Schonfelder v Transport Accident Commission
[2017] VCC 412
•12 April 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-03305
| ADRIAN SCHONFELDER | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28, 29 & 30 March 2017 | |
DATE OF JUDGMENT: | 12 April 2017 | |
CASE MAY BE CITED AS: | Schonfelder v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 412 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious Injury Application – injury to the spine – psychiatric condition - credit – Facebook - whether consequences “very considerable”
Legislation Cited: Transport Accident Act 1986
Cases Cited:Philippiadis v Transport Accident Commission [2016] VSCA 1; Ifka v Shahin Enterprises [2014] VSCA 8; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA; ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31; Humphries v Poljak [1992] 2 VR 129 at [140]; Hunter v TAC & Avalanche [2005] VSCA 1
Judgment: Leave granted in respect of injury to the spine
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APPEARANCES: | Counsel | Solicitors |
| For Mr Schonfelder | Mr A Ingram Ms M Tait | Arnold Thomas and Becker Lawyers |
| For the Defendant | Ms R Annesley QC Ms B Myers | Solicitor to the Transport Accident Commission |
HER HONOUR:
Introduction
1 In July 2010, Mr Schonfelder was the Australian Labor Party’s candidate in the federal election for the seat of Flinders. In the first week of the election campaign, Mr Schonfelder was involved in a transport accident. He claims this accident caused him to withdraw his candidacy from the election, and that thereafter, he suffered psychical and psychiatric injuries, resulting in a multitude of serious consequences which have pervaded all aspects of his life. The TAC alleges Mr Schonfelder is an unreliable witness who has exaggerated these consequences, and it denies that his injuries are serious.
2 Mr Schonfelder claims that as a consequence of this accident, the functioning of his spine has been impaired, and that he has also developed depression, anxiety and post-traumatic stress disorder. In order for Mr Schonfelder to be entitled to claim common law damages for his injuries, the impairment of his spine must satisfy paragraph (a) of the definition of “serious injury” contained in s.93(17) of the Transport Accident Act, or alternatively, his psychiatric condition must satisfy paragraph (c) of that same sub-section.
3 Only Mr Schonfelder was called to give evidence and he was cross-examined. Also in evidence were medical reports and other material. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my judgment.
Mr Schonfelder’s life before the transport accident
4 To assess the impact of the transport accident related injuries upon Mr Schonfelder, it is important to understand what his life was like prior to the accident.
5 Mr Schonfelder is 42 years of age. He grew up on a farm outside of Geelong with his family. He completed Year 12 and said he then obtained a Bachelor of Arts degree, and also studied Economics at a postgraduate level. In 1993/1994, whilst at university, Mr Schonfelder was a councillor at the Shire of Barrabool. Throughout his university years, Mr Schonfelder also worked on his parents’ farm and cared for his elderly grandmother.
6 In July 2004, Mr Schonfelder was involved in a transport accident in which he suffered an injury to his neck. At the time, he saw his general practitioner at the St Kilda Road Medical Centre. An x-ray was taken of his cervical spine and no abnormality was noted. Mr Schonfelder saw his general practitioner on two occasions, but beyond that, no further medical treatment was required.
7 From approximately 2006, Mr Schonfelder undertook some short-term positions of employment, including as a data adjudicator and supervisor at the Australian Bureau of Statistics, as a prison guard at Barwon prison, and later as a policy analyst with the Victorian Farmers Federation.
8 In 2008, Mr Schonfelder commenced work as an electorate officer for the Honourable Mr Michael Danby, MHR. He said that whilst part of this work was done on a voluntary basis, he was also paid for approximately eight hours per week. His taxation records indicated that in the three financial years prior to his transport accident, Mr Schonfelder earned the following amounts:
2008 $12,643
2009 $3,459
2010 $624
9 In 2010, Mr Schonfelder was endorsed as the ALP candidate for the Federal seat of Flinders. Mr Schonfelder acknowledged the seat of Flinders had been held by the Liberal Party for many years. Although he accepted he was unlikely to win the election, Mr Schonfelder did not concede that it was an impossibility, on the basis he had received a positive response from constituents in the early part of the election campaign. Mr Schonfelder said he had agreed to stand in this difficult seat so as to gain experience, whilst also helping the ALP.
10 The 2010 federal election campaign formally commenced on 17 July 2010, with an election date scheduled for 21 August 2010. In the first week of the campaign, a few days prior to the transport accident, Mr Schonfelder was quoted in a local newspaper as stating that, in his opinion, the views of the then Opposition Leader, the Honourable Mr Tony Abbott MHR, on religious issues such as abortion, was “influencing people to take their lives”. Mr Schonfelder’s comments subsequently attracted local and national media attention.
11 The day prior to the transport accident, Mr Schonfelder retracted these comments and issued an apology. On that same day, it was suggested that the then Prime Minister, the Honourable Ms Julia Gillard, MHR, should disendorse Mr Schonfelder as an ALP candidate. Instead of disendorsing him, Ms Gillard simply stated that Mr Schonfelder’s comments were wrong.
12 Mr Schonfelder said that at the time the transport accident occurred, he was on his way to a pre-arranged meeting with the State Secretary of the ALP, Mr Nick Reece, at the ALP’s headquarters in West Melbourne. Mr Schonfelder said the purpose of the meeting was to seek additional funding for his campaign.
13 Away from his life in politics, Mr Schonfelder said he enjoyed playing tennis on his parents’ farm, sailing his boat, as well as swimming, gardening, cycling and snow skiing.
14 Mr Schonfelder said he was healthy and well, both physically and mentally.
What Mr Schonfelder says about the accident, his injuries and the consequences
15 On 22 July 2010, Mr Schonfelder was driving along the Monash Freeway, heading to his meeting with Mr Reece. Mr Schonfelder said the traffic became clogged near the Toorak Road exit, and that he slowed down and stopped in a line of traffic. Mr Schonfelder said he was then struck forcefully from behind by a 4-wheel drive. Mr Schonfelder was able to get out of his car through the driver’s door. He said that neither the police nor an ambulance attended. Instead, Mr Schonfelder got back in his car and drove to his meeting.
16 Mr Schonfelder said he had pain in his head, neck and lower back immediately following the accident, and that he “may have had some bleeding” from his mouth. Mr Schonfelder believed he momentarily blacked out after the accident.
17 Mr Schonfelder said he could “barely” drive after this accident and that he was “traumatised” by what had occurred. He then proceeded to his meeting with Mr Reece, where, instead of asking for more campaign funds, he dictated a letter of resignation to Mr Reece, formally withdrawing his candidacy for the ALP seat of Flinders. In this letter, Mr Schonfelder stated that “I was involved in a car accident earlier today and this has left me seriously incapacitated”.
18 After this meeting, Mr Schonfelder said he drove to his sister’s house in Albert Park, before then catching a taxi to the Alfred Hospital to seek treatment for his injuries. After waiting at the Hospital for several hours, however, Mr Schonfelder returned to his sister’s home without receiving any medical treatment.
19 Mr Schonfelder said he slept at his sister’s house for most of the next day. He then drove to Rye where he was staying at the time. Mr Schonfelder said he was feeling dazed and traumatised at this time.
20 On 24 July 2010, Mr Schonfelder presented at the Rosebud Hospital with neck pain and stiffness, and a mild headache. The medical records indicated that Mr Schonfelder had initially experienced tingling to his fingers. He was discharged with analgesia.
21 On 10 August 2010, Mr Schonfelder saw general practitioner, Dr Waechter, at the Wyndham Healthcare Centre. Dr Waechter's clinical records stated that Mr Schonfelder had been involved in a rear-end collision and that he had suffered neck and lower back pain, as well as dizziness. At the time of the attendance, it was noted Mr Schonfelder still suffered a sore neck and interscapular pain, as well as some pins and needles in his hands, but that his lower back pain had reduced. Mr Schonfelder was prescribed Panadeine Forte tablets.
22 On 25 August 2010, Mr Schonfelder again saw Dr Waechter, who noted neck and lower back pain and provided a further script for Panadeine Forte.
23 Mr Schonfelder then transferred his care to Kardinia Health, where he has now seen a number of doctors, predominantly Dr Wan-Ern Chang and, more recently, Dr Bettine Wrobel. At his first attendance on 31 August 2010, Dr Chang noted Mr Schonfelder complained of pain and stiffness in his neck, radiating down his lower back, as well as numbness in his right hand and right thigh. Dr Chang prescribed Panadeine Forte and referred Mr Schonfelder for physiotherapy.
24 On 31 August 2010, Mr Schonfelder commenced physiotherapy treatment with Ms Rita Kinsella-Andrews. She noted Mr Schonfelder was still experiencing symptoms including pain in his neck, shoulders, arms and legs, together with dizziness and a light-headed feeling. Mr Schonfelder accepted he had obtained some improvement from this physiotherapy treatment.
25 On 3 September 2010, an MRI scan was taken of Mr Schonfelder’s cervical spine. It demonstrated minor disc bulging at C3/4 which flattened the faecal sac contour, but there was no foraminal or central canal compromise.
26 At about that time, Mr Schonfelder moved home to live in a house on his parents’ farm.
27 On 8 October 2010, Mr Schonfelder was involved in a further transport accident, from which he claimed not to have suffered any significant change in symptoms.
28 In January 2011, Dr Chang referred Mr Schonfelder to orthopaedic surgeon, Mr Justin Hunt. Mr Hunt first examined Mr Schonfelder on 27 January 2011, at which time he noted Mr Schonfelder had ongoing trouble with axial neck and lower back pain.
29 On 15 February 2011, at the request of Mr Hunt, an MRI scan was taken of Mr Schonfelder’s lumbar spine. It demonstrated early disc desiccation and degenerative changes, with a posterior right lateral disc protrusion at L5/S1 touching the theca, without causing neurological compromise.
30 As a consequence of the MRI scan results, together with his own assessment, Mr Hunt recommended that Mr Schonfelder undergo a CT-guided epidural injection to assist him in his pain. He also recommended that Mr Schonfelder continue with physiotherapy treatment.
31 On 17 March 2011, Mr Schonfelder underwent a CT-guided epidural injection. Mr Hunt noted the injection helped Mr Schonfelder’s leg symptoms but that his lower back pain persisted.
32 On 31 May 2011, Mr Schonfelder was referred to Barwon Health’s rehabilitation centre in Belmont. He was assessed by the multi-disciplinary team and received occupational therapy, physiotherapy, rehabilitation, nursing assistance, hydrotherapy and clinical psychology. As part of the six-month program, Mr Schonfelder made improvements in independently undertaking some activities of daily living.
33 In June 2011, Dr Chang referred Mr Schonfelder to psychologist, Ms Teresa Mayo. In her report dated 30 September 2011, Ms Mayo noted that Mr Schonfelder was anxious about his pain levels, and that he felt depressed and disappointed at still having problems with pain 10 months after the accident. Ms Mayo noted Mr Schonfelder was pre-occupied with intrusive images of the accident, which would occur on a daily basis at about the same time as the accident occurred. He also reported having nightmares and stated that, when thinking about such nightmares, he feels he would have been “better off dead”. Ms Mayo said she understood Mr Schonfelder experienced a recurring dream which caused him to become anxious about not being able to escape a catastrophe.
34 Ms Mayo ultimately considered Mr Schonfelder had suffered a marked psychological reaction following the transport accident, to which she attributed his symptoms of anxiety. Ms Mayo felt Mr Schonfelder had achieved some improvement over the course of the psychological sessions and that he was “having more pain-free movements, an improvement in his mood and improvement in self-esteem and self-confidence.”
35 On 29 June 2011, Mr Schonfelder was referred to neurologist, Dr Peter Batchelor, with persisting headaches and facial sensory disturbance. At this time, Mr Schonfelder described discomfort throughout his neck, extending into the occipital region, and said that he suffered headaches almost all of the time and generally woke with pain. It was noted the pain would ease with rest, relaxation and simple analgesia. On examination, Dr Batchelor noted Mr Schonfelder had decreased pinprick sensation over both his cheeks and his nose.
36 Dr Batchelor arranged for an MRI scan to be taken of Mr Schonfelder’s brain, which was unremarkable. Dr Batchelor concluded that Mr Schonfelder’s headaches were likely to be post-concussion headaches. He said that such headaches tend to improve slowly with time and he recommended the plaintiff take Amitriptyline medication by way of treatment.
37 On 7 April 2012, Mr Schonfelder was admitted to the Emergency Department at the Geelong Hospital, after having been assaulted by his brother with a wooden fence picket. Mr Schonfelder said the fight broke out after his brother had called him a “cripple”. The hospital records indicated that Mr Schonfelder was struck on the back of his head and his right flank, after which he fell to the ground, with a short episode of loss of consciousness. It was noted Mr Schonfelder complained of a low-grade frontal headache similar to his post-concussive headaches, but with a greater intensity and a rating of seven out of ten.
38 On 19 April 2012, Mr Schonfelder was reviewed by Mr Hunt, who noted ongoing lower back and leg pain, mostly on the right side, as well as axial neck pain symptoms. As Mr Hunt made no reference to the assault committed against Mr Schonfelder on 7 April 2012, I infer that Mr Schonfelder suffered no ongoing problems as a result.
39 At that time, Mr Hunt diagnosed Mr Schonfelder as suffering symptomatic cervical spondylosis with facet joint degenerative change and degenerative disc disease with cervical neck pain. Mr Hunt considered Mr Schonfelder’s clinical presentation matched the medical image findings.
40 Mr Hunt also diagnosed Mr Schonfelder as suffering symptomatic lumbar spondylosis with associated leg pain symptoms due to disc degeneration and prolapse and facet joint osteoarthritis. Mr Hunt also considered Mr Schonfelder’s clinical presentation matched the medical image findings.
41 As at April 2012, Mr Hunt noted Mr Schonfelder had difficulty with most activities involving bending, twisting and heavy lifting, thereby restricting his ability to perform most household duties including sweeping, vacuuming, lifting heavy objects, mowing lawns and gardening. Mr Hunt also considered that Mr Schonfelder’s lower back pain and ongoing right leg symptoms prevented him from participating in most sporting activities as well as reducing his capacity to work.
42 On 6 November 2012, Mr Schonfelder was pulled over by the police, who noticed excessive smoke coming from his car. Prior to issuing a penalty notice in relation to his car, Mr Schonfelder told the police that he intended to “go home and gas himself via carbon monoxide poisoning”. In response, the police then took Mr Schonfelder to the Geelong Hospital, where he was assessed by the mental health triage clinician.
43 The records stated that Mr Schonfelder told the police he had suffered from “slow speech since surgery to correct a cleft palate as a child and had been bullied about this throughout school. He attended a 20 year old school reunion recently, where his ex-schoolmates were again cruel to him”. In cross-examination, Mr Schonfelder accepted the accuracy of that history, but said that he also told the police he suffered post-traumatic stress disorder following the transport accident.
44 Mr Schonfelder denied that he intended to kill himself at this time and stated that it was simply an impulsive reaction when confronted by the police. He said his actual intention at the time was to meet up with a friend and watch the Melbourne Cup.
45 The hospital records indicated that at that time, Mr Schonfelder reported “no current or recurrent problems with his mood, sleep, appetite or concentration though he admits to using diazepam to help sleep since his accident”. Mr Schonfelder said he did not recall having told the medical staff that he had no current or recent problems with such matters.
46 In December 2012, Mr Schonfelder was referred to psychologist, Mr Glenn Little, for psychological counselling. Mr Little obtained a history from Mr Schonfelder that he continued to struggle with recurrent nightmares, flashbacks and intrusive thoughts associated with the transport accident. Mr Little considered Mr Schonfelder suffered symptoms consistent with post-traumatic stress disorder. He also noted that Mr Schonfelder reported feelings of hopelessness and worthlessness, and that he had low self-esteem, poor concentration, fatigue, suicidal ideation and disturbed sleep. Mr Little considered Mr Schonfelder would benefit from psychological treatment, which he then commenced to provide on a monthly basis.
47 In April 2013, Dr Wrobel provided a medical report to Mr Schonfelder’s solicitors regarding her ongoing treatment of Mr Schonfelder. At that time, Dr Wrobel noted Mr Schonfelder had experienced “good improvement of his headaches with only occasional bad days”. He recorded an improvement in Mr Schonfelder’s pain symptoms following the epidural injection, and said that it had helped with his leg pain. As a consequence, Mr Schonfelder was able to sit for prolonged periods of 30 to 40 minutes. Dr Wrobel considered Mr Schonfelder’s physical symptoms enabled him to undertake light part-time work. Notwithstanding the improvements noted at that time, Dr Wrobel still considered Mr Schonfelder would benefit from being assessed at a pain clinic.
48 On 14 October 2013, Mr Schonfelder was reviewed by Mr Hunt. At that time, Mr Schonfelder complained of ongoing chronic pain symptoms involving severe headaches as well as neck pain and stiffness, and lower back and leg pain. Mr Hunt noted Mr Schonfelder had been “working tirelessly with hydrotherapy” and that he made an effort to avoid activities which aggravated his symptoms.
49 On 4 December 2013, Mr Schonfelder had a further CT-guided epidural injection into his lower back. The injection assisted Mr Schonfelder in relation to his right leg radicular pain, but did not improve his lower back pain.
50 On 13 March 2014, Mr Schonfelder was again reviewed by Mr Hunt, who at that time, considered Mr Schonfelder’s work capacity had been significantly reduced. He was of the opinion Mr Schonfelder was unfit for unlimited physical work, or even light physical work, but that he would be capable of performing sedentary work on a part-time basis.
51 In 2015, Mr Schonfelder began attending a pain clinic in Oakleigh, where he received laser therapy.
52 In September 2015, Mr Schonfelder nominated as a candidate in the ward of Kildare in the City of Greater Geelong Council elections. Immediately prior to nominating, Mr Schonfelder resigned his ALP membership and stood in this election as an independent candidate.
53 Mr Schonfelder said Mr Little encouraged him to stand in this election, in the hope it would improve his psychological state.
54 As part of the election, Mr Schonfelder was interviewed by a local radio presenter. He spoke about what he wanted to achieve if elected as a councillor, and said that as part of his campaign, he had attended forums and spoken to people at shopping centres, whom he said, were happy to meet with him.
55 Throughout the election campaign, Mr Schonfelder said he attended forums and meetings, and did leaflet dropping and door knocking when he felt able.
56 Mr Schonfelder was ultimately unsuccessful in his 2015 council election campaign, but said that he “felt proud that I was able to re-engage with my passion and engage with members of my local community”. Had he been elected, Mr Schonfelder was concerned that his physical and psychological conditions might have affected his ability to adequately fill the role of the job. Had it proved too much, his intention had been to step down.
57 In December 2015, Mr Schonfelder was referred to pain management specialist, Dr Stephen de Graaff at Epworth Rehabilitation. Dr de Graaff obtained a history from Mr Schonfelder that his pain was at its worst around the neck and was associated with headaches. He also noted Mr Schonfelder suffered ongoing lower back pain with radiation into his legs, especially the right leg.
58 On examination, Dr de Graaff noted a significant restriction in the active range of motion in Mr Schonfelder’s cervical spine. He also noted restriction of motion in Mr Schonfelder’s lumbar spine, with general tenderness. In a straight leg raise test, Dr de Graaff noted 50 degrees with a mildly positive sciatic nerve stretch on Mr Schonfelder’s right side, and 70 degrees with a negative sciatic nerve stretch on the left.
59 Dr de Graaff considered Mr Schonfelder was suffering significant neck and back pain, together with headaches, post-concussion syndrome and post-traumatic stress disorder. In such circumstances, Dr de Graaff recommended Mr Schonfelder undergo a pain management program to assist him in coping better with his life on a day-to-day basis.
60 In March 2016, Mr Schonfelder was reviewed by Mr Hunt for the final time. Mr Hunt noted Mr Schonfelder continued to complain of neck and lower back pain and that he was taking Lyrica and Panamax for his symptoms.
61 On examination, Mr Hunt noted a marked restriction in the range of motion in all movements of Mr Schonfelder’s cervical and lumbar spine. It was noted Mr Schonfelder had straight leg raising which was positive for nerve root irritation at 20 degrees on the right side and 60 degrees on the left side. Mr Hunt considered Mr Schonfelder had no work capacity as a consequence of his back and leg pain.
62 In September 2016, Mr Schonfelder again stood as candidate for the ward of Winchelsea in the Surf Coast Council elections. Mr Schonfelder was also unsuccessful in this campaign.
63 At about the same time, Mr Schonfelder underwent a multi-disciplinary assessment at Epworth Rehabilitation. He then subsequently commenced a pain management program in April 2016. By the end of the program, Mr Schonfelder had developed a home exercise and walking program as well as an independent hydrotherapy program. It was noted that Mr Schonfelder still struggled with his day‑to-day personal activities, including domestic tasks, but that he was getting more involved in the community.
64 At the time of his discharge from the program in June 2016, Dr de Graaff considered Mr Schonfelder’s capacity for employment was low due to his ongoing pain, but more significantly due to his decreased attention, concentration and memory, all of which were associated with his pain and post-concussional syndrome.
65 Mr Schonfelder said he has had pain in his neck and lower back since the transport accident. He said the pain from his neck goes into the base of his skull and is made worse with sudden movements of his head. In addition, Mr Schonfelder also suffers pain in his lower back, with symptoms radiating to his legs. He said he cannot sit for too long as it increases his pain and causes him to become very stiff.
66 Mr Schonfelder also complained of near-constant headaches, that vary in both intensity and severity. Mr Schonfelder said he has a cold sensation behind his eyes, which he understands is indicative of post-concussional headaches.
67 Mr Schonfelder currently takes the following medication on a daily basis: Amitriptyline, Lexapro, Sandomigran, Lyrica , Panamax, Pizotifen and Tramadol.
68 Mr Schonfelder subsequently moved in with his mother, as she is now his permanent carer. Mr Schonfelder said he relies upon his mother for all the cooking and cleaning, as he is unable to do it for himself. In addition, he requires assistance from his mother for tasks such as dressing, on those occasions when he is suffering more severe back pain or when he has a bad headache.
69 Mr Schonfelder had a partner and was engaged for a period of time after the accident, but his relationship recently ended and he is currently single.
70 Mr Schonfelder said that his main form of exercise is walking his dog, which he does once or twice a day for a period of 10 to 20 minutes. Mr Schonfelder said that he also spends two to three hours per day looking at Facebook and doing other online activities.
71 Mr Schonfelder has not worked since the transport accident.
72 Mr Schonfelder said he has not been sailing or played tennis since the transport accident. He is able to swim, but does so for exercise and therapy.
73 Mr Schonfelder said that as a consequence of the transport accident, he has experienced psychological symptoms, particularly those associated with post-traumatic stress disorder and depression. Mr Schonfelder said he gets very anxious and has flashbacks and nightmares. On frequent occasions, he also has a sensory perception of burning rubber on tarmac.
74 Mr Schonfelder said that he has become “a bit agoraphobic” and does not like going out much in public. In his affidavit sworn 16 March 2017, Mr Schonfelder said “I’m fearful of being out in public and prefer to be in my home environment”. Mr Schonfelder said that he is nervous when travelling in a car, and that while he does drive, it is usually within a limited radius of 10 to 20 kilometres from his home.
Mr Schonfelder’s credibility and reliability as a witness
75 The TAC ran an effective and sustained attack on Mr Schonfelder’s credibility over a six hour period of cross-examination. The length of cross-examination was due in part to the volume of material to be covered, but was also due in part to the manner in which Mr Schonfelder responded to questions. His answers were at times slow and at other times evasive, such that further questions were often required to obtain to a direct answer.
76 Throughout his evidence, Mr Schonfelder gave a multitude of unconvincing answers on a range of different topics, such that, by the conclusion of his evidence, I had formed the view he was an entirely unreliable witness. Whilst not intending to provide an exhaustive list of every such example, I consider the following to adequately demonstrate his unreliability:
(a)In his affidavit, Mr Schonfelder stated that he had obtained a Bachelor of Arts, and studied Economics at a postgraduate level at Latrobe University. At the commencement of his cross-examination, Mr Schonfelder confirmed that he had obtained a Bachelor of Arts, and said that he subsequently studied some economics subjects, which he said “were considered postgraduate.”
On the second day of the hearing, and at the request of Ms Annesley, Mr Schonfelder brought a copy of his academic transcript from Latrobe University. It demonstrated that he initially commenced a Bachelor of Economics degree in 1993, but that he withdrew in 1994. Mr Schonfelder then undertook a Bachelor of Arts degree from 1994 until 1998. Although it is unclear from his academic transcript as to whether or not Mr Schonfelder achieved 145 credit points or 290 credit points, it is clear that he did not obtain the requisite 350 credit points to obtain a Bachelor of Arts degree.
In 1999, Mr Schonfelder transferred to a combined Bachelor of Arts/Bachelor of Economics degree, however, he only completed an additional two subjects in this course. The academic transcript also demonstrated that Mr Schonfelder has not completed enough credits to graduate from this double degree..
Mr Schonfelder sought to explain his earlier evidence on the basis that he had a previous conversation with a course co-ordinator at the University, who advised him that he had enough credit points for one degree. He later sought to explain this evidence on the basis his memory had been exhausted in relation to the details of his university studies. I note, however, that Mr Schonfelder’s university studies were the first topic upon which he was cross-examined, and am therefore entirely unconvinced that his memory would be exhausted at such an early stage in the proceedings.
Further, the academic transcript clearly demonstrates that Mr Schonfelder has not completed an Arts degree. I do not consider this to be a matter about which a person can be genuinely confused. I also note that Mr Schonfelder did not seek to correct his earlier evidence when he produced his academic transcript on the second day of the hearing. Mr Schonfelder maintained that it was his understanding he had sufficient credit points to qualify for a degree, notwithstanding the presence of the academic transcript which clearly demonstrated the contrary. Having considered all the evidence on this matter, I am satisfied that Mr Schonfelder intentionally overstated his level of education.
(b)In his first affidavit, Mr Schonfelder stated that as a consequence of the transport accident, he withdrew his candidacy. In cross-examination, he agreed it was “entirely” due to the accident.
Until it was directly raised in cross-examination, Mr Schonfelder did not volunteer the problems that had earlier arisen in relation to his comments about Mr Abbott to the Court.
Further, Mr Schonfelder initially gave evidence that after the transport accident, he drove to his sister’s house in Albert Park, before subsequently taking a taxi to the Alfred Hospital. It was only when directly put to him, that Mr Schonfelder admitted attending the ALP state office in West Melbourne to resign his candidacy prior to driving to Albert Park. The evidence was as follows:
Q: “I said, ‘After the accident you drove yourself to the Alfred Hospital’, and you say, ‘I actually got a taxi from my sister's house in Albert Park.’ You drove in any event from Monash near the intersection of Toorak Road to Albert Park? Yes?
A: Yes, I did.
Q: You went via West Melbourne, didn’t you?
A: Yes.
Q: Why didn’t you say that to Her Honour before?
A: You asked me if I drove myself to the hospital, so I answered your question. I said that I got a taxi to the hospital.
Q: And then you said you drove along the Monash Freeway to Albert Park?
A: I did, yes.
Q: But you didn’t, did you, because what you did was you got off the Monash Freeway and you went to West Melbourne and then you went to Albert Park?
A: Yes. I never said I didn't.”
I consider Mr Schonfelder’s failure to volunteer this important information to demonstrate the evasive and disingenuous manner in which he gave evidence in this case.
Given the political uproar in relation to his comments about Mr Abbott, and the national media attention it attracted in the days prior to his meeting with Mr Reece, I consider it is most unlikely the meeting was arranged solely to discuss Mr Schonfelder’s campaign funds.
Mr Schonfelder denied that he resigned to save himself and the ALP from political embarrassment. I consider this answer was disingenuous. When considering the resignation was tendered prior to Mr Schonfelder seeking any medical treatment, I consider the transport accident was simply a convenient excuse for Mr Schonfelder to offer the ALP damage control from the embarrassment he had caused to its federal election campaign.
(c)In the month prior to the 2014 state election, Mr Schonfelder said that he helped with pre-polling on a couple of occasions, but that he otherwise did not assist the ALP with its campaign. However, there are several photographs on his Facebook page, of Mr Schonfelder attending campaign events, as well as at pre-polling stations. Mr Schonfelder sought to explain such photos on the basis that, if he went to his local shops, he would assist the pre-poll workers by giving them a toilet break.
On election day, there are posts from Mr Schonfelder at three different polling booths. Like most people handing out how to vote cards for the ALP, Mr Schonfelder was wearing a red ALP t-shirt. However, Mr Schonfelder said that he assisted by handing out coffees and claimed to have simply been given this t-shirt, as he was friendly with the people and a supporter of the ALP.
In addition, there is a Facebook post in which Mr Schonfelder stated that he was on “my break – with Rachel Penny and Andy Richards”. It was put to Mr Schonfelder that this post referred to him taking a break from handing out how to vote cards. Mr Schonfelder denied that it was his break and thought the reference to “my break” was possibly a reference to Rachel Penny’s break. He later thought it may refer to him taking a break from his father driving him to visit the different polling booths.
I consider these various possible explanations, offered Mr Schonfelder in relation to “my break” to defy logic. Instead, I consider he was intentionally dishonest in not wanting to admit that he handed out how to vote cards on election day.
(d) Just prior to the commencement of the hearing, Mr Schonfelder had been provided with a voluminous amount of material from the defendant in relation to his level of activity. In response, Mr Schonfelder swore an affidavit on 23 March 2017, in which he detailed, for the first time, his participation in the 2015 council election. However, he failed to refer to his participation in the 2016 council election.
Mr Schonfelder was cross-examined on his failure to refer to the 2016 election, and in my opinion, was unable to provide a satisfactory explanation for such an omission. I consider this a further example of Mr Schonfelder’s attempts to conceal the true extent of his social and political activities from the Court.
(e) In October 2016, Mr Schonfelder pleaded guilty to fraudulently claiming travel expenses from the TAC. Such expenses related to Mr Schonfelder’s travels to Oakleigh for the purpose of pain management treatment. Mr Schonfelder was ordered to repay the travel expenses, together with court costs and a fine, totalling $2,400.
I consider the above examples to demonstrate that Mr Schonfelder was neither a reliable nor a creditworthy witness. In addition, I considered Mr Schonfelder to be an uncooperative witness, as demonstrated by the following example:
Q:“So you were not so incapacitated that you were unable to drive a vehicle for the best part of an hour, or thereabouts, in peak-hour traffic across the city of Melbourne?
A:My answer is that I was barely able to drive. That's my answer.
Q:And you were not so incapacitated that you decided to give up your dream of being the member for Flinders?
A:I refer you to an earlier answer.”
It was further demonstrated by this exchange:
Q:“By its very nature, going to the Melbourne International Flower and Garden Show, which is a renowned Melbourne event which attracts thousands of people every year, when you say "less crowded", it is still going to involve crowds, isn't it?
A:On p.165 the photo of me wearing the sunglasses, how many people do you see behind me?
Q:It is the Exhibition grounds. That could be - - -?
A:You're familiar with that area?
Q:Everyone is familiar with the Royal Exhibition grounds, Mr Schonfelder?
A:I think the question is answered, Your Honour, from the photograph.”
77 In view of the above, I consider his lack of credibility to impinge upon my assessment of the consequences Mr Schonfelder now claims to suffer as a result of the transport accident. In such circumstances, I have only accepted Mr Schonfelder’s evidence where he gave concessions against his interest or where his evidence was corroborated by objective evidence or contemporaneous documents.
How does my credibility finding impact upon Mr Schonfelder’s psychiatric injury claim?
78 Mr Schonfelder claims that as a consequence of the transport accident, he has been anxious and depressed, and has suffered nightmares, flashbacks and intrusive thoughts. He has sought treatment for these symptoms over a prolonged period of time, most recently from psychologist, Mr Little. He also takes anti-depressant medication as prescribed by his general practitioner.
79 It is not apparent from his most recent report as to whether or not Mr Little was aware of Mr Schonfelder's involvement in the 2016 council election. In this report, Mr Little expressed surprise at Mr Schonfelder's activity levels, although he declined to review the voluminous Facebook material forwarded to him by Mr Schonfelder's solicitors. I consider it likely, however, that if Mr Little had reviewed this material, that he would have expressed even greater surprise at Mr Schonfelder’s level of social activity.
80 I consider the photos Mr Schonfelder has chosen to upload to his Facebook page to depict a very active person who has no apparent difficulty in attending and enjoying events at crowded places. He has attended concerts, football games, agricultural shows, restaurants, parties, political events, National Trust meetings, an art gallery and the Myer Christmas windows. I note the level of Mr Schonfelder’s participation in such social events was not disclosed in his earlier affidavits, and that it was only addressed once alerted to by the TAC.
81 When asked in cross-examination about the many social activities he had posted on Facebook, Mr Schonfelder invariably said that he was dropped straight at the front door, and that he stayed for only a “brief” period. I accept that whilst this may be the situation some of the time, it is improbable that such a scenario reflects Mr Schonfelder’s activities to the extent that he claims . For example, when asked about his Facebook photograph with Leo Sayer, Mr Schonfelder said that he left the concert before it was over to avoid the crowds. He then claimed that he ran into Leo Sayer in the foyer whilst everyone was still inside the concert hall. I consider such evidence defies logic, and am of the opinion it was an attempt by Mr Schonfelder to downplay his level of activity at the concert.
82 I appreciate that Facebook is a selective collection of moments in a person’s life and that for reasons of self-preservation and reputation, a person is more likely to post upbeat, happy moments, than moments of boredom or pain whilst at home. However, I consider the extent of his social activities, as evident on his Facebook page, to be inconsistent with Mr Schonfelder’s claim that he is a bit agoraphobic, that he dislikes crowds and that he only drives in his local area.
83 Mr Schonfelder sought to rely upon two medico-legal reports provided by Dr David Weissman. However, given my concerns as to Mr Schonfelder’s credibility, I do not accept the description he provided to Dr Weissman, in relation to his current symptoms and his level of incapacity to be reliable. Further, I consider his failure to inform Dr Weissman of his involvement in the 2015 council election to demonstrate an intentional desire by Mr Schonfelder to downplay his level of social activity, so as to convince Dr Weissman as to the severity of his symptoms. In such circumstances, I place no reliance upon Dr Weissman’s reports.
84 Associate Professor Doherty was of the opinion Mr Schonfelder is not suffering any psychiatric condition directly attributable to the transport accident. Mr Schonfelder criticised Associate Professor Doherty’s report on the basis it contained some errors, including a reference to Mr Schonfelder laughing “raucously” when talking about his symptoms of trauma.
85 Associate Professor Doherty stated that he considered the range of reported symptoms to be out of keeping with the nature of the transport accident. Further, he stated that the persistence of such symptoms, “through a long course of treatment, is out of keeping with the natural history of PTSD.” I accept Mr Ingram’s submission that these are comments, and not an expert opinion. However, my reservations in relation to Associate Professor Doherty’s report do not provide any positive support for Mr Schonfelder’s claim.
86 I accept that as a consequence of the transport accident and the physical injuries he has subsequently suffered, that Mr Schonfelder has been psychologically affected. However, I am not satisfied that it affects him to the extent that he claims. In view of the above, I am not satisfied that Mr Schonfelder’s psychiatric condition can be described as severe.
Objective evidence regarding Mr Schonfelder’s physical injuries
87 In a case such as this, where the plaintiff’s credibility has been adversely compromised, it is necessary to look to the objective evidence to assess the claim.
88 The TAC made reference to a handful of Kardinia Health records, each of which demonstrated that Mr Schonfelder had, at times, reported some improvement in his symptoms. Additional records demonstrated that in March 2011, Mr Schonfelder had a disagreement with his general practitioner, after he declined to refer him to a neurosurgeon. In August 2015, Dr Wrobel expressed reservations in her records as to the extent of Mr Schonfelder’s physical restrictions, and stated that he was “over-exaggerating his symptoms in hopes to get money from Centrelink.”
89 Whilst these selective entries cast some doubt on the degree and permanence of Mr Schonfelder’s symptoms, the Kardinia Health records demonstrate, on balance, a patient who has attended with relatively consistent complaints of pain in his neck and lower back, with radicular pain, as well as frequent headaches. In addition, Mr Schonfelder has been prescribed pain medication on a consistent basis since the time of the accident.
90 Further, despite her reservations in August 2015, I note that Dr Wrobel subsequently provided a report dated 4 February 2017, in which she stated that, notwithstanding some improvements, Mr Schonfelder still suffered ongoing lower back pain, ongoing neck pain and regular headaches. Dr Wrobel was of the opinion Mr Schonfelder is unlikely to be able to return to meaningful work, given his issues with concentration, his frequent headaches and his inability to sit for prolonged periods.
91 I also note that Mr Schonfelder has seen Mr Hunt on numerous occasions over several years. He accepts Mr Schonfelder's complaints, and considers his clinical findings of neck and lower back pain to be consistent with the radiological imaging.
92 I note that Dr de Graaff also accepts Mr Schonfelder has residual problems with persistent neck and back pain, post-concussion syndrome and post-traumatic stress disorder.
93 I consider the acceptance of Mr Schonfelder’s relatively consistent complaints of pain over a six-year period, by his treating practitioners, as persuasive evidence, to which I should give considerable weight in assessing Mr Schonfelder’s claim.
94 I also note the following objective findings:
(a)disc bulge at C3/4, together with degenerative changes;
(b)disc protrusion at L5/S1, together with degenerative changes;
(c)limited range of motion and straight leg raising suggestive of radicular pain, as reported by Mr Hunt, as well as Dr de Graaff, Mr Kierce, and Mr Kossmann. I consider the variations in examination findings to be consistent with a fluctuating condition that has both good and bad days;
(d)reduced pinprick sensation on Mr Schonfelder's face, as reported by Dr Batchelor.
95 It has now been over six years since the transport accident, and, despite his unreliability as a witness, I accept the objective evidence referred to above, supports Mr Schonfelder’s claim that he continues to suffer ongoing impairment in his spine, as a consequence of the transport accident.
What pain and suffering consequences does Mr Schonfelder suffer as a consequence of the accident? Can these be described as, at least, very considerable?
96 To succeed in his case, Mr Schonfelder must satisfy me, on the balance of probabilities, that the impairment he claims to suffer to his spine is serious and long-term and was caused by the transport accident. The test is subjective, in that it is the effect on the individual plaintiff that must be considered. However, that determination must be made by me objectively in considering the seriousness of the impairment.[1] In determining whether or not Mr Schonfelder’s impairment is “serious”, the consequences must, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described as at least “very considerable” and certainly more than “significant” or “marked”.[2]
[1]Philippiadis v TAC [2016] VSCA 1 at [24]
[2]Humphries v Poljak [1992] 2 VR 129 at [140]
97 In assessing this claim, it is necessary for me to look at the impact the spinal impairment has had upon Mr Schonfelder. In doing so, I should consider what Mr Schonfelder says and does about the pain, what the doctors say about the extent and intensity of his pain and what the objective evidence demonstrates about the effect of his pain.
98 Given my significant reservations as to Mr Schonfelder’s credibility and reliability as a witness, I will not, for the reasons above, have any regard to his comments in relation to pain.
99 Instead, I will have regard to what Mr Schonfelder does in relation to such pain. Mr Schonfelder has received several cortisone injections into his lumbar spine. His general practitioners, as well as Mr Hunt, recorded that such injections gave him some temporary relief in respect of his leg pain, but did not ease his lower back pain.
100 Mr Schonfelder recently participated in a pain management program at the Epworth hospital. At the conclusion of the program, it was accepted Mr Schonfelder would continue to suffer some ongoing pain and restriction in the activities he could perform.
101 Over the last six years, Mr Schonfelder has consistently consulted his general practitioner, requiring pain medication such as Lyrica and Amitriptyline.
102 As was recognised by the Court of Appeal in Kelso v Tatiara Meat Co Pty Ltd:
“…the endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.” [3]
[3]Kelso v Tatiara [2007] VSCA 267 at [199]
103 Mr Schonfelder has been assessed by several medico-legal doctors. Whilst some of these doctors, including Mr Kierce and Mr Fogarty, have reservations as to the extent of Mr Schonfelder’s restrictions, both doctors still consider Mr Schonfelder to have a partial incapacity. Mr Kierce stated that Mr Schonfelder could undertake sedentary work and Mr Fogarty stated that he should not be involved in any activity requiring heavy lifting or repeated bending. Mr Fogarty stated Mr Schonfelder should be able to resume at least some of his leisure activities.
104 Mr Kossmann was of the opinion Mr Schonfelder had a work capacity, provided he did not work above shoulder head height, did not carry more than five kilograms of weight and did not walk for long distances, on uneven ground or up and down stairs.
105 Dr Sutcliffe was of the opinion Mr Schonfelder had no work capacity, as he was debilitated by his lower back and leg pain.
106 Mr Schonfelder claimed that his spinal impairment has caused him to suffer pecuniary disadvantage, and he relied upon the opinions of those doctors who stated that he was restricted in the work he could perform. Whilst acknowledging Mr Schonfelder had earned only a very modest income in the three years prior to his accident, Mr Ingram relied upon the Court of Appeal decision in Hunter v TAC & Avalanche,[4] in which it was observed that the size of the plaintiff’s income loss was not as significant as the fact of the loss of earning capacity itself.
[4][2005] VSCA 1
107 Mr Schonfelder has undertaken very little paid employment since leaving high school, and has never completed a degree. In such circumstances, it is very difficult to assess what, if any pecuniary disadvantage Mr Schonfelder has, or will suffer, as a consequence of his spinal impairment. Further, Mr Schonfelder has recently demonstrated a desire to become a local councillor. This is a paid position that Mr Schonfelder could perform, consistent with the restrictions recommended by the medico-legal doctors.
108 I am not satisfied Mr Schonfelder suffers pecuniary loss that can be described as more than marked or significant. However, the work restrictions identified by the doctors are relevant to my assessment of Mr Schonfelder’s pain and suffering consequences. I accept that such physical restrictions affect Mr Schonfelder’s ability to go sailing, play tennis, and do gardening. I also accept these restrictions would impact upon his ability to do some, but not all, heavier household duties and chores. I am at a loss as to why Mr Schonfelder cannot do up the buttons on his shirt.
109 Although I consider Mr Schonfelder is more socially active than he claims to be, I do accept that his neck pain, lower back pain and headaches would regularly interfere with his ability to enjoy such social activities.
110 I accept that Mr Schonfelder loves his dog. I also accept that he walks him daily, and that on occasions, he will hold him for short periods of time, notwithstanding he weighs about 15 kilograms. I consider this action to be a natural sign of affection, akin to a parent lifting up a child. In such circumstances, I make no adverse criticism of Mr Schonfelder for doing so, and I see no inconsistency with the restrictions identified by the doctors.
111 Mr Schonfelder’s mother, Mrs Sutherland, also provided an affidavit in support of her son’s claim. She stated that she has observed Mr Schonfelder to suffer debilitating pain in his spine, together with headaches. She confirmed that Mr Schonfelder takes a considerable amount of medication to obtain relief from his symptoms. Mrs Sutherland also stated that she is aware Mr Schonfelder’s sleep is disturbed, as she often hears him during the night.
112 Mr Ingram submitted that in circumstances in which the TAC had not cross-examined Mrs Sutherland, I should accept her evidence as uncontested and corroborative of Mr Schonfelder’s claim. However, Ms Annesley referred me to the Court of Appeal decision in Ifka v Shahin Enterprises,[5] and submitted that in circumstances in which the TAC had so effectively discredited Mr Schonfelder, it was unnecessary to put these matters to a lay witness.
[5][2014] VSCA 8
113 In Ifka, the credit issue in dispute was the extent of the plaintiff’s pre-existing neck injury, before she suffered her work injury. In cross-examination, the defendant successfully challenged the plaintiff’s credibility, such that it was established the plaintiff had previously suffered significant restrictions in her neck, which she had not been forthcoming in disclosing to the Court. In those circumstances, the Court of Appeal did not criticise the defendant for failing to cross-examine the plaintiff’s husband, on the same matters.[6]
[6]Ibid at [37]
114 I consider the situation in this case to be different from that in Ifka. The credit attacks on Mr Schonfelder were of a general nature, and were sufficiently effective that I was sceptical about much of what he said. However, his mother’s affidavit did not directly contradict the matters about which I had major reservations. She did not claim he had a university degree, that his Flinders seat candidacy was destroyed by the accident or that he was so unwell he could not socialise. Instead, she gave a relatively balanced account of the observations she has made of Mr Schonfelder in her home, and the care she provides him. I accept Mrs Sutherland’s evidence that she has observed her son to suffer both physically and psychologically as a consequence of the transport accident. I do not give her evidence as much weight as I do the opinions of Mr Schonfelder’s treating doctors, however, I do give it some weight in my overall assessment of Mr Schonfelder’s claim.
115 Given his relatively young age, I accept Mr Schonfelder is likely to endure many years of relatively constant pain. I accept that such pain will require him to take medication and that it will restrict him in his recreational and domestic activities.
116 I consider that these consequences for Mr Schonfelder, when compared to other cases in the range of possible impairments or losses, are at least, very considerable.
Conclusion
117 Mr Schonfelder has satisfied me that he suffers a serious injury to his spine, as a consequence of his transport accident. As such, Mr Schonfelder’s application for leave to commence a claim for common law damages succeeds.
118 I shall make the consequent orders.
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