Siddel-Whipp v Transport Accident Commission
[2019] VCC 1303
•23 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-00249
| KENNETH LESTER PHILLIP JAMES SIDDEL-WHIPP | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 6 August 2019 | |
DATE OF JUDGMENT: | 23 August 2019 | |
CASE MAY BE CITED AS: | Siddel-Whipp v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1303 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Spinal injury – identification of the injury – identification of the impairment consequences – whether the identified impairment consequences are “serious” – credit – comparison with like impairments
Legislation Cited: Transport Accident Act 1986
Cases Cited:Richards v Wiley (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Abbas v Transport Accident Commission [2015] VSCA 217
Judgment: The originating motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC | Shine Lawyers |
| Ms J Frederico | ||
| For the Defendant | Mr P Rattray QC Mr P Bourke | Solicitor for the Transport Accident Commission |
HIS HONOUR:
Introduction
1 At approximately midnight on 19 October 2016, the plaintiff was driving his car along Dandenong Road near where it intersects with Glenferrie Road in Malvern. An overhead tram wire had become dislodged. It wrapped around one of the wheels of the plaintiff’s car, with the result that the plaintiff lost control of his car, which then flipped over.
2 The plaintiff submitted that he suffered a spinal injury as a result of the occurrence of the transport accident which has impaired the function of his spine to the extent of the consequences being “serious”.
3 Mr R McGarvie QC appeared with Ms J Federico of counsel for the plaintiff. Mr P Rattray QC appeared with Mr P Bourke of counsel for the defendant.
4 For reasons which will become apparent later, I have found it necessary to set out a summary of all of the medical evidence.
The Plaintiff’s medical treatment
5 The plaintiff left the scene of the transport accident and returned to his home. On the following morning, he became aware of pain and stiffness in his neck and lower back, and the onset of a headache. He saw a medical practitioner who prescribed him painkillers. That medical practitioner advised him to attend the Monash Medical Centre.[1]
[1]Plaintiff’s Court Book (“PCB”) 7
6 The plaintiff was examined by a medical practitioner at the Monash Medical Centre. He was noted to be tender over the upper cervical spine. A CT scan did not disclose any abnormality. He was provided with a certificate to be off work for the following five days. He was provided with Endone which is an analgesic medication used for pain relief.[2] The plaintiff was absent from his employment for two days before returning to work full time.
[2]PCB 30
7 The plaintiff continued attending medical practitioners at the Myhealth Medical Centre. One of those medical practitioners was Dr Liu, who provided a report dated 24 May 2017.[3] At the time he composed the report, he recorded that the plaintiff suffered “back pain” as a result of the transport accident. In describing it as back pain, he did not differentiate between the plaintiff’s cervical, thoracic and lumbar spines. Ordinarily a reference to the back is anatomically associated with the lower back in distinction to other segments of the spine.
[3]PCB 34
8 In any event, Dr Liu noted that the plaintiff was suffering chronic back pain. He referred him to have physiotherapy and acupuncture treatment, which was provided at his clinic. He described the plaintiff’s pain as chronic pain occurring daily, but he noted that the plaintiff was working full time “with reduced capacity”. He advised him to avoid work which involved heavy lifting, repetitive bending or prolonged sitting. As will be seen later, the plaintiff has not been involved in any work which has involved heavy lifting and repetitive bending. The work he undertakes does involve prolonged sitting. Dr Liu also prescribed the plaintiff Tramadol for pain relief and referred him to Ms Garcia, psychologist, for counselling for his chronic pain and a mood disorder.
9 The plaintiff was next seen by Dr Winter, specialist pain medicine physician and anaesthetist, on two occasions, on 22 August 2017 and on 3 October 2017. He provided a report dated 26 October 2017.[4] Dr Winter recorded that over the following weeks to months after the transport accident, the plaintiff developed worsening pain in his left thoracic area under his shoulder blade, and in his cervical, mid thoracic and lumbar areas. He noted that the plaintiff had tried different types of painkilling medication - Panadol Osteo, anti-inflammatories, Tramadol, and at some later stage, Targin and Endone.[5] He also noted that the plaintiff had undergone a variety of treatments – physiotherapy, acupuncture, hydrotherapy and the use of a TENS machine.
[4]PCB 35-37
[5]Tramadol, Targin and Endone are opioids
10 Dr Winter prescribed the plaintiff Orphenadrine[6] and Duloxetine.[7] He did not identify what purpose was to be served by the prescription of those two types of medication. He noted that the plaintiff did not gain any benefit from the use of Orphenadrine, but some mild benefit from Duloxetine. He noted that the plaintiff’s use of opioids had reduced. Dr Winter considered that the plaintiff was suffering from a widespread myofascial pain condition, poor sleep and an acute stress response to the transport accident. He suggested other treatment, which the plaintiff declined. The plaintiff was also suffering more from mood disturbance, increased anxiety and stress response at the time when Dr Winter last saw him.
[6]Used to treat muscle pain
[7]Used to treat depressive disorders, generalised anxiety disorders, fibromyalgia and neuropathic pain
11 The solicitors for the plaintiff referred the plaintiff to Dr Thomas, consultant in rehabilitation and pain medicine. The plaintiff was later referred back to Dr Thomas by Dr Liu for treatment. The plaintiff saw Dr Thomas on 4 September 2018, on 8 January 2019 and then again on 25 June 2019. He provided a report dated 10 July 2019.[8] Dr Thomas recorded the plaintiff as having widespread pain throughout his trunk posteriorly from his neck to his lower back which was sensitive to touch. He noted that the plaintiff had previously seen Dr Winter, and he observed that the treatment provided by Dr Winter was of limited benefit. He understood that the plaintiff had been treated by the prescription of the medication which I have already referred to.
[8]PCB 58-60
12 Dr Thomas’ initial diagnosis was that the plaintiff was suffering from a chronic pain syndrome which he described as “now called nociplastic pain” which refers to “central sensitisation”. Dr Thomas changed the plaintiff’s medication from Targin to Palexia.[9] Dr Thomas was aware that the plaintiff had seen Dr Krapivensky, psychiatrist, for treatment. He was aware that she had prescribed the plaintiff medical cannabis. His understanding of its use was that patients had reported “an underwhelming response to it”; however, the plaintiff reported to him that it was assisting him with his sleep.
[9]An opioid
13 Dr Thomas referred the plaintiff to The Victorian Rehabilitation Centre to undergo a pain management program. Before that occurred, the plaintiff underwent a ketamine infusion for one week, commencing on 4 December 2018, which gave him no benefit. Dr Thomas reviewed the plaintiff after he had completed the pain management program. The plaintiff reported that it was beneficial, in that he had learned how to handle flare-ups and trigger managements much better.
14 Dr Thomas’ final opinion was that the plaintiff was suffering from a chronic pain syndrome, now called nociplastic pain. His prognosis for the plaintiff was for ongoing pain and disability which he considered needed to be monitored into the foreseeable future. He noted that the plaintiff continued to use medicinal cannabis at night and still had a lot of lower back sensitivity.
15 The plaintiff has continued to see medical practitioners at the Myhealth Medical Centre. Dr Ting, general practitioner, also from that clinic, provided a report dated 28 May 2019.[10] He summarised the plaintiff’s treatment in a very abbreviated way. He referred to the plaintiff undergoing a “pain rehabilitation program”. He added that he considered that the plaintiff was stable in terms of pain control, but his prognosis would remain unknown until he completed the program. The program he was referring to is the one referred to by Dr Thomas.
[10]PCB 57
16 Dr Liu referred the plaintiff to Ms Garcia, psychologist. She first saw him on 20 June 2017. She provided two reports, dated 14 November 2017[11] and 15 April 2019.[12] The plaintiff has seen Ms Garcia about every three weeks. She obtained an accurate history of the plaintiff’s medical treatment, and a reasonable account of the consequences which he says have resulted from the spinal injury. She considered that the plaintiff’s psychological state warranted a diagnosis of an Adjustment Disorder with Anxiety. She also considered that there were symptoms which were indicative of a Post-Traumatic Stress Disorder.
[11]PCB 38-45
[12]PCB 46-54
17 Ms Garcia treated the plaintiff by the use of trauma focused cognitive behavioural therapy, exposure therapy, cognitive therapy and stress management, which she described in some detail in her last report.[13] She considered that the treatment had resulted in the psychological injury stabilising. She noted moderate improvement in the way in which the plaintiff managed his anxiety and post-traumatic stress symptoms. She also noted that he had been treated by a psychiatrist who had prescribed him medication. Lastly, Ms Garcia considered that the plaintiff would gain benefit by ongoing psychological treatment to avoid any deterioration in his condition.
[13]PCB 52-54
18 The plaintiff was also referred to Dr Krapivensky, psychiatrist. The plaintiff saw her on 26 September 2018. She provided a report dated 18 March 2019.[14] She considered that the plaintiff exhibited symptoms of Anxiety and Post-Traumatic Stress Disorder. She organised for the plaintiff to obtain a prescription for medicinal cannabis known as CanniMed, which she considered resulted in “significant improvement in Ken’s mood, anxiety and pain symptoms”. She also prescribed him Brintellix to treat depression.
[14]PCB 55-56
19 At the time when the plaintiff swore his last affidavit, he was still seeing Dr Krapivensky. She considered that the plaintiff improved significantly. It was an opinion put to the plaintiff which he said was not accurate. It is important to set it out in full for reasons which will become apparent later. She said:
“… From a psychiatric perspective he has no current psychiatric condition. He has mild symptoms of anxiety, no panic attacks, his mood is very good, he is very active and all his activities of daily living are normal in all domains. He continues to work. Since commencing CanniMed he has been able to stop all opioid medication.”[15]
[15]PCB 56
The medico-legal assessments
20 Mr Brearley, orthopaedic surgeon, examined the plaintiff on 11 October 2017. He provided a report dated 11 October 2017.[16] He recorded that the plaintiff told him that he has constant pain in his back. The pain was usually on the left side of his mid thoracic region and occasionally on the right side, and that the pain varies from areas of his thoracic and lumbar spine to his neck. On examination, Mr Brearley found all movements of the cervical spine were within the normal range. The movements of the lower back were slightly limited on flexion.
[16]PCB 70-77
21 Mr Brearley considered that the plaintiff had suffered a soft tissue injury to his cervical and thoracic lumbar spine. He considered that he would gradually improve, and that it was unlikely that he would experience any deterioration in his condition.
22 Professor Bittar, neurosurgeon, examined the plaintiff on 27 June 2019. He provided a report dated 27 June 2019.[17] He recorded that the plaintiff told him that he had constant pain in his lower back which was burning and aching in character and radiated bilaterally across his lower back. The plaintiff described movements which exacerbated his lower back pain. The plaintiff described constant neck pain which varied between being sharp, burning and throbbing with no radiation of pain from the neck. On examination, Professor Bittar found mild restriction of movements in the neck, and tenderness in the neck and the lower back. He did not find any neurological abnormality.
[17]PCB 91-95
23 Professor Bittar recommended that the plaintiff undergo radiological investigations to “establish the source of his neck pain and back pain”. It seems to be the reason why he described the plaintiff’s injuries in a most general way as “injuries to his cervical and lumbar spine”; however, he added that he considered that the injuries were organic. He also added that he considered that the plaintiff had developed a significant chronic pain condition. He considered that the plaintiff had a capacity for full-time work in a sedentary role. He understood that the plaintiff remained employed in his pre-transport accident employment.
24 Mr Owen, orthopaedic surgeon, examined the plaintiff on 4 June 2019 for the defendant. He provided a report dated 12 June 2019.[18] He recorded that the plaintiff told him that he has virtually constant pain along the whole of his spine from his neck down to his lower back which is aggravated by stress, lack of sleep and physical activity. On examination, he concluded that the plaintiff’s “range of motion was not too bad”. He detected tenderness in the plaintiff’s neck which the plaintiff described as migrating to other parts of his spine. He did not detect any neurological abnormality.
[18]Defendant’s Court Book (“DCB”) 6-13
25 Mr Owen considered that the plaintiff had suffered chronic spinal pain. He considered that the plaintiff probably suffered substantial axial loading on his spine as a result of the transport accident which was highly likely to have resulted in a soft tissue ligamentous injury to his spine, or compressive injuries to discs in his spine. He commented that his examination of the plaintiff and the plaintiff’s complaints were inconsistent. He had some difficulty in providing a prognosis, because he was unable to arrive at a firm diagnosis apart from describing the plaintiff’s condition as one of “chronic pain”. He noted that the plaintiff had remained employed and had only two days’ absence from his employment.
26 Dr Serry, psychiatrist, examined the plaintiff on 18 October 2017. He provided a report dated 18 October 2017.[19] On examination, he noted that the plaintiff was anxious, apprehensive and frustrated. In particular, he noted that the plaintiff described “not insignificant” post-traumatic anxiety features. Dr Serry considered that the plaintiff had an element of premorbid vulnerability which resulted in him suffering depression; however, he considered that the plaintiff was suffering from chronic pain, fluctuating mood, anxiety issues and a degree of traumatisation resulting from the transport accident.
[19]PCB 61-69
27 Dr Epstein, psychiatrist, examined the plaintiff on 28 May 2019. He provided a report dated 28 May 2019.[20] On examination, he noted that the plaintiff was mildly depressed and anxious. He also noted that he appeared to be in discomfort during the interview with him. Dr Epstein considered that the plaintiff was suffering from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood with symptoms of traumatisation which he did not consider met the full criteria for Post-Traumatic Stress Disorder.
[20]PCB 78-90
28 Dr Firestone, psychiatrist, examined the plaintiff for the defendant on 19 June 2019. He provided a report dated 19 June 2019.[21] On examination, he did not consider that the plaintiff was clinically depressed. He did note that the plaintiff was tense and anxious during the interview, but he considered that was within a normal range. He considered that the plaintiff had a personal characteristic of high trait anxiety which made him vulnerable to an anxiety state when under stress. He noted the plaintiff’s sensitivity to work difficulties which is something the plaintiff informed Dr Serry and Dr Epstein about. Dr Firestone posed the question whether, if the plaintiff’s pre-existing problems were not present, whether the mental symptoms he evidenced would have occurred or not. He also considered that the plaintiff’s psychiatric symptoms were resolving.
[21]PCB 14-21
29 Dr Serry, Dr Epstein and Dr Firestone were aware that the plaintiff had continued working in the employment he had prior to the transport accident. They were also aware that he was being treated by Dr Krapivensky.
The Plaintiff’s consequences
30 The plaintiff swore two affidavits, the first on 24 May 2019[22] and the second on 1 July 2019.[23] Additionally, he relied on affidavits from Mr Jamie Siddel-Whipp, sworn 29 July 2019,[24] and Mr Kenneth Downman, sworn 30 July 2019.[25] The only witness required for cross-examination was the plaintiff.
[22]PCB 4-12
[23]PCB 18-23
[24]PCB 24-26
[25]PCB 27-29
31 The following is a summary of the consequences which the plaintiff submitted have arisen from the impairment of the function of his spine:
· Virtually constant variable pain in the spine.
· Pressure on the lower back causes an increase in symptoms, as does bending and twisting.
· Increased pain in the neck when active. The pain can sometimes be a stabbing pain.
· Walking for a long time will increase the pain in the spine.
· Standing in one spot for too long will increase the pain in the spine.
· Sitting for prolonged periods will cause an increase in pain quickly, requiring the need to change position.
· Reaching down to put on socks and shoes results in strain on the spine.
· Interference with sleep.
· Interference with undertaking domestic tasks such as vacuuming, mopping, cleaning the bathroom, bending to put dishes in the dishwasher and changing sheets on the bed.
· Interference with ability to undertake gardening.
· Interference with the ability to lift heavy items.
· Inability to drive long distances, for example on road trips to Queensland.
· Interference with the ability to travel to places such as Queensland and Singapore because of the need to sit for long periods of time.
· Interference with the ability to sit in an aeroplane on trips to Sydney, Auckland, Darwin and Brisbane, needing an upgrade, presumably from economy class.
· Interference with the ability to sightsee on trips.
· Interference with engaging in social activities with friends.
· Interference with the ability to enjoy going to watch rugby.
· Interference with his intimate relationship with his partner.
· The development of anxiety when travelling in a car, and lowered mood.
· Interference with his ability to concentrate on his work, requiring him to force himself to focus on his work.
· Interference with his ability to progress in his employment with his employer because of difficulty with travelling.
· Any activity (presumably physical activity) results in increased pain.[26]
[26]The summary is of the consequences at PCB 8-12 and 20-23
32 Jamie Siddel-Whipp is the plaintiff’s partner. He has observed many of the pain and suffering consequences referred to by the plaintiff. Kenneth Downman is the plaintiff’s employer. He conducts a business known as Property Realisations which is involved in the sale of properties on which mortgagees have foreclosed. He employs the plaintiff as an office manager. He has also observed many of the pain and suffering consequences referred to by the plaintiff. He said that the plaintiff has rarely taken time off, but he has allowed him some slack in his job, referring to the job as a form of protected employment.
Cross-examination
33 The defendant’s position is that the plaintiff’s claimed consequences, firstly, fall well short of the relevant standard to be “serious”, and, secondly, there are credit issues which weigh significantly against the plaintiff.
34 I propose to address each of the issues raised in cross-examination in the order in which they occurred.
35 The plaintiff obtained a promotion to the position of manager in 2016 after the occurrence of the transport accident.[27] He initially denied that he had obtained any increased income, saying that he had not had a pay rise for a number of years.[28]
[27]Transcript 10
[28]Transcript 10
36 The plaintiff’s taxation returns demonstrate that he obtained an increase in income yearly up to the present time:[29]
[29]Exhibit 3
· for the year ending 30 June 2015 - $59,871 gross
· for the year ending 30 June 2016 - $59,829 gross
· for the year ending 30 June 2017 - $71,975 gross
· for the year ending 30 June 2018 - $76,058 gross
· for the year ending 30 June 2019 - $72,710 gross.
37 Next, and associated with the plaintiff’s increase in earnings, was cross-examination relevant to the hours worked by the plaintiff. The plaintiff said that he worked varying hours from between 38 to 43 hours each week. On occasions the hours worked may be more if he is required to work on weekends.[30] It was put to him that hours he admitted to working was inconsistent with what he said in his second affidavit that he worked “a 38 or 40 hour week…”[31]
[30]Transcript 11-12 and 16
[31]PCB 23
38 Next, the plaintiff confirmed that he has continued working full time since the occurrence of the transport accident. He was asked whether what some of the medical practitioners recorded was correct that he only had two days off.[32] The plaintiff said that he did not recall telling any of the medical practitioners that he had that little time off work, and added that it was not true anyway. He said that he might have had a total of a few weeks off work. He was unable to say exactly how many days he had off and when.[33] He later said that his reference to having two days off was the two days he had off immediately following the occurrence of the transport accident.[34]
[32]For example Dr Serry at PCB 62, Dr Epstein at PCB 81, and Mr Owen at DCB 8
[33]Transcript 17-18
[34]Transcript 41
39 Next, the plaintiff was asked about the medication he was taking as at the date of the hearing. He said he was taking Brintellix and CanniMed for anxiety and depression, and Topamax and Endone for pain relief.[35] It was in the context of the medication he is taking that he was asked whether he agreed with the conclusions reached by Dr Krapivensky which I have referred to above. He disagreed with her conclusions.[36]
[35]Transcript 36
[36]Transcript 36
40 Next, the plaintiff was referred to what he said about being unable to watch rugby. It was in that context that he was referred to the history recorded by Dr Epstein that he had attended ten to fifteen games in 2018, and only two games in 2019 because of discomfort when sitting and fatigue if there was a need to walk long distances to a car park.[37] The plaintiff said that he possibly said that to Dr Epstein, and added that he did not recall saying that to him.[38]
[37]PCB 85
[38]Transcript 25-26
41 The plaintiff was cross-examined about a number of other issues - interstate and overseas trips, occasions when he had breakdowns due to conflict with a fellow employee and his partner, none of which are so material, but were part of a testing of the plaintiff’s creditworthiness and reliability.
Findings
42 A fundamental issue in an application such as this is for the applicant to identify the injury suffered in the transport accident. The reasons for that are obvious – in the absence of the identification of an injury it is then either not possible or rendered difficult to determine the body function which has been impaired.[39]
[39]Humphries & Anor v Poljak [1992] 2 VR 129
43 The summary I have undertaken of the medical opinions demonstrates that there is some doubt as to the identification of the actual injury suffered by the plaintiff. The plaintiff submitted that the whole of the medical evidence demonstrates that the treating and medico-legal medical practitioners concentrated their attention on the plaintiff’s spine. Despite the uncertainty expressed, for example by Professor Bittar and Mr Owen, the plaintiff submitted that I could conclude that he suffered an injury to his spine which was likely to be a soft tissue injury, and otherwise an organic injury.
44 The issue of the identification of the injury is made all the more difficult by the opinion of Dr Thomas. He considered that the plaintiff had suffered from “a chronic pain syndrome, now called nociplastic, therefore neither neuropathic nor nociceptive. Nociplastic refers to central sensitisation.”[40] His opinion is left for me to interpret. I consider that to be very unsatisfactory because I do not know the context in which he uses the diagnostic label “chronic pain syndrome” and I do not know what “nociplastic” means. Furthermore, he failed to explain whether a chronic pain syndrome is used by him to denote a physically-based injury or a mixture of a physically-based injury and psychological/psychiatric sequelae.
[40]PCB 60
45 Dr Thomas’ opinion is of significant importance to the plaintiff because he has treated the plaintiff and is the last word on a diagnosis of the plaintiff’s injury and prognosis.
46 After reviewing all of the medical evidence from the time the plaintiff was first attended upon by a medical practitioner through to the most recent medical opinions, I think the conclusion that is open is that it is likely the plaintiff has suffered a soft tissue injury to his spine.
47 The plaintiff has undergone what appears to be significant medical treatment. The majority of that has been the prescription of a significant amount of painkilling medication and medication to treat anxiety and depression and features of Post-Traumatic Stress Disorder.
48 I should pause here for a moment to deal with the psychiatric diagnoses. Both the plaintiff and the defendant agreed that if the plaintiff can gain the benefit of what was said in Richards v Wiley,[41] it is limited to measuring the seriousness of the consequences of the impairment of the function of the plaintiff’s spine by his mental response to that physical impairment. It does not extend beyond that, and in this case, to the extent of any anxiety and depression and features of Post-Traumatic Stress Disorder which must fall to be determined under paragraph (c) of the definition of “serious injury”.
[41](2000) 1 VR 79 at paragraph [17]
49 Although, the extent of the medical treatment obtained by the plaintiff gives the appearance of seriousness, it needs to be seen in the context of the plaintiff’s working life, and some other issues which I will turn to shortly.
50 The plaintiff became the manager for his employer. His evidence suggested that he was moving into the position of manager before the transport accident; however, on my analysis of the evidence, it appears to me that it is more likely than not that he was promoted to the position of manager after the transport accident.
51 The plaintiff’s initial evidence that nothing changed in his employment following the transport accident is clearly wrong. He was not only promoted to the position of manager, but his income rose significantly, commensurate with not only occupying the position of manager, but relevant to his hours of work.
52 The plaintiff struggled to give direct answers to questions under cross-examination relevant to his position as a manager, the income he was earning subsequent to the occurrence of the transport accident, and the hours he was required to work and the extent to which he was expected to work on weekends. There was nothing in the questioning which was misleading. The plaintiff gave non-responsive answers before he finally gave direct answers. I am left with the impression that he was lacking candour at first, before he eventually disclosed the reality of his employment circumstances.
53 Before the hearing commenced it must have been obvious to the plaintiff that a number of examining medical practitioners had recorded that he had only two days off work, and had otherwise effectively not missed a day of work. It was only when he was cross-examined that he said that was not true. He said he had a total of a few weeks off work, but could not give any better evidence than a very general answer. Kenneth Downman gave the plaintiff a rostered day off once a month because he thought the plaintiff was struggling in doing his work. He also said that the plaintiff took days of infrequently; however, like the plaintiff, he left his evidence regarding the plaintiff’s absences from employment in a very unsatisfactory state. I simply do not know how many rostered days he had off; whether all of them were for respite because of injury, and how many other days he was off work for injury-related reasons. [42]
[42]PCB 28
54 I accept the plaintiff’s evidence that he had some days off work due to his injuries, but I am unable to conclude whether that was due to an incapacity for work or due to obtaining medical treatment, or for some other reason. Nor am I able to conclude how many days the plaintiff was absent from his employment.
55 This evidence is of significant importance because it must be the case that if a person is able to work full time in an unrestricted fashion, even in a non-physical job, that it demonstrates that an injury may not have impairment consequences which are “serious”. Furthermore, the extent of working hours, added to the capacity to travel interstate and overseas, must bring the injured person closer to a point where it is difficult to justify a conclusion that the claimed impairment consequences are “serious”.
56 The plaintiff’s evidence about attending rugby games and what he told Dr Epstein are quite seriously at odds. To say that he has only attended “on a couple of occasions” is in stark contrast to what Dr Epstein recorded. The defendant submitted, in effect, that it is an attempt to underplay the plaintiff’s social and recreational activities when the reality is that in 2018, he attended many more rugby games than he was prepared to admit to.
57 The most troubling evidence is the stark contrast in the evidence of Dr Krapivensky and the plaintiff relevant to the extract of her report which was put to the plaintiff. If Dr Krapivensky’s opinion is considered in a vacuum, then one would be driven to conclude that the plaintiff has made a very good recovery from his spinal injury and the psychiatric sequelae of the transport accident. It is an opinion expressed by a psychiatrist who has treated the plaintiff for some time, and who continues to treat him.
58 The plaintiff denied that the substance of the opinion of Dr Krapivensky is true. It constitutes a stark and inconsistent statement from someone who I must accept would have intimate knowledge of the plaintiff’s psychiatric state, and his physical state of health through her long-standing treatment of him. It is a remarkable proposition for the plaintiff to submit that she has completely misconceived the state of the plaintiff’s psychiatric and physical health.
59 The plaintiff sought to undermine Dr Krapivensky’s opinion. He submitted that there is an internal inconsistency in her opinion. She referred to the plaintiff having mild symptoms of anxiety, yet she continued to prescribe him Brintellix to treat depression. I do not understand the basis for that submission. There is no basis upon which I can find that the prescription of that medication is necessarily inconsistent with her opinion relevant to the plaintiff’s psychiatric and physical state of health. I prefer Dr Krapivensky’s evidence to that of the plaintiff, that the plaintiff does not have the degree of consequences of the impairment of function of his spine as he says.
60 I am fortified in reaching that conclusion because no medical practitioner suggests that the plaintiff has any incapacity for employment. The preponderant prognosis is for continuing spinal pain and the need for symptomatic treatment. Those opinions are primarily based upon the plaintiff’s complaints of pain and disablement, and I think that is made all the more obvious by the opinion of Professor Bittar, who considered that other investigations were needed to objectively verify the source of the plaintiff’s spinal pain.
Conclusion
61 The majority in Humphries & Anor v Poljak[43] considered the meaning of the word “serious” and in that context, said that the consequences of the injury must be serious to the particular applicant, and they added: “Those consequences will relate to pecuniary disadvantage and/or pain and suffering.” Clearly, the plaintiff has not suffered any pecuniary disadvantage, so his application is to be determined on the claimed pain and suffering consequences alone.
[43]Supra
62 The majority in Humphries & Anor v Poljak observed that forming a judgment whether the claimed consequences are “serious” is to be undertaken by asking the following question – “can the injury, when judged by comparisons with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?” I have applied that reasoning and have concluded that the claimed consequences may reach the mark of significant and perhaps marked, but not very considerable, and therefore, they are not serious. My reasons for reaching that conclusion can be summarised as follows.
63 I accept that the plaintiff has suffered an injury to his spine which is productive of pain, and is likely to result in the some level of the consequences which I have summarised above; however, I do not accept that the consequences are nearly as disabling as contended for by the plaintiff.
64 The plaintiff is able to work full time as a manager. It must involve him in doing all the necessary preparations to get to his place of employment and to leave it to return to his home each day. It must involve degrees of sitting, standing and perhaps other levels of posture in order to undertake his work. It involves some travel. The impairment of the function of his spine does not interfere significantly the level of mobility required to undertake that work.
65 Additionally, the plaintiff has been able to travel, although, he says that the trips interstate and overseas have not been enjoyable because of discomfort through air travel and at the places where he has holidayed; however, he has undertaken those trips which must mean that he has had the capacity to do so and to gain enjoyment provided by those trips.
66 There is a question of the plaintiff’s candour which I have dealt with, and in particular, the absence in his affidavits of the actual work he performs, and his capacity to engage in the activity of being a spectator at rugby. Although, the issue of his attendance at rugby games might be considered to be relatively immaterial, it goes to the question of the plaintiff’s candour.
67 The issue which I have found most troubling is Dr Krapivensky’s view of the plaintiff’s psychiatric and physical state of health. It is very much in stark contrast to the case put by the plaintiff. I will not reject her opinion out of hand as invited to by the plaintiff. I think it is a telling opinion against a finding that the impairment of the plaintiff’s spine has consequences which are “serious”.
68 In making the comparison with other cases in the range of possible impairments or losses I do not consider, when I take an overall view of the evidence, that the plaintiff’s evidence justifies a finding that the consequences of the impairment of the function of his spine are “serious”.
69 I order that the plaintiff’s originating motion be dismissed.
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