Sidlauskas v Transport Accident Commission
[2016] VCC 796
•15 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-14-00844
| RAYMOND SIDLAUSKAS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 May 2016 | |
DATE OF JUDGMENT: | 15 June 2016 | |
CASE MAY BE CITED AS: | Sidlauskas v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 796 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the spine – aggravation of pre-existing degenerative changes – casual work – motorcycle enthusiast – pain and suffering – loss of enjoyment of life – pecuniary disadvantage -degenerative changes of the spine
Legislation Cited: Transport Accident Act 1986
Cases Cited:Transport Accident Commission v Zepic [2013] VSCA 232; Richards v Wylie (2000) 1 VR 79; Barlow v Hollis [2000] VSCA 26; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317; Philippiadis v Transport Accident Commission [2016] VSCA 1; Petkovski v Galletti [1994] 1 VR 436; R J Gilbertson v Skorsis [2000] VSCA 51; Haden Engineering v McKinnon (2010 31 VR 1
Judgment: Application successful
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr John Richards QC with Mr N Bird | Nowicki Carbone |
| For the Defendant | Mr Paul Scanlon QC with Mr J Valiotis | Solicitors for the Transport Accident Commission |
HER HONOUR:
1 The plaintiff alleges he suffered injury to his spine in a transport accident which occurred on 25 May 2007. His car was stationary, when he was struck from behind. The force of the collision caused his car to be pushed forward into the car in front of him (“the accident”). The plaintiff claims to have suffered constant lower back and neck pain since that time.
2 This is an application for leave to bring proceedings pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”).
3 Mr J Richards QC appeared with Mr N Bird for the plaintiff and Mr P Scanlon QC appeared with Mr J Valiotis for the defendant.
4 The plaintiff claims he suffered aggravation of pre-existing degenerative changes in his spine in the transport accident, and the body function said to be lost or impaired is the functioning of the spine. In this regard, the plaintiff relied upon the Court of Appeal decision in Transport Accident Commission v Zepic.[1]
[1][2013] VSCA 232
5 Although this serious injury application was also originally lodged in respect of a psychiatric injury under sub-s93(17)(c), this was abandoned at the hearing.[2] The psychiatric evidence was relied upon in respect of the sub-section (a) application, to show how the spinal injury impacted upon the plaintiff’s pain and suffering, and loss of enjoyment of life, as permitted by the Court of Appeal in Richards v Wylie.[3]
[2]Transcript (“T”) 1, Line(s) (“L”) 28-29
[3](2000) 1 VR 79
6 Only the plaintiff was called to give evidence and he was cross-examined. In addition, affidavits were tendered from his two sisters, as well as a friend, who organised employment for him at the Beaconsfield Mine in June 2011. Numerous medical reports and other documents were also tendered. 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 referred to in this Judgment.[4]
[4]See Barlow v Hollis [2000] VSCA 26 per Chernov J at [14]-[16], and the “pathway of reasoning” per Ashley JA in Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 at [38]
7 The plaintiff has the burden of proving the impairment to his spine is both serious and long-term. 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. [5]
[5]Philippiadis v Transport Accident Commission [2016] VSCA 1
Background
8 The plaintiff is 58 years of age. He lives alone, in a shed on a property he owns in Beaconsfield, Tasmania. He is divorced and has three adult children. The plaintiff was born in Perth, Western Australia, but moved to Melbourne when he was about six years old. He completed secondary school at St Albans High School.
9 The plaintiff obtained work as a mechanic, and also worked at times in the construction industry. In 1985, whilst working as a general labourer, he underwent on-the-job training and became qualified in scaffolding and rigging.
10 The plaintiff moved to Tasmania in about 1988. He married the following year.[6]
[6]Plaintiff’s Court Book (“PCB”) 8
11 From the 1980s or the 1990s, the plaintiff admitted to having intermittent lower back and neck pain. From 1999, he attended the Exeter Medical Centre in relation to lower back pain, and from 2004, he also consulted chiropractor, Shawn Ackers.
12 The plaintiff underwent a right knee osteotomy in approximately 2000. He was unemployed from 2000 until approximately 2004. While this was predominantly due to his right knee injury, his lower back pain was also a factor.
13 In about 2001, the plaintiff suffered from depression at the time his marriage broke down. These psychological problems continued for a number of years.
14 Given the significance in this case of the state of the plaintiff’s pre-injury lower back and neck condition, I will now detail the recorded medical attendances, prior to the accident:
Date Notes 10 June 1999 “Back pain – giving him grief. Unable to work. … Back manipulated.” (Exeter Medical Centre) 15 June 1999 “Back better, needs more re-adjustment.” (Exeter Medical Centre) 22 November 1999 “Pain = neck, paraesthesia arms. Neck + back manipulated. (Exeter Medical Centre) 9 June 2000 “Had back pain for years.” (Exeter Medical Centre) 14 July 2000 “C/O. Pain in back, wants manipulation.” (Exeter Medical Centre) 8 March 2001 “C/O. Low back pain 1/52, worse standing + moving.” (Exeter Medical Centre) 4 January 2003 “Pain in back persists. L SIJ dysfunction. Back manipulated.” (Exeter Medical Centre) 23 January 2003 “Worried re back. Has back pain ++, not sleeping.” (Exeter Medical Centre) 8 February 2003 “Complained to psychiatrist, Dr Ian Martin, that he used to work as a rigger, but now has quite disabling degenerative joint disease in his knees and back.” (Dr Ian Martin) 5 January 2004 “C/O. Tingling sensation in arm and pain in neck occasionally.” (Exeter Medical Centre) 15 October 2004 “Hand/arm pain and tingling since 1992 caused by lifting at work. LB pain also, intermittent mid Tx pain. Previous x‑rays joint vertebra in cervical spine, spurring and degeneration.” (Shawn Ackers)
15 October 2004 “X-ray taken of the spine and pelvis showing degenerative changes in the cervical, thoracic and lumbar spine.” (Defendant’s Court Book, “(DCB”) page 62. 20 October 2004 “Chiropractic consultation.” (Shawn Ackers) 26 October 2004 “Chiropractic consultation.” (Shawn Ackers) 8 November 2004 “Chiropractic consultation.” (Shawn Ackers) 13 November 2004 “Chiropractic consultation.” (Shawn Ackers) 23 November 2004 “Chiropractic consultation.” (Shawn Ackers) 3 February 2005 “Chiropractic consultation.” (Shawn Ackers) 14 February 2005 “Chiropractic consultation.” (Shawn Ackers) 9 June 2005 “Chiropractic consultation.” (Shawn Ackers) 25 October 2005 “Chiropractic consultation.” (Shawn Ackers) 30 November 2005 “Chiropractic consultation.” (Shawn Ackers) 6 September 2006 “Chiropractic consultation.” (Shawn Ackers) 25 September 2006 “Chiropractic consultation.” (Shawn Ackers)
15 In approximately 2004, the plaintiff resumed work, obtaining casual work when he could. He explained that the work of a scaffolder is often temporary.[7]
[7]T28, L3-13
16 The plaintiff was actively seeking further employment in late 2006. On 1 November 2006, Dr R Pillay, his general practitioner at the Burnside Medical Centre, wrote a letter to prospective employers. He stated that the plaintiff had suffered some depression in February 2006, and also had an operation on his right knee 25 years ago. Dr Pillay said he was otherwise in “good, stable health”.[8]
[8]PCB 50
17 On 17 May 2007, a week prior to the accident, the plaintiff commenced employment for Hayes Specialist Recruitment, a labour hire agency (“Hayes”). He was contracted to work on a Grollo site in the Docklands as a leading hand. In this position, he was required to supervise a team of scaffolders and riggers, as well as undertake some physical scaffolding and rigging duties. In the week prior to the accident, the plaintiff said he earned approximately $1,800. The taxation documents indicate it was most likely $1,682.[9]
[9]This amount is based on the plaintiff earning $10,094 in 6 weeks, equating to an average of $1,682 per week
18 In the three years prior to the accident he earned the following gross income from personal exertion:
2005 - $3,313
2006 - $12,358
2007 - $14,533
19 Of the income he earned in the 2007 financial year, approximately $8,410 was earned in the five weeks after the accident.[10]
[10]5 weeks @ $1,682 per week
20 Prior to the accident, the plaintiff enjoyed numerous recreational activities. He loved riding his motorcycles, and went several times a week, including long rides on the weekends.[11] He had been involved in motorcycle clubs for over 35 years.[12] He was also a member of the Beaconsfield C-grade cricket team.[13] He enjoyed fishing, both on the Tamar River and occasionally on a boat in the Bass Strait. He also maintained his small property, had a vegetable garden and cut his own firewood. He intended to build a house on his property.[14] He also enjoyed restoring motorcycles and motor cars.
[11]PCB 14
[12]PCB 22
[13]PCB 15
[14]PCB 28
The injury and its consequences
21 The transport accident occurred on 25 May 2007. The plaintiff had been driving along Ballarat Road in Deer Park. He was stationary at a red traffic light, when a car travelling behind him failed to stop, and collided with the back of his car. The collision caused his car to hit the car in front of him.
22 Police and ambulance attended the scene of the accident and he was taken by ambulance to Sunshine Hospital. The plaintiff was advised that he had suffered a whiplash injury and was discharged.[15]
[15]PCB 59
23 The plaintiff said that he had ongoing pain after the accident, but continued working full-time. In cross-examination, he said that he had been keen to obtain this job and that he persisted working, in spite of extreme pain.[16] He said he was not prepared to let the accident “break him”.[17]
[16]T17, L15-20
[17]T17, L20
24 A few days later the plaintiff attended upon Dr Pillay at the Burnside Medical Centre. Dr Pillay arranged for an x‑ray of his cervical, thoracic and lumbar spine, to be taken on 29 May 2007. It was reported as showing degenerative changes in all three regions of the spine, with no evidence of a compression fracture or other bony injury.[18]
[18]PCB 45
25 Whilst still in Melbourne for his job with Hayes, the plaintiff continued to attend the Burnside Medical Centre for treatment, and he also returned to see chiropractor, Shawn Ackers for further chiropractic treatment. The plaintiff also attended the Back in Motion Physiotherapy Clinic on multiple occasions from 12 July 2007 until 21 August 2007.
26 The plaintiff said that upon ceasing his physiotherapy treatment, he began to do exercises at home, so as to treat his pain and the restriction of movement in his neck and lower back.[19]
[19]PCB 11
27 After the plaintiff’s job at Hayes ended, he commenced employment with Monadelphous Engineering (“Monadelphous”). He had previously arranged this job, which involved scaffolding work in South Australia. He then moved across to Western Australia, where he did approximately seven weeks’ induction training in Perth, before moving to the Karratha area, where he worked as a supervisor for approximately four weeks. He said he eventually had to stop this work as his pain was too great. For the approximate 10 weeks that he was employed with Monadelphous, he earned $17,865.[20]
[20]Financial summary agreed to by Mr Richards, T91, L2-9
28 The plaintiff then returned to Tasmania and obtained some casual work, including with Bart’s Labour Hire, earning $13,396 from 18 December 2007 until 30 June 2008.
29 In Tasmania, he also returned to the Exeter Medical Centre, and saw general practitioner, Dr Muhammed Iqbal.
30 The plaintiff commenced employment in the Beaconsfield Mine in June 2011. He obtained this employment through his friend, Jim Murray, who was the contracts manager at Atlas Copco, responsible for hiring staff, through a labour hire agency, to work in the Beaconsfield Mine. The plaintiff was employed as a drill bit sharpener. He described this work as reasonably light. However, it did require him to place strain on his neck and lower back. After approximately 10 months, he felt that the pain was so unbearable, he ceased work in about March 2012.
31 It should be noted, that the Beaconsfield Mine shut down a few months after the plaintiff ceased his employment there. He denied ceasing his employment in anticipation of the mine shutting down, and stated that, had he stayed, he would have received the equivalent of a redundancy payment in the sum of about $3,000 to $5,000.[21]
[21]T41, L7-11
32 The plaintiff has not worked since that time, save for approximately five days over a two month period in which he helped a friend with some plastering at his home.[22]
[22]PCB 20
33 The plaintiff has been in receipt of a disability pension from Centrelink, since this time.
34 The plaintiff first consulted chiropractor, Michele Boxtel, in April 2013. She recorded that he suffered left shoulder and cervical pain after having fallen onto his left shoulder on a riverbank two months earlier. The plaintiff denied this, and explained that he had slipped and jarred his spine.[23] At his third consultation, Ms Boxtel obtained details of the accident, and considered that his whiplash had aggravated his degenerative spine. However, she had no knowledge of his pre-accident symptoms.
[23]T46, L1-13
35 The plaintiff said he continues to obtain treatment from Ms Boxtel every few months,[24] as well as Dr Iqbal.
[24]PCB 29
36 The plaintiff claims that a consequence of his ongoing lower back and neck pain is that he is now unable to enjoy the long motorcycle rides he had previously undertaken. He considers this a significant consequence of his injury, as he had previously enjoyed motorcycle riding for over 35 years. He said that in the last two years, he has only gone on two rides of 80 kilometres,[25] and said that he cannot do the longer rides as they cause him increased neck and lower back pain. He said that one of his joys of living in Tasmania had been travelling for long rides on weekends around the state.
[25]T48, L24-25
37 The plaintiff has also had to give up fishing because of his neck and lower back pain.[26]
[26]PCB 23
38 The plaintiff had previously been a member of the Beaconsfield Cricket Team. He is no longer able to play cricket because of his neck and lower back pain.[27]
[27]PCB 14-15
39 The plaintiff used to be independent within his home, in that he would cut and collect his own firewood, and grew lots of vegetables. He is no longer able to do this and needs to either now pay for it to be done or rely upon friends to deliver it to him.[28] He now has a very small vegetable garden and only grows a few things in it.[29] He has purchased a ride-on mower and also now has sheep to help keep his grass short.
[28]PCB 15
[29]PCB 21
40 The plaintiff also has difficulty sleeping as a consequence of his ongoing neck and lower back pain. He said that he wakes up most nights and struggles to get comfortable in bed.[30]
[30]PCB 33
41 Prior to the accident, the plaintiff experienced right knee problems. Since the accident, however, except for a short period of time, these problems have not prevented him from either working or engaging in the recreational activities referred to above.[31]
[31]PCB 34-35
42 The plaintiff relied upon affidavits from his two sisters, both of whom live in Melbourne. He usually visits them once or twice a year. Both of his sisters confirm that the plaintiff has suffered increased pain in his neck and lower back since the accident. His sister, Monika, noted that he now struggles to even walk a short distance.[32] When he sleeps at her house, she said he requires extra pillows to be able to get to sleep. She has also observed him awake in the middle of the night, which she associates with his increased pain.
[32]PCB 38-40
43 His sister, Rita, has similarly observed his increased lower back and neck pain since the accident.[33] She has also commented on his frequent complaints of pain, and his difficulty sleeping.
[33]PCB 41-44
44 An affidavit was also tendered from Jim Murray, who has been a friend of the plaintiff’s since about the mid 1980’s.[34] When Mr Murray moved to Tasmania in the mid 1990’s, he said he and the plaintiff would often go on long motorcycle rides. He said he arranged work for the plaintiff at the Beaconsfield Mine in 2011. He was aware of the plaintiff’s lower back and neck injuries, and felt the work would be suitable, as it did not involve any heavy lifting. He said that over the 10 months the plaintiff worked at Beaconsfield, he complained to Mr Murray about his increasing pain, which ultimately required him to stop work.
[34]PCB 36-37
Medico-legal evidence
45 The plaintiff’s solicitors arranged for him to be examined by orthopaedic surgeons, Mr Kevin King and Mr Thomas Kossmann.
46 Mr King examined the plaintiff in December 2013. He obtained a history that the plaintiff had:
“…never had any significant problems with neck or back pain before, apart from occasional mild constitutional aches associated with heavy work.”[35]
[35]PCB 94
47 Mr King had no reference to the work the plaintiff undertook at the Beaconsfield Mine, and stated that the plaintiff had not worked for the last five years. He was of the opinion that the trauma from the accident involved the cervical, thoracic and lumbar discs and associated ligamentous structures, and was superimposed upon pre-existing but symptomless mildly to moderately severe degenerative changes throughout the spine.[36] He considered that the plaintiff was chronically disabled to a moderately severe degree by constant neck and back pain as a result of injuries in the car accident. Mr King was of the opinion that the plaintiff will not return to work in the foreseeable future, in any of the jobs he had done in his adult life.
[36]PCB 93
48 Mr Kossmann examined the plaintiff in March 2015. He obtained a history of pain in the plaintiff’s spine as a consequence of his work as a rigger and scaffolder, and noted that he went to his chiropractor when he suffered such pain. He recorded that the plaintiff had not worked since 2007 due to ongoing pain issues. As with Mr King, there is no reference to the work the plaintiff undertook at the Beaconsfield Mine.
49 Mr Kossmann diagnosed severe degenerative changes in the cervical, thoracic and lumbar spine with pain issues. He considered the plaintiff’s prognosis poor. He was of the opinion that the degenerative changes in his cervical, thoracic and lumbar spine seemed to have been dormant prior to the accident. Mr Kossmann was of the understanding that the plaintiff had not had any x‑rays of his spine prior to the accident. On that basis, he concluded that the plaintiff suffered an aggravation, acceleration and exacerbation of pre-existing but dormant degenerative changes in his lumbar spine.
50 Mr Kossmann re-examined the plaintiff in February 2016. He repeated the past history, again noting that the plaintiff had stopped work in 2007. Mr Kossmann re-diagnosed severe degenerative changes in the cervical, thoracic and lumbar spine with ongoing pain issues. He also referred to pain and movement restriction in the plaintiff’s left shoulder joint and numbness in the left arm. He considered there was a possibility that the plaintiff may be suffering from radiculopathy in his left arm and recommended that the plaintiff undergo an MRI scan. He was of the opinion that the plaintiff will not return to any form of employment in the future.
51 Mr Scanlon relied on the plaintiff’s failure to inform Mr King and Mr Kossmann about his work at the Beaconsfield Mine, to undermine their opinions. I consider this was most likely an oversight, in circumstances where the plaintiff had disclosed this work in his initial affidavit sworn in January 2014. There is no logical reason as to why he would have intentionally kept this from the doctors.
52 The defendant’s solicitors arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Paul Kierce, in March 2015. He recorded that the plaintiff had a history of “chronic degenerative disease in his cervical and thoracolumbar spines.”[37] He obtained a history of the accident, the treatment the plaintiff subsequently received and the work that he subsequently performed, including the work at the Beaconsfield Mine. He was of the opinion that the plaintiff was suffering long term degenerative changes in his spine and that his complaints were consistent with gradual worsening of degenerative spinal disease due to the natural history of the degenerative changes in the spine. He was of the opinion that the accident resulted in an exacerbation of symptoms in his spine, but considered his current symptoms unrelated to the accident, and instead a result of the gradual process of degenerative change.[38]
[37]Defendant’s Court Book (“DCB”) 3
[38]DCB 11
53 He was of the opinion that the plaintiff’s accident-related injuries should not interfere with his ability to work, on the basis that the accident was no longer contributing to his current condition.
54 Mr Kierce re-examined the plaintiff in March 2016. He was again of the opinion that the plaintiff had suffered an exacerbation of cervical and thoracolumbar spondylosis in the accident, but noted that the exacerbation had now resolved and that his present symptoms were related to his chronic degenerative changes in the cervical and thoracolumbar spines.
55 In addition to the orthopaedic medico‑legal opinions, the plaintiff and defendant also relied upon medico‑legal psychiatric opinions. The plaintiff tendered two medical reports from psychiatrist, Dr David Weissman. He was aware of the plaintiff’s past psychiatric history, and is of the opinion that the plaintiff now suffers mild to moderate chronic mixed depressive and anxiety syndrome/disorder which is, in part, pre-existing and, in part, related to the accident.
56 The defendant tendered a medical report from psychiatrist, Associate Professor Peter Doherty, who examined the plaintiff in April 2016. He was of the opinion that the plaintiff was not suffering a diagnosable psychiatric condition.
Causation
57 To succeed in his claim, the plaintiff must establish that the accident was and remains a cause of his spinal injury.
58 Prior to the accident, the plaintiff suffered pain in his lower back and neck for many years. He took painkilling medication at times, and obtained chiropractic treatment for a few years. It was predominantly his right knee injury that kept him out of employment from 2000 until 2004, although I accept that his lower back pain also restricted him for part of that time.
59 I accept that the plaintiff sought no treatment in respect of his lower back and neck pain for at least six months prior to the accident, and there is no evidence of prescription medication since January 2004.[39]
[39]DCB 69
60 At the time of the accident, the plaintiff was working a 58 hour week, and intended to remain in such employment, before moving to do further full-time work in South Australia and Western Australia. I accept that he was able to enjoy recreational activities including motorcycle riding, cricket and fishing at this time.
61 I do not accept the pain was occasional and mild, as referred to by Mr King in his report. For periods between 2003 and 2004, the plaintiff’s records indicate the pain was, at times, quite disabling and interfered with his sleep.
62 Further, while I do not accept that it was dormant in the way described by Mr Kossmann in his reports, I also do not accept that it was chronic in the way described by Mr Kierce in his reports. The plaintiff had no need for medical treatment in the six months prior to the accident and was leading an active life. I consider this to be inconsistent with the description of it being chronic.
63 Each of the orthopaedic surgeons accept that the accident caused an aggravation of the degenerative condition in his spine. Only Mr Kierce is of the opinion that the aggravation was temporary.
64 The plaintiff complains that he has suffered ongoing and constant pain in his lower back and neck since the accident.[40]
[40]PCB 12
65 Immediately after the accident, he attended upon his general practitioner at the Burnside Medical Clinic, and also obtained chiropractic treatment and physiotherapy. The regularity with which he received treatment in the three months following the accident, can be contrasted with the occasional treatment he received prior to the accident.
66 The plaintiff then travelled to South Australia and Western Australia, where he received no treatment. Upon returning to Tasmania, he said he consulted his doctors from time-to-time. While records from the Exeter Medical Centre show some attendances, the handwritten notes are hard to decipher, and the typed notes have no detail as to the plaintiff’s reasons for attendance over several years.
67 The plaintiff has obtained regular chiropractic treatment since April 2013.
68 The plaintiff was not challenged on the continuation of his symptoms since the accident. He gave evidence in a simple, straightforward and believable manner and I accepted him as a reliable witness.
69 I do not accept Mr Kierce’s opinion that the aggravation has ceased. His opinion is based on the plaintiff suffering a chronic condition prior to the accident, and for the reasons explained above I do not accept that.
70 I am not assisted by the opinion of Mr Kossmann, as his opinion was based on the plaintiff’s condition being dormant before the accident. I prefer the opinion of Mr King, who had the history of occasional and mild lower back and neck pain. Although I consider that at times this pain was more than mild, I consider Mr King’s opinion is based on the most accurate history.
71 Mr Scanlon submitted that the plaintiff’s failure to inform Mr King and Mr Kossmann of the work he did at the Beaconsfield Mine, undermines the opinions they offer. I accept this in relation to their opinions regarding the plaintiff’s work capacity, but I consider it irrelevant in relation to the issue of causation.
72 In circumstances where the plaintiff’s symptoms have continued since the accident, and have never ceased, I consider it improbable that the accident is no longer a cause of his condition.
Aggravation
73Having accepted the plaintiff’s injury is an aggravation of the pre-existing degenerative condition in his spine, it is now necessary for me to compare the plaintiff’s pre-existing condition prior to the accident, with the aggravated state. I must consider only the consequences arising from the aggravation, in accordance with the principles enunciated in Petkovski v Galletti,[41]
[41][1994] 1 VR 436
74 Chernov JA, in R J Gilbertson v Skorsis,[42] 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.”[43]
[42][2000] VSCA 51
[43]Ibid at [40]
Are the consequences of the aggravation serious?
75 I must now consider whether the consequences for the plaintiff are serious.
76 I accept that since the accident, the plaintiff has suffered constant lower back and neck pain. He takes over-the-counter and prescription medication. He is currently taking either Panadeine Forte, Panadol or Panadol Osteo, together with Celebrex.[44] He also takes Baclofen, a muscle relaxant and Temazepam to help him sleep.
[44]T65, L19-31, T66, L1-9
77 The plaintiff was not challenged in respect of his claim of ongoing and constant pain, nor in respect of the medication he takes, or the restrictions the injury causes him, both at home and recreationally.
78 The weight to be attached to the plaintiff’s account of his pain experience will depend upon an assessment of the plaintiff’s credibility.[45] As stated above, I accept the plaintiff as an honest witness and accept his evidence as to his complaints of pain. I further note that the doctors accepted him as genuine, and there is no suggestion by any doctor that he is exaggerating or overstating his symptoms.
[45]Haden Engineering v McKinnon (2010) 31 VR 1 at para [9]
79 I accept the following consequences arise from the aggravation of the plaintiff’s lower back and neck pain:
·Interference with sleep. He wakes up most nights and struggles to get comfortable in bed.
·He is limited in motorcycle riding. He can now only ride short distances in his local area.[46] I accept this is a particularly significant loss to the plaintiff, given it was his major recreational enjoyment before the accident.
·He no longer plays cricket.
·He no longer goes fishing.
·He is no longer able to mow his lawns with a hand mower, and instead has purchased a ride on mower.
·He is restricted in his gardening.
[46]PCB 31
80 I am also satisfied that the plaintiff’s ongoing lower back and neck pain impact upon his ability to work. I accept that the plaintiff persisted with his work arrangement immediately after the accident, as he was keen to keep his job and the income which came with it. I accept his evidence that after some months, his pain was so bad, he resigned his employment and returned to Tasmania.
81 The plaintiff’s next full-time employment was at the Beaconsfield Mine in 2011-2012. I accept his evidence, corroborated by his friend and manager Jim Murray, that the work there was relatively light. I accept that by March 2012, he was suffering increased lower back and neck pain, such that it was necessary for him to stop working.
82 Mr Scanlon focused on the plaintiff earning more income in the financial years ending 2007, 2008 and 2012, than he had for many years before the accident. He submitted that was inconsistent with the plaintiff’s claim for pecuniary disadvantage.
83 Mr Richards focused on the plaintiff commencing full-time work on a wage of approximately $1,680, just one week prior to the accident. I accept it was a time of opportunity for the plaintiff, and that the accident prevented him from maximising his earning capacity. I accept the plaintiff tried his best to continue in such work, notwithstanding his increased lower back and neck pain. I also accept that his time at Beaconsfield Mine was a further attempt to work in spite of increasing pain.
84 Given Mr King and Mr Kossmann were not aware of the plaintiff’s work at the Beaconsfield Mine, I am not assisted by their opinions in relation to the plaintiff’s work capacity. However, given I have rejected Mr Kierce’s opinion that the aggravation has ceased, his opinion on the plaintiff’s work capacity is irrelevant, as it is offered on the basis that the accident is no longer a cause of his incapacity.
85 The plaintiff sees Dr Iqbal on an ongoing basis. In May 2015, he stated that in his opinion the plaintiff’s neck injury restricted him from working in his pre-injury duties.[47] He does not comment on the plaintiff’s lower back pain, even though it is clear from the records and from the plaintiff’s evidence, that he sees him for both.
[47]PCB 56
86 There were two periods where the plaintiff attempted full-time work, but on both occasions, I accept he ceased due to increasing lower back and neck pain. I am satisfied this ongoing pain restricts him to the extent he is now unable to undertake paid employment on a regular basis. I am therefore satisfied he suffers pecuniary disadvantage as a consequence of the accident.
Orders
87 Accepting the pain and suffering consequences, and the pecuniary disadvantage identified above, when comparing the plaintiff’s case to the range of other possible impairments, I am satisfied that the consequences for him are at least very considerable. Therefore, the plaintiff’s application for leave to commence a claim for common law damages succeeds. I shall make consequent orders.
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