Singh v Transport Accident Commission
[2016] VCC 2001
•21 December 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-06156
| AMIT SINGH | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 6 December 2016 | |
DATE OF JUDGMENT: | 21 December 2016 | |
CASE MAY BE CITED AS: | Singh v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 2001 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – paragraph (a) and (c) of the definition of “serious injury” – range case
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Richards & Anor v Wylie (2001) 1 VR 79; Mobilio v Balliotis [1998] 3 VR 833; Hunter v Transport Accident Commission [2005] VSCA 1; Transport Accident Commission v Kamel [2011] VSCA 110; Petkovski v Galletti [1994] 1 VR 436
Judgment: Leave granted to the plaintiff to bring common law proceedings for damages in relation to the transport accident suffered by him on 22 July 2013.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell QC with Mr Chen | Slater and Gordon |
| For the Defendant | Mr P D Elliott QC with Ms A Wood | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 By way of Originating Motion dated 23 December 2015, Amit Singh (“the plaintiff”) seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (as amended) (“the Act”) to bring common law proceedings to recover damages for injury (“the injury”) suffered by him arising out of a transport accident which occurred on 22 July 2013 (“the transport accident”).
2 The plaintiff gave evidence and was cross-examined. Both parties tendered various documents.[1]
[1]See Annexure “A”
Relevant legal principles
3 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.[2]
[2]See s93(6) of the Act
4 The plaintiff relies on paragraphs (a) and (c) of the definition of “serious injury” contained in s93(17) of the Act, which reads:
“serious injury means—
(a) serious long-term impairment or loss of a body function; or
(b) …
(c)severe long-term mental or severe long-term behavioural disturbance or disorder; or … .”
5 The part of the body said to be impaired for the purposes of paragraph (a) is the lower back. The mental or behavioural disturbance or disorder is said to be Depression and/or an Adjustment Disorder.
6 In order to succeed, the plaintiff must prove, on the balance of probabilities:
(a) That “the injury” suffered by him was a result of the transport accident;
(b)The requirements of the test set out in the seminal decision of Humphries & Anor v Poljak,[3] wherein a majority of the then Full Court of Victoria stated:
[3][1992] 2 VR 129
“Subs(17) intends a division between injuries with physical consequences and those with mental consequences. The former fall under para(a) and the latter under para(c). It would be anomalous to regard the consequences of mental disturbance or disorder to fall under para(a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of para(c). A ‘functional overlay’ will, we consider, rarely amount to a behavioural disturbance or disorder as that term is used in the legislation.
Now, in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, we think that the task of a judge confronted with the requirement to determine an application made pursuant to subs(4)(d) when reliance is placed upon subs(17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. 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’?”[4]
[4]See Humphries & Anor v Poljak (supra) at paragraph 40. Also see Mobilio v Balliotis [1998] 3 VR 833
(c)“Serious injury”, as defined in subparagraph (a), can have its seriousness measured, in part, by a mental response to a physical impairment – however the mental disorder cannot, itself, constitute or be the producer of, the impairment of a body function;[5]
[5]See Richards & Anor v Wylie (2001) 1 VR 79
(d)“Serious injury”, as defined in subparagraph (c), requires the mental or behavioural disturbance or disorder to be “severe” rather than “serious”. In Mobilio v Balliotis,[6] the Full Court found the word “severe” to be a higher standard to reach than “serious”. Brooking JA stated:
“Without suggesting the use of any particular adjective to mark the distinction, I would say that ‘severe’ is used in the definition as a stronger word than ‘serious’.”[7]
[6](Supra)
[7]See Mobilio v Balliotis (supra) at 846
7 I was advised by Senior Counsel for the plaintiff that “the main focus” of the proceeding would be under part (a) of the definition of “serious injury”.
The issues
8 Senior Counsel for the defendant advised the Court there was no issue that the plaintiff was involved in a transport accident on 22 July 2013. Furthermore, there was no issue he suffered a low-back injury – an aggravation of pre-existing degenerative changes based on the available medical evidence – and, furthermore, the available psychiatric evidence would suggest that there has been some psychiatric reaction to the organic condition variously referred to as an Adjustment Disorder with accompanying Anxiety and/or Depression.
9 Senior Counsel indicated that it was the position of the defendant that the weight of evidence does not support a finding that the plaintiff has suffered a severe long-term mental or several long-term behavioural disturbance or disorder within the meaning of paragraph (c) of the definition of “serious injury”.
10 Furthermore, Senior Counsel for the defendant advised the Court that in respect to the claim under paragraph (a) of the definition of “serious injury” – that is to say, the back injury – it was the position of the defendant the issue becomes whether or not the plaintiff can satisfy the requirement that any consequences resulting from any impairment from the back injury in relation to pecuniary disadvantage and/or pain or suffering can be, when judged by comparison with other cases in the range of possible impairments and losses, be fairly described at least as “very considerable” and certainly more than “significant” or “marked”. In this sense, counsel advised that this aspect of the matter was a “range case”.
11 Also, Senior Counsel for the defendant noted that an issue may arise as to whether one should accept the evidence of the plaintiff and, in this respect, reference was made to the comment by Senior Counsel for the plaintiff at the beginning of his case:
“This case depends a great deal on the plaintiff’s credit.”[8]
[8]Transcript (“T”) 16, Line (“L”) 12-13
The evidence of the Plaintiff
12 The plaintiff gave evidence that he had read his affidavits sworn on 3 December 2015, 17 November 2016 and his last affidavit on 5 December 2016[9] and the contents of such affidavits were “true and correct”.[10]
[9]The third affidavit was initially unsworn, but at the commencement of the hearing, I permitted the plaintiff to swear that the contents of such affidavit to be true and correct on the morning of the hearing without objection from those acting for the defendant.
[10]T17, L18-3
13 By way of his first affidavit affirmed on 3 December 2015:[11]
[11]See exhibit 1 at pages 6-12, Plaintiff’s Court Book (“PCB”)
·He is a thirty-eight-year-old (born September 1978) married man with two children, aged seven and one.[12]
[12]Later evidence confirms that a further child has been born since this affidavit
·He was born in India, where he attended secondary school to Year 12 and, thereafter, completed a Bachelor of Commerce while working as a manager in a Telecom distribution centre.
·He migrated to Australia in 2003 and undertook a Master’s Degree in accounting over two years and when studying, performed up to twenty hours per week work in various positions, including driving a taxi and performing security work.
·On completing his Master’s Degree in 2005, he undertook a course as a driving instructor and completed a Certificate IV in Workplace Training and Assessment and commenced his own driving school business over the years between 2005 and 2008.
·He then completed a Graduate Certificate in Migration Law and established his own migration law practice in or about 2008, which continued for about two years. After that, he worked for the ANZ Bank until the end of 2011,[13] initially commencing work in a branch as a casual teller for about six months and then moved to a call centre, then as a full-time employee, where he remained for a further two years.
[13]Originally the affidavit stated 2010, but at the beginning of the proceeding, amendment was made to such paragraph to read 2011.
·In May 2013, he joined the Department of Immigration in customer service and was employed on a three-month contract, working as a full-time contractor. He was advised that the manager was happy with his work and he was told that his contract was going to be extended.
·On 22 July 2013, he was involved in a transport accident (“the transport accident”) when the vehicle in which he was a passenger was struck by another vehicle in the rear, causing the vehicle he was in to push into the vehicle in front. In particular, the plaintiff states:
“I recall feeling a severe jolting sensation. I experienced back pain but I was able to get out of the car. I initially did not think I was seriously injured. I called my wife who came and drove me home. That evening I had a lot of back pain. The following day I attended the Westgate Medical Centre, where I was seen by Dr Shirzada. Dr Shirzada referred me for x-rays and prescribed painkillers.”[14]
[14]See exhibit 1 at page 9, PCB, paragraph [12]
·Prior to the transport accident, the plaintiff had suffered lower back pain as follows:
(a)He recalls an episode of back pain when he was about eight or nine years of age, when he fell onto his back, but does not recall requiring any medical treatment;
(b)In or about June 2011, he had an episode of back pain when he was getting out of bed and sneezed. He consulted a doctor at the Westgate Medical Centre and was prescribed anti-inflammatory medication and painkillers. He travelled to India two days after that episode and, when in India, consulted a doctor, who arranged for an MRI scan to be undertaken. He was prescribed anti-inflammatory medication and painkillers and remained in India for a few weeks before returning to Australia. He continued to take the medication, and over a period of six to eight weeks, the symptoms improved and, ultimately, he ceased taking all medication and “had no ongoing problems”.[15]
[15]See exhibit 1 at page 8, PCB
·One week after the transport accident, he attempted to return to work, however, his back pain was such he had to cease and has not worked since that date.[16]
[16]Of course, that is at the date of the first affidavit
·He attended Dr Nyamayaro (at the Westgate Medical Centre) and was referred for physiotherapy and also referred for an MRI scan, which was undertaken on 24 July 2013. He was later referred to the orthopaedic surgeon, Mr Gerald Quan, in or about October-November 2013, who advised ongoing conservative treatment.
·The plaintiff complains of ongoing pain, with pain radiating down his left leg and occasionally symptoms down his right leg. He was unable to work and was very restricted in what he could do at home.
·He was referred by his general practitioner to the neurosurgeon, Mr Patrick Lo, who he consulted in or about October or November 2014. Mr Lo did not recommend surgery and advised him to undergo a pain management program and, ultimately, he was referred to the physiotherapist, Dr Jon Ford, at Advance Healthcare, for a pain management program. The program commenced in or about November 2014 and consisted of him attending three days a week over an eight-week program involving consultations with occupational specialists and psychologists. He completed the course in February 2014, but continued to attend for post-program management, attending every four to six weeks, only ceasing two months prior to his first affidavit being sworn.
·At the time of his first affidavit, he was taking Duromine and Panadol Osteo for pain. He continued to attend his then general practitioner, who is now Dr Alan Reid, who was assisting him with focusing on physical conditioning and managing his pain.
·He has been unable to return to his pre-injury employment with the Department of Immigration. He was currently looking at options either to do work in a self-employed position, where he is not answerable when he has bad days. Alternatively, he hoped to return back to his pre-injury employment but on reduced hours. He has been referred to Nabenet by the defendant.
·At the time of his first affidavit:
(a)He continued to experience pain in his back which varied in intensity from day to day. Such pain radiated into his left leg and, at times, his right, causing him difficulty sitting, standing or walking for too long.
(b)He avoided all activities that aggravated his back pain and he found it difficult to care for his children, particularly his youngest child, who is only a toddler, and this upset him greatly. Sometimes when he picked her up, he did so in pain, and suffered for it later. He was unable to help his wife with his children and he relied on her to do most of the lifting, change nappies and bathing;
(c)There were days he had difficulty getting out of bed because of back pain – however there were other days he was able to do some light cleaning and help his wife with the shopping and cooking;
(d)Whereas he used to enjoy cooking and used to cook at home every second day, as well as helping his wife with the housework, he has not been able to return to the heavier cooking, and the dishes he used to enjoy preparing require too much standing, which aggravates his back pain;
(e)He was able to drive locally, but finds that long-distance driving aggravated the back pain;
(f)His sleep was disturbed because of back pain and such disturbed sleep caused him to be lethargic during the day and frustrated and irritable.
·During the pain management course, it was reinforced to him that he was not likely to improve and he would have to live with this pain. This caused him to become very depressed and, at one stage, “I was suicidal for a few weeks”.[17] Although these thoughts have abated, he still remains “very depressed” and is seeing a psychologist at the pain management course for the depressive symptoms.
[17]See exhibit 1 at page 12, PCB
14 By way of his second affidavit, the plaintiff gives the following evidence:
·He continues to experience ongoing back pain, which is present most days and aggravated by any prolonged postures, such as sitting for too long, or standing for too long. The pain varies in intensity.
·The pain continues to radiate into his left leg, although he does experience pain in the right leg as well, together with a pins and needles sensation into his feet.
·He continues to have disturbed sleep and finds it difficult to get comfortable at night.
·He has difficulty driving for long distances without stopping, but is able to drive as long as he is able to get out of the car and take a break.
·He continues to experience restrictions with domestic activities and does not assist his wife with such things as vacuuming and mopping. Although he is able to do some lighter cleaning work, he avoids anything that is likely to place strain on his back.
·He now has three children aged eight years old, two years old and a baby who is about eleven weeks old. He feels restricted in what he can do with his children, particularly the younger ones, who still need help to bathe and dress and, in the case of the youngest one, change her nappies.
·He was attending physiotherapy twice a week until the defendant ceased paying for it, which has resulted in an increase in his back pain.
·He has become “very depressed” by his inability to work and provide for his family. He was prescribed Cymbalta, which he took for a short period, as he was concerned that he might become dependent on the drug.
·His Depression affects his moods and caused difficulties at home.
·In October 2015, he commenced studies to become a migration agent and passed his exams in January 2016 and became a registered migration agent in April 2016. He has registered a business name but, at the time of his second affidavit, had not been successful in building up the business. He notes that following the birth of his third child on 1 September 2016, he is very keen to try and get back to work in order to provide for his family.
·He attempts to promote the migration business, but does not have enough income to promote the business the way he would like.
·To make more money, he found employment with Raine & Horne, business brokers, about three-and-a-half months ago, but only started working about a month ago, working two to three days a week. He describes his job as to visit businesses on a daily basis, meeting with prospective owners to sell their businesses. He cold calls the businesses and ultimately will receive a commission if the business is sold. He can work at his own pace and take rest breaks, as required. He has not earned any money from such employment thus far.
·Since the transport accident, his weight has increased from 115 kilograms to 145 kilograms because of his inactivity, as he is lying down and sitting down most of the time because of back pain. He was placed on Duromine tablets to help him lose weight, which he took until April 2016, but ceased taking such tablets as this was not assisting. His weight causes him to be embarrassed, when swimming (as part of his rehabilitation) and when presenting for Raine & Horne.
·He is motivated to work, but needs to find work which enables him to work at his own pace.
·He consults his general practitioner, Dr Alan Reid, when he needs to and that doctor also prescribes medication as required.
15 In his last affidavit, the plaintiff gives the further evidence:
·He continues to have pain in his lower back that radiates to his left leg and that he is “never free of pain”.[18] His pain does vary and he experiences flare-ups of pain, which might occur because of activities such as bending, or twisting or sitting for too long, or standing for too long – although such flare-ups can occur for no reason. He often wakes up in the morning with bad back pain.
·Part of his work is done from home and, when at home, he is able to lie down several times per day, for about fifteen to twenty minutes each time.
·With the work with Raine & Horne, he might work for two or three hours, but he is unable to walk and move around and get out of his car and when he gets home he needs to rest. He is part of a group of people of Indian heritage in the Western suburbs who attempt to promote Indian culture. In September 2016, he registered the name Wyndham Arts and Culture Society, which has conducted two events – one poetry recital and one singing event. It is a not-for-profit organisation.
·He has been abusing alcohol, which he believes is related to his Depression and pain. Although he drank prior to the transport accident, this was only socially, whereas now he drinks daily and he is aware this is a problem, and he struggles with it.
·He takes four Panadol Osteo each day and, also, he takes Naprosyn medication each day. He describes his mental state in the following terms:
“I continue to remain depressed. I am depressed as a result of my back pain and the fact that it has continued for so long. It has worn me down. I now tend to lack motivation. At times, I feel worthless. I do not seem to finish things. I lack concentration and my memory is poor. I also lack confidence. I did not work with them until October 2016 because of my lack of confidence.”[19]
[18]See exhibit 1 at page 17B, PCB
[19]See exhibit 1 at page 17C, PCB
Radiological material relied on by the Plaintiff
16 I refer to the following radiological material relied on by the plaintiff:
(a)The plaintiff underwent an MRI scan of the lumbosacral spine in India on or about 24 August 2011. The conclusion of the radiologist was that the investigations revealed:
“DEGENERATIVE DIFFUSE BULGING OF L4/5 AND L5/S1 DISCS CAUSING MILD THECAL SAC INDENTATION.”[20]
[20]See exhibit 2 at page 20A, PCB
(b) Plain x-ray of full spine dated 23 July 2013.[21] The radiologist notes:
[21]See exhibit 2 at page 20B, PCB
“There is minor thoracic scoliosis convex to the left in the mid thoracic region. End plate irregularity throughout the thoracic spine with minor anterior wedging is considered highly likely to represent developmental Scheuermann’s disease. It is not possible which plain films to absolutely discount a superimposed vertebral fracture and if there is strong clinical suspicion of severe thoracic vertebral body compression then an MRI could be utilized to help differentiate acute from chronic features.
I cannot identify any other definite significant features on the plain films but please note that plain films produce only a gross overview of the spine following trauma and if there are specific areas of concern then CT, MRI or a combination of both may be necessary.”[22]
[22]See exhibit 2 at page 20B, PCB
(c)MRI scan of the thoracolumbar spine performed on 24 July 2013 at the request of Dr Nyamayaro.[23] The radiologist concludes:
[23]See exhibit 2 at page 61, PCB
(i)No evidence of fractural bone marrow contusion;
(ii)No thoracic or lumbar canal or neuroforaminal compromise;
(iii)Mild mid thoracic disc protrusion without cord compression;
(iv)There is mild L4-5 and L5-S1 disc desiccation with minimal broad-based disc bulge. Small L5-S1 annular fissure.
(d)An MRI scan of the thoracolumbar spine dated 8 November 2014. The radiologist concluded:
“Within the thoracic spine there are multiple left paracentral disc protrusions at T5-6, T6-7 and T7-8, with a small right paracentral disc protrusion at T8-9. In the lumbar spine there are mild broad disc bulges at L2-3, L4-5 and L5-S1. There has been no significant interval change from the previous MRI dated 24.07.203.”[24]
[24]See scan in report of Mr P Boys, exhibit “A” at page 34, DCB
The evidence of the treating doctors of the Plaintiff
17 The plaintiff relies on a report dated 22 September 2016 from Dr Rinku Raj at the Westgate Medical Centre.[25] Dr Raj commenced consulting with the plaintiff on 22 July 2013 in respect to injuries resulting from the transport accident and, in particular, diagnosed the plaintiff to be suffering from:
(a) Lower back pain with disc prolapse;
(b) Major Depressive Anxiety Disorder secondary to chronic pain.
[25]See exhibit 2 at pages 21-22, PCB
18 The Westgate Medical Centre records pertaining to the plaintiff were also tendered.[26] Such records would suggest that Dr Raj was only one of the doctors consulting with the plaintiff and, as pointed out in his report, he did not commence to see the plaintiff until 24 October 2014. Thereafter, he consulted with the plaintiff on 5 November 2014, 31 July 2015, 10 August 2015, 11 August 2015, 4 September 2015, 5 September 2015 and 31 July 2015.
[26]See exhibit 3 at pages 95-116, PCB
19 He noted the need for the plaintiff to be assessed by an orthopaedic specialist and pain management specialist. He described that, during consultations, the major complaint of the plaintiff was lower back pain and an inability to cope with the pain. Examination revealed that he had a tender lumbar spine area and struggled to sit for a long time and was changing position after sitting to standing frequently. Although noting that the plaintiff did not require surgery, he has been treated with physiotherapy, hydrotherapy, regular analgesia and pain management at a hospital. He also noted that the plaintiff has had counselling with a psychologist for his “Major Depression”.
20 In his report, Dr Raj stated:
“I feel Mr Singh is currently not fit for light duties only.”[27]
[27]See exhibit 2 at page 22, PCB
21 Given the context surrounding this statement, I believe he is asserting the plaintiff is only fit for light duties (although this is not entirely clear). He further stated:
“… he will struggle to maintain full active service in any field until his depression settles which may take lot if (scil of) time.
Mr Singh does have a capacity for suitable modified employment where he does [not] have to lift or carry heavy items, work above shoulder height and where he does [not] have to maintain prolonged static posture. He may be able to do administartive (sic) desk type work in the future.
Mr Singh is currently not fit for work as his current prognosis is guarded as he is suffering from depression secondary to ongoing long term pain which will delay his recovery.
He might be fit for office type of work/studies in the future once depression settles down.
The current treatment[s] Mr Singh is having are essential for him to undertake his daily activities. He will need ongoing medical treatment with myself and Specialists with the psychologist for counselling.
…
His pain management has reached the maximum medical treatment but [is] not relieved due to his secondary depression due to the chronic ongoing pain and he is fit for modified alternate work. He will need to continue treatment with the psychologist and psychiatrist along with the GP and physiotherapist/remedial massage to manage his chronic pain and for him to cope with the daily activities and to get back to alternate duties.”[28]
(sic).
[28]See exhibit 2 at page 22, PCB
22 The plaintiff also relies on a medical report from the orthopaedic surgeon, Mr Gerald Quan, dated 8 October 2013.[29] Mr Quan examined the plaintiff on 8 October 2013 on referral from Dr Pietas Nyamayaro at the Westgate Medical Centre. The plaintiff gave a history that he was involved in a motor vehicle accident almost three months prior to the consultation and had been suffering severe lower back pain since.
[29]See exhibit 2 at page 29A, PCB
23 The pain was localised focally to his lower lumbar spine, with occasional radiation down his right leg towards his foot, but it is more the back pain which was bothering him most. Such back pain was constant and had not improved significantly despite the passage of time, and was restricting his activities. Mr Quan noted that the plaintiff stated the pain is exacerbated when he sits for any period and he has been unable to do his work as an migration officer because of this.
24 The plaintiff had been taking simple analgesia when the pain was bad and also gave a history that prior to the accident, he had a “slipped disc” two years ago, but had been able to “recover from this”, and he certainly had not as severe pain as he is now complaining of.
25 On examination, Mr Quan noted that the plaintiff was overweight but walked with a smooth symmetric gate and with maintenance of lumbar lordosis and pain in his lower lumbar spine, and that area was quite tender to firm palpation. Leg raising was limited to 60 degrees because it exacerbated his back pain, but there were no true nerve tension signs. Otherwise, Mr Quan found no focal neurological deficit.
26 Mr Quan had available an MRI scan of the lumbar spine of the plaintiff,[30] and states:
“He has already an MRI of his lumbar spine and this confirms mild degenerative disc disease at L4/5 and L5/S1. At L5/S1 there is a small annular tear here and I suspect this [is] causing a degree of chemical neuritis at this level. Importantly, there is no major disc protrusion or neural compressive pathology seen at any level. I was thus able to reassure him to this end. We [are] left with the difficult situation of a patient with ongoing back pain in the absence of any major pathology apart from this annular teat (scil tear). Certainly things will not be amenable to surgery here, nor does he want to contemplate it, and the only other suggestion I would have would be for him to try an L5/S1 epidural cortisone injection to try and break his pain cycle. I have given him a request to get this done but for now he will keep it up his sleeve and will persist along the current non operative measures. I expect things to slowly settle with time.”[31]
(sic).
[30]Most probably the one undertaken on 24 July 2013
[31]See exhibit 2 at page 29A, PCB
27 The plaintiff also relies on a report from a neurosurgeon, Mr Patrick Lo, dated 6 April 2016.[32] Mr Lo initially consulted with the plaintiff on 12 November 2014, with the plaintiff having being referred to him by Dr Rinku Raj. When seen on this date, the plaintiff described the circumstances of the transport accident and noted the seat in which he was sitting broke as a result of the transport accident. Immediately following the accident, the plaintiff complained of left-sided lower back pain radiating down to his left thigh, but not beyond the knee.
[32]See exhibit 2 at pages 23-25, PCB
28 At this examination, Mr Lo found no neurological deficit. He noted that the plaintiff had undergone physical therapy and occupational therapy without any improvement. Mr Lo also had available the MRI scan which, according to him, revealed multi-level thoracic disc bulges without cord compression, as well as prominent L5-S1 central disc bulge without neural compression. Given his ongoing back pain and the “paucity of neurological deficits on examination”,[33] Mr Lo suggested referral to a multidisciplinary pain management service.
[33]See exhibit 2 at page 23, PCB
29 On 12 November 2014, Mr Lo referred the plaintiff to the Advance Healthcare Multidisciplinary Pain Management Group. He notes he has not seen the plaintiff since that date.
30 Mr Lo stated, in part:
“In my clinical opinion and on balance, Amit Singh suffered a back injury in a motor vehicle accident. There was evidence of a broad-based disc bulge in his lumbar spine and multiple degenerative thoracic spinal disc bulges. In my clinical opinion and on balance, the motor vehicle accident resulted in a mild central L5/S1 disc bulge on the background of mild degenerative spinal conditions. Therefore, there has been an aggravation and exacerbation of any underlying degenerative spinal condition as a result of the car accident.”[34]
[34]See exhibit 2 at page 24, PCB
31 Later, Mr Lo states:
“In my clinical opinion and on balance, with respect to his degenerative spinal condition, I do not believe that he has a current capacity for work as of his last appointment in November 2014. However, I will yield to the Advance Healthcare group to ascertain his capacity for work currently as I have not seen him again since his initial appointment.”[35]
[35]See exhibit 2 at page 25, PCB
32 When asked to give an opinion as to the plaintiff’s capacity to work in the future, Mr Lo stated:
“In my clinical opinion and on balance, with adequate pain management and physical therapy, I believe Amit Singh may have a capacity for some suitable work with restrictions of no bending or twisting of the back, no prolonged sitting or standing, no pulling/pushing/reaching for items and no lifting of heavy weights. If such an occupation can be provided and he is retrained in that field then he may have a capacity for work in the future.”[36]
(my emphasis).
[36]See exhibit 2 at page 24, PCB
33 The plaintiff also relied on a report from the physiotherapist, Dr John Ford, dated 20 November 2014.[37] Dr Ford is described as the musculoskeletal physiotherapist and clinical director of Advance Healthcare, Hoppers Crossing. He confirmed that the plaintiff underwent a multidisciplinary pain management assessment at the Hoppers Crossing practice and was interviewed and examined by:
(a) Dr Malcolm Ong (occupational and environmental medicine consultant);
(b) Dr John Ford;
(c) Mr Tyson Sharpe, psychologist.
[37]See exhibit 2 at pages 78A-B, PCB
34 Under the heading “Assessment Summary”, the plaintiff is described as having “marked severity discogenic pain”. Furthermore, the plaintiff was diagnosed “provisionally” with an “Adjustment Disorder with Mixed Anxiety and Depressed Mood” with a differential diagnosis of “Major Depressive Disorder with Moderate Severe Anxious Distress”.
35 Dr Ford noted that the plaintiff presented with high levels of pain catastrophisation, fear-related behaviour change and limited effective self-management of his pain. The plaintiff was recommended to undergo a pain management program based on this initial assessment.
Medico-legal examinations relied on by the Plaintiff
36 The plaintiff was medico-legally examined by the following specialists:
(a)The psychiatrist, Dr Weissman, on 9 April 2015[38] and, more recently, on 15 September 2016;[39]
(b)The occupational physician, Dr Robyn Horsley, on 30 July 2015[40] and, more recently, on 17 October 2016;[41]
(c)The neurologist, Professor Stephen Davis, on 2 April 2015.[42]
[38]See exhibit 2 at pages 29-42, PCB
[39]See report of same date, exhibit 2 at pages 43-55, PCB
[40]See report of same date, exhibit 2 at pages 56-65, PCB
[41]See report of same date, exhibit 2 at pages 66-72, PCB
[42]See report of same date, exhibit 2 at pages 73-78, PCB
37 At his initial interview, Dr Weissman obtained a history from the plaintiff that at that time, he was taking Gabapentin, 600 milligrams once a day; Naprosyn, 750 milligrams daily; Cymbalta, 60 milligrams daily; Nortriptyline, 20 milligrams nocte and Panadol Osteo, two tablets per day. He told Dr Weissman that he had been diagnosed with Depression at the Pain Management Clinic and was then prescribed Cymbalta.
38 In particular, he informed Dr Weissman that he experiences pain across his lower back which radiates into hips, anterolateral thighs and down to his lower calves. The pain is bilateral, but the left side is worse than the right.
39 The plaintiff informed Dr Weissman he considered that his concentration and short-term memory have declined and he now does nothing. In particular, he does not socialise at all, he cannot pick up his baby daughter, or bathe her, he has great difficulty standing in one position and bending over at the waist, and that showering and dressing takes him much longer, and it can be up to an hour to shower and dress himself. He no longer does any cooking at home or domestic chores. He described his emotional state as “not good” and that he started drinking a lot of alcohol in order to feel happy. He has sleep disturbances with initial and middle insomnia. He has gained 40 kilograms in weight since the transport accident.
40 At that time, Dr Weissman was of the opinion that the plaintiff was suffering from mild to moderate Mixed Reactive Depressive and Anxiety Syndrome as a consequence of the transport accident-related pain and injury. Furthermore, he was also of the opinion that the plaintiff suffered a Chronic Adjustment Disorder with Depressed and Anxious Mood of mild to moderate severity relevant to the transport accident. At that time, he considered his psychiatric prognosis to be “uncertain and guarded”.
41 When recently seen by Dr Weissman on 15 September 2016, the plaintiff informed him that his lower back pain and lower limb pain was “exactly the same”[43] as it was when he last saw him. He was taking two tablets of Panadol Osteo every morning and sometimes, depending on pain levels, he would take two tablets of Panadol Osteo in the afternoon. Furthermore, he takes one Naprosyn per day, but no other regular medication, nor any antidepressant medication.
[43]See exhibit 2 at page 46, PCB
42 The plaintiff described the back pain as constant, which radiates into his hips and lateral aspects of both thighs and that he has “sciatica”, as well as pins and needles into both lower limbs, but more so in his left leg. His new general practitioner, Dr Brown (he was no longer seeing Dr Raj), commenced him on Duromine to help with his obesity a number of months ago, but he ceased that, as his weight was not affected.
43 The plaintiff informed Dr Weissman that his third child was born on 30 August 2016 and that he cannot physically do anything for her because of his lower back pain and sciatica, other than he is able to lift her and carry her around for a few minutes only. In particular, Dr Weissman recorded the following:
“He told me that he does not go to the movies anymore and he does not go out for dinner anymore. He told me that his son Ryan is now aged 8 and that this daughter Myra is now aged 2. He told me that he takes his children to school drop-offs and pick-ups every day.
I asked him about his capacity to perform personal activities of daily living.
He told me that showering and dressing takes him much longer than other people. He told me that he gets exhausted after having a shower and he starts to sweat. Therefore, he told me that he does not take a shower every day. He has a shower every second or third day.
I asked him about cooking, to which he replied ‘no involvement’. I asked him about domestic chores, to which he replied ‘no cleaning at all’. I asked him about laundry, to which he replied ‘no’. He told me that he does not do any gardening either. He told me that he is able to [do] some grocery shopping but he does not go to the supermarket and use a trolley. He told me that he does online shopping. Thereafter, he has the shopping delivered to his home or, sometimes, he goes to the supermarkets and collects it.
He told me that he is able to walk for a maximum of only 4-5 minutes. However, when he starts to walk, he told me that he experiences lower back pain and sciatica ‘straightaway’. After four to five minutes he has to stop.
He told me that he is able to drive a car for about 15-20 minutes but beyond that he is limited by pain.”[44]
[44]See exhibit 2 at page 47, PCB
44 The plaintiff confirmed that he was not taking antidepressants nor seeing a psychologist, although he is now smoking about fifteen cigarettes a day. He was drinking up to half a bottle of Scotch whisky at night, or one bottle of red wine “easy” at night. In particular, Dr Weissman stated:
“Mr Singh is not currently seeing a psychologist nor does he take any antidepressant medication (anymore).
oHe has some mild driver-related cautiousness, wariness and hypervigilance but, apart from this, I could not elicit any Post-Traumatic Stress Disorder symptoms or traumatisation features.
oHe does not have a full-blown, chronic Post-Traumatic Stress Disorder.
oOverall, he has a so-called ‘primary’, direct or non-secondary psychiatric impairment in the order of 1%.
oMr Singh is currently suffering from a similar degree of depression as last time. He is currently suffering from a mild to moderate, mixed, reactive depressive and anxiety syndrome consequential to his accident-related injuries.
oHe is also suffering from ongoing alcohol abuse, in part as a form of self-medication.
oHe sometimes feels low, flat, sad, down and depressed. He often feels frustrated and irritable. He has sleep disturbance without alcohol. He has gained a substantial amount of weight since the accident. He has reduced, psychiatrically based interest, energy levels, motivation, drive, and resultant procrastination and apathy. His self-esteem and confidence are very low still. He has subjective/reported cognitive dysfunction affecting his attention, concentration, short-term memory and word-finding. He is both physically and mentally deconditioned.
oI conducted a psychiatric assessment of the claimant, Mr Amit Singh and concluded that he is suffering from a mild to moderate, chronic Adjustment Disorder with Depressed and Anxious Mood, and alcohol abuse.”[45]
[45]See exhibit 2 at page 51, PCB
45 In his report, Dr Weissman notes that although there are a number of factors which impact upon the plaintiff, and affect his performance in the workplace, there is most probably no actual or specific psychiatric incapacity for work. He considered that the psychiatric prognosis of the plaintiff was somewhat “uncertain and guarded”,[46] and that although he had returned to some part-time self-employment, his overall prognosis was probably slightly better than when he had last seen him and his psychiatric prognosis depended upon the prognosis of his return to work, as well as the cessation of alcohol abuse.
[46]See exhibit 2 at page 54, PCB
46 When seen by Dr Robyn Horsley, initially on 30 July 2015, she obtained a history from the plaintiff that he was smoking ten to fifteen cigarettes a day and drinking to excess. Prior to the injury, he was a founding member of a local cricket club, but stopped playing cricket after the injuries in the transport accident occurred.
47 In particular, Dr Horsley obtained a history that the plaintiff spends most of his days “most of the time” in bed, using his computer in bed and he “reads and researches”. He does no housework and does not assist with activities of daily living around the house.
48 The plaintiff complained of chronic back pain which varies on a Visual Analogue Scale from 3 to 4 out of 10, up to 9 to 10 out of 10. The pain is primarily experienced in the lower lumbar area, with radiation to the left buttock and left upper thigh. He can occasionally experience discomfort in the right upper thigh.
49 Examination revealed the plaintiff to weigh 145 kilograms and Dr Horsley noted there was “considerable fear avoidance behaviour exhibited”,[47] with touch sensitivity on light touch palpation of the thoracolumbar spine, minimal movement and sighing. After reviewing the various radiological material, Dr Horsley noted it was likely the transport accident aggravated his pre-existing lumbar spine condition and, in particular, the annular fissure is likely to be an ongoing pain generator. She also noted that annular tears do not heal.
[47]See exhibit 2 at page 61, PCB
50 In particular, Dr Horsley stated:
“I believe that this motor vehicle accident has been the significant contributory factor, in terms of aggravating his pre existing lumbar spine condition. Unfortunately, his level of disability has increased substantially, secondary to his declining psychological status. He is now seriously deconditioned, spending most of his days in bed. He is alcohol dependent. He is suffering from severe depression and moderate anxiety based on the Beck Depression Inventory and Beck Anxiety Inventory completed today, but I rely upon my Psychiatrist colleagues, for expert opinion in this area.
When one considers his back injury in isolation, removing his level of deconditioning and his psychological status and significant increase in weight; his educational background and his considerable business acumen should enable him to return to the workforce in a self-employed role, where he is able to self-pace and self-manage on a part time basis at least. Ultimately, if his psychological status can be addressed, his weight decreased and his level of conditioning improved, it is likely that his hours of work could also increase. Without significant intervention, addressing his psychological status, I believe that Mr. Singh is likely to remain out of the workforce into the longer term.” [48]
[48]See exhibit 2 at pages 63-64, PCB
51 Dr Horsley was of the view there were no radicular features, but essentially mechanical back pain which had been aggravated by the transport accident.
52 When more recently examined on 17 October 2016, Dr Horsley noted that the wife of the plaintiff had delivered a further child four to five weeks earlier. The plaintiff continued to smoke ten to fifteen cigarettes per day and was still drinking alcohol to excess. The plaintiff informed Dr Horsley that he spends his days “trying to get back into work”.[49] Although he is spending less time in bed than he was at the previous review in 2015, he does spend one to two hours in bed for every couple of hours that he is now up. He goes to bed “exhausted” at 4.00pm in the afternoon and stays in bed until 7.00am, when he does the school run and comes home. He rests for a couple of hours and then does some computer work for a couple of hours. He works in a home office.
[49]See exhibit 2 at page 67, PCB
53 The plaintiff complained of ongoing chronic back pain which, at its lowest and most comfortable level, is 2 to 3 out of 10 on the Visual Analogue Scale and, at its worst, about 8 to 9 out of 10. Most of the time it is 5 to 6 out of 10. He also experiences radiation into his bilateral left and right buttocks and intermittently, he experiences discomfort radiating down the left posterior thigh. Sometimes he experiences paraesthesia in both feet. The plaintiff reported that his sitting tolerance is fifteen to twenty minutes. He avoids static standing and his dynamic standing tolerance is also avoided. His driving tolerance is about fifteen to twenty minutes.
54 When examined, Dr Horsley noted that there was no fear avoidance behaviour exhibited at this examination (in distinction to the earlier examination) and no touch sensitivity on light touch palpation. There was a loss of lumbar lordosis and the axial compression test was negative. Movement of the spine was greater, but limited to half the normal range, in part, by his body size. The peripheral nervous system examination was normal, with attention to light touch, vibration and temperature sensation, and power appeared equal bilaterally.
55 Ultimately, Dr Horsley was of the opinion that the transport accident aggravated the plaintiff’s underlying pre-existing lumbar spine condition and that he had also developed secondary psychological sequelae.
56 Furthermore, Dr Horsley was of the opinion that the prognosis of the plaintiff’s back condition is dependent upon addressing his alcohol dependence, improvement in his level of conditioning, a reduction in his overall weight and, therefore, an increase in motivation and the ability to then return to work, at least on a part-time basis initially, gradually increasing hours as his level of conditioning increases. She opined that the plaintiff could not cope on a reliable basis with full pre-accident employment at this time and, unless the above factors are addressed, he is likely to remain unfit for work. Furthermore, Dr Horsley considered that any future work capacity will be primarily sedentary administrative/computer work, as he is not fit to return to a call centre-type role because of the strict timelines, and there is little opportunity to change posture.
57 When the plaintiff was examined by Professor Stephen Davis on 22 July 2013, the plaintiff complained of ongoing back pain following the transport accident.
58 On examination, Professor Davis noted that the plaintiff had a mildly antalgic gait and stood intermittently because of back pain. The plaintiff complained that the pain was focused in his lumbar region.
59 Professor Davis noted there were no neurological abnormalities, with no evidence of any focal radiculopathy or myelopathy. However, the plaintiff did have restricted lumbar movements and complained of severe pain.
60 In his report, Professor Davis stated:
“The [earlier] back pain had apparently settled before this accident. He had an MRI scan in India a couple of years before this motor vehicle accident. The history is consistent with a lumbosacral soft tissue injury in the accident but the imaging has been rather reassuring without significant canal stenosis or nerve root compression and there are no neurological abnormalities. Undoubtedly, psychological factors are also playing a role. I would have thought that he could make a graduated return to work given the improvement in his depression but he will require ongoing pain management.”[50]
[50]Exhibit 2 at page 76, PCB
Medico-legal material relied on by the Defendant
61 It is convenient to refer to the medico-legal report relied on by the defendant. The defendant had the plaintiff medico-legally examined by:
(a)The orthopaedic surgeon, Mr Paul Kierce, on 20 May 2015[51] and he also provided a supplementary report dated 1 July 2015;[52]
(b)The consultant psychiatrist, Dr Andrew Firestone, who examined the plaintiff on 28 September 2016;[53]
(c)The orthopaedic surgeon, Mr Peter Boys, who examined the plaintiff on 16 November 2016.[54]
[51]See report of same date, exhibit “A” at pages 1-14, DCB
[52]See exhibit “A” at pages 15-17, DCB
[53]See report of same date, exhibit “A” at pages 18-27, DCB
[54]See report of same date, exhibit “A” at pages 28-37, DCB
62 Seemingly, Mr Kierce examined the plaintiff on 20 May 2015 to essentially perform an independent impairment assessment for the benefit of both the defendant and those acting for the plaintiff.
63 The plaintiff gave a history of the earlier back pain in 2011, which he described as “much improved” on his return from India, where he underwent an MRI scan.[55] At the time of the transport accident, he complained of lower back pain, with referral down the outer side and back of his left thigh as far as the knee, and pain on the fronts of both thighs, both lower legs going down the tops of his feet, with pins and needles and numbness in both feet. He also complained of bilateral interscapular back ache. The plaintiff also noted that the lower back pain was constant and aggravated if he was in one position for too long or sitting for too long.
[55]See exhibit 2 at page 20A, PCB
64 At the time of examination, the plaintiff was taking Panadol Osteo, two tablets twice a day; Naprosyn, one tablet a day; Gabapentin, 500 milligrams at night; Nortriptyline, 20 milligrams at night and Cymbalta of an unknown dosage once a day. He was still depressed, drinking five to six glasses a spirits, or more than one bottle of wine a day.
65 The plaintiff described that, prior to the transport accident, he used to play cricket fortnightly, being the founder of a local cricket club. He has been unable to return to any cricket and is no longer able to ride a motorbike (which he had used for commuting to work). Mr Kierce obtained a history that there was “no impairment” for showering, dressing, toileting or feeding.
66 Mr Kierce made an examination of the lumbar spine and also had available to him the MRI scan examinations undertaken on 24 February 2011 (in India) and the one taken on 24 July 2013, together with the plain x-ray taken on 23 July 2013.
67 On the basis of this material, Mr Kierce was of the opinion that the plaintiff aggravated pre-existing lumbar spondylosis as a result of the transport accident and also sustained an annular tear of the already protruding L5-S1 disc. He was of the opinion that there was no evidence of radiculopathy.
68 In what he referred to as “summary”, Mr Kierce stated, in part:
“Mr. Amit Singh has aggravated pre-existing lumbar spondylosis and dorsal spondylosis in the motor vehicle accident on the 22nd of July 2013. His physical reaction to these injuries has been dominated by his psychological reaction to the injuries. His symptoms cannot be fully explained on organic grounds and he demonstrates significant abnormal pain behaviour with very restricted active movements of his spine out of all proportion to the conditions of his spine and he has a positive axial compression test.
His prognosis, taking into account his psychological and physical injuries, has been such that he is continuing to attend the pain management clinic in an effort to assist him in his response to the accident. Even though some 2 years before, he already had a lumbosacral disc prolapse, I have reviewed the films taken in 2011 and those following the accident to find that he has suffered an annual fissure of the lumbosacral disc in the motor vehicle accident. Further, on reading the general practitioner’s notes, it would appear that his back pain had largely resolved prior to the motor vehicle accident.”[56]
[56]See exhibit “A” at page 3, DCB
69 In a supplementary report, Mr Kierce responded to the question “Is Amit now fit to return to his full pre-accident employment position?” in the following terms:
“It was my opinion that when I saw him on the 20th of May 2015 there was significant amplification of his symptoms and significant abnormal pain behaviour demonstrated. I find it hard to believe his limited tolerances of sitting, walking and standing. From the purely objective viewpoint I am of the opinion that he is fit to return to his full pre-accident employment position taking into consideration his physical injuries only.”[57]
[57]See exhibit “A” at page 16, DCB
70 In his report, Mr Kierce expressed the opinion that the plaintiff would be able to return to work on reduced hours and “providing he can sit, stand or walk according to how he is feeling”[58] he should be able to work full time. Furthermore, Mr Kierce opined that the plaintiff would be unfit for work which involved prolonged or frequent bending, the lifting of weights greater than 15 kilograms or the use of heavy jarring implements such as picks, shovels and crowbars, or the driving of machinery which gives rise to vibrations.
[58]See exhibit “A” at page 16, DCB
71 When the plaintiff was interviewed by the consultant psychiatrist, Dr Firestone, on 28 September 2016, he gave a history of ongoing back pain and presently he was taking one Naprosyn and about two Panadol Osteo per day. Up to four months prior to the consultation, he was taking Duromine to assist. He also informed Dr Firestone that he has come to rely on alcohol since the transport accident, which helps to relieve his pain and enables him to enjoy playing with the children.
72 Dr Firestone obtained the history that the plaintiff had become depressed, with thoughts of suicide, for the first time in his life, some six months after the transport accident when he learned that surgery was not appropriate and he would have to learn to live with his injuries. Furthermore, in 2015, his marital relationship was damaged and on three occasions the couple split up, though each time for several hours only. He did describe that their intimate relationship is normal again and that the marital relationship is, once again, “sound”.[59] In particular, the plaintiff described improvement in his mood from October 2015, when he commenced studies to become a migration agent, passing such exams in January and becoming a registered migration agent in April 2016. The plaintiff described that he had been in “relatively good spirits since October 2015”,[60] in that he had not been tearful since that time and had had no suicidal thoughts.
[59]See exhibit “A” at page 21, DCB
[60]See exhibit “A” at page 22, DCB
73 The plaintiff described himself as easygoing prior to the transport accident, but now worries about the future. He is very embarrassed about his weight gain of 28 kilograms and weighed 148 kilograms at the time of the examination.
74 Ultimately, Dr Firestone diagnosed the plaintiff to be suffering from an Adjustment Disorder with Mixed Depression and Anxiety features in consequence of the transport accident, together with alcohol dependence and Somatic Symptom Disorder with predominant pain.
75 In particular, Dr Firestone stated the following:
“Mr Singh described no direct traumatic symptoms.
His adjustment disorder with mixed depressive and anxiety features in consequence of the accident has not entirely resolved and mild to moderate depressive symptoms do remain, unrecognised as such by him: pain amplification, comfort eating, lack of motivation, and most seriously, increased smoking and alcohol abuse. He should be advised to resume Cymbalta and only ceased (sic) it once his work is secure. His LMO might encourage him to attend Alcoholics Anonymous.”[61]
[61]See exhibit “A” at page 23, DCB
76 Later in his report, Dr Firestone states:
“6. Psychiatric prognosis appears to depend greatly on whether Mr Singh establishes a satisfactory ongoing business, and treatment of his alcoholism and of his depression now will make this more likely. With regard to psychosomatic pain which may have been present prior to the accident, this will probably continue.
…
8. His lack of motivation and the pain he experiences limit his hours of work to three or four daily at present.
9. The same factors limit his domestic activities – he has had no leisure activities to speak of. He has ceased to cook, which he previously enjoyed. He cannot vacuum or weed or clean his car. He cannot use the supermarket trolley and now has groceries delivered.
… .”[62]
[62]See exhibit “A” at page 24, DCB
77 The plaintiff was examined by Dr Boys on 11 November 2016. The plaintiff gave a history of experiencing daily pain at the lumbosacral junction and occasional discomfort extends to the trochanteric regions of both hips, with the left being worse than the right. He also described intermittent discomfort which extends, on occasions, to the interscapular region of the thoracic spine. The plaintiff described no sciatica, but did describe occasional discomfort of the thighs (predominantly on the left side), but did not relate any “distal paraesthesia, numbness or weakness below the knee”.[63] The plaintiff asserted a sitting tolerance of fifteen to twenty minutes and is generally comfortable standing, but has to maintain movement to prevent prolonged static stance. He also experiences central low-back pain after walking for more than two to three minutes. His wife performs all the household duties as required and he drives an automatic motor vehicle.
[63]See exhibit “A” at page 32, DCB
78 Shortly prior to the examination, he obtained employment with Raine & Horne to perform field work to meet clients as a general business broker. It is necessary to drive his car to perform such work.
79 After making an examination and referring to the available MRI scans and plain x-rays, Dr Boys stated, in part:
“This gentleman describes chronic degenerative mechanical low back pain in association with an Adjustment Disorder and Depression. A soft tissue injury to the lower back occurring in the context of established symptomatic degenerative changes within the thoracolumbar spine would be consistent with the described mechanism of injury.”[64]
[64]See exhibit “A” at page 34, DCB
80 Dr Boys described the plaintiff as having “enhanced perceptions of disability with no specific evidence at the time of magnified illness behaviour”.[65] He described the plaintiff as “manifestly unfit, morbidly obese, and pursues a sedentary lifestyle”.[66]
[65]See exhibit “A” at page 35, DCB
[66]See exhibit “A” at page 35, DCB
81 Dr Boys noted that the plaintiff would continue to experience degenerative mechanical low-back pain as a consequence of the constitutional factors of radiological evidence of Scheuermann’s Disease. The plaintiff should be advised to undertake a program of massive weight reduction in association with core muscle conditioning exercises.
82 Dr Boys opined that the plaintiff’s transport accident does not give rise to specific ongoing work incapacity. It was his opinion that the plaintiff’s obesity and degenerative changes evident in the lumbar spine similarly would not give rise to work incapacity in a motivated individual. The plaintiff will continue to experience mechanical low-back pain in the course of activities requiring protracted static position of the spine.
83 Dr Boys completed his report by stating:
“The motor vehicle accident in isolation could reasonably be expected to give rise to a degree of domestic incapacity over a period of four to six weeks following injury. Ongoing incapacities subsequent to that time reflect in my opinion constitutional factors which would have existed notwithstanding the motor vehicle accident described in 2013.”[67]
[67]See exhibit “A” at page 36, DCB
The affidavit of the wife of the Plaintiff, Ms Anjali Sharma
84 The plaintiff relies on the affidavit of his wife, Anjali Sharma, sworn on 25 November 2016.[68] In that affidavit, Ms Sharma deposed that she is a thirty-three-year-old woman who has known the plaintiff for thirteen years and been married to him since 2007. The marriage to the plaintiff has produced three children, aged eight, two and two-and-a-half months, and that she was currently on maternity leave, being employed as a retail consultant with the Australia and New Zealand Banking Group.
[68]See exhibit 1 at pages 18-20, PCB
85 Ms Sharma comments that prior to the transport accident, her husband was working in customer service with the Department of Immigration full time and occasionally on the weekends. They lived a healthy lifestyle, with her husband bearing a healthy weight. He would drink alcohol occasionally, only one or two cans of pre-mixed vodka, and they rarely ate junk food or drank sugary drinks. At that time, he would occasionally smoke one to two cigarettes a day.
86 Also prior to the transport accident, the plaintiff would help with the housework and cooking, together with vacuuming, mopping and washing dishes. The plaintiff used to cook dinner at least twice a week. He was proud of his car, which he would clean weekly.
87 The plaintiff was active with their son before the transport accident, taking him to the park to play with him around twice a week. They had an extended group with whom they would socialise and friends would come to their house, or they would go to theirs a couple of times a month.
88 Prior to the transport accident, the plaintiff was a “happy and hardworking man”,[69] who was family orientated and would always put their needs above his own. Since the transport accident, Ms Sharma has noted:
[69]See exhibit “A” at page 19, PCB
·The plaintiff has gained a significant amount of weight and he is not as active as he used to be, eating a lot of unhealthy food, and drinks alcohol every day from morning to the evening. Upon enquiring, she was told that his drinking helps him deal with the pain.
·The plaintiff now smokes at least twenty-five cigarettes a day and he complains of pain on a daily basis.
·The plaintiff no longer helps with the housework and when he has tried to help with the cooking and housework, his pain has been aggravated and she has observed him to spend the next day in bed.
·The plaintiff tries to help with the children, but is restricted in what he can do for them – he cannot pick them up and will sit and watch movies with them rather than take them to the park to actively play with them.
·The plaintiff has stopped taking their son to the park.
·They rarely go out to the movies or dinner and friends are only seen about once a month. Although she encourages him to do otherwise, he will just stay at home.
89 Since the transport accident, Ms Sharma has observed her husband regularly hold his back when he is in pain, and occasionally he needs to lean against a wall when he is walking and he walks with a stooped posture.
90 Since the transport accident, the plaintiff has been frequently “grumpy” and is “easily irritable and will snap at the kids frequently”,[70] and he isolates himself in his room and, on occasions, has told her he wants to die. She has considered leaving him because of his moods.
[70]See exhibit “A” at page 20, PCB
The cross-examination of the Plaintiff
91 During cross-examination, the plaintiff accepted that when examined by the consultant psychiatrist, Dr Weissman, on 29 April 2015, he told Dr Weissman that “he now does nothing”; that he “does not socialise at all”, the he has “great difficulty standing in one position and bending over at the waist” and that it takes him “one hour to shower and dress” himself, and that he only showers two or three times a week.
92 Furthermore, he accepts he told Dr Weissman on that date that he is “no longer able to do any cooking at home”; that he “cannot do any domestic chores at home”; “can’t do the gardening or the grocery shopping” and can only walk comfortably for about three minutes. When queried by the Court as to his limitation of walking, the plaintiff stated:
“My lower back starts to pain badly. I start getting pain on my left leg as well, which goes down, and it just gets too sore and stiff and I feel as if I’m not having a lot of strength to carry myself further and I want to just stop and lie down or sit down or something like that.”[71]
[71]T20, L10-15
93 The plaintiff was further cross-examined about the history he gave to Dr Weissman when he re-interviewed the plaintiff on 15 September 2016. The plaintiff accepted that he told Dr Weissman that he has “no leisure activities and hobbies outside of his family” and that his third child, who was born in August 2016, could only be lifted initially “for a few minutes only” and now, because of her weight gain, he does not lift her much at all. In particular, the plaintiff stated he has not lifted his recent child for the last three or four weeks. The plaintiff also confirmed that he neither goes to the movies or out to dinner any more.
94 The plaintiff also accepted that he told Dr Weissman in September 2016 that “showering and dressing takes [him] much longer than other people” and that “[he] gets exhausted after having a shower and [he] starts to sweat”. In such circumstances, he only showers every second or third day. He also confirmed that he has no involvement in cooking, no “cleaning at all” and no involvement with the laundry or gardening. However, he was capable of performing some grocery shopping but has a problem navigating or controlling the trolley at the supermarket. The plaintiff also confirmed that his wife works full time at the ANZ Bank, although on maternity leave with the third child. The plaintiff stated that his wife intends to go back to work in January or February 2017, after which his two youngest children will go to day care and his son will be at school as usual.
95 In response to a query from the Court, the plaintiff indicated that he was much worse immediately after the accident but, since then, he has “built up some capacity and ways to work around [his] condition”.[72]
[72]T25, L6-7
96 The plaintiff also confirmed that it was correct when he told Dr Weissman recently that if he walks four to five minutes, he “experiences low back pain and sciatica straight away, causing [him] to stop walking further” and he confirmed that he can only drive for fifteen or twenty minutes. If he drives further he suffers a lot of pain.
97 The plaintiff also confirmed that it was the case, as he had stated to Dr Horsley on 30 July 2015, that he had no current hobbies or interests and although he had been a founding member of a local cricket team, had stopped playing cricket after the transport accident. The plaintiff noted that he was 115 kilograms when playing cricket, and although he played cricket every Sunday, it was a social game and not played in a professional competition.
98 The plaintiff also confirmed that he told Dr Horsley in 2015 that he “spends [his] day most of the time in bed” using his computer in bed, reading and researching.
99 Under cross-examination, the plaintiff also accepted he was consuming a lot of alcohol in 2015 and continues to consume a large amount of alcohol. The plaintiff also noted that prior to the transport accident, he probably smoked four to five cigarettes a day, but now smokes approximately fifteen per day.
100 When queried by the Court as to whether or not he still spends most of his day in bed, the plaintiff stated:
“No, not always, no. I just go to lie down in bed when I can’t be sitting anymore, or I’m having pain and struggling, so I would say after an hour or so of being on my desk, I would go and lie down for about 15, 20 minutes, maybe up to half an hour, depending on how – what my condition is.”[73]
[73]T30, L5-10
101 The plaintiff also informed the Court that he is trying to cut down his alcohol intake, which can be up to half a bottle of whisky a day, or a bottle of wine.
102 The plaintiff also confirmed that he generally gets back into bed “exhausted” at 4.00pm in the afternoon and stays in bed until 7.00am the next day, when he gets up to take the children to school. His wife prepares an evening meal for him, which he usually has in bed. He generally avoids lifting, although he could lift and carry a medium shopping bag.
103 When queried as to whether he will increase his activities in the house when his wife resumes full-time employment in early 2017, the plaintiff stated:
“I’ve tried that before, but I can’t really do anything around the house, because what’s in the house to do – there’s cooking, cleaning, laundry. These are the things I will never be trying my hands on because I’ve tried it several times, and then I end up in a lot of pain. And then I end up doing nothing, not being able to even try to get – try to work. Because then I’ll be in bed; my back will be sore, it will be still. And that’s how I - - -.”[74]
[74]T32, L23-30
104 When queried by Senior Counsel for the defendant whether he had finished doing “full-time work”, the plaintiff said he did not think so and that he was still trying to do some work. Furthermore, he had tried to take some of the workload off his wife by performing online ordering of groceries and he tries to contribute in whatever way he can.
105 The plaintiff confirmed that he travelled to Delhi, India, in June 2016 in order to visit his father who was on his “death bed … in hospital”.[75] He was accompanied by his brother because “I couldn’t manage myself alone”.[76] He was driven to the airport by friends and his brother checked in his baggage. He made arrangements for a wheelchair in India to take him from the plane through the airport, and his relatives picked him up from the airport and drove the 200-kilometre drive from the airport to his home. When in India, his time was spent staying in the house or visiting his father, and there were various maids available to perform cooking and general domestic chores.
[75]T33, L17-18
[76]T33, L19
106 The plaintiff described his work with Raine & Horne. He described how he would got to, for example a shopping strip and speak to various owners of the shops as to whether they wished to sell their business. If he obtains a listing and the business is sold, he obtains a commission. He drives his car to various places and he informed the Court that the furthest he has gone is Sydenham. He does this work two to three days per week and would spend two to three hours driving to various businesses to speak to the owner of the businesses. He described resting in the car in between various contacts.
107 The plaintiff also explained that he started studying last year to requalify as a migration agent and ultimately passed his exams in mid February this year. Since then, he has commenced looking for that type of work. He described that the type of work he anticipates is visa applications, advising people how to go about the right way of obtaining such a visa, and the type of visa.
108 The plaintiff confirmed that in September 2016, he registered the name “Wyndham Arts and Cultural Society” for a group of friends as he was the only ABN holder. Under cross-examination, the plaintiff stated it was a type of “cultural society” which has been involved in two activities – a poetry recital and a singing program. The plaintiff explained that he designed some flyers to promote the program. The plaintiff also indicated that there is some planning to perform another activity in March or April 2017.
109 When queried about his contact with this group, the following evidence was given:
Q: “Do you have meetings of this group?---
A: No, it’s mostly through the (indistinct) applications we’ve discussed, but yes they do have meetings.
Q: You go to the meetings, don’t you?---
A: I have attended probably one or two. Yes.”
HIS HONOUR:
Q: “(To witness) What do you mean by that? Are there other meetings beyond one or two or?---
A: There has been more meetings, yes.
Q: Why don’t you go to those?---
A: Because, first off, I don’t have role to play there. I don’t really do anything. I’m just part of the group because they are my friends. That’s it. They ask me for help. I say, “Look, yes, I’ll help”. That’s pretty much it. When the first program was planned it was never in the scenario that there would be further programs.”
MR DOYLE:
Q: “(To witness) These are people who are your friends, who you socialise with?---
A: Yes.
Q: Tell us how you socialise with them?---
A: On social media, Facebook, phone, messaging. That’s it.
Q: Do you sometimes ‑ ‑ ‑?---
A: If there would be a function or something like someone’s children’s birthday or so, then we get a chance to meet, yes.
Q: You catch up at social gatherings?---
A: At times, yes.
Q: This is the circle of friends you've had for quite a while, is it?---
A: No, these are new friends after the accident. The circle of friends I had before the accident, they are not in touch with me anymore. I've lost all of them.”[77]
[77]T42, L13 – T43,L8
110 The plaintiff explained that his “old” friends, many of whom were people he went to university in Australia with, had largely stopped seeing him due to him not socialising after the transport accident.
111 The plaintiff confirmed that he completed a Bachelor of Commerce in India and obtained a Masters of Accounting in Australia. He noted that his Bachelor of Commerce was recognised in Australia and that his Master of Accounting (obtained in Australia) will qualify him to do an accountant’s job. To be a fully qualified accountant, he would have to go further and become a Certified Practising Accountant. When queried as to whether he would pursue such a course, the following evidence was given:
“That was the initial plan, but after finishing my university before I could have enrolled for CPA - during those plans, I happened to start the driving school. It worked out very well, and so I never pursued my CPA.”[78]
[78]T44, L21-25
112 The plaintiff was taken to his Facebook items contained in the defendant’s court book. In particular, he was taken to page 60 of the court book where he identified a flyer that he designed in relation to an event in 2016 which involved the “Meeting” of five famous Indian artists. The plaintiff stated that he prepared such flyer on his computer at home. The flyer states that tickets could be purchased from him.
113 In particular, the following evidence was given:
Q:“You organised this?‑‑‑
A:I was the sponsor for this program, for my business promotion, and that is why I was promoting it on the internet. The main program for these artists were a day before, it was a concert in Altona, and the next day there was a meet‑and‑great where people - general public can go in and (indistinct) with the people. That’s it.
Q: You were the promotor (sic)?‑‑‑
A: Yes.
Q:The money, the $75 or whatever the profit was, went to you?‑‑‑
A:Yes.
Q:This was a business venture?‑‑‑
A:It was a sponsorship venture for promotion of my business, not something to make money. The ticket price there is to recover costs.
Q:Tell us the business that you’re promoting by promoting these artists?‑‑‑
A:My own business, Open Door Group.
Q:The migrant business, is it, or not, or another part of it?‑‑‑
A:The migration business.
Q: Open Door Group?‑‑‑
A: Yes.
Q:You were trying to attract people from your community?‑‑‑
A:Yes.
Q: Then you’d be working up your client base?‑‑‑
A: Yes.
Q: Is that right?‑‑‑
A: That’s correct.”[79]
[79]T46, L26 – T47, L14
114 The plaintiff was referred to page 61 of the defendant’s court book and he identified that the major photograph on that page is one of him and one of the singers, Himesh Reshammiya, who the plaintiff described as “very famous”.
115 The plaintiff identified himself at the airport where he picked up Reshammiya in preparation for the Meet and Greet function. The plaintiff described that his brother drove him to the airport to make the “pick-up”.
116 The plaintiff was then taken to the photographs on page 63 of the defendant’s court book and he described that the photographs were taken off a video shot by his wife at the function where the singers attended. When questioned as to whether he could have operated the video recording rather than his wife, the following evidence was given:
Q:“Well, you could have done it, couldn’t you?‑‑‑
A:Not for that long, no.
Q:You couldn’t stand there and video somebody?‑‑‑
A:I was already exhausted. I was not able to perform. I was not able to be pain-free, present that in a happy mood.
Q:So that function went ahead, and what about when he went back to the airport? Did you go back to the airport with him, the star?‑‑‑
A:No. The organisers, the main organisers, they were looking after all the arrangements, travel arrangements and hotel stay, and they took care of everything.
Q:Has it been of assistance to your business, having
Q:The Department of Immigration, the work that you did there, was that seated or standing, or what?---
A:Seated.
Q:What about the driving instructor work?---
A:That is also seated in the car seat.
Q:What about the driving instructor work?---
A:That is also seated in the car seat.”[93]
[93]T98, L24 – T99, L10
150 The plaintiff informed the Court that he has listed one business for sale but there have not been any sale of businesses as yet. He has not been paid a commission or any form of retainer.
151 The plaintiff informed the Court that he enjoyed playing cricket prior to the transport accident.
Conclusion
152 As I have already recorded, there is no issue that the plaintiff was involved in a transport accident on 22 July 2013. Furthermore, there is no issue that the transport accident resulted in both a low-back injury and a psychiatric injury.
153 The issues that arise are whether the low-back injury and/or the psychiatric injury are “serious injuries” within the meaning of, respectively, paragraphs (a) and (c) of s93(17) of the Act.
154 Both sides made written submissions including submissions as to the credit of the plaintiff. Those acting for the plaintiff submitted that the plaintiff should be accepted as a “witness of truth” for the following reasons:
(a) The plaintiff gave his evidence in an honest and frank manner before the Court without prevarication or any attempt to mislead the Court;
(b) There is no video surveillance relied on by the defendant to attack the plaintiff’s credit.
155 Those acting for the defendant again repeated Senior Counsel for the plaintiff’s assertion at the beginning of the trial that “this case depends a great deal on the plaintiff’s credit”.[94] The defendant submits that there is no objective evidence to support the extreme limitations, pain and depression described by the plaintiff and it is necessary for the court to accept the evidence of the plaintiff for his application to succeed.
[94]T16, L12-13
156 The defendant further submits that a lot of the plaintiff’s evidence is difficult to accept and, his answers were somewhat “evasive and [at times] implausible”. Furthermore, the defendant submitted that the plaintiff’s evidence is wholly unreliable and his evidence should not be accepted.
157 In support of such submissions, those acting for the defendant referred to the evidence given by the plaintiff in his affidavits, in particular (and frequently confirmed under cross-examination) in respect of his extreme limitations and restricted lifestyle, and submitted that the evidence cannot be accepted when one compares that to the various matters revealed on Facebook, and indeed the activities which he has been involved in this year – registering as a migration agent; setting up an online profile/business “Ask An Agent”; sourcing employment as a business consultant/broker with Raine & Horne; being capable of creating impressive online business flyers for a consultancy/broker employment and various attendances at local and or community functions.
158 After a consideration of all of the evidence, I have formed the view that I consider the plaintiff was attempting to give honest answers to the questions posed to him. As is clear from any view of the evidence, the plaintiff not only has suffered some degree of back injury, but some type of psychological reaction, manifesting itself in Anxiety and Depression. Furthermore, the plaintiff has gained a large amount of weight and commenced to drink heavily.
159 Although there is some force, in my view, in the submission made by the defendant that the affidavit material is largely silent on the various activities that the plaintiff has been engaged in as described in the Facebook document, such has to be seen in the context of the overall situation.
160 The plaintiff has consistently given a history of being incapable of doing much at all, particularly in 2014 and 2015. Such a position is supported by his wife, who was not cross-examined, and indeed, the various notes of the general practitioner.
161 The various matters on Facebook are limited, sometimes involving the assistance of others (for driving et cetera) and do not involve traveling large distances. However, I am also of the opinion that such activities which are more predominant in 2016 is some indication that the psychological condition of the plaintiff is improving and that he has a more positive attitude to activity generally.
162 I should add that as I informed counsel during addresses, I found the plaintiff to be an intelligent, articulate man consistent with his educational background. His presentation – albeit only for about an hour-and-a-half when giving evidence – showed no signs of memory difficulties or lack of concentration. He largely followed the cross-examination and to my mind, showed no prevarication when answering questions. Indeed, I found him quite frank.
163 Reference was made to the cross-examination of the plaintiff about him signing the Nabenet document. On re-reading the transcript and bearing in mind the evidence given by the plaintiff at or around that time, I consider that the point the plaintiff was attempting to make was that although he has the skills and training to perform the types of jobs detailed by Nabenet, he needs the flexibility to be able to sit or stand or rest when he has physical difficulties.
164 Ultimately, I reject the submission that the plaintiff was “somewhat evasive” or that his evidence was “wholly unreliable”. It must also be remembered that the plaintiff made the point on several occasions that at least one of the reasons why he was involved in the types of activities detailed on Facebook was to help branding and the public becoming aware of his migration business.
165 I do accept that some of the Facebook entries also suggest that the plaintiff, perhaps not surprisingly given his intelligence, has some interest in what may be called political issues pertaining to India or indeed, his general community. Again, I consider that reflects more that the psychological side of his condition is not, I would have thought, as bad as initially after the transport accident and is some evidence of improvement.
166 As is made plain by the majority of the then Full Court of Victoria in Humphries & Anor v Poljak,[95] paragraphs (a) and (c) of s93(17) of the Act intends a division between injuries with physical consequences (paragraph (a)) and those with mental consequences (paragraph (c). The distinction between the two paragraphs was further examined in the Court of Appeal decision of Richards & Anor v Wylie.[96] In that matter, the plaintiff, at first instance, was granted leave to commence common law proceedings for damages pursuant to s93(4)(d) and (6) of the Act in respect of an injury suffered in a transport accident. Such leave was granted upon the judge being satisfied that the injury suffered by the plaintiff was a “serious injury” within the meaning of paragraph (a) of s93 of the Act. At that hearing, it was further found that the plaintiff had not suffered a “serious injury” within the meaning of paragraph (c) of s93(17) of the Act.
[95](Op cit) at paragraph [40]
[96]Op cit
167 On appeal, it was contended by the appellant (the original defendant) that the judge, at first instance, notwithstanding that he was not satisfied that the evidence of the respondent’s “psychiatric injury” amounted to a “severe long-term mental disturbance or disorder” within the meaning of paragraph (c) of the definition in s93(17) of the Act, was “nevertheless prepared to have regard to it” in considering whether the respondent was suffering from a “serious long-term impairment of a body function” within the meaning of sub-paragraph (a).
168 The appeal was upheld and, in particular, Winneke P stated:
“… I agree with the appellants’ submission that s93(17) intends to maintain a division between injuries with physical consequences and those with mental consequences, as Crockett and Southwell JJ pointed out in Humphries v Poljak. Their Honours’ comments, with which I agree, were intended to underline the distinction between the inquiry which is to be made under subpara(a) and that which is to be made under subpara(c). The inquiry which the judge must make under subpara(a) focuses his attention first upon whether the injury has produced an organic impairment (or loss) of a body function and then, by reference to the consequences of that impairment, to determine whether it is ‘serious’ and ‘long term’ … . The ‘division’ to which their Honours referred emphasizes, and was intended to emphasize, the nature of the inquiry which a judge is called upon to make under subpara(a) and to caution judges against succumbing to the temptation of equating ‘impairment of body function’ with ‘injury’. … .”[97]
(my emphasis).
[97]See Richards & Anor v Wylie (op cit) at paragraph [16]
169 Later, Winneke P warned that:
Thus, the judge, in making the inquiry, must be careful - particularly in cases where mental disturbances or disorders have supervened - not to lose sight of the focus which the definition in subpara(a) calls for lest he falls into the erroneous reasoning process of allowing the consequences of a mental disturbance or disorder to govern, or even intrude into, a finding of ‘impairment or loss of a body function’. If, for example, a person loses the use of his or her limbs as a consequence of injury to the spinal column and cord, that loss is a consequence of the long-term impairment of the function of the spinal process. If, on the other hand, a loss of use of the limbs occurs as an hysterical response to minor trauma, it is the ‘mental or ... behavioural disturbance or disorder’ which is producing the impairment of body function and it is, accordingly, the severity of the mental disorder itself which must fall to be considered under subpara(c). Between the two extremes to which I have referred will, no doubt, be a range of differing circumstances; but if the body of evidence before the judge demonstrates that the consequences of a mental disturbance or disorder are themselves producing the impairment of body function complained of, it would be, as Crockett and Southwell JJ pointed out, ‘anomalous’ to regard those consequences as falling to be considered under subpara(a) of the definition when clearly it is the severity of the disorder or disturbance itself which falls to be judged under subpara(c). … .”[98]
(my emphasis).
[98]See Humphries & Anor v Poljak (op cit) also at paragraph [16]
170 Later, Winneke P in dicta stated that:
“… [it is not the case that] a mental or behavioural disturbance or disorder can never be taken into account in determining the seriousness of an impairment of body function which, in the exercise of the judge’s task under sub-para(a), he has found to exist. … Thus, the “serious injury” defined by sub-para(a) of subs(17) can, I think, have its seriousness measured in part by a mental response to a physical impairment. What it will not recognize is that the mental disorder can itself constitute or be the producer of the impairment of a body function.”[99]
[99]See Richards & Anor v Wylie (op cit) at paragraph [17]
171 The Court of Appeal found that the initial judge erred, in that the plaintiff’s mental disorders or disturbances were, to a significant degree, producing the symptoms which the trial judge relied on in finding that the plaintiff was suffering from a long-term impairment of a body function.
172 These aforementioned principles are again referred to in detail in the Court of Appeal decision of Transport Accident Commission v Kamel.[100] In that decision, the Court (consisting of Warren CJ, Ashley JA and Kyrou AJA) stated, in part:
[100][2011] VSCA 110
“Paragraph (a) of the definition of ‘serious injury’ focuses on impairment or loss of body function, rather than on the injury resulting from a transport accident. A body function must not be equated with an injury, as the impairment of a person is not the same thing as the impairment of a person’s body function. Paragraph (a) of the definition focuses upon impairment or loss of body function and requires that the impairment or loss be both ‘serious’ and ‘long-term’.
The test for determining whether an applicant for leave under s 93(4)(d) of the Act has suffered serious long-term impairment or loss of a body function is subjective in the sense that it is the effect on the particular applicant’s body function that must be considered. That determination, however, must be objectively made: it is the judge’s opinion as to the seriousness of the impairment or loss — not that of the applicant or his or her medical practitioners — that is decisive.
In determining whether an applicant has suffered a serious long-term impairment or loss of a body function, it is impermissible to aggregate impairments or losses of different body functions. Each body function must be considered separately and a determination must be made as to whether that function has been impaired or lost and, if so, whether the impairment or loss is serious and long-term. A body function may be impaired or lost by reason of two or more injuries acting together to cause an impairment or loss.
The applicant has the burden of proving, on the balance of probabilities, that he or she has suffered an impairment or loss of a body function that, as a result of the infliction of the injury complained of, is both serious and long-term. In order to be ‘serious’, the consequences of the injury must be serious to the particular applicant in relation to either pecuniary disadvantage or pain and suffering, or both. Moreover, it must be established that the injury, when judged by a comparison with other cases in the range of possible impairments or losses, can be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.
The definition of ‘serious injury’ in s 93(17) of the Act intends to maintain a division between injuries with physical consequences, which fall within para (a) of the definition, and injuries with mental consequences, which fall within para (c) of the definition. The inquiry that must be made under para (a) focuses attention on whether the injury has produced an organic impairment or loss of a body function and whether, having regard to its consequences, that impairment or loss is serious and long-term. Where an impairment or loss of a body function is produced as a consequence of a mental disturbance or disorder, that impairment must be considered under para (c) rather than under para (a). Where the impairment of a body function is the product of both organic and mental conditions, it will not fall within para (a) unless it is predominantly the product of the organic condition.”[101]
(my emphasis).
[101]See Transport Accident Commission v Kamel (op cit) at paragraphs [61], [62], [63], [64] and [65]
173 There is no issue in this proceeding that the plaintiff suffered low-back symptoms prior to the transport accident. He describes in his affidavit an incident in or about June 2011 when he was getting out of bed and sneezed. He consulted a doctor at a local clinic and was prescribed anti-inflammatory medication and painkillers. On traveling to India two days later, he underwent an MRI scan in India on or about 24 August 2011.[102] At that time, the radiologist reported “degenerative diffuse bulging of L5 and L5-S1 discs causing mild thecal sac indentation”.
[102]See exhibit 2 at page 20A PCB
174 Furthermore, as I have already recorded, there is no issue that the transport accident resulted in a low-back injury. The consensus of the nature of that injury is the “aggravation” of the pre-existing degenerative changes. In particular, I refer to the following evidence:
(a) The opinion of Mr Lo (the treating neurosurgeon) that the transport accident resulted in a “mild central L5-S1 disc bulge on the background of mild degenerative spinal conditions” which he described as an aggravation and exacerbation of the underlying degenerative spinal condition;
(b) Dr Horsley, who considered that the transport accident aggravated a pre-existing lumbar spine condition;
(c) Mr Kierce was of the opinion that the transport accident “aggravated pre-existing lumbar spondylosis and dorsal spondylosis”.
175 It is also to be noted that, consistent with the MRI scan undertaken on 24 July 2013, the transport accident also caused an annular fissure at the L5-S1 level. In particular, I refer to:
(a) The evidence of the treating orthopaedic surgeon, Mr Quan, who referred to as an “annular tear” and suspected that this was “causing a degree of chemical neuritis at this level”;[103]
[103]See exhibit 2 at page 29A, PCB
(b) Dr Horsley, on noting the annular fissure, expressed the opinion that such annular tears “do not heal” and is likely to be “an ongoing pain generator”;
(c) Mr Kierce was of the opinion that the transport accident caused the annular tear of the already protruding L5-S1 disc.
176 I find that the nature of the back injury suffered by the plaintiff as a result of the transport accident is the aggravation of pre-existing degenerative change and the production of an annular fissure at the L5-S1 disc.
177 It also should be noted that none of the treating doctors (leaving aside the treating general practitioner who does not comment) nor any of the medico-legal specialists retained by either side, found any neurological deficit or any particular nerve impingement.
178 I should also add that the consensus of medical opinion was that psychological factors were playing a role in the presentation of the plaintiff. In this respect, I refer to the following evidence:
(a) Dr Raj considered that the plaintiff was suffering from “Depression secondary to ongoing long-term pain”;
(b) When seen by the treating orthopaedic surgeon, Mr Quan, who noted that the plaintiff had ongoing back pain in the absence of any major pathology apart from the annular tear, he recommended an epidural injection to break the pain cycle;
(c) The treating neurosurgeon, Mr Lo, recommended that the plaintiff be referred to a multidisciplinary pain management group given the “paucity of neurological deficits on examination”;
(d) The medico-legal specialist, Dr Horsley, although accepting that the transport accident had aggravated the plaintiff’s pre-existing lumbar spine condition, considered that “his level of disability has increased substantially secondary to his declining psychological status”;
(e) Professor Davis was of the opinion that although the history was consistent with a lumbosacral soft-tissue injury, “undoubtedly, psychological factors are also playing a role”;
(f) The medico-legal specialist, Mr Kierce, although accepting that the transport accident had aggravated pre-existing lumbar spondylosis and dorsal spondylosis, was of the opinion that the plaintiff’s physical reaction to those injuries has been “dominated by his psychological reaction to the injuries”. He asserted that his symptoms cannot be fully explained on organic grounds and he demonstrates “significant abnormal pain behaviour”;
(g) The medico-legal orthopaedic specialist, Dr Boys, noted the plaintiff having “enhanced perceptions of disability with no specific evidence at the time of magnified illness behaviour”.[104]
[104]See exhibit “A” at page 35, DCB
179 Of course, the psychiatrists in the case accept that the plaintiff has suffered a psychiatric injury resulting from the transport accident. In this respect, Dr Weissman was of the opinion, when he last saw the plaintiff, that the plaintiff was suffering from a mild to moderate Mixed Reactive Depression and Anxiety Syndrome, together with ongoing alcohol abuse.
180 Dr Firestone came to a similar diagnosis of an Adjustment Disorder with Mixed Depression and Anxiety features, together with alcohol dependence and Somatic Symptom Disorder with predominant pain.
181 It is to be noted that both psychiatrists, and indeed the general practitioner and some of the medico-legal specialists, speak of the psychiatric (or psychological) condition of the plaintiff to be essentially reactive to pain and disability that he suffers rather than directly arising from the transport accident – for example there is no compelling evidence of, say, Post-Traumatic Stress Disorder.
182 After a consideration of all of the evidence, I have come to the view that although any impairment suffered by the plaintiff as a result of the transport accident is the result of both organic and mental conditions, I do find such impairment is predominantly the product of an organic condition.[105]
[105]See Richards & Anor v Wylie (op cit) at 79, 86-88, paragraphs [16]-[17] and [19] per Winneke P, at 89, paragraphs [23]-[24] per Buchanan JA, at 90, paragraph [28] per Chernov JA; Transport Accident Commission v Kamel (op cit) at paragraph [65]
183 I have formed such view for the following reasons:
(a) Obviously enough, all doctors do consider that the plaintiff suffered an organic injury, being the aggravation of pre-existing degenerative changes and the annular fissure at the L5-S1 level;
(b) As I have already pointed out, the nature of the psychiatric condition appears to be reactive to the organic condition – that is to say Adjustment Disorder with consequential Anxiety and Depression;
(c) Most of the doctors consider that from an organic point of view, the plaintiff no longer has an unrestricted capacity for work consistent with his training and experience. I refer to the following:
(i) Dr Raj was of the opinion that when the plaintiff’s depression improves, he “might be fit for office type of work/studies”;
(ii) the treating neurosurgeon, Mr Patrick Lo, opined that with adequate pain management and physical therapy, the plaintiff “may have a capacity for some suitable work with restrictions of no bending or twisting the back, no prolonged sitting or standing, no pulling/pushing/reaching for items and no lifting or heavy weights”. He further opines that if such an occupation can be provided and he is retrained in that field, he may have a capacity for work in the future;
(iii) Dr Horsley was of the opinion that if you consider the plaintiff’s back injury in isolation, removing his level of deconditioning and psychological status and significant increase in weight, the plaintiff would have a capacity to return to the workforce “in a self-employed role, where he is able to self pace and self manage on a part-time basis at least”;
(iv) Although Mr Kierce initially commented that the plaintiff was fit to return to his full pre-accident employment, he does note that the plaintiff would be unfit for work which involved prolonged or frequent bending, the lifting of weights greater than 15 kilograms, or the use of heavy jarring implements such as picks, shovels and crowbars, or the driving and machinery which gives rise to vibrations;
(d) Dr Boys, who is of the opinion that the transport accident would have given rise to a degree of domestic incapacity for a period of four to six weeks, does recognise that the plaintiff would have an ongoing incapacity subsequent to what he considers to be constitutional factors which existed prior to the transport accident in 2013.
184 I do find, contrary to the ultimate opinion of Dr Boys, that the aggravation of the pre-existing degenerative changes and the production of the annular fissure resulting from the transport accident does give rise to an impairment of the lower back which is long term. In this respect, I do find that one of the consequences of such low-back impairment, is that the plaintiff is limited to work, where he has the flexibility to sit or stand and move around, or cease when he has intense symptoms in the back. In this respect, I ultimately consider that the opinion of Dr Horsley is that the plaintiff will have a capacity to return to the workforce “in a self-employed role, where he is able to self-pace and self-manage and initially work part time”.[106] In this sense, I do find that one of the consequences of such an impairment is pecuniary disadvantage, as the plaintiff is now limited to the type of work that he can perform.
[106]See “Exhibit 2”, PCB at p 65.
185 It must be remembered that prior to the transport accident, the plaintiff was employed by the Department of Immigration, performing a sit-down job answering telephone enquiries and, prior to that, had been engaged as a driving instructor which, again, involves being seated in vehicles, performing such work.
186 I also note that the plaintiff is now attempting to perform essentially self-employed work, both as a migration agent and a business broker, to allow him to have the flexibility to move around as required, and to rest as required. Accordingly, the capacity of the plaintiff is diminished.
187 Accordingly, I find that the plaintiff has suffered a long-term impairment of his low back within the meaning of paragraph (a) of s93(17) of the Act. The issue becomes whether such injury is “serious” within the meaning of that paragraph.
188 Given that the plaintiff had pre-existing degenerative changes and did suffer symptoms to some extent prior to the transport accident, it is appropriate to analyse whether the plaintiff has suffered a “serious injury” within the meaning of Petkovski v Galletti,[107] which requires that where there is a pre-existing condition, an analysis must be made of the extent of the impairment of body function before and after the relevant injury and the claimed “aggravation” must itself be a “serious injury”.
[107][1994] 1 VR 436
189 In this respect, although the plaintiff had pre-existing degenerative changes and had some minor low-back symptoms prior to the transport accident, such condition did not impact on his work, recreational or social activities. I do find that the transport accident which aggravated such pre-existing degenerative changes and caused an annular fissure, has caused permanent impairment productive of consequences, which relate to both pecuniary disadvantage and pain and suffering.
190 I have already identified the pecuniary disadvantage, in that the plaintiff is limited in the type of work he can now do after the transport accident. Furthermore, in relation to pain and suffering, I do accept that his inability to play cricket as he did prior to the transport accident, lift his children for any particular periods of time, or indeed, lift or manoeuvre heavy weights or perform some household activities have all been diminished in a man who is still relatively young at thirty-eight years old. Furthermore, he has experienced restrictions upon his ability to sleep, with restrictions in his capacity to drive and the need for ongoing pain-killing medication are all organic consequences from the aggravation of his pre-existing degenerative changes and the annular fissure.
191 Furthermore, consistent with the principles which I have recorded in relation to Richards v Wylie,[108] the seriousness of his organic condition can also be measured, in part, by his mental response to the physical impairment. However, as already recorded, a distinction must be made to disregard any psychiatric condition which is the “producer” of the impairment of the low back. However, clearly enough, I accept that the plaintiff has had some anxiety and depression secondary to the pain and restrictions that he suffers as a result of his low-back injury.
[108](2001) 1 VR 79
192 I am satisfied that the impairment to the low back resulting from the transport accident, when judged by a comparison with other cases in the range of possible impairments or losses, can be fairly described at least as “very considerable” and certainly more than “significant” or “marked”. In such circumstances, I do grant leave to the plaintiff to bring common law proceedings for damages in relation to the transport accident suffered by him on 22 July 2013.
193 For completeness, I also make reference to the claim for serious injury under paragraph (c) of s93(17) of the Act. As I have already recorded, I do consider that the plaintiff has suffered some degree of psychiatric illness, and in this respect, I do find, consistent with the evidence of both psychiatrists that the plaintiff has suffered, and continues to suffer, a Chronic Adjustment Disorder with Depressed and Anxious Mood of mild to moderate severity.
194 Generally, I accept the evidence of Dr Weissman, who has seen the plaintiff on two occasions and has noticed some improvement between those consultations. Although it is to be noted that the plaintiff has recently recommenced taking Cymbalta, Dr Weissman notes that the plaintiff has not been referred to any psychiatrist or psychologist and there was probably no actual or specific psychiatric incapacity for work.
195 I also take into account, as I have already recorded, the plaintiff’s increased activities during 2016 and his ongoing attempts to develop both his migration business and his business broking business. The plaintiff clearly has the psychological capacity to mix with people and be involved in various matters, as is demonstrated by the Facebook entries. Indeed, the presentation in the Facebook activities were consistent with his presentation in Court, being able to concentrate and answer questions without difficulty.
196 Senior Counsel for the plaintiff put some weight on the report of Dr Firestone, a psychiatrist, who examined the plaintiff on behalf of the defendant. Although Dr Firestone noted that the lack of motivation in the plaintiff, and the pain that he experiences limits his hours of work to three or four daily at present, he did comment that the psychiatric prognosis appears to depend greatly on whether the plaintiff establishes a satisfactory ongoing business, and he notes that the treatment of his alcoholism and his Depression now “will make this more likely”.
197 After a consideration of all of the evidence, I consider that although the plaintiff does suffer from a mental or behavioural disturbance or disorder, I am not satisfied that such disturbance or disorder will be “long-term” or can be determined to be “severe”. In this respect, I again refer to the dicta of Brooking AJ in Mobilio v Balliotis,[109] wherein he stated that where “severe” is used in the definition, such is a stronger word than “serious”. I am not so satisfied of such situation.
[109]Op cit
198 There will be leave to the plaintiff to issue common law proceedings in relation to the transport accident on or about 22 July 2013.
199 I will hear the parties on the question of costs.
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Annexure “A”
1The plaintiff tendered the following documents:
Exhibit 1 –
· Affidavits of the plaintiff sworn on 3 December 2015, 17 November 2016 and 5 December 2016 (when the unsworn affidavit was adopted by the plaintiff during the course of his evidence)
· The affidavit of the wife of the plaintiff, Anjali Sharma, sworn 25 November 2016
(All such documents are found at pages 6 to 20 of the Plaintiff’s Court Book (“PCB”))
Exhibit 2 –
· Radiology report dated 24 August 2011
· Medical report from general practitioner, Dr Rinku Raj, dated 22 February 2016
· Medical report of the neurosurgeon, Mr Patrick Lo, dated 6 April 2016
· Letter from the orthopaedic surgeon, Mr Gerald Quan, dated 8 October 2013
· Medico-legal reports of the psychiatrist, Dr David Weissman, dated 29 April 2015 and 15 September 2016
· Medico-legal reports of the occupational physician, Dr Robyn Horsley, dated 30 July 2015 and 17 October 2016
· Medico-legal report from the neurologist, Professor Stephen Davis, dated 2 April 2015
· Report of the physiotherapist, Mr Jon Ford, dated 20 November 2014
(All such documents are found at pages 20A - 78B of the PCB)
Exhibit 3
· The Westgate Medical Centre records
(Such records are found at pages 95-116 of the PCB)
Exhibit 4
·Ask-an-Agent records
(Such records are found at pages 117A-B of the PCB)
Exhibit 5
·Tax Summary
(Such summary is found at page 118 of the PCB)
2The defendant tendered the following material:
Exhibit “A”
·Medico-legal reports of the orthopaedic surgeon, Mr Paul Kierce, dated 20 May 2015 and 1 July 2015
·Medico-legal report of the psychiatrist, Dr Andrew Firestone, dated 28 September 2016
·Medico-legal report of the orthopaedic surgeon, Mr Peter Boys, dated 16 November 2016
(All such reports are found at pages 1-37 of the Defendant’s Court Book (“DCB”))
Exhibit “B”
·TAC Final Vocational Assessment Report, dated 6 December 2013
·Letter to Dr Pietas Nyamayaro from NABENET, dated 25 November 2013
·TAC Employment Agreement Form signed by Dr Pietas Nyamayaro, dated 25 November 2013
(All such documents found at pages 38-49 of the DCB.)
Exhibit “C”
·Facebook entry dated 18 November 2015 regarding Lord Ganesha on beer bottles
·Facebook entries dated 14 December 2015 and 7 January 2016
·Facebook photographs dated 26 February 2016
·Facebook photographs dated 25 June 2016
·Facebook photograph dated 5 July 2015
·Facebook photograph of plaintiff at Wyndham City Community Safety and Security Meeting dated 15 July 2016
·Facebook entry dated 18 August 2016 regarding Best Jet
·Facebook photographs dated 21 August 2016 – “Neighbourhood watch Truganina” finally launched
·Facebook photographs dated 10 September 2016 – “Local residents of Wyndham City join today and did a peaceful protest against the failure of statement government to protect us in our homes …”
·Facebook photograph dated 26 September 2016 – “Safer Wyndham”
·Facebook entries dated 7 and 11 October 2016 regarding Meet and Greet event on 17 October 2016
·Facebook photograph dated 16 October 2016 of plaintiff at airport meeting entertainer, Himesh Reshammiya
·Facebook entries dated 17 October 2016 of videos and photographs at Meet and Greet event
·Facebook entries for Open Door Group (various dates)
(Such documents are found at pages 38-63 and pages 72-82 of DCB)
Exhibit “D”
·Plaintiff’s Ask-an-Agent Profile
(Such document is found at pages 64-66 of PCB)
Exhibit “E”
·Plaintiff’s résumé (undated)
(Such document is found at pages 67-71 of DCB).
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