Scholte v TAC
[2012] VCC 1458
•10 October 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-02160
| JAN BERENO SCHOLTE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 and 28 September 2012 | |
DATE OF JUDGMENT: | 10 October 2012 | |
CASE MAY BE CITED AS: | Scholte v TAC | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1458 | |
REASONS FOR JUDGMENT
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SUBJECT – TRANSPORT ACCIDENT
CATCHWORDS – injury to lumbar spine – pre-existing lumbar condition – subsequent employment aggravates lumbar injury – whether transport accident rendered the plaintiff “vulnerable” to subsequent workplace injury – whether consequences of transport accident “very considerable”
LEGISLATION CITED – Transport Accident Act 1986, s93
CASES CITED – Scholte v Harvent Pty Ltd (25 June 2010) VCC; R J Gilbertsons Pty Ltd v George Skorsis [2000] VSCA 51; Petkovski v Galletti [1994] 1 VR 436; Altona Bus Lines & Anor v Lococo [2002] VSCA 159; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; De Agostino v Leatch [2011] VSCA 249; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60
JUDGMENT – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P A Jewell SC with Mr N B Chamings | Clarke Toop & Taylor |
| For the Defendant | Mr G A Lewis SC with Mr P J Gates | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Preliminary
1 The plaintiff was involved in a transport accident on 26 March 2005 when, as a pedestrian, he was struck by a vehicle driven by one Kelly Walker. He suffered a range of injuries, including a fracture to his left leg and soft-tissue injury to his lumbar spine. He was off work for approximately two months, and after he returned to work in May 2005, he suffered an exacerbation of the lumbar injury, and ceased work finally in May 2006. He has not worked since.
2 The issue in this application is the nature and extent of the injury to the plaintiff’s lumbar spine in the transport accident, and the extent to which the consequences which the plaintiff presently suffers are related to that injury.
3 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 transport accident of 26 March 2005. The body function said to be lost or impaired is the lumbar spine. The application is thus brought under ss(a) of the definition of “serious injury” set forth in s93(17) of the Act.
4 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, affidavits of the plaintiff and his housemate, Ms Glenda Rae Jenkins, radiological investigations, medical reports, clinical notes, a decision of his Honour Judge Wischusen of 25 June 2010 relating to an application for injury sustained in the plaintiff’s employment after the transport accident, and transcript related to that application, were tendered in evidence. I have read all the tendered material.
5 I shall not refer to all of this material in the course of this judgment but rather those reports, opinions and other material which appear to me to be of most relevance in determining the issues in dispute.
6 I shall not refer to all of the evidence of the plaintiff, but rather to those parts of his evidence which I have relied upon in coming to the conclusions referred to later in this judgment.
7 The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known and it is unnecessary for me to revisit the various relevant sections.
Relevant Background
8 The plaintiff was born in 1950 and is now sixty-one years of age. He came to Australia from the Netherlands when he was three years of age. He was educated to Grade 6. On leaving school, he worked as a farmhand and labourer near his home at Colac. He also worked in an abattoir. He later worked on his family’s dairy farm in Ballarat. He married in 1974, although the marriage split up in 1994. This had a significant impact upon him.
9 In 1995, he commenced working with a printing company as a “strapper”. His work involved packing large bundles of newspapers, and required him to lean forward over a working table for extended periods.
10 According to his affidavit sworn 24 November 2010, the plaintiff said:
“I recall I had some aches and pains from time to time and I believe this occurred in about 1995 or 1996. I recovered however and was able to work in regular employment.”[1]
[1]Court Book (“CB”) 175
11 However, this statement did not accurately describe the nature and extent of the plaintiff’s significant prior lower back problems. According to the report of his general practitioner, Dr Halliburton, of July 1996,[2] he first attended at that practice in March 1995, complaining of central low-back pain, extending to the right shoulder. From that time until at least 1997, he attended regularly upon the general practitioner with lower back pain. X-rays taken in 1995 and 1997 showed degenerative change in the lower lumbar spine.[3]
[2]CB 388
[3]CB 181, 182
12 Over the period from 1995 until 1997, Dr Halliburton certified the plaintiff as fit only for restricted duties. He received physiotherapy treatment. According to the report of the general practitioner of February 1997:
“He was continuing to have physiotherapy because of ongoing symptoms of pain within the lower back which tended to fluctuate in severity, depending on his degree of activity, which overall was not great. On the 13th November 1996 he described that his back had become somewhat worse … .
Therefore I consider Mr Scholte’s overall situation is fairly much unchanged since my last report. He has in particular become quite despondent as a result of his employer’s lack of willingness to accommodate his needs, but has shown determination and perseverance in overcoming his problem. … .”
13 In March 1997, the plaintiff was examined by Mr Paul Kierce, orthopaedic surgeon, who noted a history of ongoing lower back pain with referred pain to the right shoulder. Mr Kierce considered the plaintiff had aggravated a pre-existing lumbar disc lesion in the course of his employment in 1995. He said:
“In my opinion this man is permanently incapacitated for any work which involves prolonged or frequent bending, the lifting of weights greater than 15 kilograms, the use of heavy jarring implements such as picks, shovels and crowbars and the driving of machinery which gives rise to vibrations. …
I feel it is likely that he will suffer from intermittent back pain for the rest of his life but it should not be too disabling. It has to be stated, however, that the lumbar disc lesions are unpredictable and that some people, even after modifying their activities, suffer a herniated disc in a joint such as this which could lead to operative treatment for the purpose of discectomy.”[4]
[4]CB 392
14 It would appear the plaintiff left his employment with the newspaper in 1995. From that time until 1999, he was certified by his general practitioner as fit for limited duties in certificates provided to the Department of Social Security.[5]
[5]Exhibit 2
15 The plaintiff made a claim for compensation against that employer, and as a result, received a lump sum payment of compensation of approximately $25,000.
16 Somewhat curiously, when asked by a number of practitioners as to whether he had suffered any lower back problems prior to the transport accident, the plaintiff said that he had suffered pain in the region below the right shoulder.[6] The plaintiff accepted in evidence that this was clearly incorrect, and he had not suffered any injury to his right shoulder. It is possible this may be explained by the report of Mr Kierce, that although he had suffered pain in his lower back, there was referred pain to the right shoulder. As I shall subsequently explain, I, like many of the medical practitioners, found the plaintiff an unreliable witness. I did not form the view he was intentionally attempting to mislead the Court, nor exaggerate his symptoms; rather, his recollection of events was significantly flawed.
[6]See reports of Mr Kennedy at CB 205; Mr Brownbill at CB 212-213; Dr Epstein at CB 234, and Dr Thomas at CB 241
17 From the time he left employment in 1996, until he commenced work as a cleaner with the company, Harvent Pty Ltd, in January or February 2005, the plaintiff appears to have been largely unemployed. He accepted that he was off work for approximately ten years.[7] However, he did work on a block of land he owned, cut his own wood and grew vegetables. He further worked as a cleaner in a nightclub over a number of years around 2000. He ceased work because the nightclub was closed.[8]
[7]Transcript (“T”) 34, L28
[8]T 36, L29
18 In the years from 2000 to 2005, according to the clinical records of Dr Halliburton, his lower back problem appeared not to be causing him significant pain or restriction, as over that period, there was only one occasion, on 20 August 2003, that he made any complaint of lower back pain. On that day, the clinical note says:
“Has been no better with respect to low back pain.”[9]
[9]Exhibit 4
19 Mr Lewis, for the defendant, urged me to the view that that reference indicated the plaintiff had low-back pain before that date, and on that date, it was recorded as being no better. However, having considered the entries in the doctor’s clinical notes over the period from 2000 to 2005, in my view, that report was an isolated incident, not indicative of continuing low-back pain over the relevant period. This is confirmed by the report of Dr Halliburton of March 2007,[10] where he states that he did not believe the plaintiff had any pre-existing injury to the lower back.
[10]CB 282
20 The plaintiff commenced work as a cleaner with the company, Harvent Pty Ltd, at the Wendouree Village Shopping Centre in January or February 2005. The work was full time, five days per week, plus overtime. It was demanding physical work, and included cleaning areas of the shopping centre, in particular the bathrooms and toilets, washing and disinfecting various areas, stacking large quantities of chairs in order for the floors to be cleaned and using a large mechanical scrubbing machine to clean the floors. This required considerable strength and force, given the machine was defective and pulled to the left. There were twenty four public toilets to be cleaned; there was regular bending and scrubbing in the toilet bowls and other tasks which required significant physical effort. He continued to do this work, including with overtime, over the period from January or February 2005 until the date of the transport accident, 26 March 2005. There is nothing in the clinical notes of the general practitioner, nor any other evidence to suggest the plaintiff suffered any back pain as a result of this work.
21 From this history, I conclude that while the plaintiff did suffer a significant back injury in approximately 1995, and despite the dire predictions of Mr Kierce, the plaintiff made a reasonable recovery and ceased to make any complaints of lower back pain to his general practitioner from approximately 2000, save for the one occasion referred to. It is clear, however, from the x-rays performed at the time, and the opinion of Mr Kierce, that the plaintiff did suffer pain associated with degeneration in his lumbar spine. However, over several months in early 2005 he was able to undertake arduous and demanding physical employment as a cleaner, working full hours and overtime, and able to cope with this work.
The Transport Accident and its Consequences
22 On 26 March 2005, the plaintiff, as a pedestrian, was struck by a vehicle as he was crossing the road. He was thrown onto the bonnet of the car, and according to some reports, broke the windscreen. He held onto the windscreen wipers and then fell from the bonnet onto the roadway, landing on his left side. His knee struck the bumper bar.
23 The ambulance attended, and he was taken to the Ballarat Base Hospital. There was no report of lower back pain to the ambulance officers.[11] According to the report from the Ballarat Hospital,[12] the plaintiff was complaining on arrival of broken artificial teeth, facial lacerations and bilateral leg pain. Subsequently, radiology showed a spiral fracture of the left tibial plateau. He was fitted with a knee brace. There was no complaint of lower back pain during the course of his initial admission to the hospital, nor on several follow-up outpatient appointments, save that on the day of admission, the following is recorded in the clinical notes:[13]
“15.45 – Patient complaining of back pain post slide on tar (?). …
16.25 – Returned from x-ray. Back still sore from lying flat. …
16.35 – Hard collar removed and patient sitting up.
17.00 – Given fluids. Back pain completely gone. … .”
[11]CB 187-188
[12]CB 210-211
[13]CB 211.1
24 The plaintiff saw his general practitioner, Dr Halliburton, on 29 March 2005. There is no reference in that, nor subsequent attendances on 30 March 2005, 31 March 2005, 12 April 2005 and 19 April 2005 to any complaint of lower back pain. According to the note of an attendance on 18 May 2005:
“Went back to work on Monday but developed marked left leg sciatica. Examination – examination of lumbosacral spine: tender L3-4. SLR [straight leg raising] 45.”
25 Thereafter, there are regular complaints of pain by the plaintiff to his general practitioner across the lower back area and into his legs. According to the report of Dr Halliburton of 13 March 2007:[14]
“Mr Scholte was initially treated at the Ballarat Base Hospital and his injuries were listed as soft tissue facial injuries requiring suturing/broken dentures/bilateral bruising of both legs/soft tissue neck injury/soft tissue lower back injury.”
[14]CB 282
26 There is no explanation in the general practitioner’s reports as to where he obtained this information, as it is not set forth in the report of the hospital, nor the clinical notes.
27 According to the plaintiff’s affidavit, he said:
“Whilst lying in bed in the Ballarat Base Hospital I noticed pain in my low back which went down the back of my legs. … .”[15]
[15]CB 176
28 Despite this, the plaintiff accepted in cross-examination that he did not feel any back pain until he returned to work in his job as a cleaner in May 2005. He said:
Q:“But you didn’t feel back pain until your first night back at work?---
A:That’s right.”[16]
[16]T 39, L20
29 In the context of his return to work, in May 2005, he was asked the following:
Q:“Your general practitioner also certified you as fit to return to work, didn’t he?---
A:Yes, he asked me to go back and try to see how it went.
Q:Well, he certified you as fit to resume work, didn’t he?---
A:At that time he did, yes.
Q:You couldn’t go back to work without a medical clearance, could you?---
A:That’s right.
Q:When you went back to work you were on the same level of medication tablets as you had been before you went back to work. In other words, what I am suggesting to you, is that your level of medication didn’t change?---
A:Not at that time. As far as I can remember it didn’t, no.
…
Q:You have said on your oath before, haven’t you, that upon your return to work your back was normal?---
A:I was walking okay until I started to work, yes.”[17]
[17]T 51, L10-29
30 The plaintiff was then questioned in cross-examination about evidence he had given before this Court in proceedings for a claim for payment of weekly compensation related to an exacerbation of the injury to his lower spine in the course of his employment subsequent to the transport accident. In the course of that earlier proceeding,[18] the plaintiff was asked to confirm the accuracy of evidence he gave in that earlier proceeding:
[18]Scholte v Harvent Pty Ltd (25 June 2010)
Q:“With your time and with using crutches, did your back pain that you mentioned get any better over that period of time?---
A: Not much.
Q: Did it lessen before you went back to work?---
A: Yes, it lessened a lot.
Q: It lessened a lot did it?---
A: Yes, it did.
Q: Did your back ever get back to what you would call normal?---
A: Yes.
Q: And you got back to work, is that correct?---
A: Yes.
Q:When you said you got back to work and did your normal duties, what did your normal duties at Wendouree involved?--- “
[The plaintiff was taken to various duties performed in his work as a cleaner after he returned to work in May 2005].
31 The plaintiff confirmed that evidence as accurate.[19]
[19]T 52, L9-26
32 According to the clinical notes of the general practitioner, the plaintiff returned to work on 16 May 2005. On 18 May 2005, Dr Halliburton’s notes say:
“Went back to work on Monday but developed marked left leg sciatica … .”
33 The plaintiff’s return to work was to normal duties, including the use of the large floor scrubbing machine which was difficult to control. The plaintiff, in the course of cross-examination, was asked the following:
Q:“You were asked this –
‘How long after your return to work did it take before you noticed increased pain in your back?---
About three weeks.’
A:I can’t remember how long it was. I remember getting the pains in the back.
…
Q: You were asked –
‘Did that affect your low back pain’
and your answer was –
‘Yes, it did.It just started to hurt and ache and I had trouble walking there sometimes’
A:That’s right.”
34 Dr Halliburton wrote a number of certificates to the Transport Accident Commission in respect of “treatment for his TAC related injuries”.[20]
[20]CB 309-311
35 Mr Jewell, on behalf of the plaintiff, uses these certificates as support for his proposition that the plaintiff had low-back pain which was related to the transport accident. However, over more recent years, Dr Halliburton has been certifying the plaintiff as unfit for work duties, and directing those certificates to the workplace insurer. I do not see the fact that the general practitioner sent certificates to the Transport Accident Commission as determinative of the injury suffered in the transport accident.
36 In the previous proceeding, Dr Halliburton was called to give evidence and be cross-examined. He confirmed that when the plaintiff attended on 18 May 2005, he had developed marked left leg sciatica.[21] As a result, Dr Halliburton arranged an x-ray of his lumbar spine. This showed no abnormalities, save for some congenital matters. A CT scan of his lumbar spine was then undertaken on 24 May 2005 which concluded:
“L5-S1 disc protrusion impinging upon the left S1 nerve root. No nerve root compression.”[22]
[21]CB 75
[22]CB 185
37 In evidence in the previous proceeding, Dr Halliburton said that prior to returning to work, the plaintiff had no sciatic component to his back problem after the transport accident.[23] Dr Halliburton provided Tramadol, an analgesic.
[23]CB 76
38 On 4 January 2006, the plaintiff attended Dr Halliburton and complained that he had slipped at work and that that had “stirred his back up”. In addition, the plaintiff was working longer hours and under pressure at his workplace.[24] He continued to complain of low-back pain to Dr Halliburton, and by May 2006, the pain was worse. The doctor issued the plaintiff with a certificate certifying him as unfit for normal work. Dr Halliburton said that he saw the plaintiff’s problem as an amalgamation of what happened when he was struck as a pedestrian, and the subsequent work aggravation.[25] He further gave evidence that after the transport accident, he considered the plaintiff as more susceptible to strains in the workplace. He thought that the degenerative changes shown in the CT scan of 24 May 2005 were related to the work aggravation.[26] Dr Halliburton considered that the plaintiff was not fit for any employment from May 2006.
[24]CB 78
[25]CB 80
[26]CB 84
39 Glenda Rae Jenkins provided an affidavit.[27] She has been a housemate and friend of the plaintiff. She described him as healthy and without significant problems prior to the transport accident. She said that after the transport accident he told her he had back pain from time to time, particularly when he tried to get up from the couch. She noted that the plaintiff had been on crutches for approximately eight weeks after the transport accident.
[27]CB 180.1
40 In his various medical reports, Dr Halliburton described the course of the plaintiff’s lumbar spine over the years from 2005 to the present. On 17 March 2010, he said the plaintiff had no current work capacity and that that was likely to continue indefinitely.[28]
[28]CB 202
41 In his report of 28 September 2010, he said the following:
“With reference to your question, I consider that both the motor vehicle accident and the nature of his work at Wendouree Village are a cause of Mr Scholte’s low back condition.
In relation to the proportioning of the injuries, I would make an assessment that his work has contributed approximately 75 per cent to his current back condition and I say this because he was continuing to have lower back pain as a result of his motor vehicle accident but was coping with this on a long term basis and I would therefore feel that this would be the lesser of the two causes, as we know he is now totally unable to work. His motor vehicle accident I would therefore consider to be approximately 25 per cent responsible for his current capacity.”[29]
[29]CB 203
42 According to the plaintiff’s affidavit, his back pain continued after he left work in 2006. He has been left with lower back and leg symptoms, for which he takes a range of pain-relieving medications. He said he found it difficult to stand and walk for prolonged periods, and lifting, twisting and bending caused increased symptoms. There is no surgery proposed.
43 In September 2011, the plaintiff moved to Western Australia with Ms Jenkins. He there attempted to cut lawns and undertake a range of activities, with limited success.
44 He has suffered depression as a result of his injuries and his sleep is affected.
45 In the course of the trial, Mr Lewis, appropriately in my view, conceded that as at the present time, the consequences to the plaintiff of his lower back injury did reach the “very considerable” level. In particular, Mr Lewis accepted that the plaintiff, given his age, limited education and manual work history, had no capacity to undertake employment. The issue is thus not whether the plaintiff achieves the serious injury level required by the legislation and authorities, but whether and to what extent the consequences that he presently suffers are related to the transport accident.
Medical Opinions
46 Many of the practitioners obtained a history from the plaintiff that immediately or shortly after the transport accident, he suffered the onset of low-back pain.[30] However, to Dr Epstein, he said:
“He is adamant that he had had no back symptoms prior to going back to work.”[31]
[30]Dr Kennedy at CB 206; Dr Thomas at CB 242; Mr Carey at CB 294 and 300; Mr Jones at CB 303 and Mr O’Brien at CB 326
[31]CB 236
47 The history of back pain after the transport accident appears to have been given by the plaintiff to the various practitioners, despite there being no reference to it in either the clinical notes of the general practitioner and those of the hospital. None of the practitioners received a comprehensive history of the plaintiff’s low back problems prior to the transport accident.
48 Dr Kennedy[32] provided a report of 5 February 2009. According to the history provided by the plaintiff, he recalled telling the doctors at Ballarat Base Hospital that he had severe backache. Dr Kennedy’s report is of little assistance given that he claims no expertise in the orthopaedic area.
[32]Dr Kennedy appears to be a urologist
49 The plaintiff was examined by Mr David Brownbill, neurosurgeon, in 2009 and again in 2012. He received a history:
“I was on crutches following the accident because of my leg and I did not notice any back pain. I got the back pain first on the very first night when I returned to work three months after the accident.”[33]
[33]CB 213-214
50 On the basis of this history, Mr Brownbill, in his first report, considered that the ongoing back pain was related to a work aggravation affecting pre-existing degenerative changes in the lumbar spine, rather than any injury sustained in the transport accident. However, in his second report, he was provided with further information and his opinion altered somewhat. He said it was more probable there had been some aggravation of the lumbar spine degenerative changes in the transport accident which would have made him more vulnerable to further aggravation after he returned to work. As such, he said the transport accident would be a cause of the plaintiff’s impairment as at 2012. It is not clear from Mr Brownbill’s report as to why he changed his opinion.
51 Dr Thomas, in a report of March 2009, noted that when he returned to work, the plaintiff was working up to sixteen hours per night, including using the mechanical scrubber. He noted that the plain x-rays of May 2005 revealed some pre-existing congenital problems and the CT scan of 24 May 2005 showed some upper lumber degenerative problems without disc prolapse. Dr Thomas considered the plaintiff’s lumbar problems to be multifactorial. He said the plaintiff would appear to have had a pre-existing back problem, in accordance with the plain x-ray of August 1995, and that the pain in his lumbar spine when seen in 2009 was an aggravation of the pre-existing lower back condition caused as a result of working after May 2005. He said:
“As such, it does not appear that the motor vehicle accident aggravated his back to the extent that he is not able to return to what sounds like very physically demanding work.”[34]
[34]CB 243
52 The plaintiff was examined by Mr Carey, orthopaedic surgeon, in October 2008 and August 2012. He obtained a history that the plaintiff was complaining of lower back problems in the Accident and Emergency Department of the Ballarat Hospital. The plaintiff said he had no low back problems until the transport accident. He concluded that the plaintiff’s chronic low-back pain and bilateral leg pain was related to the transport accident. He further said to Mr Carey that he experienced left leg pain following the car accident, and he was unclear as to whether that had been aggravated following his return to work.
53 The plaintiff told Mr Carey that the pain in his lower back and legs was the same when examined in 2012 as it was after the motor accident, and before his return to work on 16 May 2005. On the basis of this history, Mr Carey considered that the motor vehicle accident was the more/most significant cause of his back injury (rather than the return to work). He further considered that the transport accident made the plaintiff more vulnerable and/or susceptible to further injury which occurred in the course of his employment. He said that the development of the plaintiff’s low-back pain and right leg pain developed directly following the transport accident.
54 Clearly, Mr Carey received flawed history. The history that the plaintiff suffered back pain immediately following the transport accident, and referred pain to the right leg, which was as severe as when examined in 2012, stands in direct contrast to the lack of any clinical findings in the hospital and general practitioner’s notes, and to the evidence given by the plaintiff in the proceeding.
55 The plaintiff was examined by Mr Ian Jones, orthopaedic surgeon, in April 2010. He complained of a sore lower back immediately following the transport accident. The plaintiff denied any history of previous low-back problems. Mr Jones said:
“Accepting his history as detailed, he had no or minimal symptoms prior to the motor vehicle accident, but subsequent to that event described deteriorating lumbar back pain symptoms.
There was no history of specific injury during the course of his work subsequent to the motor vehicle accident and on this basis and in spite of the CT scan findings some two months after the accident, I do not believe that his work has been a causal or accelerating factor at this time.
It would appear as though the motor vehicle accident of 16th March 2005 had the capacity to aggravate his pre-existing degenerative lower back condition and cause the lumbosacral disc disruption suggested on CT scan.
I do not believe this man’s employment as a cleaner with Harvent Pty Ltd has been a contributing factor in his lower back complaint.”[35]
[35]CB 306-307
56 Again, I note Mr Jones did not receive an accurate history; in particular, of the lack of complaint of low-back pain after the transport accident, and the onset of low-back symptoms after his return to work.
57 The plaintiff was examined by Mr John O’Brien, orthopaedic surgeon, in July 2006. The plaintiff again complained of low-back and hip pain after the transport accident. He told Mr O’Brien that after one shift, there was increased low-back pain and referred pain into his shoulders and left leg. By May 2006, the back pain was so severe that he was unable to cope with his duties. Mr O’Brien considered that the past history of low-back pain, and the resultant prolonged period of unemployment, was relevant to the present injury. He said:
“With this information it is difficult to define specific lumbar spine injury associated with the described accident. In fact the patient post injury returned to his normal work. It would appear that aggravation of any back pain may well have occurred in the course of employment just prior to the patient ceasing employment. Given this information, one would suggest the current pathology will be an exacerbation of lumbar spondylosis, which pre-dated the motor vehicle accident and now is more likely to be associated with employment.
Therefore I would conclude from the evidence that the motor vehicle accident in March 2005 has not resulted in the current lumbar pathology underlying the patient’s complaint of pain.”[36]
[36]CB 328
58 In the plaintiff’s Transport Accident Commission Claim Form, dated 1 April 2005, he made no reference to any low-back pain.[37] According to a Transport Accident Commission internal memorandum dated 27 September 2005,[38] an officer indicated it was reasonable to accept liability for the lower back claim. However, that decision was on the basis that the general practitioner had reported that the plaintiff had continued to have low-back pain since the transport accident.
[37]CB 339
[38]CB 334
59 In his report of December 2006, Mr Sinha, surgeon, considered that the plaintiff’s complaints of lower back pain were related to recurrence of pre-existing degenerative disease in his lumbar spine without involvement of his employment, nor the transport accident. Mr Sinha is the only practitioner to draw this conclusion, and I reject his opinion.
Conclusions from the Medical Evidence
60 It is difficult to rely upon any of the opinions of the various treating and consultant medical practitioners. In one way or another, they have all received flawed histories, both as to the plaintiff’s lower back problems over the years before 2000, and more particularly, the precise onset of lumbar pain and related leg pain following the transport accident.
61 In my view, and bearing in mind the onus lies with the plaintiff, it is difficult to attribute any lower back injury as a result of the transport accident. I say this for the following reasons:
· There is little, if any, reference to lumbar and leg symptoms in the ambulance report, or the clinical notes of the general practitioner or the hospital following the transport accident.
· The plaintiff himself denied in the course of evidence the onset of any lumbar symptoms until after his return to work.
· After a period of recovery from his leg fracture, the plaintiff returned to work undertaking arduous manual duties as a cleaner in May 2005. It is difficult to understand how his general practitioner could have certified him as able to return to work if he had any significant lumbar back or referred pain.
· Most of the medical practitioners who have given an opinion have received a flawed history; in particular, the lack of complaints of pain following the transport accident, and the increased pain, including into the legs, following his return to work.
62 I accept without reservation that in a transport accident which appeared to involve high impact, there would be the prospect of an injury to the plaintiff’s lumbar spine. I further accept the proposition that such an injury to a lumbar spine could be masked because of the presence of pain from a leg fracture, and further, that the medication prescribed for that pain could have the effect of masking any pain from the lumbar spine.
63 Nonetheless, in my view, if there was an injury suffered to the plaintiff’s lumbar spine in the motor vehicle accident, it was of only modest significance. The real problem with the plaintiff’s lumbar spine commenced after he returned to work as a cleaner in May 2005. The pain increased over the course of his employment with aggravations from time to time. He also first suffered referred pain into the legs after he started back at work.
64 A number of practitioners have referred to the transport accident as making the plaintiff more vulnerable to injury in the course of his employment. Although in his first report, Mr Brownbill considered the plaintiff’s low-back pain was related to the work aggravation, on the basis of a history that the pain started three months after the transport accident. However, as stated, in his second report, he said:
“Aggravation of lower back degenerative changes such as might have occurred in the motor vehicle accident sustained by Mr Scholte may render the degenerative changes more liable to further aggravation than would otherwise have been the case. It is not possible to state with certainty whether such increased vulnerability occurred to Mr Scholte but on the information provided, on balance I consider it is more likely than not in that case the increased vulnerability associated with the motor vehicle accident would be regarded as a cause of his current impairment consequences.”[39]
(emphasis added)
[39]CB 230
65 Mr Carey[40] considered that the transport accident made the plaintiff more vulnerable and/or susceptible to further injury by way of exacerbation (rather than aggravation) during the work period after 16 May 2005.
[40]CB 278
66 I further note that the general practitioner, Dr Halliburton, in the course of evidence in the WorkCover proceeding, considered the plaintiff’s lower spine was rendered more susceptible to subsequent injury.
67 However, there is no detail in those reports to which I have referred, or the evidence of the general practitioner, as to precisely how the plaintiff’s lumbar spine was rendered more susceptible to subsequent injury as a result of the transport accident. As stated, I have concluded that if there was injury in the transport accident, it was indeed minor and productive of little, if any, in the way of symptoms or restriction. It is difficult in those circumstances to understand how the plaintiff’s lower spine was rendered more vulnerable. It may be said that the plaintiff’s spine was vulnerable because of the pre-existing degenerative disease evidenced by the radiology in 1995 and 1996, and the considerable period of pain and incapacity suffered over the years until 1999. In my view, those pre-existing problems were far more significant in rendering the plaintiff vulnerable to further injury than the transport accident. That was clearly the opinion of Mr Kierce, in 1997.
Credibility of the Plaintiff
68 As stated, I found the plaintiff an unreliable witness. He has given varying descriptions of his past back problems prior to the transport accident to the various practitioners, and in his affidavits in support of this application. He gave no accurate history to any practitioner of the back problems over the years from 1994 to 1999.
69 I did not conclude that the plaintiff was attempting to mislead the Court, nor exaggerating his injuries. Rather, he is an unreliable historian. Much of the information provided to the various practitioners is incorrect and flawed. As a consequence, I have reservations about accepting many of his complaints and, wherever possible, seek objective evidence; in particular, in relation to the onset of symptoms after the transport accident.
The Authorities
70 Mr Jewell relied upon a number of authorities in support of the proposition that the transport accident made the plaintiff more susceptible or vulnerable to the subsequent aggravation which occurred in the course of his employment. He said that that susceptibility or vulnerability was, of itself, a consequence sufficient to reach the “very considerable” level as required by the authorities.
71 In R J Gilbertsons Pty Ltd v George Skorsis,[41] the Court of Appeal was concerned with two injuries: a fall from a ladder in 1991 where the respondent landed on his right shoulder. He was retrenched later that year. He reported pain in his right shoulder and his general practitioner diagnosed tendonitis. In November 1993, he was employed by the appellant and was engaged in heavy and strenuous lifting. In 1994, he complained again to his general practitioner of pain in his right shoulder. Radiological investigation revealed osteoarthritis. He ceased work in 1995. The respondent brought proceedings seeking an order that the employment between 1993 and 1995 gave rise to an injury which was a ‘serious injury’, and compensation for that injury, alleging the appellant was negligent. The trial judge found the injury serious, and awarded damages. The issues before the Court of Appeal were whether the work performed between 1993 and 1995 constituted a “serious injury” and, secondly, whether the trial judge was required to and failed to consider the potential effect of the 1991 injury in assessing the amount of damages to be awarded to the respondent. The Court emphasised the importance of comparing the plaintiff’s condition before the relevant injury, and then afterwards in accordance with the principles established by Petkovski v Galletti.[42] There was evidence that, as a result of the 1991 injury, it was likely at some stage during the remainder of the respondent’s working life, he would become incapacitated through normal wear and tear. Buchanan JA said:
“The medical evidence, however, clearly established that, despite the lack of immediate symptoms, the 1991 injury entailed major, long-term incapacity unless the respondent abstained from heavy labour or indeed any physical activity that required him to lift his arms to more than a minor extent.”[43]
[41][2000] VSCA 51
[42][1994] 1 VR 436 at 443
[43]at paragraph 21
72 That evidence included that the 1991 incident removed support from the respondent’s shoulder which inevitably resulted in the development of arthritis, or aggravation of existing arthritis in the acromio-clavicular joint, even although the respondent felt only modest effects from the 1991 incident. Buchanan JA considered the 1991 injury as serious, as without it, the subsequent injury would not have caused the impairment of the body function.[44] That occurred as a result of aggravation of arthritis in the right shoulder in 1991.
[44]at paragraphs 27 and 29
73 Further, in Altona Bus Lines & Anor v Lococo,[45] the Court was concerned with an injury suffered by the respondent in 1995 when he slipped on his back steps. He was absent from work for three weeks and returned on light duties. He remained on light duties for seven months and then commenced full-time work as a bus driver. He experienced pain.
[45][2002] VSCA 159
74 In 1998, he arose from the seat of his bus without disengaging his seatbelt and felt severe pain in his lower back which gradually worsened. Radiological investigation showed a disc bulge at L4-5, affecting the right L5 nerve root. The respondent returned to work on light duties but did not resume bus driving. The trial judge concluded that the results of the 1998 accident were substantially more severe because the respondent’s back had been reduced to a weakened state by the 1995 accident. As such, he determined the 1995 accident constituted a serious injury. Buchanan JA referred to Lu v Mediterranean Shoes Pty Ltd,[46] where the Court said:
“But if it can be demonstrated that a subsequent injury would not have occurred but for an earlier injury, or that the effects of the subsequent injury were more severe because of the earlier injury, then the subsequent injury, or the additional effects thereof (as the case may be) are consequences of the original injury and may be taken into account in considering whether the original injury produced a severe long-term impairment of the body function.”
[46](2000) 1 VR 511
75 Buchanan JA went on to say:
“At the conclusion of his reasons the trial judge said that the first of the two ways of demonstrating serious injury which he had earlier referred to, namely, that the subsequent injury would not have occurred but for the first injury, was speculative in this case. When he then went on to say that the 1995 injury made a ‘sufficient contribution’ to enable that contribution to be regarded as serious, I consider that his Honour was stating that the second way of showing the first injury was serious which he had identified earlier in his reasons had in fact been established. In other words, ‘the additional effects [those which became manifest in 1998] are consequences of the original injury’ and were taken into account by him in isolation from the 1998 injury to determine that the 1995 injury produced a ‘severe long-term impairment of a body function’. It was not contended that the evidence was incapable of leading to that result. The question in this appeal was whether the trial judge separately considered the effects of each of the injuries to reach it. In the end I have concluded that he did.”
76 The principles established by Petkovski v Galletti[47] have been the subject of consideration in two cases:
[47]supra
77 In De Agostino v Leatch,[48] the applicant had been involved in four separate transport accidents in 1988, 1992, 1993 and 2003. The 2003 transport accident was the subject of application for leave to bring common law proceedings on the grounds that the injury sustained was a serious injury. The Court undertook an analysis of the condition of the appellant both before and after the 2003 transport accident.
[48][2011] VSCA 249
78 In AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz,[49] the Court of Appeal was concerned with two workplace incidents, each giving rise to injury. The Court set forth a number of propositions in determining whether one or other of the injuries was serious. Those propositions are:
[49][2012] VSCA 60
· First, the injuries sustained must be identified.
· Secondly, the impairment consequences of each injury must be delineated.
· Thirdly, a subsequent aggravating injury must be assessed and determined as to whether it is “serious”.
· Fourthly, a comparison should be made between the worker’s condition before and after the subject injury.
· Fifthly, the consequences arising from the two injuries could not be accumulated.
79 I conclude from these authorities that the proper approach, as outlined in Filipowicz, is to identify the subject injury and then, more importantly, identify the consequences arising from that injury. That requires an assessment of the plaintiff’s pain, limitation, work capacity and restriction, both before and after the subject injury.
80 I accept the principles established by Lococo and Skorsis that an injury may have serious consequences notwithstanding the immediate effect upon a person in terms of pain, restriction and effect upon work capacity is modest, providing there is clear and cogent medical evidence that the subject injury rendered a person more vulnerable or susceptible to subsequent injury. That vulnerability or susceptibility can be a serious consequence in itself.
Conclusions
81 The starting point, in my view, is to undertake an assessment of the plaintiff’s physical condition prior to the transport accident.
82 While he had significant lower back difficulties, including pain and restriction over the years from 1993 to 1999, he appeared to make a reasonable recovery. In the ten years prior to the transport accident, he only had modest employment, but, in my view, that was more to do with the fact that it was difficult for him to find employment, rather than he had a reduced capacity for employment.
83 Eventually, in January or February 2005, he obtained employment as a cleaner. Even although he was employed only for several months, the duties were arduous and demanding; in particular, the use of the floor scrubber which required considerable force and effort to control. There were no complaints to his general practitioner of pain from 2000 through until 2005, in particular after he started work in early 2005.
84 From the report of Mr Kierce, it is clear the plaintiff had an underlying degenerative condition which rendered him at risk of aggravation and deterioration, particularly with heavy lifting and manual labour. However, as Mr Kierce said, the course of a lumbar back condition can be unpredictable. In any event, I am satisfied that, at the time of the transport accident, the plaintiff was in reasonable health; in particular, in relation to his lumbar spine, and was capable of performing demanding manual work as a cleaner.
85 The next issue is the nature and extent of the injury suffered in the transport accident, and the consequences which flow from that injury. It is clear the plaintiff suffered a fracture to his leg which required a period of rehabilitation. He suffered various other lacerations. However, there was very little if any objective evidence that the plaintiff suffered any injury to or exacerbation of the underlying condition in his lumbar spine. As stated, there were no complaints of lumbar injury to the ambulance officers, in the hospital, or to his general practitioner until he resumed his cleaning duties on 16 May 2005. Although the general practitioner, in his reports, said the plaintiff had suffered a lumbar injury, that is not supported by his clinical notes. Further, as stated, it is difficult to understand how he would have certified the plaintiff as able to return to heavy manual work if the plaintiff had suffered a lumbar injury and was restricted by pain. Accepting the general practitioner’s opinion at its highest, there was some aggravation of the underlying degenerative process in the lumbar spine in the transport accident, but it was only modest and, in accordance with his opinion, accounts for approximately twenty-five per cent of the proportion of his lower back condition at the present time.
86 The real issue is whether, if he did suffer some injury, it rendered the plaintiff more vulnerable or susceptible to the further aggravation which undoubtedly took place in the course of his employment duties from May 2005 until May 2006. The answer to that question lies upon a careful examination of the opinions of the various medical practitioners.
87 In his first report, Mr Brownbill, neurosurgeon, said that, given the history that the plaintiff had suffered no pain in his lower spine until after he returned to work, that pain was related to the work aggravation rather than the motor vehicle accident. In his subsequent report, he admitted that, because of the nature of the transport accident, that may have aggravated degenerative changes in the lumbar spine and “may render” those degenerative changes more liable to further aggravation. He said that, on balance, there was an increased vulnerability associated with the motor vehicle accident and that would be regarded as a cause of his current impairment. However, Mr Brownbill’s opinion is concerned with uncertainties and possibilities. There is no aspect of his report which says how and in what circumstances the aggravation in the transport accident occurred, or how that aggravation increased the plaintiff’s vulnerability to the workplace accident.
88 Mr Carey is clearly of the view the transport accident was responsible for the plaintiff’s current presentation. However, the history he obtained was flawed. The plaintiff told Mr Carey he suffered low-back pain in the Accident and Emergency Department and that while he suffered an exacerbation of pain during the course of his employment from May 2005 to May 2006, that exacerbation resolved and the level of pain was reduced to the same level as after the transport accident. He is the only doctor to receive such a history.
89 Mr Jones also received a history that the onset of the plaintiff’s symptoms occurred as a result of the transport accident. He did not think the work was a causative or accelerating factor. He said that the transport accident had the capacity to aggravate the pre-existing degenerative change. He appears to put significant weight on the circumstances and severity of the transport accident as giving rise to back problems. However, again that history is inconsistent with the objective findings to which I have referred.
90 I prefer the opinions of Mr O’Brien and Dr Thomas, both of whom place little, if any, weight upon the transport accident as causing or aggravating a lumbar spinal problem.
91 Undoubtedly the transport accident had the capacity to cause a significant lower back injury. The forces at work were substantial. The plaintiff was an unprotected pedestrian struck by a car. However, that, of itself, is not enough. Given the unreliability of the plaintiff’s evidence, it is important to have regard to the objective findings to which I have referred. There is little, if any, evidence that the plaintiff sustained any injury to, or aggravation of, his lower back in the transport accident. In my view, that came on in the course of his arduous duties as a cleaner after May 2005.
92 In order for a court to be satisfied that the transport accident made the plaintiff more susceptible or vulnerable to injury subsequently in the course of his employment, in my view, and given the onus rests with the plaintiff, that matter should be proved by clear and cogent medical evidence. There needs to be an assessment undertaken of the nature of the injury sustained and precisely how the structures of the plaintiff’s lower spine were rendered more susceptible by the transport accident. A bland statement to that effect is not sufficient.
93 I all the circumstances, I am not satisfied the plaintiff suffered consequences from the transport accident such as to meet the relevant test. I am not satisfied the consequences to the plaintiff as a result of any lumbar spine injury were ‘very considerable’.
94 The plaintiff’s application fails.
95 I shall make consequent orders.
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