Sherwood v VWA
[2022] VCC 1182
•29 July 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-02608
| SPENCER SHERWOOD | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 February, 18 February, 22 February, 31 March, 1 April 2022 | |
DATE OF JUDGMENT: | 29 July 2022 | |
CASE MAY BE CITED AS: | Sherwood v VWA | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1182 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSTION
Catchwords: Serious injury leave application – Pain and suffering – Spine injury leading to pain syndrome – Whether Jones v Dunkel inference arises because plaintiff did not call evidence from family members – Whether video surveillance gives rise to inferences of activities not filmed
Legislation Cited: Accident Compensation Act
Cases Cited:Petrovic v VWA [2018] VSCA 243; Jones v Dunkel [1959] HCA 8; Wesfarmers Ltd v Lloyd [2016] VSCA 41; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; 31 VR 1; Randhawa v Transport Accident Commission [2021] VSCA 135; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M A Hartley QC with Mr G Smith | Zaparas Lawyers |
| For the Defendant | Mr I McDonald QC with Mr L Howe | Hall & Wilcox |
HER HONOUR:
1This is an application by the plaintiff, Mr Spencer Sherwood, pursuant to ss134AB of the Accident Compensation Act1985, for leave to issue proceedings for pain and suffering damages for injuries he sustained to his spine throughout the course of his employment with JP Downey & Co and, more particularly, as a result of an incident which occurred on 4 June 2011.
2In the hearing of the proceeding, the plaintiff informed the Court that he was no longer pursuing a claim in relation to any psychiatric injury and was no longer maintaining a claim for pecuniary loss damages. The plaintiff relied on two affidavits, dated 16 January 2019 and 10 February 2022, and attended for cross-examination. No other witnesses were called.
3Medical material was tendered without objection. The defendant relied on video surveillance footage which was the subject of a separate ruling.
4The legal issues are well-known and are not in dispute. The plaintiff must establish that:
(a) he has an injury caused by the employment;
(b) he has permanent impairment consequences from the injury; and
(c) those impairment consequences, when compared with other cases, are at least very considerable and more than marked or significant.
Background
5The plaintiff was born in November 1962 and is married with two daughters. He said he completed Year 10 at high school and then worked in his family business until his early twenties. He then started his own business involving automotive repair compliance and component manufacturing, which he ran until about 2007. In about 2007, he became a director of Domm Developments Pty Ltd (“Domm Developments”), which he ran in partnership with another director. This business produced water tanks. His role was to manage the production line and oversee and set up systems for tank production. Prior to his injuries, he says he worked approximately sixty hours per week and the business operated, at times, as much as six days a week, twenty hours a day.
The incident
6The plaintiff says that, on 23 March 2011, Domm Developments went into voluntary external administration and JP Downey & Co were appointed as administrators. The plaintiff says JP Downey & Co “let most of the employees go”.[1] The plaintiff says this meant he was largely unassisted with carrying out the work of the business. On 4 June 2011, the plaintiff says that, in the course of delivering a water tank, he suffered the injuries which are the subject of this application.
[1]Plaintiff’s Further Amended Court Book (“PFACB”) 13.
7On that day the plaintiff says he enlisted the assistance of two people at the delivery address to help him remove the water tank from the bed of the truck. The water tank was approximately 2.5 metres high, with a 10,000-litre volume, and weighed approximately 240 kilograms when empty. The plaintiff says there was water in the tank below the level of the outlet tap. Although the volume of water was unknown, it could have been up to 400 litres, increasing the total weight of the tank to up to 600 kilograms at the time of delivery. The plaintiff loaded the tank onto the truck using a forklift and was unaware that there was water in the tank before arriving at the delivery address. While attempting to manoeuvre the tank from the truck with the assistance of the two other workers, but without the assistance of a forklift, the plaintiff says the tank began to spin or pivot towards him, crushing him against the gate of the truck. He says:
“I tried to push it away from me but it was too heavy. My head was pushed into the leaf filter, and the edge of the tank slowly slid down my body, compressing me against the truck. The air was pushed out of me, and I thought I was going to die. Eventually, after about five seconds or so, the tank came to rest on the ground below me, and I was freed. I felt breathless and was gasping for air.”[2]
[2]PFACB 14.
8The plaintiff says that after this incident, he rested for about half an hour and then returned to the facility and lay down. He then attended the Emergency Department at Sandringham Hospital.
9Hospital records of the attendance at Sandringham Hospital on 4 June 2011 note normal vital signs, mild tenderness in the epigastrium and in the right upper quadrant of the abdomen. The records also note a normal ECG, normal chest X-rays, and a CT scan of the abdomen showed no acute abnormality. He was diagnosed with a soft-tissue injury and discharged home with no treatment.[3]
[3]PFACB 32-33.
Plaintiff’s evidence
10Despite pathology in his back pre-dating the incident, detailed below, Mr Sherwood says he led a very physically active life. He spent a lot of time outdoors with his daughters, friends and extended family and enjoyed snow skiing, jet skiing and bike riding. He enjoyed camping, fishing and prospecting. He had done the concreting, paving and brick-laying on an extension on his home and enjoyed gardening.
11Following the incident, he went on a pre-arranged skiing trip in July 2011 but says he was unable to ski due to his physical condition. His role on this ski trip was “limited to ferrying my family to and from the slopes”. He subsequently underwent surgery for hernia repair but noticed increasing back pain which, by January 2012, had become unbearable.
12He attended the Emergency Department at Sandringham Hospital. He started to develop weakness in his left leg and on 6 March 2012 had an MRI scan, which showed disc protrusions at L4-5 and L5-21 with possible impingement on the L5 nerve roots bilaterally. Mr Sherwood has had numerous other investigations for various problems, including memory and vision problems, as well as ongoing back pain.
13On 30 May 2014, he attended The Alfred Hospital with significant chest pain which he now believes were panic attacks. In July 2015, he says he was getting only a few hours of sleep a night and continued to struggle with pain.
14In January 2016, he went to Austria on holiday with his family. He had a fall down some stairs, which he attributes to a loss of power in the right leg. His lower back pain worsened after this incident. X-ray investigation at the time and subsequent CT scan revealed no development in his pathology.
15In September 2016, he was referred to a pain specialist. He was suffering stiffness in his neck and back and down his legs into his feet. He had a burning pain across his lower back, legs and feet. He was referred to Dr Blombery for pain management and recommended to undergo ketamine infusion, but has not pursued this treatment.
16A CT scan in February 2020 confirmed ongoing disc bulge and canal stenosis at L4/5 and degeneration of facet joints at L5/S1. He has been advised by neurosurgeon Mr John Laidlaw in March 2021 that he is not a candidate for surgery.
17He has pain and discomfort in his lower back which is there most of the time. The pain stretches across his lower back and is dull. About two or three days a week the pain “flares up” and is more severe. Increased pain levels typically last a few hours and are most effectively resolved by immobilisation. He uses an EMS/TENS combination machine which he has found quite effective to help him manage his pain. He uses medication sparingly now, as he found it made him “foggy in the mind.”[4]
[4] PFACB 21.
18In addition to the dull pain which flares up, he has a sharp pain in his lower back a few times a week. He describes this as “like an electric shock” which radiates down his left lower back to his feet. He describes this pain as “a dreadful sensation” which occurs a few times a week. It causes a feeling of numbness in the leg which can result in a fall.
19He says his neck is painful most of the time and is worse when he moves his head side to side. He has pins and needles in his arms and hands, particularly when sleeping. The neck pain can cause headaches which are sensitive to light and sound.
20He says “there is never a time when my low back, mid-back and neck are all pain free”. He finds activities such as lifting, walking, standing or sitting for prolonged periods aggravates his pain. The pain affects his sleep as he finds it hard to get comfortable in bed. He wakes tired and rarely feels rested. He has limits on his capacity to lift and bend, and after fifteen minutes of sitting or standing his pain increases. He says he “generally” limits driving to the local area. When he goes on longer drives, he usually requires the use of the EMS/TENS machine.
21His injury has impacted his ability to:
(a) undertake home renovation, landscaping and maintenance;
(b) interact with his children;
(c) enjoy outdoor activities;
(d) sleep;
(e) drive for long distances;
(f) concentrate;
(g) engage in physical intimacy with his wife.
22He still goes to the snow with his family, but is “relegated to merely watching on”.[5] He has purchased what he describes as “a succession of boats” to try to “build memories” with his younger daughter. He found that the first boat bounced around on the water and aggravated his pain. He bought a bigger boat but also found that aggravated his pain and is intending to sell that boat. He has been fishing with a friend on Lake Eildon, and although he caught a fish, he was uncomfortable in the boat and found it difficult to stand in the boat to reel in the fish. He was unable to stay out on the water for more than an hour.
[5] PFACB 23.
Credibility
23The plaintiff’s credibility was very much in issue. The defendant submitted the plaintiff was not a credible witness and he deliberately tailored his evidence and demeanour to suit his case.
24The defendant says the plaintiff’s evidence was confident to the extent of being arrogant when describing the circumstances of the accident and was fulsome, detailed and emotional in re-examination. However in cross-examination, the defendant submits the plaintiff was curt, cagey and guarded.
25The defendant submitted that it was apparent that, despite the incident on 4 June 2011, the plaintiff “demonstrates a range of activities and a fullness of life which could not be gleaned from the affidavit evidence”. The defendant pointed to the plaintiff’s overseas travel, and the fact that he had obtained mining exploration licences and a patent for a particular type of metal detector as examples of this.
26The defendant submitted that Mr Sherwood had failed to disclose the 2007 motor vehicle accident to doctors, failed to disclose the sources of his income at the time he swore his first affidavit when he was pursuing a claim for pecuniary loss, and failed to fully disclose in his affidavits travel to the United States of America and Austria. He had sought to downplay the significance of his interest in a property in central Victoria. The defendant submitted that this property was in fact a farm, the plaintiff had obtained an exploration licence for the property and had driven to Mildura to purchase a quad bike for the property, despite saying that his driving tolerance was “generally limit[ed] to the local area only”.[6]
[6] PFACB 19.
27The defendant relied on video surveillance material which showed the plaintiff undertaking a number of activities, including gardening, walking whilst on the phone and using his hands, attending a restaurant, café and pokies venue, shopping, and driving a vehicle with a boat and bicycles loaded into the trailer.
28The defendant says the type of vehicle the plaintiff was driving and the fact that a boat and bicycles were in the trailer suggests he was preparing for a camping trip.
29Having observed the plaintiff over a number of days, I formed the view that, in giving oral evidence, he was an honest person who was answering questions carefully, thoughtfully and in a measured way.
30I did not consider him to be evasive. He was literal in his approach to questions. An example is the following exchange:
Mr McDonald QC: What do you want a quad bike for?
Mr Sherwood: Because it's hard to walk around on a country property.
Mr McDonald QC: Well, they're very useful as a piece of farm material, aren't they?
Mr Sherwood: A quad bike? A quad bike would be useful on a farm, yes.
Mr McDonald QC: And how big is the property you've got?
Mr Sherwood: The country property is 200 – I have a 200 – I have a share on a 200 acre country property.
Mr McDonald QC: So when we talk about that property, the country property?
Mr Sherwood: Yes.
Mr McDonald QC: Is that the Mount Buller property, or is this a separate property?
Mr Sherwood: No, it's a different property, a separate property – central Victorian. I have a share in a central Victorian property.
Mr McDonald QC: So that's a 200 acre farm, would that be a fair description?
Mr Sherwood: No, it's not a farm, it's a country – well, it's not working, it's just simply land.
Mr McDonald QC: Could be worked?
Mr Sherwood: It would need a – it would need a lot more than I could give it.
Mr McDonald QC: Well, a quad bike would certainly help, wouldn't it?
Mr Sherwood: No, a quad bike would allow you to get around it, it's – you simply can't – you can't walk around it.[7]
[7] T76.
31There was no evidence that the country property in central Victoria is a working farm or is being worked on or developed by Mr Sherwood. I did not consider he was cagey or guarded in the exchange, but was answering the questions put carefully and literally, in keeping with his personality.
32He was questioned about the video surveillance which showed him attending a premises and then driving from the premises with a trailer on which were loaded a boat and some bicycles. It was put to him that he had loaded the boat and the bicycles into the trailer by himself for the purposes of going on a camping trip. Mr Sherwood said he could not recall whether he had assistance from someone to load the boat and bikes, but that if he was by himself he would have done that on his own as he needed to clear the garage at the premises. The bikes had not been used for years, hence they were in storage at the premises. He denied he was making preparations to head off for a trip away involving fishing and bike riding.[8]
[8] T222-223.
33Despite the submissions of the defendant that the video surveillance demonstrated preparations for a camping trip, the plaintiff provided plausible explanations and there was no evidence that he does, in fact, camp, fish or engage in other activities in contrast to his evidence.
34Similarly, the surveillance footage showing him attending various venues and undertaking some minor gardening tasks did not, in my view, demonstrate an “incongruous” presentation. The defendant submits the surveillance does not demonstrate the plaintiff has any physical disability at all and in particular nothing consistent with the chronic neck and back pain he claims.
35However, I observed that there were at least occasions in the surveillance footage where the plaintiff appears to have some restrictions or pain, including footage showing him holding his back whilst gardening and walking down the street, and some minor but noticeable alteration to his gait which he attributes to numbness in his left foot.
36Much of the footage was old, dating back to 2012, 2013 and 2016 and was of limited assistance in assessing the plaintiff’s current condition.
37I do not accept the inferences the defendant tried to draw from the footage, in particular that it establishes that he undertakes “business or business-like activities”, “seems talkative and social” and that he is “extremely busy and occupied”.
38Nor do I think the fact that he is “well-dressed and presentable”, attended a pokies venue, had lunch with a friend, and drives two large vehicles undermines his credibility in relation to his claimed injuries or establishes that he has no demonstrable injury and no significant consequences from that injury. The plaintiff’s background, lifestyle and socio-economic background provide a plausible explanation for why he would be well-dressed and presentable, drive SUV-type vehicles and lunch with a friend in the city.
39Accordingly, I give the video footage little weight in determining this application and do not consider the plaintiff’s credit to have been impugned by it in any significant way. Given this I have not to consider the submissions of the plaintiff that some of the video footage ought not be relied on because of multiple ‘mini-gaps’ in the editing.
Medical background
40Mr Sherwood underwent surgical repair of a left inguinal hernia in the early 2000s. In 2007, he was involved in a motor vehicle accident and underwent a CT scan of the cervical and lumbar spine, which showed pathology at L4-5 and L5-S1 levels. He had pain in his neck, back and right leg, as well as symptoms of possible head trauma. He says that he had some chiropractic treatment and was referred to a musculoskeletal physician, Dr Victor Wilk, but he was subsequently able to return to all his recreational activities in an unrestricted fashion and lived a “very physically active life”.
41He relies on the following reports, summarised briefly below.
Report of Mr Adam Skidmore dated 26 November 2015
42Mr Skidmore, general surgeon, undertook a laparoscopic repair of Mr Sherwood’s large direct inguinal hernia on the right side. He notes this appeared to be a new condition rather than a recurrence, aggravation or acceleration of an existing injury. He notes a 1 per cent chance of recurrence.
Report of Dr Dorothea Soeding dated 26 October 2012
43Dr Soeding, general practitioner, reports that Mr Sherwood attended on 14 June 2011 and records abdominal imaging which showed an atelectasis in the left base laterally, which was possibly caused by the incident, as he had no underlying respiratory disease.[9] She notes right inguinal hernial repair and reports:
“After surgery, more attention was given to the developing lower back pain which has not satisfactorily resolved in spite of specialised physiotherapy with Jayce Gilbert, and additional medications which included muscle relaxants (diazepam), steroids (prednisolone), NSAID and amitriptyline.”[10]
[9]PFACB 34.
[10]PFACB 34.
44She notes an MRI scan has shown mild lumbar canal stenosis and degenerative changes. She also notes referral to Dr Bruce Shirazi, pain specialist.
Report of Mr Raul Gomes dated 7 November 2013
45Mr Gomes, physiotherapist, notes ongoing cervicothoracic and lumbar spine pain not resolved by previous treatment. He records Mr Sherwood reported bilateral and upper limb intermittent pain and numbness. A CT scan on 6 March 2012 showed broad-based disc protrusions at L4-5 and L5-S1, with moderate central canal narrowing and bilateral impingement of L5 nerve roots.
Report of Dr David Vivian dated 27 September 2016
46Dr Vivian, spinal specialist, notes Mr Sherwood takes 150 milligrams of Lyrica, 10 milligrams of Endep, and 30 milligrams of Mirtazapine and notes that Mr Sherwood was on Fentanyl patches, but ceased them as they did not make much difference. I note here that this report dates from 2016 and Mr Sherwood does not currently use any of this medication. He notes Mr Sherwood’s report of burning pain in the lower back, spreading into the iliac regions and lateral upper hips and legs, and into the feet, including the top of and under the foot. Dr Vivian diagnosed an unusual pain syndrome and noted:
“… a lot of autonomic features to his pain when it is worse. The pain has features suggestive of central sensitisation with a burning-type description. He has a feeling of generalised stiffness and muscle tightness consistent with some sort of spinal activation of gamma efferents, etc. I can only conclude that the pain syndrome and associated symptoms are driven by some mechanism in the central nervous system.”[11]
[11]PFACB 35.
Report of Dr Richard Sullivan dated 12 December 2020
47Dr Sullivan, interventional pain specialist and specialist anaesthetist, diagnoses lumbar spondylosis, aggravation of thoracic spondylosis and aggravation of cervical spondylosis, and a chronic pain condition affecting the axial spine in the lumbar, thoracic and cervical locations, and also affecting his bilateral lower limbs.[12] Dr Sullivan opines that there is an organic basis to Mr Sherwood’s pain and notes radiological change in the axial spine, consistent with the process of spinal spondylosis, noted maximally in the lumbar spine, especially at L4-5 and L5-S1. He notes that, prior to the injury, Mr Sherwood reported no significant pain in his axial spine, especially his lumbar spine, of a limiting nature. Dr Sullivan opines, “[t]his is a physiological process and has a clear organic basis”.[13] He notes that Mr Sherwood has:
“… chronic pain affecting his axial spine and bilateral lower limbs of a moderate to severe nature at rest that is aggravated with fairly simple and trivial tasks …”[14]
He opines that the limitations will continue into the foreseeable future.[15] Dr Sullivan’s further report of 11 November 2021 confirmed his diagnosis. He notes Mr Sherwood’s limitations will continue into the foreseeable future.
[12]PFACB 135.
[13]PFACB 136.
[14]PFACB 136.
[15]PFACB 136.
Report of Dr James Rowe dated 28 January 2021
48Dr Rowe, specialist occupational physician, diagnoses aggravation of lumbar spondylosis, particularly at the L4-5 and L5-S1 level, aggravation of thoracic spondylosis and aggravation of cervical spondylosis. He notes a restricted range of movements and pain caused by movements in all directions, and opined that the physical impairment is likely to be permanent. He notes that the prognosis is not good and that despite extensive conservative treatment, there has been no significant improvement.
Report of Mr Mohammed Awad , dated 11 February 2021
49Mr Awad, neurosurgeon and spinal surgeon, diagnoses Mr Sherwood with an aggravation of cervical spondylosis, aggravation of thoracic spondylosis and aggravation of lumbar spondylosis. He says, “there is a substantial organic component to his pain with respect to his lower back, thoracic and cervical spine injury”.[16] He goes on:
“It is likely in my opinion that the patient has suffered a significant trauma to his spine following the crush injury. As a result, he has likely suffered from irreversible musculoskeletal and ligamentous injury that has likely also accelerated his natural degenerative process. The injury has also now rendered him in significant pain where he was in no pain prior and asymptomatic with his natural spondylosis.”[17]
[16]PFACB 155.
[17]PFACB 155.
50He notes that the prognosis is poor and he will likely suffer the consequences of the injury into the foreseeable future.
Report of Mr Peter Kudelka dated 12 July 2013
51Mr Kudelka, orthopaedic surgeon, noted an MRI scan dated 6 March 2012 which shows a broad-based disc protrusion at L4-5 with bilateral facet arthropathy and a mild broad-based protrusion at L5-S1. He opined that these changes related to the plaintiff’s back pain and left L5 irritation symptoms. He noted that the symptoms can be related to a mechanical injury in 2011 and he would consider the conditions stabilised.[18]
[18]PFACB 195.
Report of Mr Peter Grossberg dated 20 November 2014
52Mr Grossberg, specialist in general, laparoscopic surgery and endoscopy, considered the plaintiff’s condition is:
“… partly related to the accident as described. I do also think there is a possibility that part of his symptoms are related to the financial aspect of his business in that the partnership no longer exists.”[19]
[19]PFACB 200.
53However, Mr Grossberg considered that the plaintiff’s condition is either primarily or secondarily a result of the accident. Mr Grossberg opined that Mr Sherwood’s work-related problems seem to be “mainly related to his psychological state”.[20] I note that Mr Grossberg is not a psychiatrist and expressing this opinion is outside his area of expertise.
[20]PFACB 201.
Sandringham Hospital radiology report dated 26 October 2012
54The report notes the history of abdominal crush injury, intravenous contrast enhanced CT scan of the abdomen of pelvis, with reformats of the spine from T9 to S2:
“Conclusion:
No evidence of intra-abdominal injury.
No lumbar spine fracture demonstrated.Small right inguinal hernia containing fat.”[21]
[21]PFACB 203.
Report of Dr Michael Lee dated 6 March 2012
55Dr Lee notes that the MRI scan of the lumbosacral spine clinical shows L5 weakness. Routine MRI imaging noted no discopathy evident at L1-2, mild disc desiccation with associated Schmorl’s node at L2-3 and mild disc desiccation at L3-4. At L4-5, broad-based disc protrusion and mild bilateral facet arthropathy is noted, with subsequent moderate central canal narrowing and narrowing of the bilateral subarticular recesses with contact, but no definite compression of the traversing bilateral L5 nerve roots. Dr Lee notes L5-S1 mild broad-based disc protrusion with associated disc desiccation. Mild bilateral facet arthropathy is also noted with mild associated central canal narrowing. The conclusion was disc protrusion and bilateral facet arthropathy at L4-5, with possible impingement of the traversing bilateral L5 nerve roots and disc protrusion at L5-S1 with mild central canal narrowing.
56The CT scan of 10 October 2013 notes mild degenerative changes in the cervical spine, but no disc herniation or foraminal stenosis.
57The thoracic spine CT scan shows degenerative changes in the dorsal spine, but no vertebral body collapse.
58The MRI scan of 18 September 2016 notes multilevel disc degeneration without epidural mass, cord compression or intrinsic cord abnormality in the cervicothoracic spine, asymmetric generalised disc bulge at L4-5, worse on the right, resulting in mild to moderate subarticular stenosis for the traversing right L5 nerve.
59The CT scan of 4 February 2020 noted central canal stenosis at L4-5 secondary to a broad-based disc bulge and mild bilateral L5-S1 facet joint degenerative change.
Dr Peter Blombery report dated 7 June 2021
60Dr Blombery, vascular disease and pain medicine physician, notes that Mr Sherwood has been left with ongoing pain since the incident which is extensive, extending all the way through the back, into the right side of the neck, abdomen and left arm. He says:
“It was my opinion that the injury has resulted from a compression of structures in the spine as well as in the abdomen and this has triggered the development of a pain syndrome in the affected area with sensitisation of pain nerve pathways.”
The defendant’s medical reports
Report of Professor Vernon Marshall dated 20 February 2012
61Professor Marshall, surgeon, diagnoses crush injury to abdomen with persisting low back pain and right inguinal hernia, laparoscopic right inguinal hernia repair without recurrence and persisting low back pain. Professor Marshall notes that after hernia repair, the plaintiff has:
“… minimal residual problems there and has no evidence of recurrence. He has persisting low back pain.
I would accept he sustained the work injury, the effects of which continue to contribute to his symptoms.
He has no evidence of radiculopathy and I would suspect that his continuing symptoms relate to chronic discogenic pain.”
Report of Dr Dominic Yong dated 11 August October 2016
62Dr Yong, occupational physician, notes the plaintiff described back pain after the incident that worsened after the hernia repair. He notes Mr Sherwood’s instructions that “at some point” he was treated with Fentanyl and stated that during this time “the pain in the back was radiating down his legs and his feet were going numb.”
63Dr Yong also notes Mr Sherwood’s report of right shoulder pain radiating into his right upper arm soon after the incident, which had increased in the last few years with reduced power and further reduction in movement. He recorded Mr Sherwood’s instructions that he had neck pain since the injury which had been treated with physiotherapy and massage and painkilling medication. He reported Mr Sherwood’s instructions that he had mid-back pain at the same level where the tank hit his chest which sometimes radiated to the front of his chest, and that on at least one occasion he had required a hospital attendance to exclude cardiac damage.
64On examination Dr Yong notes tenderness to palpation in the low back and to the right as well as centrally around the thoracic area. Neurological examination of the legs revealed reduction to light touch sensation around the left foot and reduced power bilaterally. There was no sensory loss on neurological examination of the arms though power in both arms was mildly reduced. He diagnoses lower back dysfunction and deconditioning without any evidence of radiculopathy. He noted ongoing pain in the right shoulder, neck and thoracic region with dysfunction of region together with deconditioning. He notes Mr Sherwood’s current treatment at that time included Lyrica 150mg twice a day, Endep 10mg at night, sublingual HDEA, physiotherapy and remedial massage visits. He opines that Mr Sherwood’s reported pain and restrictions were not consistent with the expected clinical course taking into account the mechanism of the injury and the conditions. He goes on:
“The mechanism of the injury was described as a crush injury with the water tank weighing approximately 400kg squashing him between it and a metal gate on the truck. This would be a reasonable mechanism of injury leading to the onset of his conditions.
It would be expected that his clinical course would be further improved than what has been described.
I also note that he has the presence of psychological comorbidity and this can influence the recovery of the physical condition.
Given the clinical course over the past 5 years it is unlikely that his condition will fully resolve.”
65It is clear that Dr Yong’s view that Mr Sherwood’s condition is not consistent with the mechanism of injury relates to the clinical course after injury rather than whether the incident itself could have caused the injury. He considers that Mr Sherwood had a current capacity for work and did not consider that any condition of the right shoulder was linked to the reported injury.
66Dr Yong provided a subsequent opinion on 8 May 2019 which did not materially depart from his opinion about Mr Sherwood’s injury, restrictions or capacity. His opinion also remains unchanged in his subsequent reports dated 16 November 2020, 24 February 2021, 9 December 2021 and 22 December 2021.
Report of Dr Tony Kostos dated 29 May 2019
67Dr Kostos, rheumatologist, notes Mr Sherwood’s report of constant pain in his neck with some numbness in both hands, right elbow pain extending into the forearm, minor numbness in both hands and ongoing pain in the rest of his spine. He described constant pain throughout his back which can alternate into both legs and notes that the soles of his feet cramp regularly.
68He reported to Dr Kostos pain causing a problem at night, that he has poor sleep patterns and he wakes up stiff most mornings. During the day, sitting in stationary positions and lying down can aggravate his pain.
69At the time of seeing Dr Kostos, Mr Sherwood’s current treatment included medication, Palmitoylethanolamide and Naltrexone. Dr Kostos opines:
“It is quite apparent that this man’s history and presentation today is not consistent with a spinal injury and all that is noted is that he has a stiff spine related to constitutional disc degeneration and osteoarthritis.
This explains why treatment for a nociceptive problem has failed.
It has also been speculated that he has a pain syndrome and he has had some unconventional medication which clearly has not been of assistance, but fortunately he refused to consider other treatments such as a Ketamine infusion.”
70Dr Kostos goes on to opine that the incident described did not contribute to any injuries to his cervical or lumbar spine and that his current condition “simply relates to a stiff spine related to his constitutional disc degeneration and osteoarthritis.” He considered that Mr Sherwood had the physical capacity to return to work, possibly even to his previous duties, however he noted that the continuation of his current circumstances rendered his prognosis “extremely poor”.
71Dr Kostos’s opinion remains unchanged in his subsequent report on 12 November 2020.
72Dr Kostos then viewed video surveillance footage and noted that Mr Sherwood “is able to walk quickly and without any apparent discomfort.” He notes that Mr Sherwood was able to turn his head freely and look down at his mobile phone and hold his mobile phone on his left ear with his left shoulder raised while undertaking activities with his hands.
73He notes Mr Sherwood’s ability to use a mechanical blower and said he was able to undertake this activity “quite frequently”. It is unclear how Dr Kostos formed the view that Mr Sherwood undertook this activity “quite frequently” unless he means quite frequently within the video as there is no other evidence of the plaintiff undertaking this activity.
74He notes that Mr Sherwood on one occasion in the video footage was seen to “bend freely from the waist to the ground”. Dr Kostos opined that this information confirms his opinion that Mr Sherwood “does not have a localizable musculoskeletal injury although he does have some constitutional disc degeneration and osteoarthritis in his spine.” He opines that Mr Sherwood’s degeneration and osteoarthritis was “completely irrelevant to the incident described.”
75In a subsequent report of 1 March 2021, Dr Kostos expresses his opinion about the report of anaesthetist and pain physician Dr Sullivan. He notes that Dr Sullivan did not examine Mr Sherwood’s cervical or thoracic spine and that his examination of Mr Sherwood’s lumbar spine was “inadequate”. He disagrees with Dr Sullivan’s findings and opines:
“It is quite apparent that Dr Sullivan is not aware of the medical evidence related to the diagnosis of low back pain and the role of investigations obtained from history examination and investigation results cannot be used to determine the cause of injury in the vast majority of cases of low back pain.”
76He notes that abnormalities are “frequently seen on investigations such as CT scans and MRI scans in asymptomatic individuals and their presence in someone with back pain cannot be interpreted as being the cause of the pain.”
77He says Dr Sullivan made an incorrect diagnosis and attributed Mr Sherwood’s condition to an injury “completely without any evidence”.
78Dr Kostos also reviewed the report of Dr Lebedev of 2 July 2020. He considers the report “irrelevant”.
79In Dr Kostos’ supplementary report of 14 December 2021 in which he is asked to comment on the reports of Mr Awad, neurosurgeon, he criticises Mr Awad for failing to detail an adequate history or undertake a complete physical examination. He notes that:
“Mr Awad does not seem to be aware that his diagnoses are non-evidence based and the conclusions in his reports need to be reviewed in this light.”
80He notes in relation to the reports of Dr Blombery that Dr Blombery did not obtain an adequate history and conducted only a brief examination which did not include any spinal movements. He says:
“Therefore it is quite apparent that Dr Blombery’s conclusions cannot be based on the history and examination findings that he has documented.”
Analysis of medical material
81The defendant submits that the medical material demonstrates that Mr Sherwood did not immediately complain of, nor was investigated for, significant spinal impact or back pain. His presenting complaint to Sandringham Hospital was abdominal pain. He did not see his general practitioner for more than a week after the incident and the only record of any back injury is soft tissue tenderness.
82The defendant submits that his ability to go on holiday immediately after the incident, even if he did not ski, suggests he was not suffering significant back pain.
83The defendant says there is little in the way of treatment until the fall in January 2016 and then, despite seeing various specialists, there appears to be no ongoing or regular treatment with any particular specialist.
84The defendant notes he has had no invasive treatments, such as epidural injections or ketamine infusions, does not have ongoing physiotherapy and takes only minimal medication. This, the defendant submits, is inconsistent with a person who claims to have chronic neck and back pain.
85The defendant relies on the opinion of Dr Yong, who was not aware of the previous motor vehicle accident but nevertheless did not consider that the plaintiff’s complaints of pain and restrictions were consistent with the expected clinical course.
86The defendant also relies on the opinion of Dr Kostos, who considers there is no spinal injury caused by the incident.
87The defendant submits that Dr Kostos and Dr Yong reached similar conclusions to the conclusion reached by the medical panel and that this ought to be persuasive, particularly as each has had the opportunity to review a “wealth of material” as well as surveillance footage, prior to providing their opinions.
88The defendant submits that the plaintiff is an unreliable witness and consequently, the weight that is given to medical opinions based upon his history should be reduced.[22]
[22] Petrovic v VWA [2018] VSCA 243.
89However, as set out above, I do not consider the plaintiff to be an unreliable witness and accept that his reports to his doctors accurately reflect his recollection of events and his experience of symptoms.
90I am satisfied that the incident caused a crushing of the chest area which resulted in extensive bruising that was still present when he attended his general practitioner ten days after the event. He did not immediately identify or localise his pain to the back but this became apparent after the hernia repair. There is evidence of clear pathological changes on radiology.
91Whilst there is evidence of pre-existing degenerative change and a natural spondylosis, nothing in the material leads me to conclude that the symptoms and pain he experienced pre-dated the incident. Mr Awad opines that the crush injury likely caused irreversible musculoskeletal and ligamentous injury that has accelerated the natural degenerative process. The pre-existing injury was asymptomatic and did not impact Mr Sherwood’s ability to undertake fulltime work and engage in his outdoor activities, including skiing.
92Dr Yong has reached his conclusion on the basis that the clinical course was not as expected. Dr Yong concludes that the mechanism of injury was “reasonable”, which I take to mean that the described incident could reasonably have caused the injuries Mr Sherwood claims. He does not explain why he then determines that Mr Sherwood’s clinical course post-injury leads him to conclude that the injuries are not consistent with the stated cause. Dr Yong appears to say that the incident could reasonably have caused the injury, but the ongoing effects of the injury are unexpected and therefore the incident could not have been the cause of the injury. In the absence of an explanation as to why an unexpected clinical course renders the mechanism of injury untenable, Dr Yong’s evidence seems to simply be contradictory.
93Dr Yong does not appear to have considered the potential impact of a pain syndrome. Only the pain specialists who provide opinions conclude there is a pain syndrome. Dr Blombery opines that the compression of structures in the spine has triggered the development of a pain syndrome with nerve sensitisation. Dr Sullivan opines that Mr Sherwood has a chronic pain condition with a clear organic basis. I accept the opinions of those pain specialists.
94Dr Kostos stands alone in concluding the incident caused no spinal injury at all and is highly critical of all the other expert reports. He considers that Mr Sherwood’s pain results from pre-existing “constitutional” disc degeneration and osteoarthritis, but makes no attempt to explain why these pre-existing conditions were apparently entirely asymptomatic prior to the incident and have caused ongoing pain and restriction since. He dismisses the diagnosis of a pain syndrome but this appears to be in large part based on his criticisms of the methodology and examinations undertaken by the diagnosing doctors.
95I do not accept Dr Kostos’ opinion which is contrary to all the other medical opinions.
96Accordingly I am satisfied that Mr Sherwood has sustained an injury to his spine that has an organic basis and has triggered the development of a pain syndrome.
Does the plaintiff have a serious injury?
97The defendant criticises the plaintiff’s reliance on medico-legal material and points to his lack of current or ongoing treatment as being inconsistent with his stated level of pain.
98The defendant notes that the plaintiff has not provided corroborating evidence from his wife or children as to his engagement in activities and has not provided reports from a number of treaters and says a Jones v Dunkel[23] inference can be drawn from their absence.
[23] [1959] HCA 8.
99However, the absence of corroborative evidence from family members is neither unusual in an application of this kind, nor does it necessarily give rise to an adverse inference. I have not found the plaintiff’s credit is impugned and I do not draw any inference from the lack of affidavit material from family members.
100Given this, the question the Court must determine is whether the plaintiff’s injury and its consequences, in comparison with other cases in the range of possible physical impairment, are more than significant or marked and are at least very considerable.
101Here, the plaintiff’s pre-injury lifestyle was different from many of the plaintiffs who come to court with back injuries. For example, snow skiing, particularly at overseas locations in Europe and America, was a frequent pastime and one which was a significant part of his family’s leisure time. The loss of this activity is a loss of some significance to him, and that loss is not devalued or to be disregarded simply because it is an activity that might not be available to everyone.
102The plaintiff relies on Wesfarmers Ltd v Lloyd[24] in which the plaintiff suffered a crush injury that resulted in an impairment of his spine. In that case, the plaintiff had returned to fulltime work but the loss of his hobbies was of significance to him. The plaintiff says this is an example of the sorts of cases which are in the ‘range’ of comparable injuries to which the plaintiff ought to be compared.
[24] [2016] VSCA 41.
103The pain consequences of an injury can affect a broad range of activities, including the plaintiff’s sleep, recreational activities, social activities, mobility, and enjoyment of life.[25] While pain consequences can be considered individually, the combined impact of those consequences must also be considered.[26]
[25]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; 31 VR 1, [16] per Maxwell P. See also Sutton v Laminex Group Pty Ltd (2011) 31 VR 100.
[26]Randhawa v Transport Accident Commission [2021] VSCA 135, [72]; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100.
104Whilst the defendant criticises the plaintiff’s lack of ongoing treatment, the fact is that eleven years after the injury, and in the absence of effective treatments to date, there is likely little point in regularly attending medical practitioners. The plaintiff has had periods of high medication use, however now avoids medication as he found it affected his thinking. This is a reasonable course of conduct and does not, in my view, demonstrate the absence of pain. He uses an EMS/TENS machine to control his pain and otherwise modifies his activities.
105I accept the plaintiff’s evidence that he is in constant low level pain which flares up several times a week.
106The impact on his life due to this injury has been very considerable. He is no longer able to ski or participate in the activities he formerly enjoyed. His sleep is impacted. He is limited in his external pursuits. His social life has suffered.
107Considering his near-constant pain, significant reduction in activities he formerly undertook, and the limitations presented by his current condition, I am satisfied that the consequences of his injury are more than significant or marked and are at least very considerable.
108Accordingly, the plaintiff will be granted leave to commence a common law proceeding for pain and suffering damages.
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