Simpson v Transport Accident Commission
[2024] VCC 1743
•21 November 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-01149
| IAN MORRIS SIMPSON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE ROBERTSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 September 2023 | |
DATE OF JUDGMENT: | 21 November 2024 | |
CASE MAY BE CITED AS: | Simpson v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1743 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – Conversion Disorder – pain and suffering – whether the nature, symptoms and consequences of injury are “severe”
Legislation Cited: Transport Accident Act 1986 (Vic), s 93(4)(d), s 93(17); Accident Compensation Act1985 (Vic), s 134AB(16)(b); Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 335(2)(d)
Cases Cited: Humphries and Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Katanas v Transport Accident Commission [2016] VSCA 140; Transport Accident Commission v Katanas (2017) 262 CLR 550; Noonan v State of Victoria [2013] VSCA 289; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 191; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Hooley v Transport Accident Commission [2019] VSCA 263; De Agostino v Leatch [2011] VSCA 249; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards KC with Mr D O’Brien | Arnold Thomas & Becker |
| For the Defendant | Mr P B Jens KC with Ms C Kusiak | Lander & Rogers |
Table of Contents
Introduction
Legal principles
Witnesses and evidence
Background
Medical history
The transport accident and subsequent medical treatment
Employment post-transport accident
Issues and submissions
Plaintiff’s submissions
Defendant’s submissions
Injury
Long-term
Credit
Plaintiff’s claimed consequences and findings
Pain
Medication and medical treatment
Work capacity
Relationship
Sleep
Social life
Activities of daily living
Motorcycle riding
Driving
Analysis
Conclusion
HER HONOUR:
Introduction
1Ian Simpson (“the plaintiff”) was involved in a transport accident on 2 September 2016. He was struck by a truck when riding his motorcycle along Todd Road, near the Bolte Bridge in Melbourne (“the transport accident”).
2The plaintiff seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (Vic) (“the Act”) to commence common law proceedings for damages in respect of an alleged “serious injury” within the meaning of s 93(17)(c) of the Act, which the plaintiff says he sustained in the transport accident. The plaintiff claims to have suffered a severe long-term mental or a severe long-term behavioural disturbance or disorder including a Conversion Disorder, ongoing hand twitching, pseudo-neurological symptomatology and irritability.
3To succeed in this application, the plaintiff must satisfy the Court, on the balance of probabilities, that the injury he has suffered occurred because of the transport accident and constitutes a “serious injury” within the meaning of s 93(17) of the Act. The defendant did not contest the issue of causation, but did contend that the plaintiff’s injury, symptoms and consequences were not “severe” as required for the purposes of s 93(17)(c) of the Act.
4The assessment of whether the injury is a “serious injury” for the purposes of the Act, is assessed at the time the application is heard.
Legal principles
5The question of whether an injury is “serious” for the purpose of s 93(17) is to be answered according to the narrative test laid down by the Full Court of the Supreme Court of Victoria in Humphries and Anor v Poljak:[1]
“… To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison 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’? … .”
(Emphasis added.)
[1] [1992] 2 VR 129 (“Poljak”) at 140 (per Crockett and Southwell JJ).
6For an injury to be a “serious injury” for the purposes of s 93(17)(c), the plaintiff must demonstrate that the injury, its symptoms, and consequences constitute a severe long-term mental or severe long-term behavioural disturbance or disorder.
7The word “severe” is not defined in the Act. Nevertheless, it was held by a five-member bench of the Court of Appeal in Mobilio v Balliotis[2] that the word “severe” is to be considered of stronger force than the word “serious”.
[2] [1998] 3 VR 833 at 846 (per Brooking J).
8Mental disorders will vary in their nature and in their consequences. There are many ways in which the question of severity might be approached, each of them being incomplete in itself.[3] As the High Court noted in Transport Accident Commission v Katanas,[4] there is not always a “bright line” between injury, consequences and symptoms, and what might be characterised as a symptom may, at the same time, be relevant as a consequence.[5] A diagnosis of a particular condition does not result in a conclusion that the condition is permanent or that its consequences are severe.[6] Similarly, a psychiatric disorder may have severe consequences, even though a sufferer has had limited treatment, just as extensive treatment will not necessarily point in the direction of a disorder being more severe.[7] The question is whether, overall, determined by all the evidence and not just medical opinions,[8] a plaintiff’s mental disorder, when judged objectively with other potential disorders, is to be correctly characterised as “severe”. This must be determined with regard given to its nature and resulting symptoms, the nature and extent of treatment, and all the consequences informed by an analysis of ordinary activities before as compared to after an accident.
[3]Katanas v Transport Accident Commission [2016] VSCA 140 at paragraphs [19] and [30] (per Ashley and Osborn JJA).
[4] (2017) 262 CLR 550 (“Katanas”).
[5] Katanas (ibid) at 546, paragraph [29].
[6] Noonan v State of Victoria [2013] VSCA 289 (“Noonan”).
[7]Katanas (supra) at paragraph [26] referring to Katanas v Transport Accident Commission [2016] VSCA 140 at paragraph [30].
[8]Noonan, following Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 and Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605.
9In Katanas, the High Court referred to Poljak and identified the task required for application of the narrative test as follows:
“6. … The application of the narrative test entails a two-stage process:
(1)an assessment of whether the nature and symptoms of the injury and the consequences of the injury are, subjectively for the applicant, ‘serious’ or, in the case of mental or behavioural disturbance or disorder, ‘severe’; and
(2)a determination of whether the injury as thus assessed is objectively ‘serious’ or, in the case of mental or behavioural disturbance or disorder, ‘severe’ when compared with the range or ‘spectrum’ of comparable cases.”[9]
[9]Katanas (ibid) at 555, paragraph [6]. See also for example Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (“Dwyer”) at paragraph [7] per Ashley JA (Nettle and Dodds-Streeton JJA agreeing at paragraphs [1] and [31]); Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 191 at paragraph [42] per Ashley JA and Beach AJA; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 at paragraph [89] per Tate JA (Ashley JA and Hargrave AJA agreeing at paragraphs [1] and [115]).
10This requires a two-stage analysis. First, an analysis must be undertaken as to whether the nature and symptoms of the injury and consequences are subjectively “serious” for the plaintiff. Secondly, whether the injury and the consequences of the injury are objectively “serious” must be determined. To make a value judgement in accordance with the principles enunciated in Poljak,[10] all factors personal to the plaintiff which emerge on the evidence as relevant to the assessment must be identified and assessed.
[10] Poljak at 140, per Crockett and Southwell JJ.
11The seriousness of the injury is to be assessed by considering the consequences relating to both pain and suffering and pecuniary disadvantage in a cumulative sense.[11]
[11]Poljak (ibid) at 140.
12An application under s 93(4)(d) of the Act is to be contrasted with applications made under s 134AB(16)(b) of the Accident Compensation Act1985 and s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 where pain and suffering consequences are required to be considered separately from loss of earning capacity consequences.[12]
[12] Hooley v Transport Accident Commission [2019] VSCA 263 (“Hooley”) at paragraph [40].
13A particular injured person’s pain and suffering or loss of enjoyment of life may be made worse by their inability to earn income in employment they used to enjoy performing; however, that consequence is significantly more limited than a consequence which takes into account the actual loss of earning capacity suffered by the person.[13]
[13] Hooley (ibid) at paragraph [41].
Witnesses and evidence
14At the hearing, the plaintiff gave evidence and was cross-examined.
15The plaintiff relied upon two affidavits of the plaintiff affirmed 16 November 2022 and 7 August 2023 respectively; an affidavit of the plaintiff’s wife, Leanne Simpson affirmed 3 August 2023; an Alfred Health discharge report dated 3 September 2016; a St Vincent’s Hospital discharge summary dated 20 September 2017, and various medical and medico-legal reports.
16The defendant relied on the plaintiff’s 2016 and 2023, income tax returns; a report of Associate Professor Peter Doherty, consultant psychiatrist, dated 20 July 2023; general practitioner notes from the Civic Park Medical Centre from 13 December 2022 to 25 May 2023 and a clinical note of Anne Howell, clinical neuropsychologist, dated 20 October 2021.
Background
17The plaintiff was 65 years of age at the date the serious injury application was heard.
18He has been married three times and has two biological children, four step-children and eight grandchildren.
19The plaintiff completed the equivalent of Year 12 in New Zealand.
20After school he finished an apprenticeship and then worked as a qualified printer for twenty-three years, before migrating to Australia during 1998.
21After arriving in Australia, the plaintiff worked as a tattoo artist in Morwell, where he established a business and operated three tattoo salons with his second wife, who handled the administrative side of the business. Following the breakup of his second marriage in 2013, the plaintiff lost the business and declared bankruptcy.
22Immediately prior to the transport accident, the plaintiff was working as a cleaner.
Medical history
23The plaintiff is a diabetic and has required insulin since the 1990s.
24He previously experienced anxiety and depression which was treated with Effexor.
25He developed industrial deafness because of his work as a printer.
26The plaintiff also sustained injuries in the past as a result of playing rugby and riding motorcycles, including to his left ankle.
The transport accident and subsequent medical treatment
27On 2 September 2016, while the plaintiff was riding his motorcycle, he was struck by a truck as it was moving into his lane. The plaintiff was thrown through the air and landed on the road. He received first aid from one of his friends and was subsequently transported to The Alfred hospital by ambulance.
28The plaintiff initially experienced stiffness in his chest and neck, and also experienced pain in his right foot and fingers. The plaintiff’s right knee was painful and swollen and there was a haematoma. A CT scan revealed there was no acute fracture.
29Following the transport accident, the plaintiff began to experience involuntary muscle spasms. His right hand became weak and lost dexterity. He also experienced seizures which started around his neck and back and progressed through his body.
30He initially consulted his general practitioner, who arranged for him to undergo various investigations. He was subsequently referred to specialists and has been prescribed medication.
31On 12 September 2017, the plaintiff was admitted to St Vincent’s Hospital to obtain an opinion in relation to the involuntary movements he was experiencing. The history taken revealed the plaintiff had started to develop involuntary head movements about two months following the transport accident. Initially the involuntary head movements were experienced for ten seconds to two minutes but developed over six weeks to involve his whole body. Movements of varying intensity lasted from up to two days to a week.
32At the time of admission, the plaintiff had baseline rhythmic shaking of one or both hands and one or both feet. CT and MRI scans of his brain were normal, as were MRI scans of his thoracic and lumbar spine. He was discharged two days later, on 14 September 2017.
33In 2018, the plaintiff underwent treatment at the Austin Repatriation Hospital where he was diagnosed as suffering from a post-traumatic stress disorder.
34He was referred to a neuropsychologist who provided him with strategies to relax his muscles when he felt them begin to tense.
35The plaintiff told Professor Stephen Davis, neurologist, the relaxation techniques worked most of the time but not always.
36At the date of the hearing, the plaintiff continued to experience seizures and fits. He said he experienced involuntary muscle spasms twice a week which could last hours. When he experiences involuntary muscle spasms, his legs shake and are weak. The only method available to him to alleviate his symptoms is to try to release tension in his muscles. The plaintiff has been prescribed Clonazepam to assist him to cope with his ongoing symptoms and to reduce the frequency of his seizures.
37In addition to the seizures the plaintiff experiences, he also continues to experience post-traumatic stress as a result of the motorcycle accident. Prior to the transport accident, the plaintiff had been prescribed Effexor for his anxiety and depression. His initial dose of 225 milligrams had been reduced to 75 milligrams by the date of the transport accident; however, it was subsequently increased to 225 milligrams again.
Employment post-transport accident
38Since the transport accident, the plaintiff has obtained full-time employment working as a team leader for a traffic control company. He continues to work in this field.
Issues and submissions
Plaintiff’s submissions
39The plaintiff submitted he was a credible and reliable witness who suffers from a severe mental or behavioural disorder as a result of the transport accident on 2 September 2016, namely a Conversion Disorder manifested by ongoing hand twitching and pseudo-neurological symptomatology. Although the plaintiff’s symptoms have abated to some extent, the plaintiff continues to suffer from daily twitching in his arms and weekly partial seizures. He remains fearful he will experience another seizure in public. It was submitted those symptoms alone were severe. The plaintiff relied on the opinion of Dr Matthew Tagkalidis, consultant psychiatrist, that the plaintiff is currently suffering from a Conversion Disorder, which has partially abated, and that the plaintiff had once had a seizure which had lasted three days.
40The plaintiff also relied on Associate Professor Doherty’s observation of the plaintiff twitching, as well as the plaintiff’s and his wife’s evidence about the plaintiff’s symptoms. For instance, in the plaintiff’s affidavit, he claimed he continued to experience seizures in the form of involuntary muscle spasms which commence around his neck and run into his head, back and body. The muscle spasms also affect his legs, and he is unable to stand without the support of a bench or wall. After experiencing a seizure, the plaintiff said his muscles ache and he struggles to sleep. The seizures predominantly arise in the evening when the plaintiff is trying to relax and spending time with his family.
41The plaintiff’s evidence concerning his seizures and muscle spasms was corroborated by his wife who affirmed in her affidavit that the plaintiff suffers from involuntary muscle spasms and seizures that last up to 30 minutes at least twice a week. The plaintiff also suffers from almost constant hand trembling and shaking which he did not experience before his injury.
42In response to the defendant’s submission that the consequences of the tremors experienced by the plaintiff were not severe based on the medical review conducted by the plaintiff’s general practitioner, Dr Faizah Jabeen, for VicRoads, the plaintiff submitted that even if he downplayed his symptoms in dealing with Dr Jabeen, this was of little consequence.
43Additionally, it was submitted that although the plaintiff has returned to work in a role in traffic management, his ability to work as a tattoo artist, which he enjoyed, had been taken from him because of his symptoms.
44Finally, the plaintiff submitted that he is stoic and has got on with his life, dealing with his condition as best he can. He should not be penalised because he has been able to return to alternate employment.
Defendant’s submissions
45The defendant accepted that the plaintiff was a credible and reliable witness and was suffering from a Conversion Disorder, ongoing hand twitching and pseudo-neurological symptomatology; however, it disputed that this was a long-term injury or that the consequences of the plaintiff’s injuries were severe.
46First, it was submitted, to the extent the plaintiff was diagnosed with a Conversion Disorder, ongoing hand twitching and pseudo-neurological symptomatology, the effects of those conditions had diminished or abated over time. Even if the plaintiff continued to experience tremors, the consequences of the tremors did not affect his life in any consequential way and could not be described as “severe”.
47Secondly, although the plaintiff claimed to have been precluded from the prospect of returning to work as a tattoo artist, which he loved, the defendant submitted that was not a consequence that should be taken into account. The plaintiff was not working as a tattoo artist immediately prior to the transport accident; he had returned to work, and he was continuing to work in a better paid role in traffic management, both at the time of the accident and at the date of the hearing.
48Third, even if a loss of enjoyment of work as a tattoo artist was a matter which could be taken into account, when the plaintiff’s consequences were considered cumulatively, they did not rise to the level of being “severe”. The plaintiff’s injury had a minimal impact on him day-to-day; he remained working in traffic management; he was still able to enjoy riding his motorcycle; he could spend time with his wife and family, and he was able to lead a fulfilling life.
49Fourth, to the extent the evidence of Mrs Simpson supported the plaintiff’s contentions that his injury was “severe”, this did not alter the position. Although the defendant did not challenge Mrs Simpson’s evidence, it was unnecessary for it to do so, because Mrs Simpson’s evidence was essentially corroborative of the plaintiff’s evidence which was qualified by the answers he gave in cross-examination. The usefulness of Mrs Simpson’s evidence was consequently largely negated. The defendant referred to De Agostino v Leatch.[14]
[14] [2011] VSCA 249 at paragraph [51].
Injury
50It was accepted by the defendant that the plaintiff suffers from a Conversion Disorder, ongoing hand twitching and pseudo-neurological symptomatology. This is consistent with the medical evidence. Dr Tagkalidis found that the plaintiff is suffering from a Conversion Disorder (functional neurological disorder) which has partially abated with time. Similarly, Professor Stephen Davis opined the plaintiff had developed what is “undoubtedly a functional neurological disorder”. He noted the plaintiff was also thought to have non-epileptic seizures, with a psychosocial basis. His neurological disorder seemed to be under “quite good control with a combination of relaxation techniques taught to him by the neuropsychologist and particularly the occupational therapist and the medication with clonazepam”.[15]
[15] Plaintiff’s Court Book (“PCB”) 48.
51It was apparent from the medical reports, the evidence of the plaintiff and his wife, and what I observed of the plaintiff while he gave evidence, that he continues to be troubled by ongoing spasms and seizures.
52I consequently find that the plaintiff is suffering from a Conversion Disorder, a functional neurological disorder, ongoing hand twitching and pseudo-neurological symptomatology.
Long-term
53The transport accident occurred on 2 September 2016. Since then, the plaintiff has experienced sudden myoclonic jerks and more prolonged non-epileptic seizure episodes. They have been present intermittently now for seven years; however, based on the medical evidence, the plaintiff’s symptoms have abated with time.
54Ms Howell noted in her report dated 11 February 2021 that she had contacted the plaintiff’s wife. The plaintiff’s wife had informed Ms Howell that:
“… Sam has been making good progress. She reported that he was ‘in a good place mentally’ without any of the mental health issues that he had been experiencing in late 2019 to early 2020. She reported he continues to have ‘occasional ticks … and … myoclonic jerks’, but these are now infrequent, and they do not interfere with his day to day function. … .”[16]
[16] PCB 37.
55Professor Davis acknowledged in his report dated 1 July 2022, that the plaintiff had “developed what is undoubtedly a functional neurological disorder”; however, it was under quite good control, and he had an excellent neurological prognosis.
56In the report of Dr Jabeen, Civic Park Medical Centre, dated 19 July 2023, Dr Jabeen, the plaintiff’s treating general practitioner, opined the plaintiff’s condition was “quite stable at this stage”[17]; however, he noted he was not an expert in the field and a specialist opinion should be sought if needed.
[17] PCB 40.
57Dr Tagkalidis opined in his report dated 20 July 2023, that the plaintiff’s injury had caused a substantial detrimental effect on the plaintiff’s functioning and emotional wellbeing; however, “this has essentially abated in the last 2 years”.[18]
[18] PCB 68.
58In his report dated 20 July 2023, Associate Professor Doherty recounted the plaintiff’s medical history including his presentation consistent with psychogenic non-epileptic seizures following the transport accident. He noted the plaintiff had informed him that his last seizure was some time ago. The plaintiff said he used to have them every weekend and he would “be jerking all the time and his hands shaking, and he got twitches in his head”[19] and “maybe his arms would as well”.[20]
[19] PCB 88.
[20] PCB 88.
59Associate Professor Doherty examined the plaintiff and confirmed that the consistent diagnosis was of a functional neurological disorder. Having not observed the plaintiff’s jerking movements, however, he was not prepared to make an independent diagnosis of a functional neurological disorder. He opined that the jerks and spasms the plaintiff was experiencing occurred in safe environments at home and not at work, and there had been some quiescence of them at the time of his report.
60Having considered the medical evidence, and the time the plaintiff has suffered from the Conversion Disorder, ongoing hand twitching, jerking and shaking and pseudo-neurological symptomatology, namely seven years, I find that the impairment consequences of the injury are a long-term injury. Although the symptoms the plaintiff experiences have declined, the Conversion Disorder remains present. I am satisfied the impairment consequences of the injury are far-reaching.
Credit
61The defendant did not criticise to attempt to discredit the plaintiff. On the contrary, the defendant accepted the plaintiff was a very reliable and responsible person of admirable character. He took his job, social responsibilities and his responsibilities to his partner and family seriously.
Plaintiff’s claimed consequences and findings
Pain
62In his first affidavit, affirmed 16 November 2022, the plaintiff described experiencing involuntary muscle spasms following the transport accident. He said his hand had become weak and had lost its dexterity. Seizures started around his neck and back which became tense and progressed throughout his entire body. He was conscious during the seizures. The seizures spread throughout his entire body, and his legs shook and became weak. He said the epileptic-type fits could last up to 30 minutes and could repeat for hours.
63In his second affidavit, affirmed 7 August 2023, the plaintiff said the spasms and seizures occurred with varying intensity at least twice every week. They could occur without warning and could last for up to 30 minutes. He said they usually happened during the evening when he was trying to relax. They rarely occurred when he was distracted or focused on an activity that required him to concentrate, such as working or riding his motorcycle.
64The plaintiff recounted how the “constant tensing”[21] of his muscles caused him to experience constant aches and pains, especially around his shoulders and neck. He also said he developed left shoulder pain during early 2020.
[21] PCB 15, paragraph [9].
65The plaintiff described having ongoing tremors and weakness in his right hand. He was unable to draw a straight line and struggled to hold a pen. In his second affidavit, he said he lacked dexterity, and his finger joints felt like they were constantly clenched together.
66The plaintiff was cross examined about the extent of his pain and symptoms including the tremors and seizures he said he experienced.
67He was asked about his consultations with Ms Howell, clinical neuropsychologist, and specifically a consultation on 20 October 2021 at which the plaintiff sought a report from Ms Howell for a VicRoads’ annual drivers’ licence renewal assessment.
68In the consultation note, Ms Howell recorded:
“Every year has to have a review of license [sic] because of diabetes
Haven’t had any seizures for ages. Gets the occasional shaky hand, but that’s about it. Couldn’t tell me the last time he had a seizure.
…
Plan:
Write to GP to inform him that Sam was discharged from our clinic in February this year; and that I have not seen him for consultation since March 2020. According to Sam, he has been doing really well. He reports that his mood has returned to ‘normal’, he has the occasional shaky hand, and that he can’t recall the last time he had a seizure.
There does not appear to be any indication to re-commence therapy at this point in time.
… .”[22]
[22] Defendant’s Court Book (“DCB”) 5.
69Ms Howell acknowledged the information she had about the plaintiff was not current; however, when it was suggested to the plaintiff things had not got any worse in relation to his condition since that consultation, the plaintiff’s response was during the consultation he was “… sort of downplaying it to it because, you know I wanted to keep my licence because that’s my job. Without a licence, I don’t have a job.”[23] When he was asked whether his general practitioner had said the plaintiff was “doing really well”,[24] he said, “I didn’t want to open up a can of worms”.[25]
[23] Transcript (“T”) 33, Line/s (“L”) 19-21.
[24] T35, L2-43.
[25] T36, L2-4.
70This view is consistent with what was recorded by Associate Professor Doherty in his report dated 20 July 2023, that the last seizure the plaintiff had experienced was “some time ago”. Further, it was also in accord with the clinical notes of Dr Jabeen, that the plaintiff’s seizures were stable, he was “doing very well” and experienced twitches “sometimes only at night” and felt “mildly”.
71The plaintiff was asked about this in cross examination. He said he often had ticks and twitches and agreed there were some consultations where he experienced them and some where he did not. He recalled twitching on one occasion when he saw Associate Professor Doherty and he said he had been twitching while giving evidence. The plaintiff described that as “annoying”. He said it “wears him out” and he gets a headache.
72In re-examination, the plaintiff expanded on the frequency and severity of the symptoms he experienced. The plaintiff was asked about this as follows:
Q: “And you gave evidence about having an involvement in your whole body in relation to the tremors?---
A: Yes.
Q: How many days a week is it that your whole body gets involved with the tremors, on average how often does that happen?---
A: Well at least once a week I can have a good one, well, if you can call it good.
Q: And what’s it like for you when that happens, what happens to you?---
A: You - um, you just got no control over anything, it just - just goes - your body just starts going crazy. I don’t know if you’ve ever seen a video of an epileptic seizure, but it’s like that except for you’re awake. And at one stage I had a seizure from three days, solid, nonstop. I was totally worn out. … .”[26]
(sic)
[26] T57, L12-24.
73Considering all the evidence, I have formed the view that while the plaintiff’s symptoms have abated and are no longer as extreme as they once were, he does continue to experience intermittent tremors. The plaintiff referred to having experienced one tremor that lasted three days, and also described having no control over anything when he was experiencing a tremor. I accept that this has been his experience on at least some occasions, but, as he said, there are occasions he twitches and occasions he does not.
74Further, I find that not all tremors are experienced with the same severity. According to the notes of the medical practitioners, the plaintiff only felt the tremors mildly at night and he was generally doing well. The plaintiff can experience some form of tremor at least once a week, but I do not find they are all of the severity suggested by his answers to the questions asked of him in re-examination.
75I have formed the view that the plaintiff’s seizures have abated. He continues to experience tremors once a week which are at least mild in severity. They persist, according to his evidence, for on average 30 minutes, although at times they may continue for a longer period.
76In addition to the tremors the plaintiff experiences, it was also put to the plaintiff in cross examination that the aches and pains he experienced around his neck and shoulders were not caused by the constant tensing of his muscles, but rather were a separate problem. The plaintiff consulted Dr Anas Ghazal, general practitioner, at the Civic Park Medical Centre on 19 February 2020 and was diagnosed with classic adhesive capsulitis. He was referred for an ultrasound and an x-ray. Those investigations were done of his shoulder. The plaintiff returned to see Dr Jabeen at the Civic Park Medical Centre on 25 February 2020. His shoulder was feeling better, and he was given a care plan. The plaintiff agreed that it could be the case that he attended the doctor with a separate problem altogether with his left shoulder in February 2020. I accept that the plaintiff may have experienced a minor degree of pain in his shoulder as a result of the tremors and twitches he experienced; however, taking account of his answers in relation to the consultations he had with Dr Jabeen, I find that any issues with the plaintiff’s shoulder were largely unrelated to his Conversion Disorder.
Medication and medical treatment
77At the date of the hearing, the plaintiff was taking a number of medications for diabetes and for heart and high blood pressure problems. He was taking insulin in injection form, morning and night.
78The only medication he was taking after the transport accident for his tremor condition was Clonazepam. The current prescription is for one tablet a day as needed. It was suggested the plaintiff did not need to take that medication each day because it was prescribed on an “as needed” basis. The plaintiff’s response was that he had always taken it every day and once when he ran out “it wasn’t good”. He started having “full blown”[27] seizures. I accept this evidence and that there was a necessity for the plaintiff to take medication daily for his tremors.
[27] T60, L7-8.
79The plaintiff was also taking Effexor. He had been taking that prior to the transport accident since the 1990s for depression which had arisen as a result of his diabetes condition. He gave evidence that he had initially been taking 225 milligrams per day which had reduced to 75 milligrams per day at the time of the transport accident.
80In cross examination, it was suggested to the plaintiff that although the amount of Effexor prescribed to him following the transport accident had increased again to 225 milligrams per day, there were reasons for that prescription other than simply the transport accident. First, that the plaintiff had been adopted as a young person and had made contact with his birth mother in recent years. Meeting his birth mother had been delayed due to the COVID-19 pandemic. Second, the plaintiff had learned some disturbing things about his birth father. Third, he witnessed one of his very close friends die in a serious motorcycle accident. Fourth, the breakdown of his second marriage was distressing.
81Notwithstanding these matters, on 15 December 2022, Dr Faiza Akbar, general practitioner at the Civic Park Medical Centre had a consultation with the plaintiff at which he had recorded as follows:
“Normal sleep. Early morning wakening. Normal self esteem. Normal mood. Anxious. No stress at work. No relationship problems. No financial problems. No recent bereavement. No irritability. No irrational fears. No panic attacks. No compulsive behaviours. No delusions. No auditory hallucinations. No visual hallucinations. No suicidal thoughts. No suicide attempts. No substance abuse. been on high dose for years, nil side effects, nil mood dips, den[i]es all risks, no [hos]pital admissions for, [m]ental health. …”[28]
[28] DCB 100.
82Taking all of the evidence into account, I have formed the view that on the balance of probabilities, the increase in the plaintiff’s Effexor was at least as much due to reasons unrelated to the transport accident as it was because of the transport accident. In any event, the Effexor medication was not employed to deal with the symptoms of the Conversion Disorder, but rather was intended to address the plaintiff’s anxiety and depression, which are not injuries which form part of the plaintiff’s claim. For each of these reasons, I have not taken into account the prescription of Effexor in my assessment of whether the consequences of the plaintiff’s injury are “severe”.
Work capacity
83The plaintiff said in his affidavit that after he arrived in Australia he worked as a tattoo artist and built up a business operating three salons with his second wife. She handled the administrative side of the business. The plaintiff said he lost the business during his divorce from his second wife and ultimately declared bankruptcy. The plaintiff’s evidence in his first affidavit affirmed 16 November 2022 was that at the time of his accident, he was planning on returning to the tattooing industry. He said, “I enjoyed this work and I received a higher rate of pay”.[29]
[29] PCB 14, paragraph [6].
84The plaintiff said the ongoing tremors and weakness in his right hand prevented him from returning to work as a tattoo artist. He reported being unable to draw a straight line and struggling to hold a pen. Even a slight tremor had the potential to permanently destroy a tattoo. The plaintiff described this as a significant loss for him as he enjoyed the creativity of his work as a tattoo artist.
85When cross examined, it was suggested to the plaintiff that it was unrealistic to suggest he was going to return to work as a tattoo artist. First, he had not worked as a tattoo artist since 2013 and was working as a part-time cleaner at the time of the transport accident. Second, after his accident, he had retrained in traffic management and had obtained alternate employment in a traffic management company that supported water companies around Melbourne and Victoria. That work was preferable to his previous work as a tattoo artist and paid more. He was well regarded by his employer and peers. He enjoyed the work and spent more time outdoors. He had no trouble with his symptoms when undertaking this work because he was driving and concentrating. He had more responsibility than he previously had.
86The plaintiff agreed that at the time of the accident, he was working as a part-time cleaner and had not worked as a tattoo artist since 2013.
87I accept the defendant’s submission that the facts do not allow for a conclusion that the plaintiff would have returned to tattooing. Prior to the accident, when the plaintiff was well, he had lost his tattoo business. He had been declared bankrupt and he had not worked as a tattooist since 2013. The evidence demonstrated the plaintiff had accepted alternative employment as a cleaner well before the transport accident.
88In the twelve months prior to the transport accident there was no evidence the plaintiff earned any income from tattooing. The only evidence of the plaintiff’s earnings prior to the transport accident was an income tax return for 2016 which showed the plaintiff earned $15,946 per annum as a part-time cleaner.
89There was no indication the plaintiff had made any attempt to become a tattooist in the years after the accident either. The plaintiff commenced working in traffic management after the accident and at the date of the hearing, he was earning a regular income of nearly $50,000 per annum[30] – considerably more than he had been earning before the transport accident – as a team leader in traffic management. The plaintiff was working outdoors which he enjoyed. He could work dayshift or nightshift with loadings for night and weekend work. He found working in the country to be peaceful and despite the long hours required to drive to Melbourne from Drouin for work, he enjoyed the driving. There was no suggestion the plaintiff was having trouble with his work. He was able to perform his traffic management duties five days a week, as well as undertake some shifts at night. He said his tremors were better at work and eased when he was concentrating. He was well regarded by his employer and his peers, and he was happy doing his job.
[30] T38, L12-14. In the 2023 year, the plaintiff said his income was $49,435.
90The plaintiff said he loved being a tattooist and he still loves it. Despite this, I find that any inability of the plaintiff to work as a tattoo artist was not a consequence of the transport accident and I do not take it into account. Even if it had been a relevant consequence, it would have been of minor significance, because the plaintiff was earning more after the transport accident than he had been before. Any pecuniary disadvantage the plaintiff might have suffered would have been limited to an inability to work in a field of his choice.
Relationship
91The plaintiff did not contend that his relationship had suffered as a result of the transport accident. He said he and his wife were a close couple, and his marriage was very happy; however, he did note that when he experiences seizures, they normally occur at night when he is trying to relax and spend time with his wife. I find the plaintiff’s impairment consequences have been of minimal effect on his relationship.
Sleep
92The plaintiff did not claim the transport accident had significantly impacted his sleep. He suggested in his second affidavit that it was difficult to sleep after he had a seizure; however, the history he gave to Dr Gurvinder Kalra, consultant psychiatrist, was he sleeps well.
93I do not regard this as a significant consequence to the plaintiff.
Social life
94The plaintiff did not claim any impact on his social life in his affidavits; however, when cross examined, the plaintiff was asked how the hand twitching was affecting his capacity to enjoy life. The plaintiff replied:
“Big time, yeah, it does affect it because I don’t want to go out socialising if I’m, you know, twitching and ticking, because, you know, it makes you look like an idiot. You know what I mean? So it’s easier to stay home.”[31]
[31] T57, L31 – T58, L4.
95I find there has been a moderate impact on the plaintiff’s social life.
Activities of daily living
96The plaintiff did not claim his injury had impacted his ability to perform his activities of daily living. He said he and his wife contribute to the family home upkeep in many ways.
97I find there has not been any significant impact on the plaintiff’s ability to perform his activities of daily living.
Motorcycle riding
98The plaintiff’s evidence was he enjoyed motorcycle riding as a hobby before the transport accident.
99After the accident, he had been able to return to motorcycle riding.
100In his report dated 1 July 2022, Professor Stephen Davis noted the plaintiff:
“… still enjoys riding a motorcycle but told me he was ‘very wary of trucks’. He loves going for a ride and belongs to this club, Vietnam Veterans. He never has these jerks when he is riding a motorbike and told me that this activity helped him to relax.”[32]
[32] PCB 49.
101The plaintiff’s evidence was he has been able to ride his motorbike again. Although he had not done many long bike rides recently prior to the trial, he said if the weather had been nice, over the preceding weeks he had gone out on the bike and more often than not, he had taken his wife with him.
102The plaintiff’s evidence was his condition was best when he was at work or riding a motorcycle. The tremors did not bother him when he was riding his motorcycle or driving to work.
103I do not consider that an inability to enjoy riding his motorcycle was a consequence that was affecting the plaintiff in a relevant sense.
Driving
104In the same way that the plaintiff is still able to enjoy riding his motorcycle, he said he was able to enjoy driving to work.
105Again, I do not consider an inability to drive was a relevant consequence of his injury. If anything, as the plaintiff expressed, his tremors were not as bad when he was concentrating on riding his motorcycle or driving.
Analysis
106To establish a serious injury, the Court must be satisfied, on the balance of probabilities, that the symptoms and consequences of the plaintiff’s injury constitute a severe long-term mental or severe long-term behavioural disturbance or disorder.
107The Act does not define severity, but for impairment consequences to be objectively severe, they must be at least more than “very considerable”.
108In undertaking the two-stage process identified in Katanas,[33] I have started by considering the nature of the plaintiff’s condition. As I have found, the plaintiff has a Conversion Disorder which has resulted in involuntary muscle spasms and tremors. His hand has become weak and has lost its dexterity. He experiences seizures which start around his neck and back. His neck and back become tense and he experiences minor aches and pains; however, the pain in the plaintiff’s neck and back is largely unrelated to the Conversion Disorder. The seizures progress throughout his entire body. He is conscious during the seizures. The tremors are felt mildly at night, and most of the time he is “doing very well”. Sometimes the plaintiff experiences twitches which he described as “annoying”, and which can wear him out. He sometimes also gets a headache. I find the plaintiff’s symptoms have abated and are now intermittent and no longer as extreme as they once were.
[33] Supra.
109The plaintiff has been referred to a psychiatrist and a neuropsychologist. He is taking one tablet a day as needed of Clonazepam for his tremors. I accept, although prescribed as needed, the plaintiff requires the medication daily to prevent seizures from occurring. Although the plaintiff takes Effexor, this was at least as much due to reasons unrelated to the transport accident as it was because of the transport accident. In any event, the Effexor medication was not employed to deal with the symptoms of the Conversion Disorder, but rather was intended to address the plaintiff’s anxiety and depression, which arose for reasons unrelated to the transport accident.
110The plaintiff’s sleep has been largely uninterrupted.
111I have taken into account the other consequences claimed by the plaintiff including that he has lost the ability to work as a tattoo artist. I find that any inability of the plaintiff to work as a tattoo artist was not a consequence of the transport accident and I do not take it into account. The plaintiff had not been working as a tattoo artist for some time prior to the transport accident. While working as a tattoo artist his business failed and he was declared bankrupt. He obtained alternate employment as a cleaner. He has continued in employment since the transport accident and has obtained new qualifications. He now works in traffic management. He enjoys his work. Further, the plaintiff was earning more after the transport accident than he earned before, and the evidence did not support a finding that the plaintiff had been unable to work as a tattooist because of the transport accident.
112I have considered the impact of the transport accident on the plaintiff’s social life and have found it to be minimal only. I have also found there were no relevant impacts on the plaintiff’s relationship and activities of daily living or his ability to enjoy motorcycle riding or driving.
113In assessing the consequences of the plaintiff’s injuries, I have first assessed them subjectively. I do not consider the plaintiff’s injury constitutes a severe long-term mental or severe long-term behavioural disturbance or disorder. The subjective consequences to the plaintiff, while considerable, do not rise to the level of at least very considerable or substantial.
114Assuming however, that I am wrong and the subjective impairment consequences of the plaintiff’s injury are, to the plaintiff, more than at least very considerable or substantial, I am also required to consider whether, when judged objectively against the range of comparable cases, the consequences are “severe”.
115Impairment is concerned with what a plaintiff has lost. However, I have also taken into account what the plaintiff has retained. I have considered that the plaintiff is still able to work, and have had regard to authorities which identify that if a plaintiff is able to continue to work or return to work, it may be difficult to conclude that the pain and suffering consequences are “at least very considerable”.[34] I have found that any inability to work as a tattoo artist is not a relevant impairment consequence; however, even if it had been, because the plaintiff has been able to continue to work and is now earning considerably more than what he was earning before the transport accident in an occupation which he enjoys, I would nevertheless have concluded that any inability to work as a tattoo artist was not a consequence which had impacted the plaintiff greatly. It would not have been a consequence which was more than “at least very considerable”.
[34]Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 at paragraph [24]; Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [47]; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraph [15].
116Further, to the extent the plaintiff claimed to have lost the ability to enjoy riding his motorcycle or driving, none of the medical practitioners considered it was necessary for the plaintiff to cease driving. If his seizures were more than serious and reached the level of being severe, it might have been anticipated that the plaintiff’s medical practitioners would have curtailed the plaintiff’s driving.
117Further, the plaintiff suggested his symptoms were not as bad when he was driving because he was concentrating, and that he had to drive because his wife had glaucoma. Despite this, because the plaintiff drove long distances on a daily basis for work, demonstrated he was a responsible person who took his job and relationships seriously, and agreed he would not take a risk and expose himself to danger. If the plaintiff’s symptoms including tremors and seizures were, or could have become, particularly bad, or have arisen frequently, it is likely the plaintiff would have limited the amount of driving he did to ensure he did not pose a risk to himself or to other road users. The fact he did not limit his driving tells against the consequences of the injury being “severe”.
Conclusion
118The plaintiff has not sustained a serious injury. I am satisfied the nature, symptoms and consequences of the injury, are not subjectively “severe” for the plaintiff. Even if they are, when assessed objectively, the mental or behavioural disturbance or disorder does not meet the requisite statutory test of being “severe” when compared with the range or “spectrum” of comparable cases.
119I do not grant the plaintiff leave to commence proceedings for damages.
120I will hear argument with respect to costs.
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