Schake v Transport Accident Commission
[2024] VCC 1450
•24 September 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-07031
| STEVEN SCHAKE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 and 23 July 2024 | |
DATE OF JUDGMENT: | 24 September 2024 | |
CASE MAY BE CITED AS: | Schake v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1450 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the spine – mental or behavioural disturbance or disorder
Legislation Cited: Transport Accident Act 1986 (Vic), s93(17)
Cases Cited:Jones v Dunkel (1959) 101 CLR 298; Transport Accident Commission v Kamel [2011] VSCA 110; Rowe v Transport Accident Commission [2017] VSCA 377; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C O’Sullivan with Mr A Coote | Slater & Gordon |
| For the Defendant | Ms S Manova with Ms K Karadimas | Hall & Wilcox |
HER HONOUR:
Introduction
1The plaintiff, Mr Steven Schake, is a fifty-seven-year-old former builder and carpenter. On 19 November 2016, he was injured in a transport accident when his stationary vehicle was hit from behind while stationary on Echuca Road in Heathcote and forced into the vehicle in front (“the transport accident”).
2Mr Schake seeks leave pursuant to s93(17) of the Transport Accident Act 1986 (Vic) (“the Act”), to issue a common law proceeding for damages. His claim is he suffered a “serious injury” of his spine in the form of an organic chronic pain disorder and/or a severe mental or behavioural disturbance or disorder.
3The relevant legal principles are well known and were not in issue.
4The defendant, the Transport Accident Commission (“the TAC”), contested the proceeding on the basis that Mr Schake was not a reliable witness; Mr Schake’s spinal problems are due to a pre-existing condition; in the transport accident Mr Schake suffered only a soft-tissue injury to his spine, from which he has recovered; any long-term impairment consequences in the spine do not satisfy the relevant threshold, and the impairment consequences of any mental or behavioural disturbance or disorder do not satisfy the relevant threshold.
5The issues for determination are:
(a) Was Mr Schake a reliable witness?
(b) What was the state of Mr Schake’s spine prior to the transport accident?
(c) What injury to the spine was caused by the transport accident?
(d) What are the long-term impairment consequences of the transport accident injury to the spine?
(e) Are the pain and suffering and/or pecuniary disadvantage consequences “serious”?
(f) What is the mental or behavioural disturbance or disorder which was caused by the transport accident?
(g) What are the long-term impairment consequences of the mental or behavioural disturbance or disorder?
(h) Are the psychological impairment consequences “severe”?
6For the reasons that follow, I find Mr Schake has satisfied his onus to establish he has a “serious injury” to his spine as a result of the transport accident.
Background
7The following matters of background were, I believe, uncontroversial. Where they were in contest, these represent my findings, save where otherwise indicated.
8Mr Schake completed school until Year 11. He then undertook a carpentry apprenticeship.
9After completing his apprenticeship, Mr Schake became a registered builder. Subsequently, he operated his own business performing building work, carpentry and undertaking pre-purchase inspections.
10Prior to the transport accident, Mr Schake had experienced intermittent back pain for many years. From about 2003, he attended a chiropractor from time to time for treatment.
11On 13 October 2013, Mr Schake suffered injuries, including a lower back injury, a hernia and significant bowel problems, when a car rolled back off a trailer towards him when a winch cable snapped.
12On 1 May 2015, Mr Schake underwent an L5-S1 lumbar decompression and neurolysis of the S1 nerve root performed by Associate Professor Andrew Danks, neurosurgeon.[1]
[1]Plaintiff’s Further Amended Court Book (“PCB”) 70
13On 19 September 2015, Mr Schake underwent a hernia repair performed by Mr Steve Cheng, general surgeon.[2]
[2]PCB 129
14On about 18 May 2016, Mr Schake was involved in a transport accident. He was rear-ended while stationary. He suffered lower back pain as a result.
15Since approximately 2008, Mr Schake had experienced mental health issues. He was prescribed antidepressant medication, which he was continuing to take as at the time of the transport accident.
16As I have said, the transport accident occurred on 19 November 2016. Mr Schake was driving his ute, and his former wife was the front-seat passenger.
17Mr Schake was stationary when he was hit from behind by a ute driven by Declan Ashwin. The collision caused Mr Schake’s vehicle to collide with the vehicle in front of him. Neither the police nor an ambulance attended, and all the vehicles were driven from the scene of the transport accident.
18On 14 December 2016, Mr Schake first sought medical treatment for injuries sustained in the transport accident. He attended Dr Venayage Vasuthan, general practitioner (“GP”) at the Atticus Health clinic. He was prescribed Panadeine Forte, Targin and Voltaren for back pain, an MRI scan was requested, and he was referred to Associate Professor Danks.
19On 31 January 2017, the MRI scan of Mr Schake’s lumbar spine was performed.
20Mr Schake consulted Associate Professor Danks in February 2017 and early 2018. On each occasion, Associate Professor Danks recommended ongoing conservative treatment.
21Mr Schake consulted Associate Professor Jin Tee, neurosurgeon, in July 2019.
22Mr Schake came under the care of Dr Murray Taverner, pain physician, in December 2019. He has since been treated by Dr Bruce Shirazi, pain physician, and Dr Wing Sang Chan, pain physician.
23In January 2020, Mr Schake had a ketamine infusion.
24Thereafter, Mr Schake started a pain management program at the St John of God Hospital, which was put on hold due to the COVID-19 pandemic.
25On 21 July 2020, Mr Schake underwent an epidural neuroplasty.
26On 18 March 2021, Mr Schake underwent an L5-S1 fusion, performed by Mr John Choi, spine and orthopaedic surgeon. Following that surgery, Mr Schake was referred to Dr Dan Bates, sports and exercise physician, who performed sacroiliac joint injections.
27Since the transport accident, Mr Schake has consulted a psychologist, Karen Charlesworth, and had one appointment with Dr Rumiana Guneva, consultant psychiatrist.
28Mr Schake does not currently take prescribed or over-the-counter medication for pain. He said he smokes cannabis for some pain relief, to “calm” himself and assist with sleep.[3] He takes paroxetine and Nexium. He deposed he continues to consult his GP and a chiropractor.
[3] PCB 15
29Mr Schake has performed some limited paid building work since the transport accident.
30He continues to live on a 21-acre farm on the Mornington Peninsula with his adult son.
Was Mr Schake a reliable witness?
31Leading Counsel for the TAC submitted Mr Schake was not a reliable witness and was prone to some exaggeration. Further, that parts of his evidence were difficult to accept at face value. Examples given were:
(a) Mr Schake’s description of the speed Mr Ashwin’s vehicle was travelling when it hit him compared to the photograph of Mr Schake’s ute taken after the transport accident, which did not appear to show any, or any significant, damage;
(b) Mr Schake’s claim that he was as “good as gold” within two weeks of the May 2015 lumbar surgery;
(c) Mr Schake’s explanation for moving to a new GP clinic following the transport accident.
32Leading Counsel for Mr Schake submitted Mr Schake answered questions honestly and candidly. It was submitted that no doctor suggested Mr Schake had deliberately embellished or consciously exaggerated his symptoms.
33I deal with the issue of the nature of the collision below. In summary, I find it was likely a collision of some considerable force. I therefore reject the submission that Mr Schake’s evidence about it negatively affected his reliability.
34I find that the import of Mr Schake’s evidence, in respect of his recovery from the May 2015 lumbar surgery, was that his back was much better following the surgery. His comments about his recovery were made in the context of him not been able to walk properly prior to the surgery. After the surgery, he was quickly able to do so. The phrase “good as gold” was counsel’s phrase.[4]
[4] Transcript (“T”) 36 and T38
35Mr Schake’s explanation for consulting a new GP after the transport accident was that he blamed his usual GP for failing to diagnose his father’s lymphoma, as well as a desire to see a GP closer to his home.[5] Mr Schake’s father died in 2013[6] and he continued to consult his previous GP for several years thereafter. This aspect of his explanation was unsatisfactory, but of marginal relevance.
[5] T77
[6]PCB 76
36Mr Schake’s oral evidence was difficult to follow at times. He was a garrulous witness. He gave some evidence which is difficult to accept literally, such as:
(a) “I also had drop foot because I broke the sciatic and my foot just went floppy”;[7]
(b) His evidence that his stomach fell out, “I lifted a few things, and then it just ripped at the sides and I ended up with this belly sitting here, and it’s actually like a rock, and they can’t work out why”;[8]
(c) “my muscles are all like rocks, down my arms”;[9]
(d) “I spend all day holding my head up because it wants to flop, because it doesn’t work”.[10]
[7]T32
[8]T79
[9]T85
[10]T85-T86
37My impression was that Mr Schake endeavoured to answer questions honestly, but he did not always have a clear memory of the timing of various events, nor how a particular condition was affecting him in the past. Given many events he was asked to recall happened some years ago, his difficulties are understandable.
38In light of the above, I have concerns about Mr Schake’s reliability and have looked for objective evidence to corroborate Mr Schake’s account where possible.
What was the state of Mr Schake’s spine prior to the transport accident?
39Mr Schake said that, following his back surgery in May 2015 and hernia repair in September 2015, his health improved significantly. He said he undertook martial arts training and was able to go for long runs for fitness. He said he pursued some building projects, primarily a project to build twenty cabins in Moama. He said he had “started to feel fit and strong again”.[11]
[11]PCB 13
40Mr Schake said he did not experience any long-term lower back pain because of the May 2016 transport accident.
41In addition to his own evidence, Mr Schake relied upon affidavits from his son, his former wife, and his martial arts instructor. The TAC did not seek to cross-examine any of those witnesses.
42Mr Schake’s martial arts instructor, Matthew Ball, deposed that Mr Schake began attending his Somerville martial arts centre in July 2015. Mr Schake was taught Zen Do Kai by participating in group and individual training. Mr Ball was largely responsible for his training.
43Mr Ball deposed to the regularity of Mr Schake’s attendances, which were several times a month between 15 July 2015 and the transport accident.
44Mr Ball deposed that when he first attended the martial arts centre, Mr Schake told him about his May 2015 surgery and his training was modified for about three months. After that, he was not observed to have any restriction of movement while training, and he appeared to be strong and was able to participate in all aspects of training. Mr Ball was told by Mr Schake that he was running as well to boost his fitness for grading. He observed Mr Schake’s fitness improve. Mr Ball said:
“Up until November 2016, while training at the club, I observed Steven was in good physical shape and he did not show any outward signs of any issues from his drop foot or surgery or other issues.
… he did not have any restriction of movement or limitations in his training.”[12]
[12]PCB 35
45Mr Schake’s former wife, Jacqueline Pike, deposed she observed his health improve after his 2015 surgeries. He was participating in martial arts and going for long runs. She said he was building cabins in Moama. She recalled Mr Schake telling her about a transport accident in May 2016 causing some lower back pain, however she recalled he returned to work on the cabins in Moama, participated in his martial arts training and continued running. Ms Pike deposed to attending some building projects with her then husband between May 2016 and November 2016, during which she observed him lifting, bending and operating tools without difficulty.
46Mr Schake’s son, Mitchell Schake, is twenty-eight years old. He lives with his father. He deposed that his father had recovered “fairly well” following his 2015 surgeries and had got back to training in martial arts. He recalled his father travelled regularly to Echuca, where he was building cabins, and he attended with him a few times. He said that was “pretty physical work” and his father seemed to be coping with it.[13] Mitchell Schake recalled being told by his father, in May 2016, that he had been involved in a transport accident, but said his father was unconcerned by it, and he did not notice him having any problems.
[13]PCB 26
47This is a convenient point to consider the medical evidence.
Medical evidence
Treating practitioners
Clinical records
48Various extracts of the clinical records were tendered, together with reports of imaging.
49Of particular relevance are the following matters:
(a) following the May 2015 surgery, Lyrica was noted as “ceased” on 13 August 2015. Thereafter, there was no recorded reference to lower back or left leg symptoms until an entry dated 25 May 2016, which relevantly stated:
“Just involved MVA one hour ago
his car was hit from rear by other car with speed around 40-50 when his car is stationary waiting for red light … flet (sic) lower back pain, mainly localised on lumbar spine region …
long standing back pain and left leg numbness and tingling sensation, operation done last year in May for sciatic pain
…
… Plain X-ray - Lumbo-sacral spine …
…
… Panadeine Forte … .”[14]
[14]Defendant’s Amended Court Book (“DCB”) 187. This entry appears to have been incorrectly dated, as the May 2016 transport accident happened on 18 May 2016, not 25 May 2016.
(b) a lumbar spine x-ray dated 25 May 2016 (about a week after the May 2016 transport accident) reportedly revealed:
“Lumbar lordosis is preserved. No evidence of spondylolisthesis or scoliosis. Moderate L5/S1 endplate degenerative change is present. Small anterior osteophytes are present from L2/3 to L5/S1.”[15]
(c) a clinical entry on 26 May 2016 noted:
“Had MCA 8/7 ago >> x rays >> no acute inj.
Cont exercise.”[16]
[15]DCB 111
[16]DCB 187
Dr Venayage Vasuthan, GP
50Mr Schake tendered two undated reports from Dr Vasuthan. From their content, they appear to have been written within a few months of the relevant transport accident.
51Mr Schake first consulted Dr Vasuthan after the relevant transport accident. It was Dr Vasuthan who referred him back to Associate Professor Danks and to Ms Vicki Holmes, psychologist.
Associate Professor Andrew Danks, neurosurgeon
52Mr Schake tendered a number of reports from Associate Professor Danks, neurosurgeon.
53Associate Professor Danks’ first report, dated 1 April 2015, outlined his diagnosis and recommendations upon first seeing Mr Schake that day. He was of the view that the MRI scan of Mr Schake’s lumbar spine revealed definite left S1 nerve root compression and a disc prolapse on top of degenerative changes involving several levels. Associate Professor Danks thought surgery offered only a 50 per cent chance of definite improvement in symptoms, but he noted that Mr Schake had decided to proceed.
54Associate Professor Danks performed a left L5-S1 decompression on 1 May 2015.
55Mr Schake was reviewed by Associate Professor Danks six weeks after the surgery. He reported the outcome of that review in his report dated 1 June 2015. He noted Mr Schake had made good progress with his “motor recovery” and denied any significant ongoing back pain. However, he was still experiencing significant sensory disturbance in his left leg. He noted Mr Schake was:
“… up and about and doing a lot of walking on the farm … He is already doing some odd jobs. I have counselled him not to lift anything heavier than 10 kg for the next couple of months.”[17]
[17]PCB 65
56Associate Professor Danks noted he did not need to review Mr Schake further, but would do so if needed.
57Associate Professor Danks reviewed Mr Schake on two occasions after the transport accident, on 8 February 2017 and 3 January 2018.
58When seen on 8 February 2017, Mr Schake described having a major exacerbation of lower back pain as a result of the transport accident. He had been taking strong prescription analgesia. He reported losing control of bowel function. He complained of pronounced numbness in the left leg.
59On examination, Associate Professor Danks noted:
“… [Mr Schake] has a vigorous air about him and moves quite strongly and quickly during the assessment. He exhibits a normal sitting and standing posture. Low back extension is limited to about 5°. He has a full range of flexion, with only minor back discomfort. There is still some residual weakness of left ankle plantar flexion and dorsiflexion, only evident on weight-bearing. On the couch, one would pass the strength area as being normal. He has an absent left ankle jerk. Muscle bulk in the left calf is 1 cm less than the right (35.5 versus 36.5 cm). Knee reflexes and the right ankle jerk are normal and plantar reflexes, down going.
He has widespread sensory disturbance throughout the left foot and left leg. This is most pronounced in the heel, sole and lateral border of the foot, but also present in the L4 and L5 dermatomes and then remaining somewhat abnormal throughout the upper thigh and even into the lower abdomen.
Indeed, the upper level might be as high as the T10 dermatome.”[18]
[18] PCB 66-67
60Associate Professor Danks viewed the MRI scan of 31 January 2017. He opined there were degenerative changes in the lumbar spine of moderate severity and the L4-5 disc had lost some height. There was an L5-S1 broad-based disc bulge out to the left side, but no evidence of persistent nerve root compression there, or at any other level.
61Associate Professor Danks said there was no evidence of any lesion that required surgical intervention. He recommended a “rehabilitative approach”. He could not find evidence of any clear neurological cause for Mr Schake’s incontinence.
62When seen again on 3 January 2018, Mr Schake described a continuation of his previous symptoms:
“… He reports ongoing, difficult symptoms in his low back with radiation to the left leg, mainly down to the knee but sometimes down into the calf or even foot. He is still concerned about ongoing sensory disturbance in the left leg. He is also concerned about his left foot slapping when he walks. He describes cramps in both legs at times. He describes sleep disturbance partly due to OSA … partly to low back pain … has had some episodes of faecal incontinence. … .”[19]
[19] PCB 68
63Associate Professor Danks said his findings on examination were similar to those the previous year. He recommended continuing with conservative measures.
64In his report to Mr Schake’s solicitors dated 20 June 2018, Associate Professor Danks relevantly opined:
“… It does not appear on the basis of material made available to me that the first accident was particularly significant. However, the second accident did seem to be quite serious with substantial impact and damage to his vehicle. Certainly, Mr Schake was shaken around at this time. This coincided with an exacerbation of his spinal and left leg symptoms. However, on subsequent investigations there is no evidence of any new structural change so one would be optimistic that the effects of this further injury were not of a serious structural nature. However, patients with significant ongoing spinal symptoms sometimes report exacerbation of their condition without structural change being evident on repeat imaging. Presumably the changes are more subtle than one can see on imaging. Alternatively, one might summarise that there is a generalised sensitization of the system as a result of the second injury.”[20]
[20] PCB 72
Craig Nelson, chiropractor
65Mr Schake tendered a report from his chiropractor, Craig Nelson, dated 19 September 2017.
66Mr Nelson noted that, following his May 2015 surgery, Mr Schake “achieved a satisfactory degree of symptom control and lower back stability”.[21]
[21]PCB 74
67Mr Nelson’s report summarised the back and leg symptoms Mr Schake complained of following the transport accident. He recommended a further MRI scan “in order to rule out the presence of any major neurological compromise”.[22]
[22]PCB 74
Associate Professor Jin Tee, complex spine and neurosurgeon
68Mr Schake tendered two reports from Associate Professor Tee, dated 19 July 2019 and 26 September 2019.
69Associate Professor Tee first consulted Mr Schake on 19 July 2019, just prior to his admission to the Epworth Hospital for a multidisciplinary assessment of his pain.
70Associate Professor Tee indicated that the areas he could identify, and treat, were “the causes of the cervicogenic and cervical neck pain, thoracic pain, lower back pain and radiating pain down his legs”.[23]
[23]PCB 98
71Following his admission, and infusion and further imaging, Associate Professor Tee opined:
“As he was still hypersensitised or hyperalgesic, we have decided as a group that he would require comprehensive rehabilitation prior to having a relook at his situation to see whether further pain infusions decrease his hypersensitivity or hyperalgesia would be relevant for him prior to considering searching for the pain generators.”[24]
[24]PCB 99
Dr Murray Taverner, pain medicine specialist
72Mr Schake tendered nine reports from Dr Taverner in respect of his treatment between December 2019 and August 2020.
73In his first report, dated 1 December 2019, Dr Taverner opined Mr Schake was suffering from widespread pain and functional restriction that was not explained by examination findings or imaging. Dr Taverner recommended multidisciplinary assessment and management.[25]
[25]PCB 78
74In his second report, dated 19 December 2019, Dr Taverner noted Mr Schake was “complaining of muscle pain from head to toe”.[26] He requested funding for a multiday ketamine infusion, following which he recommended a further period of inpatient rehabilitation.
[26]PCB 80
75Mr Schake underwent the ketamine infusion between 20 and 27 January 2020. He reported a short-lived improvement in his pain.
76In his report dated 6 February 2020, Dr Taverner queried whether Mr Schake was suffering from “a variation stiff-man’s type syndrome.”[27] Dr Taverner did not explain what this was.
[27]PCB 82
77Dr Taverner reviewed Mr Schake in April, May, June, July and August 2020. During this time, Mr Schake had undertaken part of a pain-management program, but it was put on hold due to the COVID-19 pandemic. Dr Taverner noted there had been little change to Mr Schake’s symptomatology. Dr Taverner requested “some pathology to look for the odd inflammatory and connective tissue causes”.[28] He sought a second opinion from his colleague, Dr Chan, and referred Mr Schake back to Dr Bruce Shirazi to determine whether he would benefit from further physiotherapy and hydrotherapy.
[28]PCB 87
Dr Bruce Shirazi, rehabilitation physician
78Mr Schake tendered two reports from Dr Shirazi, dated 15 January 2020 and 13 May 2020. It appears that Dr Shirazi’s treatment of Mr Schake spanned that period.
79Dr Shirazi noted that Mr Schake had diffuse pain in his lumbosacral spine, but was able to bend forward and had no lower limb neurology. Mr Schake reported that, apart from chiropractic relief, nothing had provided significant improvement in his symptoms.
Dr Wing Sang Chan, pain physician
80Mr Schake tendered two reports from Dr Chan who examined him on several occasions between August and December 2020.
81In his first report, dated 20 November 2020, Dr Chan opined:
“My impression is that [Mr Schake’s] generalised pain and stiffness may be partially related to the degenerative process and he could have some cervicogenic headache, lumbar cervical facet syndrome. But his pain problem seemed to be complicated by his underlying psychological issues with unacceptance of his degenerative condition.”[29]
[29] PCB 88
82Dr Chan last reviewed Mr Schake on 23 December 2020. At that time Mr Schake complained of significant pain, dysfunction, headache and muscle tightness. Dr Chan recommended mindfulness meditation, and prescribed Cymbalta.
Mr John Choi, spine and orthopaedic surgeon
83Mr Schake tendered three reports from Mr Choi, whom he consulted on 30 December 2020, 9 February 2021 and 23 February 2021.
84In his first report, dated 31 December 2020, Mr Choi described the position as follows:
“[Mr Schake] … is a very complicated gentleman who present with chronic problem involving his lower back and neck pain with general aches and pains all over the body since having sustained 2 car accidents.
…
He’s really a challenging candidate and I am failing to find any obvious assessment findings to suggest the diagnosis. He is clearly a complex pain patient that has not responded well to any of the therapies that they have offered over the last 4 years, with structural findings of the spine that are largely normal from 2018.
What is however interesting is that the patients pain is been described around the sacroiliac joint and it would appear that little or nobody has paid any attention to this particular area. Although it may be very modest, there might be some possibility that he may have sacroiliac joint dysfunction that has been undiagnosed and untreated.”[30]
(sic)
[30]PCB 92
85Mr Choi ordered further imaging of Mr Schake’s spine.
86When he next reviewed Mr Schake with that imaging on 9 February 2021, Mr Choi opined that the imaging revealed a structurally-normal cervical and thoracic spine. He recommended referral to a neurologist and pain physician for further assessment of Mr Schake’s neck, left arm and shoulder pain.
87Mr Choi opined that, based on the MRI scan, Mr Schake’s lumbar pain was:
“… probably worsening of his L5/S1 discopathy and disc bulging, and his previous discectomy catching up on him in terms of nerve root irritation and central disc injury.
This can be improved with surgery, and if his pain and assessment correlates he can be offered an anterior lumbar interbody fusion. Based on his symptomatology, I think he could be a potential candidate for ALIF … .”[31]
[31]PCB 94
88In his report dated 23 February 2021, Mr Choi noted:
“… [Mr Schake] is pretty keen to proceed for a definitive anterior fusion to address his back pain. He has a whole lot of other weird symptoms like groin pain, buttock pain, tingling, pins and needs (sic) around his groin and penis, and he also complains of dopiness and drowsiness whenever he turns his head.
I have explicitly told him that none of these symptoms will change with an anterior surgery. The anterior surgery aimed at the L5/S1 disc degeneration and discopathy will only specifically address the lower back pain and the referred pain down into his leg from the L5 nerve root compression.
I have also explained to him that this is aimed at addressing the previous operated L5/S1 disc, and it’s (sic) related discopathic features.”[32]
[32]PCB 96
89Mr Choi performed the proposed L5-S1 fusion surgery on 18 March 2021. No report from him was tendered that postdated the surgery.
Dr Dan Bates, sports and exercise physician
90Mr Schake tendered two reports from Dr Bates, dated 22 November 2021 and 4 July 2023. It appears Dr Bates treated Mr Schake between November 2021 and July 2023.
91In his first report, Dr Bates identified Mr Schake’s issues in the following terms:
“1.Back and lower limb pain possibly arising from sacroiliac joints with some underlying SIJ instability.
2. Neck pain and upper limb pain.
3. Mid thoracic pain.
4. Central sensitisation extreme (66 score) based on central sensitisation inventory score.
5. Severe levels of depression, anxiety and stress based on DASS-21 Score.
6. The pain is intrusive impacting on all aspects of his life.”[33]
(Emphasis added)
[33] PCB 142
92Dr Bates recommended a continuation of Mr Schake’s medication regime, a follow-up with Dr Shirazi for rehabilitation, sacroiliac joint injections and the involvement of a psychologist. He suggested consideration be given to a sacral fusion. Spinal cord stimulation was another “reasonable option”.[34]
[34]PCB 143
93Dr Bates re-examined Mr Schake on 4 July 2023. On this occasion, he abandoned a planned platelet-rich plasma injection to Mr Schake’s right shoulder. Dr Bates reviewed the MRI scans of Mr Schake’s lumbar spine and noted significant wasting of the “paraspinals associated fatty infiltration”.[35] Dr Bates opined that this might be, in part, responsible for Mr Schake’s sense of instability and suggested that it “does open up the opportunity to consider an L2 medial branch stimulator … We will aim to touch base with [Mr Schake] again in the not too distant future”.[36]
[35] PCB 144
[36]PCB 144
94The two reports from Dr Bates which were tendered do not specifically identify the treatment he administered.
95According to Mr Gary Speck, orthopaedic surgeon, Dr Bates provided the following treatment:
(a) 6 February 2023 – a 3/3 CT-guided left-and-right pulsed radiofrequency of the L5 dorsal ramus and S1 lateral branch and injections of the SIJ/DIL with 50 per cent glucose;
(b) 8 March 2023 – a 2/3 CT-guided left-and-right-pulsed radiofrequency of the L5 dorsal ramus and S1 lateral branch, and injections of the SIJ/DIL with 50 per cent glucose.
Medico-legal practitioners
Associate Professor Bruce Love, orthopaedic surgeon
96The TAC tendered a report from Associate Professor Love dated 18 May 2016. Associate Professor Love examined Mr Schake on 18 May 2016 at the request of his solicitors to assess the injuries suffered in the October 2013 winch incident. Mr Schake was involved in a transport accident on the way home from this examination.
97Associate Professor Love relevantly noted as follows:
“He lives on a farm and does engage in farm work but does not go out to work as a consequence of an accident that occurred in late 2013.
…
He stated that he lost control of his bowels and spent long period in isolation because of the inability to control his bowels and the requirement to open his bowels many times a day.
…
He states that following [the spinal] surgery his foot drop resolved immediately but he has been left with ongoing sensory loss in the left leg particularly in the lesser toes.
His back is not a concern to him.”[37]
[37]DCB 322-323
98On examination, Associate Professor Love found Mr Schake’s back to be “mobile” and straight leg raising was unrestricted. The only neurological sign was diminished sensation on the lateral side of the foot and on the back of the calf and thigh. As to employment, he said:
“This man has suffered substantial incapacity for employment as a consequence of his injury and he has spent nearly three years undergoing investigation and various treatment for his medical conditions which have led to significant incapacity for employment.
One could be reasonably optimistic that from this point he might be able to be rehabilitated and return to his former occupational tasks which included carpentry and building.”[38]
[38]DCB 324-325
Dr Clayton Thomas, consultant in rehabilitation and pain medicine
99Mr Schake tendered a report from Dr Thomas, dated 28 March 2024. Dr Thomas examined Mr Schake on 25 March 2024.
100On examination, Dr Thomas noted lower back tenderness and limited spinal movements. Flexion was to 40 degrees, with no reversal of the lumbar lordosis. Lateral bending, extension and rotation were all very limited to about 10 degrees. The left ankle jerk was absent. Straight leg raising revealed tight hamstrings and some pain in the left leg, more so than the right.
101Dr Thomas reviewed various imaging reports, and reports from Mr Schake’s treating doctors.[39]
[39]PCB 128
102Dr Thomas diagnosed Mr Schake as suffering from “[d]iffuse chronic pain syndrome with significant stiffness involving the whole of the spine”.[40] Dr Thomas was of the view that the Chronic Pain Syndrome appeared to be predominantly organic:
“… with probable central sensitisation the underlying mechanism.
…
The nature of his problem cannot be explained on imaging.
… His condition can be considered to be fully stabilised.”[41]
[40]PCB 126
[41]PCB 126-127
Dr Anthony Menz, consultant orthopaedic surgeon
103Mr Schake tendered a report from Dr Menz, dated 27 April 2020. Dr Menz examined Mr Schake on 22 April 2020 and conducted an impairment assessment at the request of the TAC.
104Dr Menz noted Mr Schake had experienced increasing lower back pain after the transport accident, which had not responded to any form of treatment over the preceding four years.[42]
[42]PCB 136
105Dr Menz opined that Mr Schake had developed a Chronic Pain Syndrome, which was the source of his ongoing symptoms.
Mr Gary Speck, orthopaedic surgeon
106The TAC tendered two reports from Mr Speck dated 12 November 2018, and 24 June 2024. Mr Speck examined Mr Schake on 4 September 2018 and 12 June 2024.
107On examination on the first occasion, Mr Speck noted a good range of movement of the thoracolumbar spine, with some tightness and pain, and some restriction of range of motion of the cervical spine, with variation on distraction. The left ankle reflex was absent, but other reflexes were symmetrical. Motor function was normal and there was no significant wasting. There was sensory alteration over the whole of the left lower limb to pin prick and light touch. There was tenderness bilaterally over a wide area of the lower back. Straight leg raising was described as “unrestricted to 80° on the left and 90° on the right”.[43]
[43]DCB 12
108Mr Speck opined that Mr Schake suffered a soft-tissue injury in the transport accident. His current symptoms were consistent with “a pain syndrome with widespread areas of pain and descriptions consistent with anxiety and not a specific ongoing organic pathology”.[44]
[44]DCB 14
109On examination on the second occasion, Mr Speck noted a reduced range of motion in the thoracolumbar spine with some tightness and pain. He made the same reflex findings as previously and found similar sensory alteration in the left lower limb. Straight leg raising was 90 degrees bilaterally when seated, but 30 degrees on the left and 40 degrees on the right when tested supine, with pain described in the lower back.
110Mr Speck reviewed a large volume of imaging and reports from other medical practitioners.
111Mr Speck opined that Mr Schake suffered a soft-tissue injury to the neck, chest and lower back in the transport accident, without evidence of discoligamentous or vertebral structural injury. He opined there was no evidence of radiculopathy or myelopathy arising from the transport accident.[45]
[45]DCB 57
112Mr Speck said Mr Schake’s continuing symptoms of widespread pain were consistent with a Somatic Symptom Disorder or Chronic Pain Syndrome without evidence of persisting physical injury. When examined in 2018, his level of activity was “consistent with his expected restrictions from his previous laminectomy operation in 2015 and his apparently pre-existing somatic symptoms disorder”.[46]
[46]DCB 58
113Mr Speck said his diagnosis of a Chronic Pain Syndrome/Somatic Symptom Disorder was a reference to a mental health condition. He opined that the condition should be assessed by an appropriate mental health expert.
Professor Gavin Davis, neurosurgeon
114The TAC tendered a report from Professor Davis dated 12 April 2024. Professor Davis examined Mr Schake that day.
115On examination, Professor Davis found marked restriction of range of motion in all directions in the cervical and lumbar spine. Range of motion was better during history taking. Mr Schake reported widespread tenderness. There was no detectable muscle spasm. There was normal tone and power of the upper and lower limbs. Sensory examination in the upper limbs was normal. Deep tendon reflexes at the ankles were mildly diminished. Mr Schake described marked sensory loss in both lower limbs, worse on the left than the right. Professor Davis opined that the sensory loss was in a non-anatomical distribution.
116Professor Davis opined there was an exacerbation of lower back and neck pain in the transport accident.[47] There was no significant change in the imaging findings before and after the transport accident. Further, he noted “the physical examination findings in the lower limbs are similar to those described by [Associate] Professor Danks prior to the injury of November 2016”.[48]
[47]DCB 87
[48] DCB 88
117Professor Davis referred to the reports from Mr Schake’s chiropractor, Craig Nelson, dated 29 July 2015, 26 February 2016 and 20 July 2016. He said:
“It is thus evident that [Mr Schake] did respond well to the surgery of May 2015, but did have a flare up of pain following the injury of May 2016 requiring further chiropractic treatment. … .”[49]
[49] DCB 88
118Professor Davis opined that the natural course of Mr Schake’s pre-existing lower back condition was one of persisting and fluctuating pain. Mr Schake suffered a soft-tissue injury in the transport accident, which would have resolved in six to twelve weeks.
Dr Justin Lewis, consultant psychiatrist
119Mr Schake tendered a report from Dr Lewis, dated 11 June 2024. Dr Lewis examined Mr Schake on 11 June 2024.
120Dr Lewis opined that Mr Schake presented with an aggravation of a pre-existing, largely remitted major depressive disorder. He did not diagnose a psychologically-driven pain syndrome.
Associate Professor Peter Doherty, consultant psychiatrist
121The TAC tendered a report from Associate Professor Doherty dated 20 June 2024. Associate Professor Doherty examined Mr Schake on 28 May 2024.
122Associate Professor Doherty opined there had been pre-existing depression. There was an adjustment disorder present, but it was now very mild in severity and therefore difficult to diagnose.
123Associate Professor Doherty excluded a diagnosis of a pain-related psychiatric condition.
Writ and Statement of Claim for the winch incident
124The TAC tendered a writ and statement of claim filed on behalf of Mr Schake in this court on 22 September 2016. This was a claim for damages for injuries sustained in the October 2013 winch incident.
125In the Statement of Claim, Mr Schake’s without injury earnings were particularised at $500 per day, and it was pleaded that Mr Schake had been unable to work since October 2013 as a result of the injuries he sustained in the winch incident.
Findings
126I broadly accept Mr Schake’s account of the state of his back in the period between May 2015 and the transport accident. That is, he had a good outcome from the 2015 surgery, was experiencing minimal lumbar pain and had minimal functional restrictions.
127The evidence as to the nature and extent of Mr Schake’s work activities in the period May 2015 to November 2016 was vague, but I accept he was working on the cabins in Moama. That required some heavy activity and involved driving significant distances.
128Mr Schake was not challenged regarding his running during cross-examination and I accept he was undertaking long runs for fitness in the period between about August 2015 and the transport accident.
129I also accept that, after an initial three-month period, Mr Schake was able to fully participate in Zen Do Kai several times a week, which included drills, sparring and throw downs, in the period between August 2015 and November 2016.
130Associate Professor Love’s report supports Mr Schake’s account that, in May 2016, his back was not a concern to him. Associate Professor Love found only limited neurological signs on examination.
131I find Mr Schake suffered a short-lived aggravation injury to his lumbar spine in the May 2016 transport accident. I do so, because I accept the evidence of Mr Schake, his former wife and son on that issue. That evidence is further corroborated by his continued participation in martial arts’ training in that period, and the absence of continuing attendances upon his GP.
132I accept the evidence of Mitchell Schake, Ms Pike and Mr Ball as to Mr Schake’s activities during the period May 2015 to November 2016. That evidence was consistent with Mr Schake’s evidence. The evidence of Mr Ball was particularly persuasive independent evidence.
133Associate Professor Danks’ assessment of the outcome achieved by the May 2015 surgery is also broadly consistent with Mr Schake’s account. That is, he appeared to have a good outcome from the 2015 spinal surgery and was active from an early stage.
134Mr Schake’s account was also broadly supported by the evidence of Mr Nelson, his chiropractor.
What injury to the spine was caused by the transport accident?
The nature of the transport accident
135In considering this issue, it is necessary to say something about the parties’ contentions as to the nature of the transport accident.
136Mr Schake alleged this was a high-speed collision in which Mr Ashwin’s vehicle caused his vehicle to be pushed from its stationary position, approximately 3 metres, into the car in front of him. Mr Schake’s vehicle was written off by the insurer.
137As I have said, Mr Schake’s former wife was his passenger. She deposed to their vehicle being hit “very hard” from behind and being pushed from stationary into the vehicle in front. Ms Pike said Mr Schake tried to hold her in her seat, as he was thrown forward by the impact. She deposed to being surprised there was not more damage to the cars, given the impact and the noise of the accident. She deposed to being worried at the time that the impact might have ruptured the gas tank.
138The TAC contended this was a low-speed collision. It relied upon the content of statements signed by Mr Ashwin in April 2017 and December 2022. The TAC also relied upon three photographs of Mr Schake’s vehicle – two taken after the May 2016 transport accident and one taken after the subject transport accident.[50]
[50]DCB 271-272 and DCB 326
139The TAC did not tender an affidavit from Mr Ashwin.
140At the start of the hearing, Leading Counsel for Mr Schake objected to the TAC’s reliance upon the statements of Mr Ashwin on the basis they were hearsay.
141Leading Counsel for the TAC submitted Mr Ashwin ought to be found to be an unavailable witness pursuant to s63 of the Evidence Act 2008 (Vic), given the content of the affidavit from her instructing solicitor, Bridget Mangan, affirmed on 18 July 2024.[51]
[51]DCB 311
142I indicated to the parties I was not satisfied that Mr Ashwin was relevantly unavailable on the material relied upon. I indicated I was minded to permit reliance upon the statements on the basis that hearsay evidence is admissible in proceedings commenced by originating motion, but it would be a question of the weight to be attached to them. I gave the parties time to consider their positions in light of that indication.
143Both parties elected to proceed on the basis I had outlined.
144Mr Ashwin had two passengers in his vehicle, Jida Stephenson and Lachlan Rowlands.[52] There was no explanation for the absence of affidavits from them. Leading Counsel for Mr Schake sought a Jones v Dunkel[53] inference.
[52]DCB 296 and DCB 299
[53](1959) 101 CLR 298
145I infer that the evidence of Mr Stephenson and Mr Rowlands would not have assisted the TAC, and I can more confidently accept the evidence called by Mr Schake as to the impact of the collision.[54]
[54]Ibid
146Mr Ashwin’s statement is internally inconsistent. The speed of collision he described appears to be at odds with the force being sufficient to push Mr Schake’s vehicle into the back of the car in front of him.
147I prefer the sworn evidence of Mr Schake and his former wife as to the nature of the collision to the hearsay evidence of Mr Ashwin.
148I accept the photograph of the back of Mr Schake’s vehicle does not appear to show damage consistent with a high-speed collision. However, I accept Mr Schake’s evidence that there was damage to the steel towing system, not visible in the photograph tendered. This is also consistent with the vehicle being written off by the insurer.
149I find this was likely a collision of some considerable force.
Lay evidence
150Mr Schake deposed to experiencing immediate pain in his lower back, neck and shoulders following the transport accident.
151In the days and weeks after the transport accident, Mr Schake said he developed pain and regular cramps in both legs and feet, which made it difficult to walk. He said he lost control of his bowels. He began to experience headaches. He was no longer able to attend his martial arts training or go for a run.
152Ms Pike deposed Mr Schake told her his back hurt immediately after the transport accident and he had a “huge headache”. He had to stop several times on the way home to walk around because his back was sore. When they got home, Mr Schake went straight to bed, but Ms Pike told him she believed he should go to the hospital.
153Thereafter, Ms Pike noted Mr Schake struggled with lower back pain and struggled walking, and he told her he developed pain and cramps in both legs and feet. She noted he lost control of his bowels regularly after the accident and she observed him to soil himself.
154Mitchell Schake deposed to the change in his father after the transport accident, noting he stopped doing martial arts and stopped running.
155Mr Ball deposed Mr Schake told him about the transport accident shortly afterwards. He attended for martial arts training on 28 November 2016 (just over a week later), but appeared to be in pain and to have restricted movement. He has not attended since.
Findings
156Section 93(17) of the Act maintains a division between injuries with physical consequences, which fall within paragraph (a) and injuries with mental consequences, which fall within paragraph (c). The impairment of a body function will not fall within paragraph (a) unless it is predominantly the product of an organic condition.[55]
[55]Transport Accident Commission v Kamel [2011] VSCA 110 at paragraph [65]
157Further, as this is an aggravation case, I am required to determine the impairment consequences which are caused by the transport accident.[56]
[56]Rowe v Transport Accident Commission [2017] VSCA 377 at paragraphs [82]-[83]
158The TAC submitted this was a medically-complex case and Mr Schake had not discharged his onus.
159When Associate Professor Danks reviewed Mr Schake in 2017 and 2018, he was optimistic as to Mr Schake’s prognosis, as he did not detect evidence of serious structural change because of the transport accident. However, significantly, he noted the changes may be more subtle than one can see on imaging, or, alternatively, that “there is a generalised sensitization of the system as a result of the second injury”.[57]
[57]PCB 72
160Mr Choi operated in March 2021 to address what he described as “worsening of his L5/S1 discopathy and disc bulging”.[58]
[58]PCB 94
161Leading Counsel for the TAC submitted that Mr Choi effectively stated the fusion surgery was unrelated to the transport accident. I do not accept that submission. Mr Choi noted the surgery addressed the previously-operated level of the lumbar spine. That was in the context of ongoing symptoms and incapacity precipitated by the transport accident.
162Associate Professor Tee noted Mr Schake suffered from hypersensitivity or hyperalgesia, which required “comprehensive pain rehabilitation”.[59]
[59] PCB 99
163The reportage from the various treating pain physicians is incomplete. A series of letters between the treating practitioners were tendered. Doctors Taverner, Chan and Shirazi did not arrive at a definitive diagnosis of Mr Schake’s condition. Dr Taverner noted widespread pain and functional restriction and the presence of psychosocial issues. He canvassed a possible diagnosis of stiff-man’s syndrome. Dr Chan raised various possible diagnoses, including a “pain problem” complicated by underlying psychological issues.
164I note Mr Schake’s treating physicians have provided a range of treatments addressing a physical condition in the lumbar spine, including sacroiliac joint injections and a spinal fusion.
165A diagnosis of central sensitisation was supported by Dr Bates, who is the most recent treating pain physician. In his report of November 2021, Dr Bates noted Mr Schake scored on the extreme end of the central sensitisation inventory score and diagnosed “widespread body pain in the setting of extreme central sensitisation”.[60]
[60]PCB 143
166I prefer the opinion of Dr Thomas, that Mr Schake is suffering from an organic Chronic Pain Syndrome with central sensitisation. As was acknowledged by Leading Counsel for the TAC, a pain specialist or rheumatologist is better placed to diagnose an organic pain condition with central sensitisation than an orthopaedic surgeon or neurosurgeon.
167Leading Counsel for the TAC submitted Dr Thomas did not set out the path of reasoning for his diagnosis. There is some force in that submission. However, given the condition cannot be diagnosed on radiology, it is difficult to identify what more Dr Thomas could say over and above setting out the detailed history he took and his examination findings.
168Mr Speck opined that Mr Schake likely suffered a soft-tissue injury to his lumbar spine in the transport accident which would have resolved within weeks. He concluded Mr Schake was suffering from a psychologically-driven pain syndrome. I do not accept that opinion for the following reasons:
(a) first, Mr Speck’s opinion does not consider, explain or exclude a diagnosis of a Chronic Pain Syndrome due to central sensitisation;
(b) second, the diagnosis of a Chronic Pain Syndrome due to central sensitisation is likely outside the field of expertise of both an orthopaedic surgeon and neurosurgeon;
(c) third, it is outside Mr Speck’s field of expertise to diagnose a psychological condition. His opinion in this regard is also at odds with Associate Professor Doherty’s opinion that there is no psychologically-driven pain syndrome present.
169Similar issues attend the opinions of Dr Menz and Professor Davis. That is, the absence of radiological change following the transport accident forms the basis of their opinions that there is no organic cause for Mr Schake’s pain, and no apparent consideration of a diagnosis of an organic pain condition. Further, those opinions are premised upon a level of ongoing functional restriction prior to the transport accident, which is contrary to my findings as to Mr Schake’s level of function between August 2015 and the transport accident.
170Considering the whole of the evidence, I find Mr Schake developed an organic Chronic Pain Syndrome with central sensitisation as a result of the transport accident.
What are the long-term impairment consequences of the injury to the spine?
171The TAC did not concede that, in the event the Court found Mr Schake was suffering from an organic chronic pain condition, his long-term impairment consequences satisfied the threshold. However, this was not a primary focus of the TAC’s contentions. Many of Mr Schake’s claimed impairment consequences were not the subject of any, or any significant, challenge during cross-examination.
172Having already determined Mr Schake’s level of functioning prior to suffering this aggravation injury, I will deal with the remaining aspect of the application in somewhat shorter form.
173Mr Schake alleges the following impairment consequences:
(a) widespread pain;
(b) impaired sleep;
(c) headaches;
(d) significantly-reduced ability to perform domestic chores;
(e) significantly-reduced ability to maintain his property and care for the sheep and cattle;
(f) an inability to perform building and carpentry work;
(g) an inability to participate in martial arts’ training and running;
(h) difficulty driving for prolonged periods;
(i) incontinence.
174The TAC submitted Mr Schake was a man with a very-significant impairment to his lifestyle prior to the transport accident. It was submitted that any aggravation injury to the spine caused by the transport accident falls well short of the statutory threshold.
175The TAC submitted the evidence regarding Mr Schake’s work prior to the transport accident was unsatisfactory. For the first time in evidence, he said he had been intending to change career and become a chauffeur/bodyguard. As to recreational activities, the martial arts was an ill-advised activity that Mr Schake would have been unlikely to undertake in any event, because of his pre-existing lumbar injury. Further, Mr Schake is still socialising and maintaining his farm with his son, albeit, at a reduced level.
Findings
176I find Mr Schake has experienced ongoing fluctuating widespread pain as a result of the organic Pain Syndrome caused by the transport accident.
177I note, in particular, it is now more than seven years since the transport accident. Mr Schake has been treated by numerous pain physicians, with much of that treatment being self-funded. He has undergone a spinal fusion, again self-funded. I accept he has undertaken those treatments to ameliorate his symptoms of pain and his restrictions.[61] The nature and extent of the treatment he has sought, much of it self-funded, is an indicator of the level of his pain and restrictions.
[61]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
178I note Mr Schake does not currently take any prescription or over-the-counter medication for his pain. I accept his evidence that his symptoms are assisted by cannabis use.
179I find Mr Schake suffers from regular sleep disturbance due to his pain disorder.
180While the evidence about the extent of his work between 2015 and 2016 was somewhat vague, I accept Mr Schake was performing some building and carpentry work in that period. He has not been able to resume working as a builder and carpenter in any meaningful way since November 2016. He has not been able to pursue work as a chauffeur/bodyguard.
181I found the evidence regarding Mr Schake’s incontinence confusing and unsatisfactory. Mr Schake’s memory was that, prior to the transport accident, his problem was hernia and/or haemorrhoid related.[62] However, the evidence reveals Mr Schake had problems with bowel urgency to the point of incontinence at times, prior to the transport accident.[63]
[62]T32 and T56
[63]PCB 63
182Following the transport accident, Associate Professor Danks could not identify a clear neurological cause for Mr Schake’s bowel incontinence issues and suggested a referral to an appropriate specialist.[64]
[64]PCB 67
183No medical opinion was tendered which related the current bowel issues with the transport accident. I therefore do not consider this as a relevant impairment consequence.
184No further treatment is proposed. I find Mr Schake’s condition and symptoms are likely to continue in the long term.
Are the pain and suffering and/or pecuniary disadvantage consequences “serious”?
185In light of my findings as to the state of Mr Schake’s spine and his level of function prior to the transport accident, the injury to the spine caused by the transport accident, and the long-term impairment consequences of the transport-accident injury to the spine, in my view, it is clear that the combination of the pain and suffering and pecuniary disadvantage consequences which Mr Schake experiences are “more than significant or marked” and “at least very considerable” to him, when considered in the range of impairments, including those which do not come before the Court.
Conclusion
186Given my findings in respect of the claim pursuant to subparagraph (a), it is unnecessary to consider Mr Schake’s claim with respect to a mental or behavioural disturbance or disorder.
187Mr Schake is granted leave to bring common law proceedings in respect of the injuries he suffered in the transport accident on 19 November 2016.
188I will hear the parties on the issue of costs.
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