his courier business he had commenced in the middle of 2018. It is not evident in what way the plaintiff’s account of his need to adapt how he coached caused him to cease to coach by the middle of 2018 or that the pain he experienced and culminated with his ceasing coaching was any less likely the result of the progressive worsening of his pre-existing condition as opposed to an additional impairment caused by the transport injuries in October 2014 and that was continuing. In this regard, I refer back to the opinion of Dr Sullivan and his observations about the plaintiff’s pathology.
252Dr Lewis explained the plaintiff purchased a van and became a self-employed courier in addition undertaking “odd jobs”. He was working approximately six days per week, 8-10 hours per day although it does not appear that the plaintiff’s work required significant lifting.
253The plaintiff told Dr Lewis that he was taking increasing control over his life and there had been a significant improvement in his anxiety and depression, and he had “learnt to love myself” and had managed to “turn his life around”.[154]
[154] Exhibit D4, PCB 79.
254The plaintiff told Dr Lewis that his life was significantly more structured and that his back pain had stabilised with conservative treatment. He also told Dr Lewis that his mental state had significantly stabilised with improved sleep, a positive outlook, and increased independence.
255Overall for the reasons expressed, I am unable to accept that the aggravating effects of pain and restriction to the function of the plaintiff’s spine or any consequential mental condition arising from an organically proved aggravation from the transport accident in late 2014 resulted in the plaintiff being required to surrender his work as a coach. As I have endeavoured to explain the evidence in support of such an argument is on the balance of probabilities no more persuasive than the plaintiff’s divorce from coaching rugby having occurred as a result of his realisation that he wanted to do otherwise with his life. If pain was the catalyst for the plaintiff’s decision, then I am not satisfied that it was pain and restriction caused to the function of the spine by aggravation from the transport accident or in conjunction with a secondary psychological injury arising from the organic additional aggravation of his transport injuries.
256I prefer the account reported by Dr Lewis to whom the plaintiff explained he had made a decision to embark on a career change out of coaching because it had dawned on him that coaching rugby was taking a “toll” on him psychologically. The evidence was not persuasive that any psychological toll to which the plaintiff referred had developed as a consequence of pain and restriction from the transport accident as opposed to the other non-transport related but considerable psychological illness the plaintiff had experienced and that had resulted in multiple hospitalisations.
257I am satisfied that before the transport accident the plaintiff came to a realisation that he no longer wished to play the game. After the transport accident the plaintiff’s capacity to coach continued for a number of years during which time he travelled to Japan where he coached, and in 2017, he was contracted to coach in Romania which job ceased not because of the plaintiff’s impairment but the club’s insolvency. I am satisfied and find that the plaintiff revaluated his life and fulfilled what he had said had been a long held desire to emigrate to Ireland. Thus the authorities to which Mr Valiotis directed attention that concern the loss of work within a profession or a career do not have work to do in this case.
258However, the fact I am not satisfied that the plaintiff’s life as a player or a professional coach was lost because of the aggravated function to his pre-existing spine or when coupled with any secondary mental condition that may be thought to have resulted from the transport accident, does not inevitably mean the exercise required by me in determining the plaintiff’s application for a serious injury certificate is concluded. That exercise requires me to assess the extent to which the plaintiff has proved on the balance of probabilities that any aggravation to the function of his spine has been more than significant or marked and, therefore, at least very considerable, and this inquiry extends beyond a consideration of the plaintiff’s rugby playing and coaching. To enable the exercise to be undertaken both as regards the plaintiff’s pain and suffering a pecuniary disadvantage, it is necessary to consider the plaintiff’s evidence concerning all aspects of his life before the accident and as it is now.
259There are competing accounts whether the plaintiff’s pain occasioned by the transport accident adversely affects his sleep. Although there are some accounts that it does, and sleep was a matter the plaintiff was directed to in re-examination, I prefer and accept that the more probable state of affairs is, as Dr Sullivan reported, namely, that the plaintiff enjoys about six to seven hours of effective sleep per night and wakes approximately once per night. Even if the state of the plaintiff’s sleep is rightly attributed to consequences arising from the transport accident in 2014, and are continuing, I am not satisfied it is an account by way of disturbance of a more than a modest effect.
260The plaintiff deposed that at times his concentration to attend to administrative aspects associated with his businesses is hampered such that if he has experienced a tiring day his ability to complete paperwork needs to be put aside until he has rested. Frankly, this seems to me as readily reconcilable with the plaintiff leading a very busy working life operating two businesses over a 6 day week than it is one to be laid at the feet on any aggravating effects of the transport accident on the plaintiff’s mentation.
261The plaintiff says that spinal stiffness makes it much harder to start his working day, however, the evidence is that he can and does just that. My reference to the plaintiff’s proved work capacity is not to suggest that an injured but stoic person should be disadvantaged in exhibiting such a character trait if faced with necessity or as a result of tenacity, but only that in the circumstances of this case, I am not satisfied that the application by the plaintiff to work and the conduct of his businesses is less due to stoicism than it is to functional physical and mental capacity.
262I have taken into account that in re-examination and in response to being asked by Mr Valiotis if it had been his ambition to be a courier driver, the plaintiff said it had not been. However, I do not think this answer adds to the plaintiff’s claim.
263First, I have already explained why I am not satisfied that the plaintiff ceased to be involved in rugby as a player and later as a coach because of the aggravating effects on his function caused by the transport accident, and to the extent that this answer elicited in re-examination was intended to posit a comparative career disadvantage in working as a courier driver to that of professional player or coach, it is not a valid comparison. I am satisfied that the plaintiff was the instigator of the courier business in Australia that he has subsequently pursued in Ireland along with conducting a separate online enterprise. I am not satisfied the plaintiff carved out this path because it was forced on him by his loss of involvement as a coach caused by the aggravating effects of the transport accident but instead that it was something he pursued because of an independent decision to leave his rugby life behind and pursue a less stress inducing life overseas.
264Second, the evidence is not that the plaintiff commenced the courier business because his physical condition allowed him to undertake no other form of paid remuneration or career.
265Third, even if these business endeavours were not what the plaintiff had envisaged, it was work he adopted and has adapted to his relocated life in Ireland.
266Fourth, if the evidence in re-examination was directed to support a submission that as result of the transport accident the plaintiff has been left with a reduced range of potential future employment opportunities, then despite me not being satisfied that such an attribution should be made to the consequences from the transport accident, there is limited evidence of functional restrictions that may affect the plaintiff across a range of other potential future employment. Mr Hill, the English osteopath considered that the plaintiff’s regular episodes of low back pain will restrict the job roles he can pursue and that any episode of acute back pain will inhibit his ability to do any work. The plaintiff deposed that he had encountered a need to restrict himself to bed for days with pain and, in his third affidavit, he deposed that he had recently experienced severe neck pain that had restricted him to bed for the day.
267I am mindful that the plaintiff deposed that the manual aspect of the work he performs in his courier business does not expose him to the need for heavy lifting and that Mr Awad thought it likely that the plaintiff would continue to suffer from a degree of pain and disability into the foreseeable future.
268Dr Stevens ventured that the plaintiff’s capacity for physically strenuous work is limited. He thought that the plaintiff’s capacity for prolonged standing, use of steps, squatting, kneeling, walking and running is limited and this state of affairs would likely be indefinite. However, Dr Stevens also said that the plaintiff has a capacity for suitable employment, such as the work he is currently undertaking and that the plaintiff has said he is capable of doing.
269In assessing the effects on the plaintiff of his spinal condition I have taken into account that Mr Murray reported that the plaintiff’s complaints of ongoing neck pain, left pectoral discomfort and low back pain are a source of frustration and disillusionment that prevents him from comfortably getting on with his activities of daily living. He said that the plaintiff’s vulnerability for an acute episode of pain has restricted him from playing contact sport and going on long walks and engaging in gardening. The plaintiff said that daily pain has contributed to a diminution in his sitting and driving and standing and walking for prolonged periods.
270Dr Sullivan reported that the impact on the plaintiff’s work has been that he drives two to three days per week, six to eight hours per day undertaking deliveries but that he tends to take short breaks between deliveries due to pain exacerbation and that he avoids lifting or moving objects or parcels in excess of 25 kg. It was unclear from the evidence that if the plaintiff was driving two or three days a week what occupied the balance of the six day working week he testified to. Perhaps it was devoted to his online business.
271I have considered that Dr Sullivan commented that the plaintiff experiences “mood swings that affect his day-to-day relationships with his partner. His pain also results in impaired intimacy[155]. He used to enjoy gardening, playing golf, playing social rugby and running and can no longer engage in such activities.”[156]
[155] Not a consequence or effect depose to by the plaintiff.
[156] Exhibit P12, PCB 101-102.
272The plaintiff did not depose to playing golf before the transport accident and neither did he depose that the pain consequences from the accident have adversely affected his intimate relationship with his partner. I am satisfied that it is more probable than not that the reduction in the plaintiff’s gardening has more to do with his very busy life and the allocation of his one day off a week on a Sunday being directed to the attention of his partner and to swimming and walking with her than it is to a loss caused by pain and restriction that continues in consequence of any aggravating effect from the 2014 transport accident that is very considerable. The claim that the plaintiff can no longer play social rugby was not a consequence expressed in his affidavits, however, the plaintiff did depose that him no longer being involved in rugby at all is a matter of great loss and this may be understood as a loss of playing the game socially as opposed to the coaching or playing the game professionally. That being said even if there are continuing effects from the 2014 transport accident, I am satisfied that it is the plaintiff’s pre-existing pathology that is the driver of his limited or reduced functional capacity and that any contribution to this state of affairs caused by the 2014 transport accident and that has continued is not such as to elevate the aggravation to a serious injury.
273The plaintiff remains independent in all personal activities of daily living. Difficulty with house maintenance and tasks that involve bending, cleaning at low level and linen changes for example, that have been commented on, even had I been satisfied amounted to ongoing aggravating effects to the function of the spine from the 2014 transport accident, would not have satisfied me as amounting to seriousness in comparison to the consequences from range of other like impairments.
274As to the plaintiff’s account of ongoing pain, despite accepting that he is afflicted on occasions by pain that has caused him to stay in bed, I am unable to adopt his narrative of the consistency of it and the frequency of it but ultimately, the cause of it. I am satisfied that his evidentiary account is inconsistent with his activity and aptitude for work as well as the limited non work related activities that his busy working week permits and which he has exhibited for a considerable period of time. In any event, and for the reasons I have already expressed, I am not satisfied that the plaintiff has established on the balance of probabilities that the injuries suffered in the transport accident made worse the function of his spine such that his pain and restriction consequences should be attributed to it and so satisfy the requirement for seriousness. In arriving at my decision I have considered the broad range of activities that pain consequences of an injury can affect and that has been referred to, for example, in Haden Engineering Pty Ltd v McKinnon[157] but that despite me accepting some intrusions by way of a diminution in those areas discussed, I am not satisfied that they should be attributed to an ongoing aggravation from the transport accident but if I am wrong, and they should, then such aggravation itself does not satisfy the test for seriousness by being more than significant or marked.
[157] (2010) 31 VR 1, 5-6 [16].
275Despite not being satisfied of and accepting the plaintiff’s account of the level and frequency of his pain, I have not treated him as having given false evidence. Although I found his response to the answers he gave Dr Sullivan about prior history somewhat disingenuous, I am inclined to conclude that it is more probable than not that the plaintiff has reasoned backwards from his experience of pain caused by his degenerative condition and the consequences that have arisen in his life and attributed them to the limited aggravating consequences that he experienced after the transport accident. The conclusions I have reached that any aggravation is not serious is not to equate to an adverse finding about the plaintiff’s credit.
Conclusion
276For the reasons expressed the application is refused.
277I direct that the parties file a proposed minute of order to give effect to these reasons within 7 days failing which the proceeding will be listed for mention.
(a) a serious long-term impairment or loss of a body function of the spine;
(b) a serious long-term impairment or loss of body function of the right shoulder; and
(c) a severe long-term mental or severe long-term behavioural disturbance or disorder.
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