Sacco v Transport Accident Commission
[2016] VCC 854
•30 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-11-03212
CI-15-01721
| GIUSEPPE (JOE) SACCO | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 and 16 June 2016 | |
DATE OF JUDGMENT: | 30 June 2016 | |
CASE MAY BE CITED AS: | Sacco v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 854 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury applications – multiple transport accidents – various injuries suffered, including injury to cervical spine – two motor vehicle accidents the subject of this application – disentangling pre-existing cervical spine injury – disentangling other injuries and disorders – whether the consequences of each subject accident achieve the “very considerable” level
Legislation Cited: Transport Accident Act 1983, s93(4)(d)
Cases Cited:Papamanos v Commonwealth Bank of Australia [2014] VSCA 167.
Judgment: The plaintiff’s application in respect of the 2005 accident succeeds.
The plaintiff’s application in respect of the March 2012 accident fails.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram with Mr G A Worth | Verduci Lawyers |
| For the Defendant | Mr G A Lewis QC with Mr P Gates | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 Over the years, Mr Sacco has been involved in five transport accidents, occurring on:
· 8 May 1980 (“the 1980 accident”)
· 8 November 2005 (“the 2005 accident”)
· 12 December 2010 (“the 2010 accident”)
· 1 March 2012 (“the March 2012 accident”)
· 17 August 2012 (“the August 2012 accident”).
2 The 2005 and the March 2012 accidents are each, separately, the subject of this application (together, “the subject accidents”).
3 In addition, over the years from 1996 to 1998, he has complained to various practitioners of pain and restriction in his neck.
4 Mr Sacco claims a range of social and recreational activities have been reduced as a result of his neck problems. Although he transferred his business to his son in 2002, he claims his neck injury has restricted him in the ability to assist his son in the business, and undertake a range of work duties as a result of each of the subject accidents.
5 This is an application for leave to bring proceedings pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) for injury suffered in the 2005 and the March 2012 accidents.
6 The body function said to be lost or impaired in respect of each accident is the cervical spine. The application is thus brought under ss(a) of the definition of “serious injury” contained in s93(17) of the Act.
7 Mr Sacco was the only witness called to give evidence and be cross-examined. In addition, several of his affidavits, an affidavit of his son, various medical and radiological reports and clinical notes were tendered into evidence. I shall not refer to all of that material in the course of this judgment, but rather those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal, are well known and it is unnecessary for me to revisit the various relevant sections and those authorities.
Relevant background
8 Mr Sacco was born in 1942 in Italy. He is now seventy-three years of age. He was educated to Year 9. He came to Australia in 1960 and worked in various areas of employment, including fruit picking, tram driving and as the owner of a milk bar. In 1978, he moved to Tatura and worked as an insurance broker for several years.
9 In 1986, he purchased a rundown tyre business in Tatura (“the tyre business”) and continued in that business until 2002, when he transferred ownership to his son. He remained working there for a number of years.
10 On 8 May 1980, Mr Sacco was driving a car which rolled over. He suffered some lacerations to his hands and was observed in hospital for a period. Some months afterwards, he developed lower back pain which radiated into his right leg. According to a history provided to Dr King,[1] over the years from 1980 to 2000, he had constant low-back pain radiating down the back of both legs. The pain was aggravated by a range of activities. Over that period, he also developed chronic anxiety and depression which was treated by various medications. He formed an addiction to benzodiazepines. An MRI scan of May 1999 showed “clumping of nerve roots from L3-4 to L5-S1” which Dr King said was indicative of arachnoiditis.[2] He was treated regularly by his general practitioner over the years for the low-back pain. He suffered referred pain into his buttocks, with sciatic pain. A number of radiological investigations were undertaken, and he was referred for specialist assessment and physiotherapy.
[1]Plaintiff’s Court Book (“PCB”) 55
[2]PCB 55
11 Further, from about 1996, Mr Sacco complained on a relatively regular basis to practitioners of the Tatura Medical Centre, of neck and shoulder problems. The following is an extract from entries in the clinical notes and from other relevant material:
20 May 1996
Neck pain – reduced range of movement.
21 May 1996
X-ray of cervical spine – “… marked narrowing of the C6/7 disc with marginal osteophytes at this [level] and bridging osteophytes at the C4/5 and C5/6 [level]. Conclusion – Degenerative changes” – unchanged from prior x-ray.
3 June 1996
“Getting a lot of neck/shoulder pain.”
5 June 1996
“Referred to physiotherapist.” The referring letter from the general practitioner said he was getting a lot of neck and shoulder pain, aggravated by work.[3]
[3]Defendant’s Court Book (“DCB”) 9
19 August 1997
“X-ray of cervical spine.” Refers to moderate signs of osteophytes at C5-6 and C6-7 with accompanying moderate disc narrowing at C6-7. “A posterior osteophyte is present at C6/7 [which] indents upon the spinal canal which may cause some degree of canal stenosis.”
20 August 1997
Letter from Goulburn Valley Base Hospital to general practitioner referring to a past history of a transport accident in 1990 resulting in neck pain without any fractures. Complains of neck and knee pain. Reference to six-month history of neck and interscapular pain that radiates down the left arm, aggravated by heavy lifting. Takes Panadol when the pain gets bad. Examination showed half to two-thirds range of full neck movement. Impression of cervical spondylosis with possible left C6-7 foraminal stenosis.
23 September 1997
Nerve conduction studies may be consistent with history of radicular left arm pain.
9 October 1997
Referred by general practitioner to Mr Richard Horton, orthopaedic surgeon of Shepparton. He said Mr Sacco was suffering C6-7 arthritis and, to a lesser extent, C5-6. The nerve root at C7 was probably affected. Discussion about referral to neurosurgeon for decompression of the nerve root, but Mr Sacco did not believe the pain warranted such a referral.
29 August 1998
Neck pain after straining with tyre lever. Anti-inflammatories prescribed.
12 From 1998 until the 2005 accident, despite regular attendances upon his general practitioner, there were no other complaints of neck pain or restriction.
13 In the course of cross-examination, Mr Sacco did not remember any of these attendances, nor any treatment or referrals.
14 According to Mr Sacco’s affidavit, prior to 2005, he enjoyed hobbies, including playing bocce, watching football, going to the races and spending time with his family. In 1987, he developed problems with his bladder which required interventions at the Royal Melbourne Hospital.
15 Up until 2006, his wife ran a milk bar and general business alongside the tyre business in Tatura. She suffered a stroke in March 2006 and the business was sold shortly thereafter.
16 Mr Sacco also developed diabetes, which is under control.
Treating doctors and their opinions
17 Over many years, Mr Sacco has been treated at the Tatura Medical Centre. In a report of November 2006, Dr Adba noted he had treated Mr Sacco on a number of occasions in 2006 following the 2005 accident. He said:
“… The neck pain is [a] new symptom after the accident, he would have it on and off got worse with lifting and changing head position, has no radiations to the back or arms and this makes nerve entrapment unlikely and this has been supported by a Ct scan which showed some spondylitic changes more prominent at C6/7 level.”[4]
(sic)
[4]PCB 139
18 Dr Adba also referred to Mr Sacco suffering depression and anxiety. He noted at the time, Mr Sacco was working in a take-away shop and his duties included lifting and bending, which might aggravate his neck pain. He suggested Mr Sacco might need to restrict his duties with no lifting nor bending, and less hours.
19 In extracts from the clinical notes of the Tatura Medical Centre, over the period from 2005 to 2009, when Mr Sacco transferred to Dr Tisdall at Kyabram, there were references to neck pain. There are a number of attendances in 2005 after the 2005 accident, although primarily these appear to relate to anxiety and depression. Again, in 2006, principally the attendances relate to psychological difficulties, including anxiety, the diagnosis of Mr Sacco’s wife with a brain tumour, sleep difficulties and other unrelated matters.
20 There are a number of attendances for neck pain, including referral for x-rays in February and October 2006. A CT scan was obtained in October 2006.
21 At some time in 2007, another doctor at the clinic referred Mr Sacco to Mr Ian Critchley, orthopaedic surgeon. He complained to Mr Critchley of neck pain following the 2005 accident.
22 Mr Critchley referred Mr Sacco to Mr Michael Brighton-Knight, orthopaedic spinal surgeon, in April 2007. To that practitioner, Mr Sacco complained of neck pain and pain involving his shoulders, with referred pain to the left arm following the 2005 accident. Mr Brighton-Knight noted there was no significant compressive pathology on an MRI scan but quite advanced degenerative disease in both the intervertebral discs and facet joints. There was weakness on finger abduction on neurological examination. Mr Brighton-Knight said that the neck pain was related to wear and tear changes exacerbated in the 2005 accident. He saw no role for surgery. He arranged a facet joint injection to the neck and referred him to Dr Terrence Lim, consultant in rehabilitation and pain medicine, for chronic pain management. He said:
“… Mr Sacco is certainly quite disabled by his pain and very distressed by it and I think the best option here would be to refer him for chronic pain management under the care of Dr. Terrence Lim. … .”[5]
[5]PCB 100
23 Dr Lim assessed Mr Sacco at various times, commencing in October 2007.[6] He said:
“He did have significant muscular trigger points in a regional distribution (not unexpectedly) affecting the paracervical / shoulder girdle and upper limb muscles, more on the right than the left.
Thus from my perspective, Joe’s persistent pain is due to a persistent regional myofascial pain syndrome with trigger points continuing to generate pain and amplified all out of proportion by having developed a degree of sensitisation. More importantly, I think that Joe has had difficulties adjusting to living with changed circumstance, i.e. living a life with a degree of pain.
Therefore, I believe he would benefit from attending the Olympia Pain Rehabilitation Program as a residential-stay patient living in supported accommodation in close proximity to the hospital and attending 5 days a week for 3 weeks to acquire the knowledge and skills to become his own pain therapist / pain manager. … .”[7]
[6]PCB 198
[7]PCB 198-198A
24 Dr Lim assessed Mr Sacco again in May 2008, and said:
“I am pleased to report that Joe’s pain is extremely well under control and he is definitely increasing his level of functioning. His mood is upbeat and he is planning to go on a 1-month overseas trip to visit Italy with family and friends.”[8]
[8]PCB 197
25 A similar assessment was provided in July 2008.[9]
[9]PCB 196
26 Mr Sacco did not see Dr Lim again until September 2010 at the referral of Dr Peter Tisdall, general practitioner of Kyabram. This was shortly before the 2010 accident. Mr Sacco complained of three or four months of increasing cervical-thoracic pain, with pain radiating down the right arm. Dr Lim put the increase in pain down to cold weather.
27 Mr Sacco was again referred to Dr Lim in September 2012. Dr Lim wrote to the TAC seeking approval for a two-week rehabilitation program at the North Eastern Rehabilitation Centre.[10] Dr Lim said the reason for the persistent pain was three accidents of 11 December 2011,[11] the March 2012 accident and the August 2012 accident.[12] Dr Lim referred to persistent paracervical/right shoulder girdle and upper limb muscle irritability associated with “trigger points” with referred pain to the side of his head. Mr Sacco underwent the pain rehabilitation program over three weeks. At the conclusion of the program, Dr Lim said Mr Sacco was doing well, with improved pain control and improved mood.[13]
[10]PCB 194
[11]This is probably an error and refers to the 2010 accident
[12]This refers to the December 2012 accident
[13]PCB 192
28 In July 2010, Dr Tisdall referred Mr Sacco to Dr John King, neurologist, of Melbourne. That practitioner received a history of the 2005 accident and the resulting neck and interscapular pain, radiating into both arms. Dr King referred to an MRI scan of January 2007 which he said showed multi-level cervical spondylosis, minimal left-sided cord flattening at C5-6 and C6-7 but without significant foraminal narrowing. Dr King concluded Mr Sacco had right tennis elbow and degenerative osteoarthritis of the cervical spine.
29 A further MRI scan of August 2010 was undertaken[14] which came to a similar conclusion to the earlier radiology.
[14]PCB 49
30 Dr King noted that he had seen Mr Sacco in 2000 as a result of the 1980 accident and in relation to lower back pain. In his report of 21 May 2013 to Mr Sacco’s solicitors, Dr King received a history of the various accidents.[15] He set out in detail the history that he obtained, his findings on examination on various occasions and his assessment of the various accidents on work and social capacity.[16] He said:
[15]PCB 55
[16]PCB 56, 58
“It is difficult to precisely account for the current symptoms on the basis of each accident separately, given that there have been four accidents over 30 years, radiological arachnoiditis, chronic anxiety and depression, and natural aging changes.
The first accident (8/5/1980) caused low back pain with root symptoms (sciatica), but no clinical signs or significant evidence of disc prolapse. This limited his ability to lift, bend, sit or stand on concrete. He was left with anxiety and depression.
The second accident (8/11/2005) was a whiplash injury without radiation down the arms, suggesting soft tissue injury to the neck, but no nerve root compression. This injury aggravated his anxiety and depression.
The third accident on 10/12/2010 was a lateral blow to the right shoulder, and therefore he had pain down the right arm suggesting cervical nerve root irritation. The examination shows evidence of a right C6 lesion, with appropriate radiological changes.
The fourth injury (1/3/2012) was another whiplash-type injury, with pain down the left arm. The depressed left triceps jerk indicates a left C7 root lesion, also supported by the x-ray, CT and MRI changes.”[17]
[17]PCB 57
31 Dr King thought the prognosis was good and that Mr Sacco would require anti-inflammatory medication. He said further:
“… I would agree that he has degenerative disc disease which is painful, and has been aggravated by the accidents, which have affected his cervical and lumbar spine.”[18]
[18]PCB 58
32 In a report of 15 November 2013,[19] Dr King said the 2005 accident caused depression and anxiety such that Mr Sacco was unable to work. He was told Mr Sacco had given the tyre fitting business to his son after the 2005 accident. For reasons which I shall analyse shortly, this statement was inaccurate.
[19]PCB 60
33 On examination in November 2013, Dr King found there was an objective neurological finding of reduced right supinator reflex which was said to indicate a right C6 nerve root lesion. He also noted complaints of pain down the left forearm which he said was consistent with left C7 radiculopathy.
34 Dr King examined Mr Sacco again this year. He received a history that after the 2010 accident, Mr Sacco had to give up bocce. In fact that had occurred some years earlier. Dr King described the degenerative changes in Mr Sacco’s spine as extensive, and the situation was aggravated by anxiety and depression. He said it was difficult to apportion individual symptoms to the various accidents. He did perform an assessment in accordance with the AMA Guides which made an apportionment between the various accidents, although he said:
“It is not possible to perform an AMA assessment retrospectively in the absence of having examined the plaintiff at the time. … .”[20]
[20]PCB 73
35 I did not find Dr King’s apportionment in accordance with the AMA Guides of any real assistance. It is somewhat difficult to understand and is based on a neurological assessment.
36 Dr Jennifer Sanders has been Mr Sacco’s most consistent treating general practitioner. She took over Mr Sacco’s treatment from Dr Abda. She examined him in January 2011 and said he had significantly limited neck movement. She referred him to a chiropractor and prescribed Mobic, an anti-inflammatory, and Panadol Osteo.
37 Dr Sanders traced some of the earlier attendances, including on 14 August 2009, when Mr Sacco was prescribed Mobic, and December 2010, after the 2010 accident, when Mr Sacco described pain in the neck, upper back and left buttock.[21]
[21]PCB 143
38 Dr Sanders saw Mr Sacco shortly after the March 2012 accident when he complained that his neck pain was “fifty to sixty per cent worse” as a result of that accident.[22] He complained of a range of restrictions including work around his property and with reduced neck movements. Dr Sanders said:
“I find Joe a difficult man to assess, his anxiety is chronic and can be disabling but existed prior to any of the car accidents, however the car accidents have made his anxiety worse. He complains he is fearful of driving and can have nightmares but is still able to drive.
His neck, upper back pain and shoulder pain are chronic. Frequently he reports symptoms that he attributes to the accident(s) but they are not mentioned til some months after the event. I think he does have chronic pain due to degenerative changes in his neck and shoulder and [it] is quite possible that his car accidents have aggravated the pain.
Degenerative changes worsen with age and as he is now 70 years of age; his work capacity is reduced and he needs to modify his social and domestic activities. This will be assessed in detail at the rehab centre.”[23]
[22]PCB 147
[23]PCB 151
39 Further, in her report of 15 May 2016, Dr Sanders said:
“Joe states frankly that the anxiety is now his main problem and that is what we have discussed mainly over the last year. He has ongoing physiotherapy, acupuncture and attends monthly to a [C]hinese massage therapist for his chronic back pain over the last 2 years. Nothing provides sustained relief and he is just trying to manage his chronic pain. Joe knows he must live with this pain.”[24]
[24]PCB 160
40 In a supplementary report of 19 May 2016, Dr Sanders said:
“… I have not been able to find any difference in Giuseppe’s presentation of pain after either accident on 8th of November 2005 and 1st of March 2012. His pain is chronic and unchanging. He has temporary flares of pain after the accidents but his persistent problem is the chronic anxiety that has been made worse by each successive car accident and increases his fear of driving.
… .”[25]
[25]PCB 161
The consequences the Plaintiff alleges he has suffered as a result of the subject accidents
41 None of the various affidavits sworn by Mr Sacco make any mention of his pre-existing neck problems. In evidence, he said he could not remember any such problems.
42 In the 2005 accident, Mr Sacco was struck from behind by a vehicle. He was wearing a seatbelt at the time and he says his body was jolted forward. He says he suffered immediate pain in his neck, with pain extending into his shoulders, arms and, in particular, down his right arm. He went to the medical centre, and was referred for an x-ray. He received physiotherapy treatment from Dr Greg Munro in Shepparton. He had previously suffered bouts of anxiety, depression and panic attacks. These became worse.
43 Mr Sacco was referred for a rehabilitation program with Dr Lim in 2007 from which he gained benefit.
44 He moved to Rushworth for a short period and saw Dr Tisdall at Kyabram. He returned to treatment with Dr Sanders after Dr Tisdall’s death.
45 Mr Sacco said that after the 2005 accident, he has been suffering neck and interscapular pain with pain radiating down both arms. Until his final affidavit sworn June 2016, Mr Sacco alleged that as a result of the injury suffered in the 2005 accident, he had difficulties working at the tyre centre. He said:
“… in early 2006 my son took over the business and I stayed on for a few months to teach him the trade and then retired completely.”[26]
[26]PCB 18
46 Mr Sacco said he would have kept working had the 2005 accident not occurred. He says he was prescribed Celebrex and Panadol Osteo and was referred to Mr Brighton-Knight.
47 In 2007, Mr Sacco was referred to Mr Brighton-Knight and Dr Lim. He was also referred for physiotherapy.
48 In 2009 and 2010, Mr Sacco was treated by Dr Tisdall and referred to Dr King.
49 After the 2010 accident, Mr Sacco’s treatment was taken over by Dr Sanders. In 2011, there are occasional complaints of ongoing neck pain.
50 Mr Sacco referred to the March 2012 accident, in which he said the vehicle he was travelling in was struck from behind by another vehicle. He went to Dr Sanders the next day and was referred for x-rays. There was an aggravation of his neck pain, and he suffered “severe pain in between my shoulders, pain which radiated down my right rib and shoulders”. It improved somewhat after five to six weeks.[27]
[27]PCB 22
51 Mr Sacco said he could not drive for long periods and needed to stop every 60 kilometres.
52 As a result of the March 2012 accident, he said he had to give up hobbies, including playing bocce, watching football and going to the races.[28] He said he lost his sex drive and his sleep was affected. He said a range of domestic and recreational duties were also affected.
[28]PCB 22
53 Mr Sacco said that after seeing Dr Sanders following the March 2012 accident, his neck pain was 50 per cent worse and he had trouble doing a range of chores at home. His anxiety and distress increased considerably, and he was having flashbacks and nightmares.
54 In his final affidavit, sworn 7 June 2016, Mr Sacco said that “upon further reflection” he recalled that he had transferred the tyre business to his son in about 2002, but continued to work in the business helping his son and doing substantially the same work as before. He said this continued until the 2005 accident, as a result of which he was unable to continue in that work and decided to stop. He continued to assist his wife in the café business, which she ran next door, until 2006, although doing only light duties. He said he was not paid a wage from 2002 to 2005.
55 According to an affidavit of his son, sworn 10 June 2016, he confirmed that he took over the tyre business in 2002, although his father kept working until 2005, including doing work of a heavy and repetitive nature.
56 In cross-examination, Mr Sacco confirmed that he had sworn three affidavits where he said that his son had taken over the tyre business following the 2005 accident. He said that was a mistake and a lapse of memory. There was no explanation given as to how he came to change his mind. He was also taken to the histories provided to a number of medical practitioners in which he said that as a result of the injuries following the 2005 accident, he had had to transfer the business to his son.[29] Mr Sacco said that he was working about five days a week at the tyre factory after 2002. He said he had not worked in the tyre factory since 2006, although dropped in from time to time to see his son.
[29]Mr Khan – PCB 105; Professor King – PCB 68; Dr Epstein – PCB 163
57 Mr Sacco accepted that he had purchased the hobby farm, where he now lives at Rushworth, at some time before the 2005 accident. This was evident from his financial documents.[30] From time to time, he had a few cattle on the property and now had goats. Prior to the 2005 accident, he had in mind that he would retire to the hobby farm one day, although was not fixed on any particular date.
[30]Exhibit 2
58 Mr Sacco accepted the history he provided to a treating psychiatrist, Dr Chakrabarti,[31] that over the period he was being treated in 2007 and 2008, his sleep had improved to eight to nine hours a day, his appetite was much better and that he was active with the animals on the farm. He had a garden and produced vegetables. He moved cows from one paddock to another and sold the young goats at market. He said he had not returned to playing bocce. He confirmed that, in fact, he had ceased playing bocce in 2006.
[31]PCB 95
59 Mr Sacco had had four or five trips to Italy since 2005, the most recent in 2014. He had a trip planned to South America in September of this year.
60 Mr Sacco makes wine on his property, although does little of the heavier work, which is done by his family.
61 In relation to the references in his affidavit[32] to taking Panadol Osteo, as at the present time, he accepted that was a mistake and in fact it was Panadol.
[32]PCB 29
62 Mr Sacco said that he had difficulties with reading his affidavit material because his glasses were not working properly. His wife read English better, and the various affidavits were read by her to him.
63 He accepted the hobby farm had been purchased in about 2002 or 2003. Before the 2005 accident, he played bocce in club competition twice per week. After 2005, he played one or two games but not much more.
64 After the 2005 accident, Mr Sacco worked in the milk bar business previously run by his wife but said that he was unable to run it on his own.[33] He found it difficult to sit or stand for longer periods. He could not lift as before. This was because of his back and neck problem.
[33]Transcript (“T”) 70, Line (“L”) 8
65 He said at the present time, the Panadol he took controlled about 50 per cent of the pain.[34] He could not take “harder medication” as it interfered with his stomach. At the present time, the main pain was in the middle of his shoulder blades, radiating along the neck. That pain was increased by 50 per cent as a result of the March 2012 accident.
[34]T72, L5
Consultant medical practitioners’ reports
66 Aside from the reports of the various treating practitioners to which I have referred, a number of other practitioners examined Mr Sacco.
67 Mr Sacco was seen by Dr Alex Stockman, rheumatologist, on a range of occasions between 2011 and 2016, at the request of his solicitors. I found Dr Stockman’s reports difficult to follow. To Dr Stockman, Mr Sacco denied any past history of neck or thoracic back pain.[35] Further, there is confusion in the reports as to which accident caused which injury. Some of the dates seem to be incorrect. All in all, I found I was unable to rely upon Dr Stockman’s opinions. In addresses, Mr Ingram, for the plaintiff, conceded little reliance could be placed upon the reports.[36]
[35]PCB 79
[36]T123, L10
68 Mr Sacco was examined by Mr Michael Khan, orthopaedic surgeon, in March 2014 and April 2016. He received reports of other practitioners, and radiology. According to the history provided, Mr Sacco said that he sold the take-away food shop and his business and moved with his wife to live on a hobby farm after the 2005 accident. Mr Khan did not receive a history of pre-existing neck problems.
69 Mr Kahn referred to the various accidents and the treatment provided. In the first report, he said that as a result of the 2005 accident, Mr Sacco developed severe pain in his neck and anxiety and depression. He said Mr Sacco had been off work since that accident as he had to sell two businesses.
70 In relation to the March 2012 accident, Mr Kahn said Mr Sacco had developed a flare-up of neck pain radiating to the left arm. Following that accident, his sitting and standing tolerance was significantly affected. He also noted a flare-up of neck pain following the 2010 accident.
71 In his final report, Mr Khan said, in the 2005 accident, Mr Sacco had sustained a whiplash-type injury to the neck and back with flare-up to the C5-6 and C6-7 degenerative changes. As a result, he was referred to the orthopaedic specialist, Mr Brighton-Knight, and to Dr Lim.
72 Following the 2010 accident, there was an injury to his right shoulder when he struck the pillar of the car door. As a result, he had referred pain down the right arm as per the report of Dr King. As a result of the March 2012 accident, he again suffered an aggravation of pain to the neck and into the left arm. According to Dr King, there was left-sided C7 nerve root irritability. Again, there was a flare-up of the C5-6 and C6-7 disc degenerative disease.
73 Mr Khan’s opinion is of limited assistance. Firstly, he did not receive a history of the pre-existing neck problems, and secondly, because of the inaccurate description by Mr Sacco of the sale of the businesses as a result of the 2005 accident. Moreover, while Mr Khan was asked to opine as to the effect of the injuries in each of the accidents, he did not give any extensive response and in particular, did not make an apportionment of responsibility.
74 Mr Michael Shannon, orthopaedic surgeon, examined Mr Sacco in November 2007. He noted problems with depression and stress following the 2005 accident. He told Mr Shannon that after the accident, his wife had a stroke and they had to sell the business and had not worked as a result. He complained of pain in the base of the neck, extending to the right trapezius muscle and the interscapular region. He denied any history of pre-existing neck problems, but it was noted that the clinical notes of the Tatura Medical Centre indicated he attended for neck and thoracic pain over the years. Mr Shannon concluded that he had suffered a soft-tissue injury to his cervical spine in the 2005 accident which had aggravated pre-existing cervical disc degeneration and referred symptoms into the interscapular region. He thought the condition would stabilise. He said he formed the impression that his neck had been relatively symptom free before the accident but had been rendered symptomatic afterwards. On this basis, he attributed his neck pain largely to the 2005 accident.
75 Mr Sacco was examined by Dr David Elder, occupational physician, in January 2007 and May 2016. In the first report, he received a description of the 2005 accident and the pain Mr Sacco suffered in his cervical spine as a result. Dr Elder noted he had undertaken physiotherapy. He received a past history of neck and back pain in the course of Mr Sacco’s work, but the last episode was in 1990. Further, as to employment history, the history provided was as follows:
“He ran his own takeaway shop for ten years. As you know he did return to this form of employment and was actually managing the usual range of his duties. He ran this with his wife. Unfortunately whilst driving she suffered a mild stroke and she was unable to return to the business and because he couldn’t do all of the chores on his own they had to sell the business and indeed they sold it in May 2006.
To direct questioning the claimant was of the opinion that he could have continued working if his wife had not become unwell.”[37]
[37]DCB 67
76 Dr Elder considered Mr Sacco had suffered an aggravation of cervical spondylosis in the 2005 accident without evidence of radiculopathy. He noted a significant psychological reaction to the injury.
77 Dr Elder reported again in February 2013. He gave a history of the 2010 accident and said Mr Sacco had injured his right shoulder, but also suffered right-sided neck pain. There was further physiotherapy. He said there was a further accident in March 2011,[38] when Mr Sacco was struck from behind by another vehicle. Dr Elder said the presentation in 2013 was as a result of the 2005 accident, and the injuries suffered in the 2010 and 2012 accidents.
[38]This should be March 2012
78 By that time, Dr Elder considered that part of Mr Sacco’s complaints of ongoing neck pain were related to the 2005 accident. He noted no abnormal illness behaviour and found Mr Sacco’s presentation straightforward. He noted tenderness over the cervical spine, particularly on the right side. He said:
“He has continuing mechanical neck pain with evidence of radiculopathy, and mechanical low back pain with no radiculopathy, relevant to the two accidents. The first 2005 injury was the more severe, and an aggravation in the 2012 accident.”[39]
[39]DCB 81
79 Dr Elder thought the prognosis was for worsening of symptoms partially related to Mr Sacco’s age, but also the two accidents. He said:
“The aggravation following the 2012 transport accident partly accounts for his current symptoms. However given the ongoing nature of his symptoms since the 2005 transport accident I am of the view part of his current complaints are attributable to both transport accident[s].”[40]
[40]DCB 82
80 Mr Sacco was examined by Dr Kevin Fraser, rheumatologist, in 2013 and 2016. In his first report, Dr Fraser recorded a history of accidents in November 2005, December 2011 and March 2012. Following the December 2012 accident,[41] there was an injury to the right shoulder, but also increased neck pain and stiffness, for which Mr Sacco received physiotherapy and chiropractic treatment. Mr Sacco said this pain settled gradually, but did not cease completely.
[41]This should be December 2010
81 After the March 2012 accident, there was increased neck pain. Again, Mr Sacco gave a history that after the 2005 accident, he transferred the tyre business to his son. He said he had to sell the takeaway food business because his wife suffered a stroke. He noted complaints of neck pain going back into the 1990s. Dr Fraser said:
“Thus it can’t be claimed that the cervical and lumbar spondylosis was caused by the motor vehicle accident of 8 November 2005. However, most likely this caused aggravation of the pre-existing degenerative changes, although one can only speculate whether such aggravation was merely temporary symptomatic deterioration or alternatively if it caused acceleration of the underlying degenerative condition such that it is now worse than it would have otherwise been without the accident.
…
He has consistently complained of increased pain following the motor vehicle accident and in my opinion there has probably been some acceleration of the underlying degenerative condition as a result thereof. However, almost certainly, he would also have had significant symptoms as a result [of] progression of the underlying degenerative condition, regardless of the motor vehicle accidents.
Thus, I believe that his current symptoms and disability in respect of work, domestic or leisure activities are only partly attributable to the transport accident of 8 November 2005, with progression of the pre-existing degenerative condition probably being the major contributory factor.
…
In any event, he is unfit for any form of heavy manual work, although he is fit for work of a sedentary nature.”[42]
[42]DCB 85
82 In his report of 2016, Dr Fraser said the radiological changes shown in the CT scan of 2006 were longstanding. He expanded upon his assessment of the contribution on the one hand of the 2005 accident, and on the other hand of the pre-existing degenerative condition, and suggested 25 per cent ought be attributed to the 2005 accident and 75 per cent to the pre-existing degenerative condition. He said he did not consider there was any further incapacity arising from the March 2012 accident.
83 Finally, Mr Sacco was examined by Dr Peter Boys, orthopaedic surgeon, in April 2016. He received a history that Mr Sacco had last worked in the tyre business in 2006. He noted the five transport accidents. He did not receive a history of pre-existing complaints of neck pain. He was told Mr Sacco returned to work in the tyre business but that the businesses were leased out after his wife suffered a stroke in 2006. He noted ongoing anxiety with medication. After the March 2012 accident, Mr Sacco said that his neck problems were aggravated with pain extending into the shoulders, upper back, lower back and left hip. He said the pain in his neck had become “much worse”. At the time, Mr Sacco complained of pain in the neck on a daily basis, made worse by protracted periods of sitting and standing. He concluded that Mr Sacco had developed chronic cervicoscapular thoracic muscle pain with anxiety and depression in the context of radiological evidence of cervical degeneration in the 2005 accident. He said further:
“This gentleman has developed a syndrome of chronic pain in association with anxiety and depression since 2005. Pre-existing complaints referable to the lumbar spine since 1980 are noted. Temporary aggravation of neck, upper back and shoulder (trapezial) symptoms are described subsequent to a motor vehicle accident occurring on 01.03.2012. In this context cervicoscapular thoracic strain symptoms of an ongoing nature can be reasonably attributed to the motor vehicle accident on 08.11.2005. It would be reasonable to postulate that soft tissue injuries sustained at that time did give rise to aggravation of constitutional degenerative changes within the neck and persisting symptomatology thereafter.”[43]
[43]DCB 98
84 Dr Boys thought the March 2012 accident gave rise to musculoligamentous strains to the neck, upper back, shoulder, lower back and possibly left hip regions. He said he thought that those injuries were temporary and have resolved.
Credibility and reliability of the Plaintiff
85 Mr Lewis, for the defendant, made an attack upon Mr Sacco’s credibility and reliability. He said the following:
·In his affidavits[44] and in the history to many of the doctors, Mr Sacco said that prior to the 2005 accident, he was working seven days a week in the tyre business. Further, he said that as a result of the injury sustained in that accident, he had to transfer the business to his son. In fact, the tyre business was transferred to his son in 2002 and, thereafter, while he did work in the business, albeit without pay, it was less than seven days a week.
·It was not until his affidavit of 7 June 2016 that he corrected the position in relation to the tyre business.
·Mr Lewis submitted it was likely he was not working long hours in the tyre business after 2002 as, in accordance with the 2004 taxation return, he was operating a farm business, including the sale of cattle.
·In the course of cross-examination, while trying to explain the inaccuracy in relation to the transfer of the business, he said that he had meant his wife’s milk bar business. Plainly, said Mr Lewis, that was a concoction.
·It was a reasonable inference to draw that from an early time, before the 2005 accident, it was Mr Sacco’s intention to retire to the hobby farm. There was nothing in his affidavits as to the nature and extent of his activities on the farm as set out in the history to Dr Chakrabarti and Dr Entwisle.[45]
·It was unlikely that the 2005 transport accident was the reason that he stopped working in the milk bar. He returned to work in the milk bar after that accident and it was rather his wife’s ill health that caused the sale. In fact, the business was profitable both before and after the transport accident so it was unlikely he was incapable of undertaking the work.
·Mr Sacco provided inconsistent and misleading histories to a number of the practitioners about his ability to play bocce. To Dr King, he said he stopped playing after the 2010 accident.[46] In his affidavit, he said that he gave up bocce after the March 2012 accident.[47] The reality, said Mr Lewis, was that he stopped playing bocce after the 2010 accident when he hurt his right shoulder.
·Mr Sacco gave inconsistent histories to various of the doctors about the 2010 accident. To some he made no reference.[48] To some he described an aggravation of his neck pain and to others only shoulder problems.
·In his affidavit and evidence, he initially said that he had been prescribed and was taking Panadol Osteo. However, it was clear from cross-examination that, in fact, it was over-the-counter Panadol.
[44]PCB 17, PCB 34
[45]PCB 95, PCB 56
[46]PCB 71
[47]PCB 22
[48]Dr Stockman and Dr Dutta
86 Generally, I accept the submissions of Mr Lewis. Mr Sacco’s explanation about how he came to be mistaken about the transfer of the business to his son is difficult to accept. There is no reason given as to why he changed his view. In my opinion, his evidence upon affidavit and in the histories to the doctors on this issue was designed to increase the significance of the injury suffered in the 2005 accident and the effect upon his work activities.
87 In an affidavit sworn 10 June 2016, Mr Sacco’s son, Michael, said that he took over the business in 2002, and from that time until after the 2005 accident, his father worked in the business, often undertaking heavy and repetitive work. Michael Sacco was not called to be cross-examined, but the mere fact that the matters referred to in his affidavit are unchallenged does not mean they must be accepted.
88 Given the lack of explanation as to how it was Mr Sacco came to change his sworn evidence, the situation is not improved by his son’s testimony on affidavit.
89 Mr Sacco’s evidence and the histories provided to various of the doctors in relation to the reason for the sale of his wife’s milk bar business, the prescription of Panadol Osteo, and the inconsistent history of playing bocce all emphasise the unreliability of Mr Sacco’s evidence.
90 Further, his explanation for his failure to refer to the neck pain and restriction prior to the 2005 accident in his affidavits and the denials of previous neck pain to various of the doctors again draws into question his reliability. It is difficult to understand, even given the lapse of so many years, that he could not recall regular attendances upon his general practitioner complaining of neck problems, the attendance for x-rays of that area, the referral to a physiotherapist and to an orthopaedic surgeon. I accept that, because of a lapse of time, his memory would be somewhat sketchy on these issues, but I conclude that this reflects the unreliability of his evidence.
91 I conclude Mr Sacco was an unreliable witness. While being cross-examined, Mr Sacco was vague and uncertain. Many of his answers were unresponsive. In respect of some aspects of his evidence, in particular the issues relating to his tyre business, I have concluded he was intentionally exaggerating the effects of the 2005 accident to benefit his claim. I am not satisfied that the 2005 accident had the significant impact upon his work capacity as his evidence, in particular his affidavit evidence, would suggest. Further, I should look, wherever possible, to independent and objective support as to the consequences suffered both in the 2005 and the March 2012 accidents in order to determine whether those consequences meet the statutory test.
92 In submissions, Mr Ingram relied on the fact that several of the treating and consulting practitioners accepted the histories he provided. No doctor suggested Mr Sacco was exaggerating. A number of doctors said he presented in a straightforward manner without embellishment of his symptoms. While this is a matter to be taken into account, it is not determinative upon issues of credibility and reliability. It is necessary to look at all of the evidence. A doctor may be persuaded by a history he or she has received, even although that history is inaccurate.[49]
[49]See Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 at paragraphs 35 and 36
93 It might be said it is not surprising Mr Sacco’s memory of the various accidents, the injuries and sequelae suffered in them, and the effect upon his recreational, domestic and work activities in respect of each separate accident, is vague and diminished. After all, the first accident was in 1980. However, in my view, the passage of such a long time does not explain the inconsistencies and inaccuracies to which I have referred.
Conclusions in relation to the 2005 accident
94 The first matter to consider is the nature and extent of Mr Sacco’s pre-existing neck problems and the extent to which the 2005 accident aggravated them. Over a considerable period from 1996 to 1998, Mr Sacco had sufficient pain and restriction in his neck to seek medical treatment on fairly regular occasions, including referrals for x-ray, a physiotherapist and an orthopaedic surgeon. At one point, it was considered that his problems may require decompressive surgery, although this did not proceed. However, from 1998 until 2005, despite regular attendances upon his general practitioner, there were no other complaints of neck pain nor restriction. The radiological changes evident in the x-rays of 1996 and 1997 show degenerative disease or spondylosis, in particular at C5-6 and C6-7. In the CT scans and MRI scans taken after 2005, degenerative disease is shown at those two levels. Thus Mr Sacco had pre-existing degenerative disease which was, at least over a number of years, symptomatic. However, he made no complaints to his doctors, was not referred for treatment and was able to work in the tyre business, which I accept would have been demanding and repetitive, at least until 2002 when he transferred the business to his son.
95 At least in the years leading up to the 2005 accident, I accept Mr Ingram’s submission that Mr Sacco’s neck condition was “quiescent”. There is nothing other than the 2005 accident to account for the onset of neck and interscapular symptoms from that time.
96 Given my finding as to the unreliability of Mr Sacco’s evidence, it is necessary to examine the attendances upon the various treating practitioners and analyse the course of his neck injury from that time until the 2010 accident. Of most relevance, then, are the opinions of the general practitioners, Dr Abda and Dr Sanders, and the other practitioners at the Tatura Medical Centre, together with the findings and analysis of the treating specialists, Mr Critchley, Mr Brighton-Knight and Dr Lim.
97 Dr Abda saw Mr Sacco in October 2006 when he complained of neck pain and depression. He said the neck pain was a “new symptom” and that it got worse with lifting and changing his head position. Dr Abda prescribed medication for the neck, but also for the back, and for anxiety and depression.
98 Dr Abda referred Mr Sacco to Mr Critchley, orthopaedic surgeon, in about 2007, who referred him on to Mr Brighton-Knight. He received a complaint of mechanical neck pain with occasional radiculopathy into the left arm. He organised a facet-joint injection and said that the pain was coming from wear and tear changes, exacerbated by the 2005 accident. He described the pain as quite disabling. As a result, he referred Mr Sacco to Dr Lim, a rehabilitation specialist. Dr Lim referred to the pain being related to “persistent regional myofascial pain syndrome”. It is somewhat unclear as to whether this reference is to a psychological rather than a physical injury. I have concluded it is a physical injury, in particular because of the reference to “muscular trigger points in a regional distribution ...”. There is no specific reference to psychological problems. He undertook a rehabilitation program over a number of weeks. That rehabilitation program appeared successful, as in May, and then July 2008, Dr Lim described the pain as being “extremely well under control” with increased level of functioning. Mr Sacco planned an overseas trip for three months in August 2008.
99 However, by 2009, it would appear that the pain returned and Mr Sacco sought out Dr Tisdall of Kyabram. Dr Tisdall referred Mr Sacco to Dr King, neurologist, and prescribed medication including Celebrex and Panadol Osteo. Dr King received a history of the 2005 accident with not only neck pain but pain radiating down both arms. It would appear Dr King had seen Mr Sacco in 2000 for his back problems. A CT scan was undertaken in May 2010 and an MRI scan in August 2010. Dr Tisdall again referred Mr Sacco to Dr Lim, who noted neck pain of increasing severity over three or four months before September 2010 with pain radiating down the right arm. He suggested a further pain management program.
100 Pausing at this point to analyse the situation, I am satisfied that in the 2005 accident, Mr Sacco suffered an aggravation of underlying degenerative disease in his cervical spine, in particular at C5-6 and C6-7. I am satisfied that although he had pre-existing neck complaints, they had not been causing any significant problem for a number of years before the 2005 accident. I accept that at least until 2002, he was able to work without significant restriction and able to pursue a range of domestic and recreational activities, without significant problem.
101 After the 2005 accident, I accept that Mr Sacco suffered significant pain in his neck which required physiotherapy treatment and medication. It was sufficient to warrant a referral to an orthopaedic specialist, although no surgical intervention was suggested. Further, after treatment by Dr Lim, Mr Sacco’s neck condition improved and, according to the reports of Dr Lim of 2008, the neck pain had significantly improved. However, as often happens with spinal conditions, the pain re‑emerged in 2009, causing him to seek medical treatment and referral to Dr Lim and Dr King.
102 I am not able to rely upon Mr Sacco’s evidence that his capacity for work was significantly affected by the 2005 accident. He is an inaccurate and unreliable historian. The reduction of his involvement in the tyre business may as well be related to the fact that he had transferred the business to his son and that he had plans for retirement on his hobby farm as much as it was because of his neck injury. Further, his reduced involvement and eventual sale of the milk bar business could be as much related to his wife’s ill health as to any difficulty he had in running the business. The onus being upon the plaintiff, I am not satisfied to the required standard that his reduction in work hours in either of the businesses was to do with the injury suffered in the 2005 accident.
103 The reports of Dr Sanders are significant. She treated Mr Sacco as early as 2007, principally for anxiety and depression, which would seem to have arisen from the 2005 accident, although she records neck and back pain.
104 At that point, Mr Sacco was involved in the 2010 accident. Principally, he suffered injury to his right shoulder, although I accept there was some aggravation of the neck condition. He attended upon Dr Sanders shortly after the 2010 accident, describing neck and back pain.
105 Despite this aggravation, I am satisfied the 2010 accident did not play a significant role in his neck injury.
The March 2012 accident and its consequences
106 Again, it is necessary to seek objective confirmation of the effect of the March 2012 accident on Mr Sacco’s neck injury. The vehicle in which he was travelling was again struck from the rear. He said this caused a forceful jolt and he was thrown forward while restrained by the seatbelt.
107 According to Dr Sanders’ clinical note of 5 March 2012, she recorded an aggravation of the neck condition, with pain in the mid thoracic spine and the left side of the neck. She recorded “feels neck is much worse”. A week or two later, she noted a very limited range of neck movement. According to her report,[50] on 14 March 2012, Mr Sacco said that his neck was 50 to 60 per cent worse from the recent accident. He had difficulty with a range of activities and there was restriction of neck movement with neck spasm. Given my reservations as to the reliability of Mr Sacco’s evidence, I do not accept the aggravation from this accident is, at least in the longer term, as he would have it. I accept there was an aggravation of the neck condition at the time, but not a permanent ongoing disability.
[50]PCB 147
108 On 31 May 2012, Mr Sacco told Dr Sanders that he had not played bocce for a year due to his neck and shoulder pain. She noted he said his back had been worse since the recent accident and he was restricted in all activities, in particular gardening.
109 Thereafter, he received regular treatment which was focused on his psychological condition, in particular depression and anxiety. An MRI scan of the cervical spine taken on 30 March 2012 concluded:
“Degenerative spondylitic type changes not causing any completed central canal stenosis at any level. Changes are most marked [at] C5/6 and C6/7 levels as specified with foraminal encroachment as described.”[51]
[51]PCB 50‒51
110 Although Mr Sacco attended at the general practice clinic on a number of occasions after May 2012, there is little, if any, reference to problems with his neck.
111 On 17 August 2012, the fifth accident occurred. There is reference in Dr Sanders’ notes of 20 August 2012 to neck and head pain. There is no reference to this accident. I am satisfied the August 2012 accident played little, if any, role in contributing to Mr Sacco’s cervical spine injury.
112 In an entry of 22 October 2012, Dr Sanders recorded:
“[W]orking at son[’]s tyre centre, and can’t lift, has help son got married.”
113 It is difficult to know what to make of this entry. Mr Sacco said he had ceased work at his son’s tyre business many years earlier and only attended occasionally for social contact. However, he was not cross-examined on the entry and, as such, I do not take it into account in assessing his credibility or reliability.
114 In September 2012, Mr Sacco was referred back to Dr Lim by Dr Sanders. Approval was sought by Dr Lim, and apparently granted, for a pain rehabilitation program which was conducted in March 2013. Dr Lim commented that Mr Sacco was troubled by intrusive thoughts with PTSD-like symptoms relating to the most recent accident.[52]
[52]PCB 193
115 In a review of July 2013, Dr Lim said:
“I think he is doing as well as he can with an improved mood but not surprisingly persistent right shoulder girdle/upper limb pain due to the persistence of active muscular trigger points affecting that limb in a regional distribution. The advent of the cold weather is not helpful – cold hyperalgesia.”[53]
[53]PCB 190
116 Dr Lim discharged Mr Sacco from his care in September 2013,[54] with the comment that “he had finally realised that his pain condition was chronic, i.e. long term”.
[54]PCB 187
Apportionment between the various accidents
117 As to apportionment between the various accidents, including the subject accidents, of the consequences which Mr Sacco claims have arisen from his neck injury, Mr Ingram relies principally on the opinions of the defendant’s consultant practitioners. He acknowledged there was little clear apportionment undertaken by the plaintiff’s treating or consulting practitioners.
118 Mr Shannon, in 2007, while finding it difficult to apportion responsibility as between the pre-existing degenerative disease and the 2005 accident, attributed the whole of the 5 per cent which he assessed as an AMA impairment evaluation to the 2005 accident. I am not assisted by reference to the AMA Guides.
119 Dr Elder, in finding Mr Sacco suffered mechanical neck pain with evidence of radiculopathy in his final report of 2016, said the 2005 injury was the more severe, with an aggravation in the March 2012 accident.
120 Dr Fraser, also in 2016, said Mr Sacco sustained an aggravation of pre-existing degenerative changes in the 2005 accident, in respect of which he noted Mr Sacco complained of increased pain. He said, therefore, there was probably some acceleration of the underlying degenerative condition as a result of that accident, with some further deterioration following the March 2012 accident. He said while the 2005 accident contributed to his current condition, the pre-existing degenerative condition was “probably the major contributory factor”. He concluded the condition was due as to 25 per cent to the 2005 accident, and 75 per cent due to the pre-existing condition.
121 Dr Boys thought the effects of the March 2012 accident were temporary, and had resolved by 2016. He said the ongoing complaints referrable to the neck “reflect the pre-existing conditions symptomatic since the earlier 2005 motor vehicle accident”. I am uncertain as to what to make of this assessment.
122 All of these practitioners are reliant upon the accuracy of the history provided by Mr Sacco, and upon the reliability of his complaints of pain and restriction in the neck.
123 For reasons previously given, I am of the view the most reliable and informed opinions as to the apportionment exercise are those of the treating practitioners.
124 Dr King’s opinion is insightful. He said:
“It is difficult to precisely account for the current symptoms on the basis of each accident separately, given that there have been four accidents over 30 years, radiological arachnoiditis, chronic anxiety and depression, and natural ageing changes.”[55]
[55]PCB 57
125 Dr Sanders, who has probably seen Mr Sacco on more occasions than anyone else, said, in June 2012:
“I find Joe a difficult man to assess, his anxiety is chronic and can be disabling but existed prior to any of the car accidents. He complains he is fearful of driving and can have nightmares but still continues to drive. His neck, upper back pain and shoulder pain is chronic. Frequently he reports symptoms that he attributes to the accident (s) but they are not mentioned til some months after the event. I think he does have chronic pain due to degenerative changes in his neck and shoulder and [it] is quite possible that his car accidents have aggravated the pain.”[56]
[56]PCB 147 – 148
126 I accept the opinion of both of these doctors as to the difficulty of the task in attempting to apportion the consequences which Mr Sacco claims between the various accidents and what is undoubtedly a significant psychological reaction to them.
127 The injury the subject of his application is Mr Sacco’s cervical spine. He has had problems with his lower back and right shoulder over the years and, in my view, the reason that he ceased playing bocce was to do with his right shoulder injury, principally arising from the 2010 accident. He has also had problems with his lower back. Those problems have continued through to the present time and would seem to provide some restriction, particularly in relation to gardening and other activities around his hobby farm. However, I am satisfied there is no significant disentangling exercise as between, on the one hand, the cervical spine, and on the other, the lumbar spine.
128 While the underlying psychological condition probably plays a role in respect of his physical pain – that is, it has the effect of aggravating and amplifying the pain – again, I am satisfied that his complaints of pain arising from the cervical spine, and the restriction that that pain places upon him is primarily from the underlying degenerative disease and thus has a physical rather than a psychological genesis. I bear in mind the opinion of Dr Sanders as to the Mr Sacco’s disabling problem with anxiety.
129 I am satisfied that as a result of the 2005 accident, Mr Sacco, when assessed at the present time, has suffered consequences which may be described as “very considerable”, and thus meets the statutory test. While he had significant pain and restriction in the neck over the years from 1996 until 1998 and received a range of treatment, nonetheless I am satisfied from the clinical notes that he did not attend with neck complaints to his general practitioner from 1998 until the 2005 accident. While he may have had some neck problems over those years, I infer that they were not sufficient to take him to a doctor. It is clear from the clinical records that he was a person not averse to seeking medical treatment when he had a complaint. Further, it would appear he was able to work, at least until 2002, in the tyre business, and to a lesser extent in that business and the milk bar in the years following.
130 What is, however, in my view, significant is that from shortly after the 2005 accident, he attended a range of practitioners complaining of neck pain. The pain was sufficient to warrant the general practitioner, Dr Abda, referring him for specialist orthopaedic assessment. Mr Brighton-Knight described him as being significantly disabled from his neck pain and as a result, referred him to Dr Lim for inpatient treatment in a rehabilitation program.
131 Mr Sacco’s neck pain followed a somewhat fluctuating course from that point on. After the rehabilitation program, Mr Lim was satisfied there had been significant improvement, but he was back to Dr Lim in 2010, before the 2010 accident. At that time, he complained of pain of increasing severity. Over this period, he was prescribed pain-relieving medication and sometimes took over-the-counter medication to deal with his neck pain. He also sought physiotherapy.
132 While the 2010 and March 2012 accidents did aggravate his neck condition, I am not satisfied either aggravation was particularly significant. Since 2012 to the present time, his neck condition has fluctuated upon a similar path. On the one hand, he has been able to travel overseas regularly and remain reasonably active on his hobby farm, nonetheless, in particular, considering the opinions of the treating practitioners, I am satisfied that he suffers consistent pain in the neck, with referred pain down both arms. I am satisfied the 2005 accident is primarily responsible for his current condition. I am unable to accept as reliable the history provided to Dr Sanders of the increase in pain after the March 2012 accident. I accept there was an aggravation at the time, but I am not satisfied it was anything other than short lived.
133 Because I found Mr Sacco’s evidence so unreliable, I am not satisfied that the 2005 accident was responsible for any reduction in work duties.
134 Mr Lewis contended that I should not be satisfied the 2005 accident was anything more than a mild aggravation of a significant underlying degenerative disorder which was likely in all the circumstances to have progressed to its present stage absent the subject accidents. However, I am not satisfied from the medical evidence that submission has been made out. Even accepting the unreliability of Mr Sacco’s evidence and the need to rely upon objective assessment, taking into account the attendances and treatment by the treating practitioners, the 2005 accident has been the principal or major cause of Mr Sacco’s current neck condition.
135 I will grant leave in respect of the 2005 accident, but not the March 2012 accident. I will hear form the parties as to appropriate costs orders.
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