Shanahan v Transport Accident Commission
[2017] VCC 278
•24 March 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-05956
| TERRY SHANAHAN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 March 2017 | |
DATE OF JUDGMENT: | 24 March 2017 | |
CASE MAY BE CITED AS: | Shanahan v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 278 | |
REASONS FOR JUDGMENT
---
Subject:TRANSPORT ACCIDENT
Catchwords: Neck – aggravation to pre-existing lower back condition – psychiatric condition – unrelated medical conditions – disentanglement
Legislation Cited: Transport Accident Act 1986
Cases Cited:Philippiadis v Transport Accident Commission [2016] VSCA 1; Humphries v Poljak [1002] 2 VR 129; Mobilio v Balliotis; Victorian WorkCover Authority v Nguyen [2016] VSCA 284; Jurukouski v Windsor Caravans Pty Ltd (2015) VCC 1800; Lu v Mediterranean Shoes Pty Ltd & Ors [2000] VSCA 65; Petkovski v Galletti [1994] 1 VR 436; R.J. Gilbertsons Pty Ltd v Skorsis [2000] VSCA 51
Judgment: Application successful
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Purcell Mr M Fogarty | Slater & Gordon |
| For the Defendant | Mr A Moulds QC with Ms J Frederico | Solicitor to the Transport Accident Commission |
HER HONOUR:
Preliminary
1 This is an application to bring proceedings pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”).
2 On 2 December 2012, the plaintiff was travelling in the front seat of a bus when it pulled into a bus stop. A car driving behind the bus then ran into the back of the bus causing the plaintiff to be thrown forward, and to hit the plastic perspex in front of him (“the transport accident”). The plaintiff alleges that he suffered injury as a result of the collision.
3 Mr Purcell appeared with Mr Fogarty of counsel for the plaintiff and Mr Moulds QC appeared with Ms Frederico of counsel for the defendant.
4 The plaintiff claims he suffered injury to his cervical and lumbar spine in the transport accident, together with referred pain into his right shoulder. The body function said to be lost or impaired is the functioning of his spine. The application is brought pursuant to sub-section (a) of the definition of “serious injury” contained in s93(17) of the Act.
5 Only the plaintiff 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 this judgment.
6 Prior to the transport accident, the plaintiff had suffered some unrelated health problems, including a brain injury for which he required surgery, and a stroke. The plaintiff had also suffered some neck pain and right shoulder pain.
7 In determining this case, I must consider the following legal principles:
(i) The plaintiff has the burden of proving, 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.
(ii) The test for serious injury 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]
[1]Philippiadis v Transport Accident Commission [2016] VSCA 1 at [24]
(iii) In assessing if a physical injury is “serious” under paragraph (a), the consequences of the injury 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]
[2]Humphries v Poljak [1992] 2 VR 129 at [140]
(iv) In relation to the plaintiff’s pre-existing lower neck injury, I must not take into account the cumulative effect of his pre-existing injury and the aggravation.[3]
[3]Petkovski v Galletti [1994] 1 VR 436
(v) As the plaintiff’s application is in relation to his spinal impairment, I can only take into account the consequences arising from his right shoulder injury, if I am satisfied that this injury is related to his neck injury, and is not a separate injury.
(vi) I must disregard any consequences arising from the plaintiff’s unrelated medical conditions. The onus is on the plaintiff to disentangle such consequences.[4]
[4]Peak Engineering & Anor v McKenzie [2014] VSCA 67; Poholke v Goldacres Trading [2016] VSCA 232
Relevant background
8 The plaintiff is 70 years of age. He currently lives alone in a one-bedroom unit in Spotswood. He has four adult children and seven grandchildren.[5]
[5]Plaintiff’s Court Book (“PCB”) 2
9 After completing high school, the plaintiff undertook a five-year apprenticeship as a motor mechanic. Once qualified, he worked as a motor mechanic for various employers, predominantly in the Footscray area.[6]
[6]PCB 3
10 The plaintiff’s most recent employer was Rent-A-Bomb in Hoppers Crossing. He said that he was terminated from such employment in 2002, after an argument with his boss.[7] However, a record from the Joslin Clinic in West Footscray stated that, as at September 2003, the plaintiff had been on unemployment benefits for approximately two years.[8] It is therefore likely that the plaintiff ceased employment with Rent-A-Bomb earlier than 2002.
[7]Transcript (“T”) 8, L5–6
[8]Defendant’s Court Book (“DCB”) 48
11 The plaintiff has longstanding alcohol abuse problems, and has been charged and convicted of numerous driving offences, including driving whilst disqualified and refusing a breath test on multiple occasions.[9]
[9]DCB 36–36A
12 In 2002, the plaintiff suffered some neck, back and shoulder blade pain, which was the basis for him seeking a short adjournment of a Magistrates’ Court case he was involved in at the time.[10]
[10]DCB 99
13 In September 2003, the plaintiff attended upon general practitioners at the Joslin Clinic regarding right shoulder pain. On 10 September 2003, an x-ray was taken. Thereafter, the plaintiff attended on several occasions, and sought medication and certificates of incapacity.[11] The clinical records indicated that these certificates were provided until April 2004.[12]
[11]DCB 41
[12]DCB 41, 48–50
14 The plaintiff has been in receipt of Centrelink benefits since about that time. He confirmed that he started receiving a disability support pension in 2004, and that he is still in receipt of this benefit.[13] He also confirmed that he received a carer’s pension for a period of time, when caring for his father prior to his death in November 2007,[14] and more recently, when caring for his second wife.[15]
[13]T18, L3–9
[14]T18, L15–29
[15]T18, L31–T19, L1–2
15 In July 2008 and August 2010, as a consequence of his repeat offending and ongoing alcohol problems, the plaintiff was assessed by the Community Offenders Advice and Treatment Service (“COATS”).[16]
[16]DCB 120
16 From December 2008 until May 2009, the plaintiff attended the Joslin Clinic on numerous occasions, in relation to ongoing and “severe”[17] pain in his neck and left arm.[18] He was referred to neurosurgeon, Mr R Jithoo, at the Western Hospital. However, due to a lengthy wait period, he was not seen until February 2010, by which time his symptoms had completely settled.[19]
[17]DCB 68
[18]DCB 68
[19]DCB 136
17 Prior to the transport accident, the plaintiff had been diagnosed with several medical conditions. This included a diagnosis of hypercholesterolemia and diverticulitis, for which he required ongoing medication.[20] In addition, the plaintiff had suffered a heart attack in about 2004, and was diagnosed with atrial fibrillation. At about that time, the plaintiff was prescribed warfarin medication, and advised that he would be required to continue on such medication for the rest of his life.[21]
[20]PCB 4
[21]PCB 4
18 On or about 5 June 2012, the plaintiff was assaulted whilst at the Altona Sport Club. He was taken to the Royal Melbourne Hospital where he was diagnosed as suffering a subdural haematoma, for which he required a craniotomy. After the surgery, the plaintiff was advised to cease taking warfarin for a six week period. He was then an inpatient for approximately 10 days. [22] Approximately two days after his discharge, however, the plaintiff suffered a stroke, and was readmitted to the Royal Melbourne Hospital.[23]
[22]PCB 4
[23]PCB 5
19 On 23 July 2012, the plaintiff was assessed by the Hospital Admission Risk Program (HARP) team at Western Health, in relation to his recent brain injury and stroke. It was noted that the plaintiff had enrolled himself in the Gateway support group, which enabled the plaintiff to be involved in activities including “fishing, hydrotherapy, and market delights”.[24] It was also noted that the plaintiff was living independently and preparing his own meals.[25]
[24]DCB 37A
[25]DCB 37B
20 On 10 September 2012, the plaintiff was again reviewed by Western Health’s HARP team. At that time, it was noted that the plaintiff’s home help had been cancelled, and that while he was still attending hydrotherapy, the plaintiff was no longer attending the Gateway fishing trips. The report further noted that the plaintiff’s memory had been affected, and that he had been embarrassed when he was unable to remember people whom he had known for 20 years when they came to visit.[26]
[26]DCB 38C
21 Prior to suffering his brain injury and stroke, the plaintiff said that he had enjoyed a range of different activities. These included fishing with his son once or twice a month,[27] visiting his caravan and swimming at the beach in Torquay,[28] spending time with his children and grandchildren, playing bingo at the local RSL, and watching horse-racing.[29]
[27]T37, L18–19
[28]PCB 5
[29]PCB 6
22 After suffering his brain injury and stroke, but prior to the transport accident, the plaintiff said that he had returned to most of these activities. In particular, he said that he had been able to resume home responsibilities such as cooking, cleaning and gardening,[30] and that he had returned to swimming and fishing.[31] The plaintiff’s doctors have told him that he has recovered from his brain injury “a hundred percent”. [32]
[30]PCB 5
[31]PCB 5
[32]T46, L3–4
The injury and its consequences
23 The transport accident occurred on 2 December 2012.
24 Following the transport accident, the plaintiff was taken by ambulance to the Royal Melbourne Hospital, where he was observed for several hours. Whilst at the hospital, a CT scan was taken of the plaintiff’s brain and cervical spine, and an x-ray was taken of his lumbar spine.[33]
[33]PCB 5
25 On 5 December 2013, the plaintiff attended upon one of the general practitioners at the Joslin Clinic. He was advised to rest, and told that he would be reviewed in two weeks’ time.[34] Thereafter, the plaintiff continued to attend upon general practitioners at the Joslin Clinic. He was subsequently prescribed Panadeine Forte and referred to Mr Nathan Feldman for physiotherapy.
[34]PCB 6
26 On 4 January 2013, an x-ray and an ultrasound were taken of the plaintiff’s right shoulder.[35] As the ultrasound indicated some bursitis, the plaintiff subsequently underwent an ultrasound-guided steroid injection on 15 January 2013.[36] The plaintiff said that the injection caused him to experience excruciating pain that was so extreme he “never went back for any more injections”.[37]
[35]PCB 22
[36]PCB 23
[37]T41, L21–22
27 The plaintiff thereafter continued with ongoing hydrotherapy and physiotherapy treatment from Mr Feldman. When such treatment ceased in 2015, the plaintiff said that his condition deteriorated, and that he experienced increased pain in his spine and right shoulder.[38] In May 2016, the TAC agreed to reinstate payment of this medical treatment, such that the plaintiff currently now attends physiotherapy and hydrotherapy once per week.[39]
[38]T44, L24–25
[39]PCB 15
28 In September 2016, the plaintiff suffered a seizure and was subsequently diagnosed with epilepsy. The plaintiff now takes Keppra medication on a daily basis.[40]
[40]PCB 14
29 The plaintiff said he continues to suffer ongoing pain and restriction of movement in his neck, with such pain radiating across his back, and into the top of his right shoulder. The plaintiff said he also suffers ongoing pain and restriction of movement in his lower back, and that the pain is aggravated by activities that involve bending or lifting, such as hanging out washing or lifting heavy items.[41]
[41]PCB 15
30 The plaintiff said he can take between six to eight Panadeine Forte tablets per day,[42] but that he consciously tries to minimise his intake of such medication, unless his pain is acute.[43]
[42]PCB 15
[43]PCB 7
31 The plaintiff said that he is no longer able to enjoy fishing, as casting, reeling and bending to bait the hook aggravates the pain in his neck and shoulder.[44] He also said that movement on a boat aggravates his lower back injury.[45] The plaintiff said that he has now given his boat to his son, as he can no longer use it to go fishing.[46]
[44]PCB 16
[45]T45, L20–26
[46]T45, L16
32 The plaintiff said that he can no longer swim laps at the pool, as the strokes increase his right shoulder and neck pain,[47] and that he also no longer swims at the beach. The plaintiff said that he subsequently sold his caravan at Torquay Caravan Park, in part, because of his inability to swim at the beach, and in part, because the annual fees at the caravan park were more than he could afford.[48]
[47]PCB 8
[48]T46, L20–23
33 The plaintiff now has household assistance, which is provided to him by the local Council,[49] and has Meals on Wheels delivered.[50] The plaintiff did not directly relate the need for either service to the injuries he suffered in the transport accident,[51] and said that both were provided by reason of his being in receipt of a pension.
[49]T29, L16–17
[50]T28, L28–29
[51]T29, L2–9 and T29, L30–31, T30, L1–2
34 The plaintiff said that grocery shopping is now difficult, as his neck, shoulder and lower back pain, are such that he struggles to carry heavy bags of shopping.[52]
[52]PCB 16
35 The plaintiff said that he no longer goes to the RSL club as it is closed down,[53] and that he no longer goes to the racetrack, as it is more convenient for him to watch the races on television at home.[54] However, the plaintiff said that his ability to enjoy watching things on television has been compromised, as extended sitting results in an increase of his lower back and neck pain.[55]
[53]T39, L6–7
[54]T46, L13–14
[55]PCB 8 and 16
36 The plaintiff has a good relationship with his children and grandchildren, and takes public transport to visit them in their homes, or has them visit him at his home.[56]
[56]T28, L3–4
The plaintiff’s medical evidence
37 The plaintiff’s solicitors arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Gary Grossbard, on four occasions between August 2013 and December 2016.
38 In his first report, dated 20 August 2013, Mr Grossbard stated that in his opinion, the plaintiff had suffered acute injuries to his neck and lumbar spine in the transport accident. He considered that the plaintiff suffered aggravation of degenerative changes in his cervical spine, with pain which radiated into his shoulder region. Mr Grossbard was of the opinion that the plaintiff’s shoulder pain was secondary to his neck injury, rather than to a primary shoulder injury.[57]
[57]PCB 58
39 Over the course of three further examinations and reports, Mr Grossbard stated that his opinion regarding the plaintiff remained unchanged. In his final report, dated 7 December 2016, Mr Grossbard noted that the plaintiff had suffered increased neck pain over the last few months. He further noted that the plaintiff attended hydrotherapy and physiotherapy on a weekly basis, and that he used up to six to eight Codral Forte tablets a day, although he did not use them every day.[58]
[58]PCB 54
40 Mr Grossbard was of the opinion that the plaintiff continued to suffer an aggravation of degenerative disease affecting the cervical and lumbar spine, and that there was no separate injury to his shoulders. He considered that the plaintiff should continue to receive conservative treatment.[59]
[59]PCB 55
41 Over time, the plaintiff saw a multitude of doctors at the Joslin Clinic. In a report from general practitioner, Dr Ron Anderson, dated 30 December 2016, it was stated that the plaintiff suffered cervical spondylosis which had been exacerbated by the transport accident, and which resulted in the plaintiff suffering “ongoing neck and shoulder pain”.[60] Dr Anderson was of the opinion that the plaintiff “may need ongoing physiotherapy”.[61]
[60]PCB 47
[61]PCB 47
42 Mr Feldman has treated the plaintiff on a regular basis since 19 December 2012. In a report dated 10 February 2017, Mr Feldman stated that in his opinion, the plaintiff suffered a soft tissue trauma injury to his cervical spine, which had aggravated the plaintiff’s pre-existing degenerative condition. Mr Feldman was also of the view that the plaintiff suffered subacromial and subdeltoid bursitis of his right shoulder. He considered that the plaintiff was likely to suffer moderate widespread pain and dysfunction, with ongoing issues to his cervical spine, lumbar spine and to a lesser extent his right shoulder.[62]
[62]PCB 50–51
The defendant’s medical evidence
43 The defendant arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Robert Dickens, in July 2015. Mr Dickens noted that the plaintiff complained that his neck pain was his biggest problem, and he described the severity of his pain on the visual analogue scale as nine over ten. Mr Dickens also noted that the plaintiff complained of right shoulder pain, left shoulder pain, and lower back pain. Mr Dickens had been provided with the plaintiff’s past medical records, including his prior complaints of right shoulder pain and neck pain. Having acknowledged such medical records, Mr Dickens was of the opinion that there was “little evidence that this man had any significant problems with his cervical spine, lumbar spine or right shoulder prior to the accident”.[63]
[63]DCB 19
44 Mr Dickens ultimately concluded that the plaintiff was suffering degenerative changes in his cervical and lumbar spine. He then stated that, on occasions, such an aggravation can result in “persistent intermittent symptoms indefinitely”,[64] although he did not state whether or not he considered this to have occurred in respect of the plaintiff’s situation. Mr Dickens did, however, go on to say that he considered the plaintiff’s current impairment related to the transport accident.[65]
[64]DCB 21
[65]DCB 22
45 The defendant also arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Michael Dooley, in November 2016. Mr Dooley was also provided with medical records detailing the plaintiff’s prior treatment for right shoulder and neck pain. Mr Dooley was of the opinion that the plaintiff had sustained a soft tissue injury to his cervical spine in the transport accident, and that it had involved aggravation of underlying degenerative disc disease.[66] Mr Dooley was also of the opinion that when the plaintiff struck his right shoulder on the metal railing of the bus, it resulted in soft tissue injury to his right shoulder joint.[67] Mr Dooley concluded that the plaintiff was likely to suffer intermittent pain in his neck and right shoulder as a consequence of the transport accident. He also noted that although the plaintiff had suffered from these conditions in the past, he was not symptomatic in the lead-up to the transport accident.[68]
[66]DCB 28
[67]DCB 28
[68]DCB 29
Plaintiff’s credibility as a witness
46 The plaintiff accepted that he had memory problems,[69] which may arise in part from his brain injury, but may also be as a consequence of his prolonged alcohol abuse.
[69]T39, L22–24
47 Mr Moulds submitted that the plaintiff’s criminal record, which included multiple convictions of driving whilst disqualified, refusing breath tests and breach of an intervention order, demonstrated that the plaintiff had an established propensity to disregard the law. In considering such a history, Mr Moulds submitted that I should be reluctant to accept the plaintiff’s evidence regarding the extent of his current symptoms and the consequences of his spine impairment.
48 Mr Purcell submitted that the plaintiff’s criminal record was irrelevant to the application before me.
49 The plaintiff recognised his offending past history and rightfully acknowledged it as “disgusting”.[70]
[70]T12, L14
50 I note that in a COATS report dated 25 August 2010, a “clear connection between the plaintiff’s substance use and offending behaviour”[71] was observed.
[71]DCB 120
51 In his affidavits and his viva voce evidence, the plaintiff acknowledged his long standing abuse of alcohol and stated that it has led him to make poor decisions, including to commit driving offences. He also acknowledged the impact his alcohol abuse has had upon his marriages and friendships.
52 The offences committed by the plaintiff were very serious. However, I do not consider those past driving offences, or the breach of the intervention order to impact upon the plaintiff’s credibility in this application. The plaintiff struck me as a frank and honest man who gave evidence against interest on multiple occasions. When he could not recall a history contained in a medical report, he readily accepted the accuracy of the contemporaneous record. He stated that he receives home help and Meals on Wheels, because of his pension, and not because of the injuries he sustained in the transport accident. In addition, the plaintiff did not seek to attribute his no longer attending the racetrack to his injuries, but instead, said that it was more convenient for him to watch the racing station on television at home.
53 At times in his evidence, the plaintiff’s memory problems impacted upon his recall of dates. However, I have no hesitation in accepting the plaintiff’s evidence in relation to his pain levels and the restrictions arising from his spinal impairment.
Aggravation to the plaintiff’s spine
54 The plaintiff claims that the impairment to his spine has resulted in serious consequences to him.
55 The plaintiff claims that he suffers degenerative changes in his lumbar and cervical spine, which were largely asymptomatic prior to the transport accident. In assessing his application in respect of his spinal impairment, there must be a comparison between the plaintiff’s pre-existing condition, with the aggravated state. Pursuant to the well-known principles enunciated in Petkovski v Galletti,[72] I must consider only the consequences arising from the aggravation.
[72][1994] 1 VR 436
56 In R.J. Gilbertsons Pty Ltd v Skorsis,[73] Chernov JA summarised the task before me:
“In determining whether an injury which is an aggravation of a pre-existing injury is a “serious injury”, it is necessary first to make a comparison between the applicant’s condition before the accident that gave rise to the second injury and to his or her condition after that incident and thereby ascertain the degree of additional impairment that has been brought about by the second injury. It is then necessary to make an assessment of whether the additional impairment is serious and long term.”[74]
[73][2000] VSCA 51
[74]Ibid at [40]
57 I am satisfied that, prior to the transport accident, the plaintiff suffered some right shoulder pain between approximately 2003 and 2004, and that he also suffered some neck pain in approximately 2002 and 2008. However, such pain was only intermittent and I am satisfied that in the two years prior to the transport accident, he suffered no like symptoms, such that the degenerative changes in his spine were effectively asymptomatic. Therefore, in considering this application, I can consider the totality of the plaintiff’s neck and right shoulder pain.
Right shoulder injury
58 The plaintiff claimed that aggravation of the degenerative changes in his cervical spine resulted in referred pain into his right shoulder. Mr Purcell submitted that if I were to be satisfied of this, then the plaintiff could also rely upon his right shoulder pain as part of the consequences of his spine impairment.
59 I note that the right shoulder ultrasound taken on 4 January 2013, demonstrated mild bursitis, but that there was no evidence of a tear or tendonitis.
60 Mr Grossbard considered that the plaintiff’s shoulder pain was referred from his cervical spine.
61 Dr Anderson referred only to the plaintiff suffering aggravation of cervical spondylosis in the transport accident, which resulted in ongoing neck and shoulder pain. I accept the inference that can be drawn from this comment, is that Dr Anderson did not consider there to be a discrete shoulder injury, and instead, considered that such pain was referred from the plaintiff’s neck.
62 Mr Dickens diagnosed a soft tissue injury to the plaintiff’s right shoulder, and noted that there was no rotator cuff pathology.
63 Mr Dooley diagnosed aggravation of degeneration of the right acromioclavicular joint, although I note that the x-ray report of 4 January 2013, made no reference to degenerative changes in the plaintiff’s right shoulder.
64 I prefer the opinion of Mr Grossbard, as he has examined the plaintiff four times, over a period of four years. It also appears consistent with Dr Anderson’s opinion and the lack of radiological findings regarding his shoulder pathology.
65 Therefore, in considering the plaintiff’s impairment from his spine, I can also consider the consequences which arise from his right shoulder pain.
Pain and suffering consequences
66 In Haden Engineering Pty Ltd v McKinnon,[75] Maxwell P said:
[75](2010) 31 VR 1
“In its accepted interpretation, the ‘pain and suffering consequence’ of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. (I will refer to the second element as ‘the disabling effect’ of the pain.)
As to the experience of pain as such, the court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale mild/moderate/severe. Unless the pain is constant the Court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily compromise the following:
(a)what the plaintiff says about the pain (both in court and to doctors);
(b)what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c)what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d)what the objective evidence shows about the disabling effect of the pain.
As to (a) the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.”[76]
[76]Ibid at [9]–[12]
67 In assessing whether the plaintiff’s consequences meet the “very considerable” test, it is necessary for me to make an assessment of the impact the spinal impairment has had upon the plaintiff, on an objective basis.
68 I accept that the plaintiff often takes up to six to eight Panadeine Forte a day, due to his neck, lower back and shoulder pain.
69 As has been recognised by the Court of Appeal in previous cases:
“…the endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”[77]
[77]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267 at [199]. See also ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31
70 I also accept that due to the impairment of his spine, the plaintiff suffers the following consequences:
· need for weekly physiotherapy;
· need for weekly hydrotherapy;
· no longer able to enjoy swimming;
· no longer able to enjoy fishing;
· increased pain when doing certain activities in the home, including lifting the washing basket;
· increased pain when sitting, which then impacts upon his ability to enjoy watching television, including the horse-racing.
71 I accept that the plaintiff has assistance with his meals and cleaning, as a consequence of his pension entitlements, and that such a need does not arise as a consequence of the transport accident.
72 I accept that the increased cost of storing a caravan at Torquay Caravan Park may have resulted in the plaintiff selling his caravan. However, if not for his spinal impairment, I consider the plaintiff would still have had the option of visiting Torquay and other beach areas in order to swim. I accept that he no longer does such swimming as a consequence of his neck and shoulder injury.
73 In determining this case, I must make a comparison with other cases in the range of possible impairments. In doing so, I am mindful that I must consider the broad spectrum of cases which this Court sees. As was noted by Ashley JA and Beach AJA in Stijepic v One Force Group Australia Pty Ltd & Anor:[78]
“this includes cases which do not end up in litigation-because, it may be supposed, the consequences are glaringly apparent one way or the other.”[79]
[78][2009] VSCA 181
[79]Ibid at [42]
74 The plaintiff suffered his injury at age 66 and is now 70 years of age. As was stated by the Court of Appeal in Hawkins v DHL Express (Australia) Pty Ltd[80]:
“…Ultimately, the employer appeared to accept that the judge’s reasoning with respect to the worker’s advanced age was at odds with what ought to have been at the heart of her assessment, namely the pain and suffering consequences of his impairment. Her Honour ought not to have treated the worker’s advanced age as in itself supportive of the proposition that his injury was less than serious. This is so because it will depend on the circumstances of each individual case as to whether the age of a worker, and the ailments associated with age, exacerbate the impairment consequences experienced. I do not consider that the remarks made in Stijepic in a case concerning a young adult can be extrapolated to mean that the impairment consequences suffered by a worker of advanced age are, by reason of the worker’s age, likely to be less than serious. Nor should the remarks be read as supporting the existence of a presumption in this regard.”[81]
[80][2013] VSCA 26
[81]Ibid at [78]
75 The plaintiff suffers other unrelated medical conditions, as do many elderly people. However, I am satisfied that none of those conditions substantially interfere with the plaintiff’s enjoyment of life, nor cause him frequent pain. I do accept that the plaintiff’s neck and back pain cause him ongoing pain on a daily basis, for which he requires pain medication. I also accept that his spinal injury interferes with his enjoyment of life and, in particular, his prior enjoyment of fishing and swimming.
76 I consider that the consequences for the plaintiff, as detailed above, when looked at for a 70-year-old man, and when compared to other cases in the range of possible impairments or losses, are very considerable.
Conclusion
77 The plaintiff has satisfied me that he suffers a serious injury to his spine, as a consequence of the transport accident. As such, the plaintiff’s application for leave to commence a claim for common law damages succeeds.
78 I shall make the consequent orders.
0
12
0