Rogers v Transport Accident Commission
[2014] VCC 2078
•19 December 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-02182
| BENJAMIN ROGERS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24, 25 and 26 November 2014 | |
DATE OF JUDGMENT: | 19 December 2014 | |
CASE MAY BE CITED AS: | Rogers v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2078 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – injury to the neck – organic injury – range case - surveillance – Facebook social media – credit
Legislation Cited: Transport Accident Act 1986, s93(4)(d), s93(6), s93(17)(a)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 883; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Petkovski v Galletti [1994] 1 VR 436; Richards v Wylie (2000) 1 VR 79; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Barlow v Hollis (2000) 30 MVR 441; Guppy v Victorian WorkCover Authority [2010] VSCA 164; De Agostino v Leatch & Anor [2011] VSCA 249; Bezzina v Phi & Anor [2012] VSCA 161
Judgment: Leave granted to the plaintiff to bring proceedings for damages in relation to injury sustained in the transport accident on 24 November 1998.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Moore QC with Mr G Chancellor | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr R Middleton QC with Mr A Newman | Hall & Wilcox |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 24 November 1998 (“the transport accident”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The plaintiff brings this application pursuant to paragraph (a) of the definition of “serious injury” to be found in s93(17) of the Act. There –
“serious injury means—
(a) serious long-term impairment or loss of a body function.”
4 The loss of body function relied upon in this application is the neck.
5 The plaintiff seeks leave to issue proceedings at common law.
6 The plaintiff relied upon three affidavits, two sworn by the plaintiff on 13 December 2011 and 13 October 2004 and one by his mother, Narelle Rogers, sworn 15 October 2014.
7 The plaintiff and Mr Simm were cross-examined. I have not summarised all the affidavits and the evidence of the plaintiff and Mr Simm; however, I will refer to the relevant evidence of the plaintiff and Mr Simm in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
8 The Court must not give leave unless it is satisfied, on the balance of probabilities:
(a)that the injury suffered by the plaintiff was as a result of the transport accident;
(b)that the injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.
9 The enquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term. The requirements of the test are set out in the decision of Humphries & Anor v Poljak[1] where the majority of the Court of Appeal said:
“To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”[2]
[1][1992] 2 VR 129
[2] Humphries & Anor v Poljak (supra) at [140]
10 The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.[3]
[3]Richards & Anor v Wylie (2000) 1 VR 79
11 In determining the application, the Court must make the assessment of “serious injury” at the time the application is heard.[4]
[4] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
12 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[5]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. … .”
[5][1998] 1 VR 702
13 The term “serious” requires the impairment and its consequences to be viewed objectively, and also judged on an external comparative basis against possible impairments not necessarily in the same category.[6]
[6](supra) at 170 and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. In particular, Chernov JA at paragraph [29]
The issue
14 Counsel for the defendant informed the Court that this is a “range case”, namely that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that they could not be considered “as being more than significant or marked and as being at least very considerable” when compared to other cases in the range.
Investigations
15 On 24 November 1998, a CT scan of the cervical spine showed:
“1 mm sections were obtained from C6-21. No fracture is identified and there are no signs of facetal subluxation or dislocation. No paravertebral or extra-dural hematoma is evident.
Sagittal reconstructions are not helpful due to patient movement.
Conclusion:
Normal study.”
16 On 5 June 2003, x‑ray of the cervical spine showed:
“Normal lordosis present.
The tip of the spinous process of CV7 has been fractured in the past and displaced slightly inferiorly.
AP diameter of the cervical canal is of normal dimension and discs are of normal height.
No evidence of encroachment by osteophytes on foramina nor of cervical rip.”
17 An ultrasound of the left shoulder showed:
“No evidence of rotator cuff tear nor impingement syndrome. A fluid collection cannot be identified in the soft tissues.
Conclusion:
Normal study.”
Left shoulder x‑ray
“The epiphysis of the acromion is still somewhat fragmented. Probably a development appearance.
Gleno-humeral joint well preserved.
Soft tissue calcification not identified.”
18 On 27 April 2005, a CT scan of the cervical spine showed:
“Contiguous axle imaging C2-T1 demonstrates generous dimensions throughout the cervical spinal canal, no evidence focal disc prolapse or of cervical cord compromise. Alignment of cervical vertebrae is well maintained, no evidence of significant degenerative disc or facet arthropathy.
No foraminal narrowing detected.
Deformity is noted in the dorsal spinous process C7 consistent with old avulsion trauma, union appears well advanced in good position.
No recent abnormality identified.”
19 On 16 May 2006, a CT scan of the cervical spine concluded:
“Old fracture of the C7 spinous process. No nerve root displacement or compression detected.”
The Plaintiff’s medical reports
Angliss Health Service
20 On 24 November 1998, Dr Morrow of Angliss Health Service, in a letter to Dr Barrett, confirmed that the plaintiff was a passenger in a motor vehicle accident, when the car was hit from the front. An MRI bone scan was recommended.
21 On 2 December 2003, Dr Peter Davies of the Angliss Hospital confirmed the plaintiff attended the hospital emergency department on 24 November 1998. He was treated by Dr Morrow and Dr Chieng. The plaintiff complained of left thigh discomfort and cervical spine/neck discomfort. He had a mild occipital headache. X‑rays of the left femur and of the cervical spine were performed and reported as being normal. The plaintiff was transferred to the Royal Children’s Hospital for observation.
The Royal Children’s Hospital
22 Dr Vanessa Gabriel, paediatrician, from the Royal Children’s Hospital confirmed that the plaintiff was treated at the hospital on 24 November 1998 and was reviewed by Dr Vuillerman, resident. The plaintiff was in a hard collar and complained of pain from the pressure of the hard collar. There were no abnormal neurological findings and there was no evidence of any other injuries. X-rays and a CT scan of the neck were reviewed and reported as being normal.
23 The plaintiff was reviewed by the orthopaedic team the following day and assessed as having a normal examination and normal x‑rays. He was discharged home with a soft collar on 25 November 2003.
Dr Terence Lim
24 In October 2003, Dr Lim, rehabilitation and pain medicine specialist, in a letter to the TAC confirmed that the plaintiff suffered a fracture to the spinous process of the C vertebrae in a motor vehicle accident in November 1998, but diagnosis was delayed. He reported that the plaintiff had remained extremely active, attending school and also being a well-respected cricketer for his age. Dr Lim reported the plaintiff still suffered a fair degree of pain which was interfering with his quality of life. He considered the main reason for the plaintiff’s pain was Myofascial Pain Syndrome, a muscular hyper-irritability pain condition that runs a chronic or long-term course. There is no cure for this condition, but there are self-treatment techniques which the plaintiff can learn to gain better pain control and improve his quality of life.
25 Dr Lim recommended physiotherapy with a physiotherapist specialising in the management of Myofascial Pain Syndrome. He suggested the plaintiff attend twice weekly for a period of six to eight weeks and recommended that the Transport Accident Commission (“TAC”) approve the treatment. Dr Lim referred the plaintiff to Mr Michael Johnson, orthopaedic surgeon, at the Royal Children’s Hospital.
26 In a letter to Mr Johnson, Dr Lim said the causes of the plaintiff’s pain were twofold. First, Myofascial Pain Syndrome. The plaintiff had myofascial pain trigger points in the cervical paraspinal shoulder girdle and left upper limb muscles, which generated pain.
27 Second, the plaintiff probably developed a measure of “central sensitisation” or central nervous system pain pathway sensitisation due to neurophysiological changes that occurred from having pain since 1998. Dr Lim said the cure of chronic pain is not possible at this stage, but the plaintiff needed to be taught self-treatment techniques.
Dr L M Briggs
28 In August 2004, Dr Briggs, general practitioner, in a letter to the TAC, confirmed the plaintiff suffered an avulsion “Clay shoveler’s” type fracture of the spinous process of C7 in a motor vehicle accident in November 1998. Dr Briggs confirmed the plaintiff had no significant medical history, he was not a complainer and would tolerate significant pain before curbing his activities. She reported that the plaintiff suffered neck pain which is aggravated by sport and other activities such prolonged time at his computer, and after a long session playing his guitar, and with tiredness.
29 In 2003, the plaintiff grew in height rapidly and suffered quite significant pain. The plaintiff gave up his after school job at Coles due to the pain caused by constant heavy lifting and bending. The plaintiff had reported several episodes of severe muscle spasm and pain preventing him from at times attending school, playing sport or his guitar. He was unable to sleep due to the severe pain and was unable to concentrate. Dr Briggs reported treatment with anti-inflammatories, laser acupuncture and physiotherapy did not provide instant relief. An enforced period of rest and incarceration in a cervical neck brace provided relief.
30 It was Dr Briggs’ view the plaintiff had a foreign body in his neck which would be aggravated by movement of his neck, and that will result in muscle spasm. It was her opinion that the injury may cause a significant impact in regards to his daily working and sporting life to a considerable degree.
31 Dr Briggs reported that the plaintiff was suffering extreme debilitating pain from his injury. He was initially treated with Tryptanol and was now being treated with Neurontin and Celebrex. He also takes Panadeine Forte or Mersyndol when necessary. In October 2005 Dr Briggs reported that the plaintiff’s condition had settled down, but she could not say it would ever stabilise. The letter was signed for Dr Briggs by Dr Kong Lim of the general practice.
Mr Leo Donnan
32 In June 2003, Mr Donnan, orthopaedic surgeon specialising in paediatrics, examined the plaintiff on referral from Dr Briggs. Mr Donnan recorded that the plaintiff’s symptoms had not prevented him from being very active in the sporting sense, and he was a keen and good cricketer. On examination, he noted there was tenderness over the acromion, but no evidence of rotator cuff impingement. He said the contour of the plaintiff’s neck was normal, but he has exquisite tenderness over the spinous process of C7. He had a full range of motion of neck movements, but on resisted extension this caused no discomfort at the C7 level.
33 Mr Donnan said there was really good reason why the plaintiff had discomfort with spinous process and the coincidental osteochondritis. Mr Donnan thought the best way to determine progress was to undertake a bone scan.
34 In July 2003, Mr Donnan reported that the bone scan showed no increased activity at the C7 spinous process, suggesting that, from a healing point, things had settled down and probably everything is related to his soft tissue state. He noted the plaintiff was still quite tender over the region and in the muscles, and recommended physiotherapy with someone who specialises in spinal injuries and isometric neck muscle exercises.
35 In September 2003, Mr Donnan reported that physiotherapy had aggravated the situation. He recommended an injection with Depo-Medrol around the spinous process, but noted the plaintiff was reluctant to undertake that process. Accordingly, Mr Donnan referred the plaintiff to Mr Johnson, orthopaedic surgeon. Mr Donnan diagnosed an old avulsion fracture of the C7 potentially related to the transport accident of November 1998.
36 In September 2014, Associate Professor Donnan reported to the plaintiff’s solicitor that the “osteochondritis affecting the acromion” was very unlikely to be related to the trauma sustained in the transport accident, and the primary problem was the injury to the spinous process of C7.
Mr Michael B Johnson
37 In October 2003, Mr Johnson, paediatric orthopaedic surgeon, examined the plaintiff on referral. He diagnosed an avulsion Clay-shoveler’s type fracture of the spinous process of C7. He said the plaintiff had constant pain and a muscle spasm problem exacerbated by playing cricket and by lifting activities. The plaintiff discontinued sport at the time because of the problem. He occasionally takes Vioxx for the pain, but does not gain substantial or long-lasting relief.
38 On examination, Mr Johnson reported there was point tenderness over the fracture site. The plaintiff had some significant spasm and tenderness in the posterior cervical spine muscles. He had a full range of motion but experienced increased pain on full flexion. He had a normal neurological examination in his upper extremities. Dr Johnson thought the plaintiff’s pain had gone into a chronic phase and he referred the plaintiff to Dr Terence Lim, rehabilitation specialist. He was not convinced that surgical management would deal with the plaintiff’s pain.
Mr Andrew Danks
39 In December 2003, Mr Danks, neurosurgeon, examined the plaintiff on referral from the general practitioner. He noted tenderness over the region and discomfort with neck movement. He noted that neurological examination was entirely normal. He agreed with previous opinions that the response to surgical removal of the fragment of bone would be uncertain. He said the plaintiff’s presentation symptoms were much worse in the second quarter of 2003, at which time he was growing very quickly. Since the plaintiff’s growth rate slowed in the latter part of the year, his symptoms have been less troublesome. Mr Danks said avoidance of work at Coles with the repetitive lifting may have also contributed to the plaintiff’s improvement.
Dr Timothy J McCarthy
40 In October 2004, Dr McCarthy, specialist anaesthetist, confirmed he had been treating the plaintiff since May 2006 on referral from his general practitioner due to persistent debilitating left neck, shoulder and arm pain.
41 Mr McCarthy confirmed that cervical and thoracic dorsum ramus blocks were carried out on 16 June 2006. The plaintiff obtained good relief. On 30 June 2006, the plaintiff underwent C7, C8, T1 and T2 radiofrequency denervation with a good response. Mr McCarthy said radiofrequency denervation has a recognised limited lifespan, and pain relief lasts between nine months to four years. In 2011, a repeat procedure was performed, and in August 2011, a repeat radiofrequency denervation was carried out. After August 2011, the plaintiff had many disabling episodes which he could manage himself.
42 In July 2012, the plaintiff presented with high pain levels. Mr McCarthy said the plaintiff was displaying signs of central nervous system sensitivity with associated Mood Disorder. Mr McCarthy arranged for psychological support and repeated radiofrequency denervation and ketamine infusion. Mr McCarthy said the plaintiff’s status at the time was that he was returning to more intrusive levels and his mood was declining. It was Dr McCarthy’s view that the plaintiff suffers from the sequelae of a whiplash injury, severe enough to fracture a transverse process. His history is consistent with whiplash disorder and facet pain. The plaintiff needs support to continue working. He will need ongoing psychological therapy and repeated radiofrequency denervation procedures. He may benefit from more intensive therapies around managing the long-term pain, mood disorders and post-traumatic stress aspect, now recognised as whiplash sequelae.
Dr Nigel Strauss
43 In June 2011 and May 2014, Dr Strauss, psychiatrist, medically examined the plaintiff at the request of the plaintiff’s solicitor. Dr Strauss diagnosed post-traumatic stress symptoms and an Anxiety Disorder not otherwise specified. He said the plaintiff will always suffer from a moderate psychiatric impairment as a result of the transport accident. His restrictions are largely physically–based, but psychiatric factors are affecting his ability to work.
Mr Rodney J Simm
44 In June 2011 and June 2014, Mr Simm, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s solicitor. It was his opinion the plaintiff suffered, as a result of the transport accident, a soft tissue injury to the cervical spine and subsequently suffered a protracted whiplash syndrome. The plaintiff has reported chronic pain with associated emotional disturbance. He has proved resistant to treatment. It was Mr Simm’s view that the plaintiff was entirely genuine.
45 Mr Simm said the plaintiff requires ongoing chronic pain management. He accepted the plaintiff was incapacitated for physical forms of employment and is now performing suitable light office-based employment. He accepted that the injury had impacted severely on the plaintiff’s social, domestic and recreational activities.
Dr Clayton Thomas
46 In July 2011 and June 2014, the plaintiff was examined by Dr Thomas, consultant in rehabilitation and pain medicine, at the request of the plaintiff’s solicitor. Dr Thomas said the plaintiff developed whiplash and associated syndrome with pain, more to the left than the right of the neck and into the shoulder girdle. His injuries are consistent with the stated cause, that is the transport accident. There had not been any interval change since July 2011 when he previously assessed him.
47 Dr Thomas thought the plaintiff’s condition had substantially stabilised. He said treatment is palliative, there is no expectation that his condition will abate to any extent. He expected his condition will continue into the foreseeable future. He said there were limitations in the ability to function socially, domestically and recreationally. He thought it was probable that he will develop some emotional difficulties if these have not already commenced.
The Defendant’s medical reports
Dr John King
48 In December 2007 and February 2014, Dr King, psychiatrist, medically examined the plaintiff at the request of the defendant’s solicitor.
49 In 2007, Dr King noted the plaintiff’s psychiatric state fluctuated from time to time. The episodes of disabling neck and shoulder pain were less severe and less frequent. This led to an improvement in his emotional state because for some years he was often anxious, fearful that an episode of the pain was about to return. In 2007, Dr King said the plaintiff suffers from chronic Post-Traumatic Stress Disorder caused by the trauma of the accident and also suffers from an Adjustment Disorder with Anxiety, largely due to the episodic pain caused by his accident. He said the plaintiff’s prognosis was quite good.
50 In 2014, Dr King said the plaintiff no longer satisfies Criterion C for Post-Traumatic Stress Disorder, though he continues to suffer from some symptoms of traumatic anxiety. Dr King believed the appropriate diagnosis was now Adjustment Disorder with Anxiety and Depressed Mood related to the trauma of his accident, and also as a consequence of distress caused by the pain he has suffered since the accident.
51 Dr King said the plaintiff continues to suffer from significant episodic pain caused by injuries suffered. However, he has done fairly well, which Dr King expects will continue.
Dr Kevin J Fraser
52 In October 2013, Dr Fraser, rheumatologist, medically examined the plaintiff at the request of the defendant’s solicitor. The plaintiff provided a history of hoping to become a carpenter, but realised he could not do such work because of neck pain. He was a wicket keeper in a cricket team, but gave that up. He recently tried to play cricket again, but had to stop after two days. He reported that prolonged sitting causes neck pain, and he thought he had lost approximately three weeks from work because of that, and perhaps another week or two for non-related medical issues.
53 On examination, Dr Fraser said the movements of the cervical spine were somewhat restricted, with left-sided pain at the extremes of the range. He said there appeared to be some over-reaction on physical examination. It was his opinion the plaintiff gave a history in an honest and straightforward fashion, and there did not appear to be any conscious over-reaction on physical examination.
54 Dr Fraser said it was difficult to reconcile his ongoing symptoms/signs with the injury sustained in a transport accident of November 1998. He said the x‑rays were not available, but it appeared the fracture of the spinous process of C7 was not detected until some years later. By then, there was no evidence of any bony reaction. With a normal bone scan, any related soft tissue injury should have long since resolved.
55 Dr Fraser thought it most likely that the plaintiff’s ongoing symptoms were due to a psychologically-based Chronic Pain Syndrome secondary to an injury sustained in the transport accident which has not resolved. He thought the prognosis was poor. He said that any radiofrequency denervations are becoming less effective with time, and he could see no point in further treatment. He thought it only served to reinforce the plaintiff’s sense of invalidism. He thought simple analgesics as necessary would be the only further treatment. He recommended an assessment by a psychiatrist. He did not think there was any physically-based incapacity as a result of the compensable injury, and the plaintiff was fit to perform his current type of employment or indeed anything else for which he is otherwise suited.
Surveillance
56 I was shown surveillance dated 31 May 2014 of 39 minutes and 40 seconds. The plaintiff was under surveillance for five hours on that day. He was subsequently surveilled for five hours on 1 June 2014 and seven hours on 7 June 2014. There was no surveillance shown of 1 June and 7 June 2014. The plaintiff was not sighted on those days.
57 The surveillance of 31 May 2014 showed the plaintiff parking his vehicle and alighting outside a 7-Eleven store. He opened the rear passenger door of the vehicle, and bent slightly forward. He closed the vehicle door, then walked with his child and entered the 7-Eleven store. They returned to the vehicle. It then became apparent from the footage that the plaintiff was searching for something in and around his vehicle.
58 The plaintiff opened the rear, right-hand side door of the vehicle. He was observed to bend slightly forward into the rear door of his vehicle. He stood up, and threw a small item of rubbish into a tall Dumpmaster bin. He then knelt forward deeply into the front driver’s side of his vehicle. He kneeled on the ground and inspected underneath his vehicle. He knelt and inspected the internal floor of his vehicle. He then approached the Dumpmaster and, using both hands at the top of a gate, lifted himself upwards while carrying the weight of his body under his left arm and with his feet approximately two feet off the ground. He jumped backwards, landing on both feet. He then, using both arms, pulled himself upwards on the Dumpmaster and lifted his leg over the gate, followed by the other leg, and went into the bin. He was seen bent over in the bin. He climbed out of the bin and jumped approximately seven feet from the top of the gate, landing onto the ground, and stood in an upright manner. He opened and closed the rear hatch of his vehicle a number of times. He jogged for a short distance and returned. He retrieved the child from the vehicle and entered the 7-Eleven store. The child then alighted from the vehicle, and the plaintiff leaned across the vehicle. The plaintiff was not seen lifting his child, a three-year-old, in or out of the car.
59 The plaintiff’s evidence was that he remembered the incident. He had lost his partner’s credit card. He said the credit card was important because he would not be paid until the following week. He agreed that he was panicking. He agreed that he hoisted himself into the bin, and that the bin was approximately seven feet high. He agreed that he had unrestricted neck movement in that process. He agreed that he jumped seven feet down to the ground. In evidence he said he felt pain through his neck during this activity, but he agreed there was no reaction consistent with him experiencing pain in his neck depicted in the film. He agreed the film was not entirely consistent with the way in which he presented to medical witnesses.
60 The surveillance was shown to Mr Simm. He was asked whether there was anything inconsistent with the clinical examination he conducted at the time of his second report. Mr Simm said:
“No, as I say I think what I saw in terms of range of movement and activities, bending and moving, was quite consistent. There wasn’t any glaring inconsistency to suggest that he was modifying his clinical presentation for my benefit but I’m a little surprised that he could climb up onto and jump from a seven foot container, considering his history.”[7]
[7]Transcript (“T”) 104, L5-14
61 In cross-examination, Mr Simm was asked:
Q:“Now first of all, jumping from seven feet onto one’s feet is going to send quite a significant force through the feet into the supine, is it not?---
A:Yes.”
62 Mr Simm said he could see no evidence of any sign of discomfort or disability as the plaintiff made the jump.[8] Mr Simm said:
[8]T96, L6-9 and 13-15
A:“And I’m a little surprised that he’s able to jump off a seven foot container.
Q:Would ‘shocked’ be a better word?---
A:Well I – no, I don’t think I shock very easily now, but – particularly with surveillance videos, but I’m surprised he can jump off seven feet. I’d have to say that’s something I wouldn’t have expected him to do without experiencing discomfort. We don’t know whether that was a painful thing for him to do. I don’t know whether he’s been asked that – whether or not that was painful.
Q:Well, he said it was, to be fair, he said it was?---
A:I’m not surprised.
Q:And the jogging?---
A:Well, he said he can’t jog to keep fit because of the jarring of his neck. But most people who I examine who say they can’t run, I say ‘well, could you run to catch a bus or’ and they say, ‘oh, I could probably do that’, so perhaps a short period of jogging is not incompatible with what I know about this man.”[9]
[9]T97, L3-20
63 In this case, the film must be considered in context. On 26 May 2014 (shortly before the surveillance on 31 May 2014), Dr McCartney administered ultrasound-guided injections into the upper thoracic spine.
64 Counsel for the defendant referred to a letter dated 27 May 2014 from Dr McCarthy to the TAC. Dr McCarthy had reported:
“In the interim, I am treating him with trigger point injections at the upper thoracic spine, under ultrasound control. An initial set of injections performed on 26 May 2014 did not provide good short-term relief.”
This letter implies that shortly after the procedure, the plaintiff was consulted about the relief provided. The plaintiff’s evidence was that he could not recall whether he saw Dr McCarthy after the ultrasound.
65 The plaintiff deposed in his most recent affidavit that:
“My pain levels continue to increase and on 26 May 2014 Dr McCarthy gave me ultrasound guided trigger point injections but these did not help.”[10]
66 In cross-examination, the plaintiff was asked about the above paragraph in his affidavit.
Q:“In relation to that reference to, ‘did not help’, was that short-term, long-term, medium-term? What happened?---
A:It didn’t help in the long-term.
Q:In the short-term, did the injections have any beneficial effect on your neck condition?---
A:Yes, in the short-term.
Q:For how long, if you can remember, for what period of time did the best benefit from those injections continue?---
A:About two to three weeks.
Q:After that, what happened with respect to the symptoms?---
A:My pain started to increase.
Q:Has there been a pattern like that over the years?---
A:Yes.”[11]
[11]T36, L18-31
67 I accept that it is more likely that Dr McCarthy’s letter to the TAC represents the plaintiff’s response to the injection that there was no immediate short-term relief; the surveillance film was taken some days later.
68 The surveillance showed the plaintiff on a number of occasions bending across the front seat of his car, and underneath his car which was consistent with Mr Simm’s assessment. In cross-examination, Mr Simm was not concerned by this activity.
69 The surveillance footage also showed the plaintiff climbing up onto a Dumpmaster which was approximately seven feet high, and jumping down from the Dumpmaster on two occasions. The plaintiff was shown performing these activities with no demonstrable sign of pain in his neck. It was clear from the plaintiff’s facial expression that he was concerned about not being able to find what he was looking for. Mr Simm, after viewing the footage, said he was ‘surprised’ by this activity. However, Mr Simm qualified this by stating he was not surprised that the plaintiff acknowledged it was painful.
70 I accept that surveillance film is a snapshot in time, and that a plaintiff will have days when he is able to undertake more activities than on other days. I note in this case, surveillance was conducted on three days and the plaintiff sighted on one day. I take the view that overall the plaintiff gave frank answers to questions about the surveillance footage. The plaintiff agreed the surveillance footage did not appear entirely consistent with the way in which he presented to medical witnesses. I consider the surveillance suggested that his medical condition on that day was not as significant as he reported. However, I accept the plaintiff gave evidence that he experienced pain through his neck when he jumped from the Dumpmaster. I accept the plaintiff was panicking at the time because he could not find his partner’s credit card. Overall I am not sufficiently satisfied that the surveillance footage, when viewed in context with the evidence of the plaintiff and Mr Simm, is sufficient to impugn the plaintiff’s credit.
Credit
71 The plaintiff was described by Mr Simm as “straightforward and co-operative” and as an “entirely genuine person”.[12] Mr Fraser said that the plaintiff reported in an “honest and straightforward fashion”, and there “did not appear to be any conscious overreaction on physical examination”.
[12]PCB 109
72 In Court, the plaintiff answered questions directly. On occasions, he thought for some time before answering questions. I take into account in the plaintiff’s favour his direct and frank responses to the questions asked about the surveillance footage. I accept the submission from counsel for the plaintiff that overall, his answers were quite acceptable and indicated that he was essentially a direct and acceptable witness.
73 I note the plaintiff was relatively consistent in his reports to doctors about his consequences. Further, I note the depositions on affidavit by the plaintiff about his current levels of symptomatology and consequences were not attacked in any direct sense.
74 Overall, I accept that the plaintiff was a credible witness.
Analysis of the evidence
75 The current medical opinion is that the plaintiff was suffering an injury to his neck which has been variously described as:
· Sequelae of a whiplash injury, severe enough to fracture a transverse process, consistent with a whiplash disorder and facet pain. Displaying signs of central nervous system sensitivity with associated mood disorder.[13]
[13]Dr McCarthy, PCB 71
· A soft tissue injury to the cervical spine and subsequently suffered a protracted whiplash syndrome.[14]
[14]Mr Rodney Simm, PCB 109
· Whiplash and associated syndrome with pain, more to the left than the right of the neck and into the shoulder girdle.[15]
[15]Dr Clayton Thomas
· Ongoing symptoms were due to a psychologically-based Chronic Pain Syndrome secondary to an injury sustained in a motor vehicle accident which has not resolved.[16]
[16]Dr Kevin Fraser
· A fracture to the spinous process of the C-vertebra. A Myofascial Pain Syndrome, a muscular hyperirritability pain condition that is chronic or long-term.[17]
· An old avulsion fracture of the C7 potentially related to the transport accident of November 1998.[18]
[17]Dr Terence Lim
[18]Mr Donnan
76 All medical witnesses accepted that the injury was as a result of the transport accident. Accordingly, I accept the medical evidence that the plaintiff suffered a compensable injury as a result of the transport accident.
77 A number of medical witnesses treated the plaintiff over the course of his injury. Dr Briggs, general practitioner, treated the plaintiff from 2000 to 2005 with anti-inflammatories and laser acupuncture. She reported that the plaintiff had an enforced period of rest and incarceration in a cervical neck brace.
78 In 2003, Mr Leo Donnan, orthopaedic surgeon, treated the plaintiff on referral from Dr Briggs. Mr Donnan recommended physiotherapy, but subsequently noted that it aggravated the plaintiff’s condition. He recommended an injection with Depo-Medrol around the spinous process, but noted the plaintiff was reluctant to undertake that process. In October 2003, the plaintiff was referred to Mr Johnson, orthopaedic surgeon, for a second opinion.
79 Mr Johnson referred the plaintiff to Dr Terence Lim, rehabilitation and pain medicine specialist. In 2003, Dr Lim considered that the main reason for the plaintiff’s pain was Myofascial Pain Syndrome. He said there was no cure to the condition, but there are self-treatment techniques which the plaintiff can learn to gain better pain control and improve his quality of life. Dr Lim said the plaintiff probably developed a measure of “central sensitisation” or central nervous system pain pathway sensitisation due to neurophysiological changes that have occurred from having pain since 1998.
80 In August 2004, the plaintiff’s general practitioner reported to the TAC that the plaintiff had suffered an avulsion “Clay Shoveler’s” type fracture of the spinous process of C7 in the transport accident.
81 In June 2006, Dr McCarthy, another pain specialist, treated the plaintiff successfully with nerve blocks and radiofrequency denervation procedures in C7, C8, T1 and T2. The first procedure produced a marked improvement in chronic neck pain for approximately eighteen months. Dr McCarthy treated the plaintiff with left-sided cervical radiofrequency denervation procedures in 2011, 2012, 2013 and in May 2014. These procedures effectively reduced the pain for almost twelve months. He said the plaintiff will need repeat radiofrequency denervation procedures into the future.
82 The plaintiff commenced treatment with a psychologist in August 2006 because of continuing anxiety and panic attacks, which were generally associated with flare-ups of pain. He could not remember the last time that he saw the psychologist.
83 It was accepted by the medical witnesses that the plaintiff suffered ongoing problems with neck pain and referred symptoms into the left shoulder girdle from the time of the accident. He was referred to Dr Lim, a pain management and rehabilitation specialist. He sought opinions from an orthopaedic spinal surgeon and a neurosurgeon. The various forms of physical treatment consisted of physiotherapy, acupuncture and laser acupuncture. The treatments have not led to any sustained benefit.
84 The plaintiff’s treatment has now been confined to self-regulation of activities and medication, and radiofrequency denervations.
85 Over time, his analgesic requirements have increased. Currently, he takes Panadeine Forte, two tablets up to twice daily on about three days a week. On most of the other days, he takes Panadol, up to four tablets per day. There is an occasional day when he does not take any analgesic medication. On approximately three days per month, he takes a 20-milligram OxyContin tablet. In addition, the plaintiff takes his prescribed Lexapro (20 milligrams), an antidepressant, which he takes daily. He has been taking antidepressants for some years. He was trialled on Lyrica. The medication led him to feeling groggy in the morning, and it was discontinued. He takes Glucosamine supplements. He is trying to exercise regularly by walking for up to 45 to 60 minutes a few days of each week. None of the medical witnesses suggested any improvement is likely.
86 A number of the doctors who reported on the organic injury suggested that a psychiatrist ought to review the plaintiff. There were two opinions obtained from psychiatrists, Dr Strauss and Dr King. Neither of those reports suggested any psychiatrically‑induced pain presentation. Accordingly, I reject the defendant’s submission that the plaintiff’s injury is more appropriately a paragraph (c) injury than an organic injury under paragraph (a) of the Act.
87 In determining the plaintiff’s impairment, I must make the assessment as at the date of hearing. Accordingly, I will be assisted by the more recent medical opinions in this case, the reports of Dr McCarthy, Mr Simm, Dr Clayton Thomas, Dr Fraser, Dr King and Dr Strauss.
88 Dr McCarthy said the plaintiff’s status was that the pain was returning to more intrusive levels and his mood was declining. He said the plaintiff suffers from the sequelae of a whiplash injury severe enough to fracture a transverse process. His history is consistent with whiplash disorder and facet point. The plaintiff needs support to continue working. He needs ongoing psychological therapy and repeated radiofrequency denervation procedures.
89 Mr Simm said the plaintiff requires ongoing chronic pain management. He accepted that the injury impacted severely on the plaintiff’s social, domestic and recreational activities.
90 Dr Clayton Thomas said that the plaintiff developed whiplash and associated syndrome with pain. His injuries are consistent with the stated cause. His treatment is palliative and there is no expectation that his condition will abate.
91 Dr Fraser said the plaintiff’s ongoing symptoms were due to a psychologically-based Chronic Pain Syndrome secondary to an injury sustained in the transport accident which had not resolved. He thought the plaintiff’s prognosis was poor. He said the radiofrequency denervation was becoming less effective with time and he could see no point in any further treatment. He said simple analgesics were the only form of further treatment.
92 Accordingly, I accept the plaintiff has suffered a physical injury which has had consequences to him. The issue is whether the consequences satisfy the test.
Pain
93 The plaintiff reported pain to all medical witnesses.
94 As at June 2014, the plaintiff reported to Mr Simm that he believed his pain worsened since he was last examined in June 2011. Mr Simm noted that his analgesic requirements have increased. The plaintiff reported suffering constant pain. He said the pain varied from 5 to 7 out of 10 on a good day, to up to 10 out of 10 on a very bad day. Excruciating pain occurs on about three days of the month. Severe pain may be associated with physical activities such as vacuum cleaning. Recently, he reported vacuum cleaning resulted in him taking a day or two off work because of the marked increase in cervical pain.
95 The plaintiff reported to Mr Simm that the pain occurs mostly down the left side of the neck, from where pain radiates across the top of the left shoulder and into the left scapula. He reported restriction of movement, and he reverses his car using the mirrors. He reported that the neck pain interferes with a number of activities.
96 The plaintiff reported to Dr Clayton Thomas that he suffers left-sided neck pain which is present on a daily basis.
97 I accept that as a result of the transport accident, the plaintiff is currently suffering constant pain which is a significant consequence I can take into account.
Medication
98 The plaintiff’s evidence is that he continues to take Panadeine Forte and occasionally OxyContin. He trialled Lyrica for a couple of months. This helped with his sleep and pain but left him drowsy at work, so he ceased taking that medication. He suffers flare-ups of pain about three days per month. He takes Panadeine Forte every couple of days, and about four tablets on the days that he takes them. He takes Panadol, two tablets every couple of days at night. He takes OxyContin, once every three to four weeks when the pain is worse, generally after activities such as housework or playing with his son.
99 The plaintiff reported the level of medication he takes to the medical witnesses. I accept the level of medication the plaintiff is taking is at the high end of the scale. Accordingly, I accept that this is a serious consequence I can take into account.
Headaches
100 The plaintiff reported to Mr Simm that he suffered from migraine headaches, which are associated with a visual aura and then a severe headache with nausea. He has these headaches at about monthly intervals. The other, more frequent, occipital headaches he was having when last seen in June 2011 have largely resolved.
101 Dr Thomas reported that the plaintiff complained of migraines once to twice per month, which are mostly over the left region of his eye. I accept that this is a consequence which I can take into account.
Cricket
102 The plaintiff’s evidence was that he has been a keen cricket player since he was young boy. He attempted to play cricket in early 2013 with friends from work. He attempted to wicket-keep. He pulled up poorly, and gave it away. He misses not playing cricket as it was a sport that he was good at and enjoyed playing with friends.
103 The plaintiff reported this consequence to Mr Simm. The plaintiff reported to a number of medical witnesses he had seen over the years that the pain affected his ability to play cricket. Accordingly, I accept this is a consequence which I can take into account.
Guitar
104 The plaintiff’s evidence is that he continues to play his guitar. He plays regularly at home. He can play for about half-an-hour when standing and for about one hour when sitting. He has “jammed” with friends on occasions, but he is no longer performing.
105 The plaintiff reported to Mr Simm that he cannot have the guitar-supporting strap around his neck for any length of time. He has not participated in any gigs, nor has he been involved in guitar teaching.
106 The plaintiff was shown a photograph that appeared on his Facebook page.[19] He recognised it as a photograph of him performing at the Corner Hotel in Richmond in January 2012, and identified himself as the figure with his back almost parallel to the floor He said he was in that position as a result of changing effects on his amplifier through pedal units on the floor. He went to change with his left foot, stood on a cord, the cord slipped, and he started to fall backwards and actually fell over and knocked the back of his head on the ground. He said that the photograph was him on his way down.[20] In cross-examination, he was unable to remember whether he continued singing or playing after the fall. He did not believe he was taking medication at the time. I accept this photograph is evidence that the plaintiff has the capacity to stand and be active as a guitar player at a public event.
[19]PCB 67 and 68
[20]Court Book 38 (10.2.30)
107 The plaintiff’s evidence was that his band members assist him in setting up his guitar equipment.
108 On the evidence it was unclear why the plaintiff was no longer performing or teaching the guitar. He continues to play the guitar for pleasure. He reported to Dr Simm that he cannot have the guitar strap around his neck for any length of time. I accept this is a consequence at the lower end of the range.
Domestic activities
109 The plaintiff’s evidence is that he tries to vacuum, but this tends to flare-up his symptoms. He reported to Dr Thomas that he has difficulty with heavy domestic chores.
110 Mr Simm reported that his injury has severely impacted on his domestic activities. I accept that this is a consequence which I can take into account.
Activities with his child
111 The plaintiff reported that he must be careful when playing with, or lifting up, his three-year-old child, Alfie. He said that when he went to Luna Park he was unable to ride on the mini rollercoaster with his child because of the jolting involved. This evidence was supported by his mother, Narelle Rogers.
112 Ms Rogers deposed that she has seen her son’s interactions with his child, Alfie. She has observed the physical limitations the plaintiff has whilst playing with Alfie and the frustrations that come from not being able to play with his child. She has observed the plaintiff with Alfie at the park. The plaintiff sits down and watches Alfie, as he is unable to pick Alfie up often. The plaintiff is unable to let Alfie crawl or jump on him, as Alfie does with other family members. This is consistent with the surveillance footage, which did not show the plaintiff lifting Alfie in or out of the car. I accept this is a consequence which I can take into account.
Relationship
113 The plaintiff has been in a de facto relationship with the mother of Alfie. As a result of his injuries, the plaintiff’s partner has had to carry an extra workload in order to do the housework and to carry Alfie. The plaintiff’s evidence was that he and his partner have separated, in part due to the difficulties he experiences with his neck. The plaintiff reported to Mr Strauss that his sex life had been adversely affected by his neck injury, and this played a part in the separation. I accept that to the extent that the separation from his partner is due to his neck, this is a consequence which I can take into account.
Career
114 The plaintiff’s evidence was that as a child he always wanted to be a bricklayer, carpenter or builder. He always enjoyed physical activity and hands-on work. He would much prefer to be working outdoors. Due to his injuries, he has been unable to work in the building trade. This evidence is supported by his mother. In her affidavit, she deposed that the plaintiff had expressed a desire to be a tradesperson. It became clear over time that he would not be able to work in a job with a significant physical component.
115 The plaintiff reported to Dr Fraser that he had hoped to become a carpenter, but realised that he could not do such work because of the neck pain.
116 The medical evidence is that the plaintiff is incapacitated for physical forms of employment.[21]
[21]Mr Simm
117 Currently, the plaintiff works with an insurance broker. Most of the day is spent sitting at a desk, generally working with a computer. The prolonged sitting causes increased neck pain and, by the end of the working day, he is generally stiff and sore. He has taken two or three days off work because of his neck injury.
118 The plaintiff reported to Mr Simm that his current job is light work. His previous job, which involved sales of carwash products, aggravated his pain and, for that reason, he ceased that role and took up his current job. The evidence is that he is currently earning substantially more than he was earning with his previous job.
119 Dr Fraser said the plaintiff was fit to perform his current type of employment.
120 The evidence is that the plaintiff’s earnings have increased with his current employment. I take into account the fact that the plaintiff cannot perform physical work. However, the plaintiff has a capacity for suitable employment. I accept this is a consequence which I can take into account.
121 In addition, the plaintiff described consequences of stress, anxiety, frustration and depression. I accept that those are consequences I can take into consideration in accordance with Richards v Wylie.[22]
[22](2000) 1 VR 79
122 Taking into account all of the evidence, I am satisfied that the plaintiff was involved in a transport accident which resulted in an injury to his neck and symptoms of a physical nature.
123 I accept that the plaintiff has suffered the above-mentioned consequences. Those consequences are supported by the medical evidence and the evidence of his mother. I consider the consequences are significant. The consequences of his neck injury to him are dramatic and impact upon nearly all aspects of his life.
124 The plaintiff has suffered for almost fourteen years, and the medical evidence is guarded as to the future. The plaintiff requires medication and treatment on a regular basis. There is no indication that his condition is likely to improve. I accept that the plaintiff’s impairment is long term.
125 I have carefully considered the evidence from the surveillance footage in this case. I accept the plaintiff’s activity of jumping onto and off the Dumpmaster bin was surprising, but I am not satisfied that the surveillance, when viewed in context, undermines the finding that the plaintiff suffered a serious injury on the totality of the evidence.
126 For the foregoing reasons, I am satisfied that the plaintiff has established that the consequences to him of his impairment can be reasonably described as “serious”, “more than significant or marked”, and can fairly be described as “very considerable” when judged by a comparison with other cases in the range of possible impairments. In my experience, the consequences to the plaintiff measure up well against other serious injury applications where plaintiffs have been successful, in applications based on the consequences of a physical injury.
127 Accordingly, I propose to grant leave to the plaintiff to bring proceedings to recover damages for injuries suffered in the transport accident on 24 November 1998.
128 I will hear the parties on costs.
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