Seear v Transport Accident Commission
[2022] VCC 1993
•22 November 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-01050
| ROBERT SEEAR | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 November 2022 | |
DATE OF JUDGMENT: | 22 November 2022 | |
CASE MAY BE CITED AS: | Seear v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1993 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – motor vehicle accident – pain and suffering consequences – injury to the neck – subsequent motor vehicle accident
Legislation Cited: Transport Accident Act 1986
Cases Cited:TTB SMS Pty Ltd v Reading [2020] VSCA 203; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A B Ingram KC with Mr C Woollacott | Slater & Gordon |
| For the Defendant | Mr A Middleton | Hall & Wilcox |
HIS HONOUR:
Introduction, two accidents and treatment
1The plaintiff, Mr Robert Seear, is now 78 years of age. He brings this proceeding pursuant to s93 of the Transport Accident Act 1986 (“the Act”), seeking a determination of “serious injury” in respect to injury to his neck suffered in a motor vehicle accident on 1 May 2019 (“the first accident”).
2The plaintiff is a civil engineer by trade. He has an extensive career as a civil engineer. For many years he lived and worked in America. He returned to live in Australia in 2015 and decided to semi-retire. Semi-retirement included living on his 50-acre property in Upper Plenty, Victoria, where he runs some cattle.
3The first accident occurred when the plaintiff was stationary, waiting to turn into the driveway of his property, when a vehicle collided with the rear of his vehicle with sufficient force to cause his vehicle to be rotated 180 degrees.
4Immediately after the first accident, the plaintiff had pain in his chest and neck. He was subsequently diagnosed with fractured ribs. The rib fractures eventually healed.
5The day after the first accident, 2 May 2019, the plaintiff attended his local general practitioner, Dr Melissa Garbutt. Dr Garbutt’s clinical records were tendered in this proceeding by the defendant. The clinical record for 2 May 2019 described the plaintiff as having bilateral pain over the trapezius and right chest wall, with some cervical spine midline tenderness, but a full range of movement of the cervical spine.
6The plaintiff returned to Dr Garbutt’s clinic on 3 May 2019 with a complaint of pain around the neck and more stiffness. He returned to see Dr Garbutt on 9 May 2019 for ongoing chest and neck pain. A referral was made to a physiotherapist, Ms Samantha Heyfron. Then, at a consultation on 9 May 2019, Dr Garbutt recorded a whiplash/soft tissue injury of the neck, but that the plaintiff’s condition was “now slowly improving”.[1]
[1]Defendant’s Court Book (“DCB”) 58.
7There were then further attendances at Dr Garbutt’s clinic for various medical issues unrelated to the accident.
8The next specific attendance at Dr Garbutt’s clinic for neck pain occurred on 22 October 2019, when the plaintiff saw Dr Brian Murphy (as Dr Garbutt was unavailable). The consultation with Dr Murphy was the day after the plaintiff had unfortunately been involved in another motor vehicle accident on 21 October 2019 (“the second accident”). Dr Murphy noted that the plaintiff had been involved in an accident near the airport in which he was the third car in a four-car pile-up when hit from behind. He noted that the plaintiff was initially okay but was “now sore in neck – more on left side – and shoulders today (previous MVA in past had [fractured] ribs and neck injury – took many months to recover)”.[2]
[2]DCB 51.
9I shall return to consider the issue of the second accident in a moment, as it looms large in this proceeding.
10Returning to the brief narrative of treatment after the first accident, as mentioned, the plaintiff was referred to Ms Heyfron for physiotherapy. He first attended Ms Heyfron on 6 May 2019. Extracts of her clinical notes were also tendered by the defendant. Her entry for 6 May 2019 recorded that in the first accident the plaintiff suffered “soft tissue injuries only ... did have tingling in arms after mva, resolved now”.[3]
[3]DCB 39.
11The way Ms Heyfron’s notes were reproduced make them a little hard to follow. She provided a comprehensive report to the plaintiff’s solicitors dated 27 August 2019,[4] which sets out her dates of attendance, complaints, and treatments provided, in a manner that is capable of being understood. She saw the plaintiff for six treatments in May 2019, two treatments in June 2019, one treatment in July 2019, and two treatments in August 2019. There was then a gap until the plaintiff presented again on 26 October 2019; that is, after the second accident.
[4]Plaintiff’s Court Book (“PCB”) 55.
12A consideration of Ms Heyfron’s first report and her clinical records suggests that the plaintiff’s neck symptoms were steadily improving in the several months after the first accident.
13Dealing with Ms Heyfron’s clinical records after the first accident, on 3 June 2019, she recorded that the plaintiff had returned to work full-time after a period of semi-retirement. The work was office-based and onsite visits as an engineer, which he was looking forward to, and that returning to work had not adversely affected any of his symptoms. On 8 June 2019, she recorded that the plaintiff was continuing to manage well at work. By 15 June 2019, she recorded the plaintiff was continuing with home exercises to manage neck stiffness and discomfort. On 22 June 2019, she recorded that his work was going very well. By 27 July 2019, she recorded that his neck pain was improving, and the rib pain had almost resolved. On 3 August 2019, neck stiffness with prolonged periods of sitting at his desk at work were noted. On examination, the plaintiff’s left cervical rotation was tight at the end of range, and lateral flexion was three-quarters bilaterally. On 10 August 2019, Ms Heyfron recorded that the plaintiff had some cervical stiffness that he thought may have been due to the colder weather. He was managing well at work and reported that the contract he had been given for the position had changed into a permanent full-time role. On examination, there was mild neck tightness at end-range left cervical rotation, and three-quarter lateral flexion bilaterally. Treatment and home exercises remained the same.
14The attendance with Ms Heyfron on 10 August 2019 is the last attendance on a treating practitioner before the second accident.
15In her report of 27 August 2019, Ms Heyfron described the prognosis as “very good”.[5] She said the plaintiff had made very good progress and had been able to return to full-time work. She said the plaintiff did have some normal, age-related degenerative changes, and it was possible that the motor vehicle accident had contributed to some of the symptoms usually associated with this.
[5] PCB 57.
16Pausing, the evidence is that, following the first accident, the plaintiff had symptoms due to fractured ribs and also the aggravation of age-related degenerative change in his cervical spine. The objective evidence contained in the clinical records from Dr Garbutt and Ms Heyfron is of steady recovery from the injuries in the first accident. By August 2019, he had some mild residual neck stiffness, for which he was undertaking home-based physiotherapy exercises. But otherwise, he had commenced full-time employment and was noted to be generally coping well.
17Next, as mentioned, the plaintiff was unfortunate enough to be involved in the second accident. By coincidence, a few days before the second accident the plaintiff’s solicitors had requested a medical report from Dr Garbutt. In a report dated 21 October 2019[6] she set out the treatment following the first accident, and her diagnosis of a whiplash injury, cervical spine. In that report she said:
[6]PCB 60.
“As Robert has not described any persisting symptoms since his review on 30th May, 2019 during attendances for other medical reasons, I do not have specific treatment recommendations at present”[7]
[7]PCB 62.
and that:
“Prognosis based on his MVA injuries is very good. The natural history of both whiplash and uncomplicated rib fractures is that the symptoms should fully resolve over time”[8]
and that:
“Robert currently has full capacity for work. He has not described any physical difficulties in carrying out his current full time [e]ngineering work.”[9]
[8]Ibid.
[9]PCB 63.
18Pausing again, in closing submission, senior counsel for the plaintiff submitted that no issue of “disentanglement” arose as to the consequences from the first accident as opposed to consequences from the second accident, because the plaintiff’s neck injury was already “serious” after the first accident and before the second accident. I do not accept that submission. It is not supported by the evidence from treating practitioners. The objective evidence, including the clinical records as discussed, tends to the opposite conclusion, that is, that the plaintiff did not have a “serious injury” after the first accident and before the second accident.
19Returning to the clinical records, as mentioned, after the second accident the plaintiff attended Dr Murphy on 22 October 2019.[10] He then had several attendances on Dr Garbutt for medical conditions unrelated to the accident.
[10]DCB 108.
20Dr Garbutt then moved clinics and commenced consulting at the Greensborough Road Surgery in Greensborough. The plaintiff attended at that clinic on 27 July 2019 on Dr Hans Surya for an ongoing skin condition.[11] He next attended Dr Garbutt on 15 August 2019, again for the ongoing skin condition.
[11]DCB 103.
21In fact, the first attendance on Dr Garbutt at the Greensborough Road Clinic specifically for neck symptoms was not recorded until 16 October 2020. Dr Garbutt described that attendance in a report of 9 May 2022.[12] She described the plaintiff advising her that he feels he requires ongoing physiotherapy. In respect to his symptoms, it was recorded that he wakes each morning with a “stiff and sore” neck. This eases with his morning shower, and usually comes good during the day. He described mainly restriction and discomfort with cervical rotation to the left and right, and other restrictions. Dr Garbutt recorded that his neck pain did not affect his work. It was recorded that the plaintiff previously took Panadol if his neck was bad, but he had not required any in the past three or four months.[13]
[12]PCB 78.
[13]PCB 79.
The nature of this proceeding
22I shall return to complete a discussion of the medical evidence in a moment. In the broad, it is limited, and I have already dealt with the relevant medical evidence between the two accidents and in the 12 months or so thereafter.
23It should be clear from the narrative to date that one of the issues in this proceeding is the contribution of the first accident to the plaintiff’s current neck symptoms, as opposed to the contribution from the second accident, or the underlying age-related degenerative change. Of course, for “serious injury” purposes the plaintiff cannot combine the consequences of the two accidents.
24The proceeding was conducted in the “usual manner”. The plaintiff tendered a bundle of evidence[14] including two affidavits sworn by him, together with an affidavit from his daughter, Ms Jane Vickery,[15] and his son, Mr Tim Seear.[16] In addition, he tendered various claim documents, radiological investigations, and medical reports. The tender of medical reports included two reports from Mr Russell Miller, orthopaedic surgeon, as contained in the defendant’s court book. The plaintiff also tendered a photograph of two bags of golf clubs and equipment, taken by him in the last week or so.[17] He gave oral evidence.
[14] Exhibit P2.
[15]PCB 24.
[16]PCB 27.
[17] Exhibit P1.
25The defendant tendered the relevant clinical records from Dr Garbutt and Ms Heyfron.[18]
[18] Exhibit D1.
26I have considered all the tendered evidence, together with the transcript of the plaintiff’s oral evidence, and counsel’s submissions, which I shall refer to as necessary in these reasons.
27For completeness, I also note that the plaintiff provided a chronology, which highlighted some aspects of the plaintiff’s background, attendances for treatment, and radiology. But it is by no means a comprehensive chronology. Frankly, it was of no practical assistance in the determination of this proceeding. A careful and complete chronology can be of assistance and is to be encouraged. Equally, an incomplete and edited highlights document is a waste of the author’s time and should be discouraged.
28In any event, as mentioned, the plaintiff relied on the physical injury to his neck as the “serious injury”. It was opened that he was an extremely stoic man who had continued to work actively as a civil engineer. It was submitted that he suffered injury in the first accident and that there may have been a temporary aggravation or exacerbation from the second accident. It was submitted that his major interest was golf (he was said to be a keen golfer), which was his major recreational outlet and was now completely gone. Further, he now required considerable assistance to manage his 50-acre property, and his work is now more painful to him because of the long hours of sitting that are involved. It was submitted that all those activities had been very considerably adversely impacted. Combined with the regular use of medication in the morning, a hot shower to mobilise his neck, and sleep, it was submitted that he had suffered a “very considerable” consequence.
The balance of the medical evidence
Dr Melissa Garbutt
29I have already set out much of Dr Garbutt’s evidence. Returning to her report of 9 May 2022,[19] she repeated her diagnosis of cervical spondylosis without radiculopathy. She said she was unsure to what extent the two whiplash injuries within a period of approximately five months is contributing to his persisting symptoms, or whether this is due to his underlying pre-existing cervical spondylosis. She said further she was unsure if his two whiplash injuries may have affected the natural history of his cervical spondylosis. She recommended ongoing simple measures such as good posture, heat application, and paracetamol as required.[20] Dr Garbutt described the plaintiff’s condition as stable but probably slowly deteriorating. She noted that he now took two x 500 milligrams of paracetamol daily, and still described neck discomfort, predominantly when he woke, which eased after a morning shower. She recorded that it did not affect his work.[21]
[19]PCB 78.
[20]PCB 84.
[21]PCB 85.
Mr Peter Wilde
30By a letter dated 16 March 2022,[22] Dr Garbutt referred the plaintiff to Mr Peter Wilde, orthopaedic surgeon, for what she described in her referring letter as “assessment and opinion of his chronic neck pain post MVA x 2, at his request”. There was a joust in cross-examination as to whether Dr Garbutt considered an orthopaedic referral to be necessary, or whether it was a recommendation from his solicitors, as Dr Garbutt’s clinical notes (in conjunction with her report) tended to suggest. At the end of the day, not much turns on that, save that it was the plaintiff who was anxious for an orthopaedic referral and not Dr Garbutt.
[22]PCB 98.
31In any event, the plaintiff attended Mr Peter Wilde, orthopaedic surgeon, on 11 April 2022. Mr Wilde wrote back to Dr Garbutt on that date,[23] noting the two motor vehicle accidents. Mr Wilde recorded, presumably on information obtained from the plaintiff, that:
“On each occasion he responded reasonably to conservative treatment but after the second time the pain has persisted”[24]
and that:
“His main complaint now is stiffness and neck pain with restricted movements, especially rotation to the right.”[25]
[23]PCB 103.
[24]Ibid.
[25]Ibid.
32Mr Wilde further noted that the plaintiff had had to give up golf and some hobbies due to his stiff neck.[26]
[26]Ibid.
33In a report to the plaintiff’s solicitors dated 11 May 2022,[27] Mr Wilde repeated many of the matters set out in his letter back to Dr Garbutt. He noted that, as at 11 April 2022, the plaintiff described neck pain present at all times: on a good day 3 out of 10, and on a bad day 6 out of 10. Occasionally the pain woke him at night. The pain referred into both shoulders and down both arms. He set out his physical examination and his consideration of the radiology.[28] He repeated the summary of his advice back to Dr Garbutt. He then described the diagnosis as aggravation of cervical spondylosis without clinical or radiological evidence of radiculopathy. He described the prognosis as good.[29]
[27]PCB 105.
[28]PCB 106.
[29]PCB 108.
34Three things arise out of Mr Wilde’s report. First, he considered the combined effect of the two accidents in the setting of age-related degenerative change. Second, he described symptoms by way of neck stiffness. Third, he did not recommend any specific treatment and described the prognosis as good.
35Mr Wilde’s report does not support the plaintiff’s claim for “serious injury” from the first accident.
Ms Samantha Heyfron
36Returning to complete a discussion of the material from the physiotherapist Ms Heyfron, the second of her reports is dated 4 November 2020.[30] It set out her treatment of the plaintiff after the second accident, which I shall briefly summarise. The plaintiff re-presented to her on 22 October 2019 reporting neck pain following the second accident. The plaintiff reattended on 26 October 2019 with neck stiffness. Skipping forward a little, by 14 November 2019 she recorded that the neck pain and stiffness was improving.[31] Again, skipping forward, by 21 December 2019 she recorded the plaintiff having been on a fly-fishing holiday which required a significant amount of walking (which was challenging at times) and “repetitive upper limb”.[32] By 28 December 2019 she recorded the plaintiff only experiencing stiffness at the end range right cervical rotation, more noticeable in the morning. On 1 February 2020, she recorded the plaintiff describing a plateau in improvement, with still some end range right cervical restriction. Headaches had resolved, and he was continuing to do home exercises.
[30]PCB 74.
[31]PCB 75.
[32] PCB 75.
37By 13 March 2020, the plaintiff reported to Ms Heyfron that he had been good until a few days prior, when he noticed an increase in tightness in the neck. There was no specific incident. The last physiotherapy treatment was then provided on 21 March 2020, at which time his objective measures remained the same. In her report of 4 November 2020, Ms Heyfron opined that the prognosis was good. She said that the plaintiff:
“has made very good progress following both motor vehicle accidents. He was able to continue to full time work full duties and hours and an engineer. He was managing most of his home farm duties well and used machinery to assist with more physically challenging task. ... Mr Seear does have some normal, age related degenerative changes in his cervical and thoracic spine and it is possible that the motor vehicle accidents have contributed to some of the symptoms that are usually associated with this.”[33]
[sic]
[33]PCB 76.
Summary of treatment
38That is the extent of the relevant material from treating practitioners. Several things are apparent.
39First, the plaintiff has had limited conservative treatment.
40Second, the objective evidence in clinical records is of improvement after the first accident, and then a deterioration in symptoms after the second accident.
41Third, the treating practitioners do not separate out the consequences from the first and second accident. Equally, they do not separate out any consequences which might now relate to the underlying age-related degenerative change, bearing in mind that the plaintiff is 78 years of age.
42Fourth, even if the consequences described by the treaters are referable solely to the first accident (which clearly is not what the treating health practitioners state), at its highest it is of ongoing neck stiffness, worse in the mornings, but responding to a hot shower. It suggests that the plaintiff requires two 500-milligram paracetamol tablets in the morning but is otherwise able to cope with most day-to-day activity, including his employment, said to be full-time, but described by him in re‑examination as a nine-day fortnight.[34] The treating health practitioners do not go so far as to say that the plaintiff could not return to golf because of neck symptoms, but at its highest they record his complaint that he has had to give up golf because of his neck symptoms.
[34]Transcript (“T”) 23, Line (“L”) 4.
43Accordingly, in my consideration, at its highest, the treating evidence is of ongoing low-grade neck stiffness, requiring the use of over-the-counter paracetamol and some interference for day-to-day activity such as maintaining his farm and golf, which restrictions are supported by the affidavits from his children.
44Two issues arise for comment. First, the treating practitioners have combined the consequences from the two accidents, and that produces an evidentiary problem for the plaintiff. Second, even if taken as combined, in my view the overall consequences do not amount to “very considerable”. I shall explain why by reference to the three major activities relied on by the plaintiff as suggestive of a “very considerable” consequence.
Golf
45In his first affidavit, sworn 13 September 2021,[35] the plaintiff said about golf that:
“I was forced to stop playing golf after the injuries sustained in the accident on 1 May 2019 and have been unable to resume that recreational activity, which was my main recreation, subsequent to that time. I was a reasonable golfer and in the USA had a handicap of 12. I did not maintain my handicap after returning to Australia but was still fairly useful on the course. It has been a great loss to me that I have been unable to continue with my golfing.”[36]
[35]PCB 14.
[36]PCB 20, paragraph 21.
46Consistent with Exhibit P1, that is, the fact that he owned two bags of golf clubs and golfing accessories, he said that golf was a “great loss”[37] to him. But a consideration of the whole of the evidence suggests that golf, whilst a loss, might not be a “great loss”, in the sense that some people seem to be addicted to golf and have a passion for it. As noted earlier on in that affidavit, the plaintiff returned to Australia in 2015 after living in America. It is a little unclear, but I assume shortly thereafter he moved to his current 50-acre property. In his first affidavit, he described how he expended a great deal of energy in the general maintenance of that property.[38] He said in addition he “regularly played golf”,[39] but, in my opinion, this piece of the evidence must be approached with some caution.
[37] Ibid.
[38]PCB 16, paragraph 7.
[39]Ibid.
47The caution arises first from the clinical notes.[40] On 10 September 2015, the plaintiff attended the Whittlesea Medical Centre (Dr Garbutt’s initial clinic) where he attended Dr Rachel Marr. Dr Marr recorded that the plaintiff felt his right Achilles go the night before, after returning from a cruise and a period of a lot of walking. By 21 September 2015, Dr Marr recorded ongoing pain and swelling over the right Achilles. Next, on 12 November 2015, Dr Marr noted reduced exercise in the setting of the recent Achilles tear. By that stage the plaintiff had been “able to do a few kilometres on his property” with minimal pain. He was seeing a physiotherapist, which I assume was for the Achilles injury. Next, by 12 January 2016, Dr Marr recorded that the plaintiff still could not raise his right leg, and it was affecting his ability to exercise. Ongoing stiffness in the calf was reported to a different doctor, Dr Amy Doyle, at an attendance on 19 April 2016.
[40]DCB 85-90.
48By 20 December 2016, Dr Garbutt consulted with the plaintiff regarding his ankle (which I interpret to mean the Achilles injury).[41] Dr Garbutt noted that the stiffness was improving, and the plaintiff would continue to see the physiotherapist. For completeness, I note that he was seen for other health issues at that attendance. Thereafter, the plaintiff attended Dr Garbutt regularly for what appears to be a persistent skin condition and other health issues. By 14 December 2017, the plaintiff was given a referral again for physiotherapy. [42] In the early part of 2018, he was seen for rib pain after a fall and soft-tissue chest injuries.[43] Thereafter he was seen again for ongoing health conditions, including for his diabetes. He had a further fall in or about October 2018, again requiring attendance on Dr Garbutt. On 31 January 2019, he attended Dr Garbutt for advice about a renal impairment but also for a two-month history of a painful left shoulder. At review on 7 February 2019, Dr Garbutt noted that an ultrasound showed a complete chronic tear of the left supraspinatus tendon. By 12 February 2019, Dr Garbutt opined that it was reasonable for him to commence physiotherapy for the shoulder.[44]
[41]DCB 79.
[42]DCB 72.
[43]DCB 71.
[44]DCB 62-65.
49In this proceeding, it was submitted on his behalf that the plaintiff was an honest and reliable witness. Broadly, I agree. He presented as a pleasant but somewhat nervous man in the witness box. I consider that he did his best to answer questions asked of him. But, balanced against that, he does have a lengthy medical history. Perhaps it is not surprising that aspects of that history have not been remembered or set out by him in his affidavits.
50But it should be clear that a consideration of his medical records tends to the conclusion that the plaintiff had a range of health problems before the accident that would impact his ability to play golf. To some extent, that is confirmed in the clinical records from Ms Heyfron. In fact, consistent with the referral by the general practitioner, she saw the plaintiff in December 2017 for his Achilles injury. In an entry dated 14 December 2017, she recorded that the plaintiff wanted to get back into golf. She recorded that he had not played, “only tried a few swings – can feel left knee during swing, not played for 2 years since Achilles injury”, and recorded a goal of returning to golf.[45]
[45]DCB 38.
51The plaintiff was cross-examined about what Ms Heyfron recorded and whether he had in fact given up golf for some two years before attending her in late 2017. When her history was put to him, he accepted it as correct,[46] but he maintained that he played golf after December 2017. In cross-examination he said he played in local areas, including at the Growling Frog in Whittlesea. He had never been a member there and had never played a competition there. He said he would play as a single, two balls at a time. He said he reduced his playing after he came back from America because he was attending to his grandchildren daily. He said he played golf by going to the Albert Park Driving Range in between taking the grandchildren to and from kindergarten.[47] I understand that evidence to mean hitting golf balls at the driving range, as opposed to playing a round of golf.
[46]T 11, L 26-29.
[47]T 12, L 6-21.
52The plaintiff’s reference to the driving range at Albert Park in the context of having returned from America and the evidence in the clinical records suggests that activity at the driving range took place before he injured his Achilles. The question then is how much golf did the plaintiff play after attending Ms Heyfron in December 2017 and before the first accident? The answer to that is unclear. At its highest, the plaintiff had a social hit on occasion at courses in Whittlesea, including the Growling Frog. The reference to Albert Park is unclear, but again, at its highest, from time to time he may have hit some balls at a driving range.
53What does all this mean? First, the evidence about his golf is unreliable. Next, at its highest, golf was a social activity that the plaintiff undertook at a relatively low level. This is not a proceeding in which I conclude that golf was a great passion that has been taken away from the plaintiff. It is a social activity that gave him some enjoyment, and I take that into account, but in my view, it falls below what might crudely be called a “big ticket” item. Regardless, the whole of the evidence suggests his ability to enjoy golf had been impacted before the first accident.
The plaintiff’s farm
54The plaintiff continues to live on his 50-acre property. The impression from the evidence is that he continues to be active around the property, but with some assistance from friends and family. That might not be surprising, given the size of the property, and the fact that the plaintiff works full-time, and given his age. Again, at its highest, I accept that the plaintiff has some neck stiffness that might impact upon heavier work around his farm. That is obviously a relevant consequence to him.
Work
55I have already referred to the fact that I consider golf to be something less than a great passion for the plaintiff. What might be a great passion for him is his work. At an age where many people are comfortably settled into retirement, the plaintiff did the opposite: namely, came out of retirement to effectively accept a full-time job. No criticism can be made of him for that. The plaintiff does not rely upon any economic loss consequence as such, but rather it was submitted that by working he was suffering an increase in neck symptoms. Again, the evidence of that is vague. The evidence tends to the conclusion that his symptoms are worse in the morning, but there is some reference in the material from the treaters of increasing neck stiffness after sitting for long periods at a computer, and in the broad sense I take that into consideration.
Summary: Golf, the farm, and work
56Pausing here, the restrictions for golf, the farm, and work, combined with ongoing conservative treatment by way of hot showers and paracetamol, produce a consequence to the plaintiff which is not trivial, but, by the same token, in my view, bearing in mind that I must take into account the possible range of impairment and impairment consequences and not just those that come before the courts, and for the purposes of a value judgment, is something less than “very considerable”.[48]
[48]TTB SMS Pty Ltd v Reading [2020] VSCA 203.
57Even if I accept the submission put on his behalf that he is a stoic man,[49] which I do accept, equally that needs to be tempered by the fact that he is not battling severe, chronic pain and struggling on at work. Indeed, the evidence is to the contrary, namely that he is coping at work.
[49]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; T 33, L 25-30.
58In short, even if the two accidents are combined, and accepting the plaintiff’s evidence, with the qualification of the unreliability of his evidence about golf, the result is that the consequences fall below “very considerable”.
59At this point it is unnecessary to say any more, but for completeness I shall finalise how the plaintiff’s case was put and the medical material.
Professor Richard Bittar
60Professor Richard Bittar is a consultant neurosurgeon who examined the plaintiff at the request of his solicitors and provided a report dated 15 August 2022.[50] Professor Bittar obtained a history of intermittent neck pain, typically occurring at least once or twice a day, generally in the morning. That pain typically lasted up to one hour and was generally aching in character. Professor Bittar obtained a history that the average severity was of around 5/10 and that it was precipitated and exacerbated by rotation of his neck or lifting more than 20 kilograms. Professor Bittar recorded that it improved with the application of heat and medication.
[50]PCB 144.
61Professor Bittar recorded the effects of the neck pain. He had a history of the two accidents. He opined that:
“In my opinion, his cervical spine condition is a consequence of the transport accident on May 1, 2019, and has been aggravated in a sustained manner by the second transport accident of October 21, 2019.”[51]
[51] PCB 147.
62Pausing, Professor Bittar supports the submission that the plaintiff aggravated the underlying degenerative change in the first accident. But, equally, he combines the two accidents, as discussed above.
63Professor Bittar described the plaintiff’s prognosis regarding both transport accidents as being of ongoing neck pain and headaches. He said the plaintiff’s condition was likely to remain at its current level into the foreseeable future. It is unclear precisely what material Professor Bittar considered for the purpose of his report. But he said that it was clear that the plaintiff had ongoing symptoms following the accident, and indeed remained symptomatic leading up to the second accident. He said it is therefore clear that the plaintiff did not make a substantial or complete recovery from the first accident, and that:
“The medical records are consistent with the history that he has provided in supporting the opinion that the second transport accident has caused a modest but sustained worsening of his cervical spine condition.”[52]
[52]PCB 148.
64Therefore, Professor Bittar’s opinion must be considered in the context that he has to some extent combined the two accidents. Nevertheless, even if I interpret his report to mean that the first accident is the major contribution to the plaintiff’s current symptoms, as should be patently clear by now I do not consider that the current symptoms, impairment, and impairment consequences meet the test of “very considerable”. Equally, if I could isolate from Professor Bittar’s report the consequences from the first accident it would not enable a conclusion of a “very considerable” consequence.
Mr Russell Miller
65Finally, Mr Russell Miller is an orthopaedic surgeon who initially conducted a joint examination at the request of the parties, and then more recently re-examined the plaintiff at the request of the defendant.
66In the joint report, dated 19 June 2020,[53] Mr Miller obtained a history of the two accidents. He had a history of neck ache, discomfort, and stiffness, radiating into the shoulders but not down the arms. He conducted a physical examination and reviewed investigations. He opined there had been an injury to the cervical spine, including musculoligamentous strain and aggravation of degenerative disease. He said that the plaintiff had a good response to conservative treatment, and that the prognosis was good.[54]
[53]DCB 23.
[54]DCB 27.
67Next, in his second report of 11 July 2022,[55] Mr Miller obtained a history of ongoing neck ache, discomfort, pain and feelings of stiffness in the neck, again radiating into the shoulders. He said there had been no pattern towards improvement, and the symptoms created difficulties with physical activities, particularly farm work. He noted ongoing treatment by way of painkillers. He also noted a history of right shoulder surgery. Once again, he conducted an examination and reviewed investigations. On this occasion he opined that there were significant symptoms in the neck, and no pattern towards improvement. He described the prognosis as “only fair”.[56] For completeness, he also described symptoms in the right shoulder and problems with rotator cuff dysfunction, which he also described as having a fair prognosis, but ultimately not much turns on that.
[55]DCB 31.
[56]DCB 35.
68Mr Miller was asked a specific question about the relationship to the accidents. He described the answer to that as “complex and multifactorial” and said that in his view “the current clinical status of the cervical spine and shoulders relate predominantly to the effects of the first accident (May 2019).”[57] He opined that the plaintiff would require ongoing conservative treatment.
[57]Ibid.
69Mr Miller ascribes symptoms referable to both accidents, even if he considered the accident to be the predominant cause of symptoms. But again, at the end of the day, not much turns on this, because, now at the risk of repetition, in my view the overall symptoms and impairment consequences do not meet the test of “very considerable”. Similarly, to Professor Bittar, even if I isolate from his report the impairment and consequences from the first accident, it does not establish a “very considerable” consequence.
A brief word about credit and the sophisticated submission
70In this proceeding, senior counsel for the plaintiff made much of the reliability of the plaintiff for the purposes of considering the consequences from the first accident as opposed to the second accident. The Court was urged to accept the plaintiff’s evidence in his first affidavit as follows:
“Arising from this accident was a temporary increase in the level of symptoms felt in my neck but with time my firm belief is that the level of symptoms has gradually reduced back to the level that pre-existed the second accident and arises from the first accident on 1 May 2019.”[58]
[58]PCB 18.
71This affidavit evidence needs to be considered in the context of the whole of the evidence, including the plaintiff’s oral evidence in re-examination. He was asked to compare the situation of the initial car accident against the second car accident. He said:
“Well, I believe it was the first car accident. The significance of the broken ribs and injured shoulder, bruised chest and neck, et cetera. So, I believe that those things are continuing to affect me. The second car accident was not as significant, but I believe could have contributed more to it.”[59]
[59]T 20, L 15-20.
72The plaintiff has a belief that his symptoms should largely be attributed to the first accident. But, as mentioned, that belief needs to be seen in the context of the whole of the evidence. The overall evidence does not support a conclusion that there was only a temporary increase in symptoms after the second accident. Further, the plaintiff gave no specific evidence as to when any temporary increase in symptoms, if there was one, reduced back to the level that pre-dated the second accident, other than the evidence in his first affidavit that symptoms had gradually reduced back to that level. Leaving to one side that the evidence does not support a conclusion that symptoms did gradually reduce back, there is no medical evidence to support that contention.
73The primary submission on behalf of the plaintiff was that he had suffered a “serious injury” after the first accident and that was sufficient for him to succeed. I have already explained why I do not accept that submission.
74Next, in the alternate, in a closing submission by senior counsel that was more nuanced, it was said that in more recent times, because of the injury from the first accident, there has been a deterioration in the plaintiff’s symptoms, and that deterioration is a relevant factor in assessing the “seriousness” of the consequences to the plaintiff. It was submitted that any symptoms from the second accident had abated back to the level after the first accident and subsequently deteriorated again because of the first accident.
75But, there is no medical evidence to support this thesis of deterioration after the second accident, followed by an improvement back to the level that existed after the first accident and then a subsequent deterioration that could now be explained by injury suffered in the first accident.
76On this point, his senior counsel, in a colourful flourish, brought out his ace[60] by referring to the opinion of Mr Robert Webb, otolaryngologist. Mr Webb provided a report dated 25 May 2020[61] at the request of the plaintiff’s solicitors. That report was to consider a complaint by the plaintiff of a problem with the hearing in his right ear as caused by the first accident. Mr Webb recorded that the impact from the second accident was “much less severe than the first and the injury was not significant”, which I understood to be the “ace” that was played in final submissions. Of course, that is simply a recording of what the plaintiff told Mr Webb.
[60]T 46, L 15.
[61]PCB 119.
77Mr Webb referred to the two motor vehicle accidents causing whiplash-type injury, but more severe in the first than the second.[62] However, bearing in mind Mr Webb’s specialty and his ultimate opinion that the plaintiff’s hearing loss is not related to the fist accident, I have difficulty considering that Mr Webb in some way is an “ace”. Perhaps not surprisingly, given his specialty, Mr Webb does not particularly focus on the neck, but nowhere in his report is there reliable evidence to support the thesis that the plaintiff’s neck injury may have been aggravated by the second accident, but somehow returned to the level that it was after the first accident, and then in more recent times has deteriorated because of the first accident.
[62]T 121.
78It is trite to note that a simple acceptance of what the plaintiff says is not enough for him to succeed. If it was, then there would be no need for medical evidence. I do not doubt the plaintiff’s belief, but it must be seen in the context of the objective evidence: namely, that he had significantly improved between the first accident and the second accident, with deterioration since the second accident, and at best perhaps slow and ongoing deterioration, but certainly no improvement back to the level before the second accident, and then some (unexplained) more recent deterioration referable to the first accident.
Summary
79I have no doubt that the plaintiff is a stoic man, who is hardworking and, in the broad sense, a solid citizen. Equally, he has a range of medical conditions perhaps consistent with a man now 78 years of age. In that setting, he has age-related degenerative change which I accept was aggravated by the first accident and further aggravated by the second accident.
80However, the evidence does not enable a proper attribution of impairment and consequences from the first accident, excluding the consequences from the second accident. But, even if it did, overall, I am not satisfied that the plaintiff has suffered a “very considerable” consequence.
81Therefore, for the reasons given, the proceeding is dismissed.
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