Slocombe v Transport Accident Commission
[2023] VCC 1515
•1 September 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-02521
| PHILLIP SLOCOMBE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TRAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 August 2023 | |
DATE OF JUDGMENT: | 1 September 2023 | |
CASE MAY BE CITED AS: | Slocombe v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1515 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – aggravation of pre-existing condition
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Humphries & Anor v Poljak [1992] 2 VR 129
Judgment: Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Frederico | Hounslow Lawyers |
| For the Defendant | Mr R Middleton KC with Mr S Pinkstone | Landers & Rogers |
HER HONOUR:
1At around 11.00am on 21 December 2015, Mr Slocombe and his partner, Gayle English, were travelling together in a car to an appointment at an osteopath clinic. As they crossed the intersection of Bay Road and Middleton Street, their car was struck from behind by another vehicle. Police and ambulance were called, but Mr Slocombe was not taken to hospital.
2Mr Slocombe claims that, as a result of this accident, he has suffered a serious injury, in the form of a serious long-term impairment of his cervical spine. He seeks leave to bring proceedings for damages under s93(4)(d) of the Transport Accident Act 1986 (“the Act”).
3In response, the defendant contends that Mr Slocombe suffered from a longstanding and symptomatic degenerative cervical spine condition. It contends that this condition was serious enough to lead Mr Slocombe to seek regular osteopathic treatment; and to consult his general practitioner (“GP”). The defendant contends that Mr Slocombe was neither a credible nor reliable witness and that he had not been frank about the nature and extent of his pre-existing neck condition, nor about the treatment he had received for that condition. It submits that, in the circumstances, the Court should not be satisfied, on the evidence, that Mr Slocombe’s current neck symptoms were due to the accident, rather than Mr Slocombe’s pre-existing condition. It also submits that, given Mr Slocombe’s other comorbidities, the Court should not be satisfied that it was Mr Slocombe’s neck pain which restricted his activities, rather than these other ailments.
4Mr Slocombe accepts that he had a pre-existing cervical spine condition, which resulted in symptoms of neck pain. However, he contends that the accident greatly aggravated his neck pain and resulted in blinding headaches of a kind which he had not previously experienced. He submits that this aggravation was sufficient to satisfy the requirements of a serious injury.
5The critical issues in this case are, thus:
(a) the extent to which the accident aggravated Mr Slocombe’s pre-existing neck condition;[1] and
(b) whether the consequences of any such aggravation are sufficient to satisfy the requirements of a serious injury, i.e.: can they be “fairly described as at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”.[2]
[1] Petkovski v Galletti [1994] 1 VR 436
[2] Humphries & Anor v Poljak [1992] 2 VR 129
Relevant background to claim
6Mr Slocombe, is now seventy-one years old and receives the Age Pension. For many years he worked as a commercial property valuer and commercial real estate agent. He had sold his real-estate business prior to the accident but continued to work as a property valuer. He had also taken steps to establish a drycleaning business with Ms English. This drycleaning business was established a few months after the accident, but ultimately failed. Mr Slocombe did not contend that his cessation of work was a consequence of the aggravation of his neck condition.[3]
[3] Transcript (T) 74, Lines (“L”) 7-10
7A neuropsychological assessment report dated 29 April 2022, from psychologist Dougal Phillips, was tendered in evidence. According to this report, Mr Slocombe suffered from a mild cognitive impairment, secondary to vascular changes which were unrelated to the transport accident. At the hearing, Mr Slocombe abandoned any claim to have suffered a “paragraph (c)” severe long-term mental or severe long-term behavioural disturbance or disorder as a result of the accident. A claim to have suffered an impairment of his right elbow was also abandoned.
8The hearing thus proceeded solely on Mr Slocombe’s claim that he had aggravated a pre-existing degenerative neck condition in the accident, which had:[4]
(a) resulted in ongoing severe neck pain and headaches;
(b) resulted in a need for ongoing treatment, including radiofrequency denervation and osteopathy;
(c) required medication regularly, six to eight Panadol per day, as well as Valium and Panadeine Forte approximately once per week;
(d) resulted in an adjustment disorder requiring psychiatric treatment;
(e) impacted on his sleep;
(f) prevented him from playing golf; and
(g) impacted on his capacity to manage housework and driving.
[4] T75, L20-T76, L6
Extent of aggravation of neck condition
Mr Slocombe’s affidavit evidence
9Mr Slocombe swore four affidavits which were tendered in this proceeding. I have read and considered these affidavits in their entirety. I will focus here on matters which are relevant to the reliability of Mr Slocombe’s evidence, namely his disclosure of his pre-existing neck symptoms; his disclosure of his osteopathic and chiropractic treatment; his description of the course of his symptoms since the accident; and his description of the impact of his symptoms on his ability to play golf.
10In his first affidavit, affirmed on 22 March 2021, Mr Slocombe describes suffering injury to his neck and right elbow, as well as “mental injury”, in the accident. He states that, at the time of the accident, he was the front-seat passenger of a vehicle driven by Ms English, when they were rear-ended by another vehicle at the intersection of Bay Road and Middleton Street, in Cheltenham. He describes the impact as follows:
“I recall the impact was significant. I was thrown forward in my seat. My glasses flew off and the contents of my shirt pocket hit the windscreen. I struck my right elbow on the centre console. Both vehicles were towed away following the accident.”[5]
[5] First affidavit, paragraph [8] at Plaintiff’s Court Book (“PCB”) 12
11He states that he suffers ongoing variable neck pain and constant headaches, as well as aching pain in his right elbow.[6] He says that he takes Panadol, Mersyndol and Valium for neck and right elbow pain.
[6] First affidavit, paragraphs [29]-[30] at PCB 15-16
12He says that:
“As a consequence of my neck and right elbow injury, I have not been able to play golf for a number of years. I played golf for around 30 years, usually twice a week, before the accident. I have tried playing after the accident. I believe I have played three times since the accident. On each occasion it was painful. I have had to restrict my membership to social member at my golf club but even so, I have not attended the golf club in a number of years.”[7]
[7] First affidavit, paragraph [8] at PCB 16-17
13He details the treatment he has received to his neck and shoulder since the accident, including seeing an osteopath, Dr Melissa Arnts.[8]
[8] First affidavit, paragraph [32] at PCB 16
14Mr Slocombe describes a past history which included a car accident about forty-five years ago; a fractured right elbow thirty years ago; gout diagnosed twenty years ago; sleep apnoea, also diagnosed twenty years ago; kidney cancer diagnosed twelve years ago; Type 2 Diabetes diagnosed ten years ago; episodes of diverticulitis; an asymptomatic cyst on his liver and a hairline fracture of his left ankle in January 2020.[9] Despite the detail of this past history, he makes no express reference, either in this paragraph or elsewhere in the affidavit, to pre-existing neck or shoulder pain. The only reference to neck pain is oblique:
“I continue to suffer ongoing variable neck pain. My neck pain has been more consistent and intense since the accident than it was before. … .”[10]
(Emphasis added.)
[9] First affidavit, paragraph [4] at PCB 11
[10] First affidavit, paragraph [29] at PCB 15
15In the context of explaining that he consulted Dr Abbas Din of Doctors of Osteo after the accident, he also states that he “had been attending this osteopath clinic for some months prior to the accident. In fact I was on my way to see Dr Din when the accident occurred.”[11] However, he does not explain the reason he was seeking treatment at Doctors of Osteo. Despite relying upon treatment received from Dr Arnts since the accident, he does not disclose having consulted her for neck pain prior to the accident.
[11] First affidavit, paragraph [10] at PCB 12-13
16In his second affidavit, sworn 24 September 2021, Mr Slocombe says that his symptoms of neck and elbow pain continue.[12] He describes the treatment he continues to receive. In relation to osteopathic treatment specifically, he states:
“I continued to see Melissa Arnts even though TAC has (sic) ceased funding her treatment last year. She continued to treat me and initially I was paying through my private health cover and paying the gap myself. Nevertheless, this cover ran out and I could not afford to keep paying the full amount myself. In addition, Melissa became pregnant and was unable to continue my treatment and I ceased seeing her earlier this year. She had recommended continuing treatment for my injuries.
Accordingly, I then changed to a Myotherapist, Emily Van de Water at the Seaview Health Group. She has been doing similar treatment to Melissa Arnts, particularly working on my neck, shoulders and back. I had been seeing her on a weekly basis and this was being paid by my Health Fund as TAC had refused to pay for her treatment. I have not seen her since about July this year due to the Covid restrictions, but I intend seeing her again once the restrictions are lifted as I do find this treatment most beneficial.”[13]
[12] Second affidavit, paragraph [11] at PCB 21
[13] Second affidavit, paragraphs [4]-[5] at PCB 20
17Again, he makes no disclosure of having received treatment from Dr Arnts prior to the accident.
18He states that he still has not been able to resume playing golf.
19In his third affidavit sworn 13 December 2022, Mr Slocombe again confirms that his neck and elbow symptoms persist, although he says that his right-elbow symptoms have improved and he no longer requires treatment. In relation specifically to neck pain, he states:
“I continue to experience neck pain. The neck pain which I experience continues to be intense in its nature. I also continue to experience headaches which appear to be related to my neck pain. The headaches which I experience usually come on when I have worsening neck pain.
I am reliant on medication to assist with my neck pain. I was previously taking up to 8 tablets of Panadol on a daily basis to help me manage my neck pain. I have made a conscious effort to try and reduce the amount of medication and am generally now reliant on 4-6 tablets per day. However, there are often days when I need to take more 8 tablets of Panadol to manage. I also take Valium and Mersyndol Forte when the pain is bad.
My sleep continues to be significantly impaired as a result of my neck pain. frequently find it difficult to get to sleep by virtue of the neck pain which I experience. Further, after I get to sleep I regularly wake up during the night with increased neck pain. I then find it difficult to get back to sleep. I am reliant on heat packs to try and help manage my neck pain at night.
As a result of the neck pain which I experience I no longer sleep in the same bed as my partner. This frustrates me and we are no longer as regularly intimate as we were before the accident.”[14]
(sic)
[14] Third affidavit, paragraphs [6]-[9] at PCB 23
20In relation to his capacity to play golf, he states:
“Since the transport accident I have not been able to play any golf on an going (sic) basis. I have tried to play on a couple of occasions since the accident but always worry that my neck is so fragile that I am too tentative and have been unable to manage. The neck pain which I experience increases when I play golf and I find it difficult to perform the head movements that are required.
Before the transport accident I was a playing member of Peninsula Kingswood Golf Club. I have retained my membership at Peninsula Kingswood Golf Club but have moved to be firstly a non-playing member and now a social member and have made these changes due to the difficulties that I have with playing golf. Before the accident I played golf on a Wednesday and Saturday and it was my major hobby. I would also often play with my sons and we would stay on for lunch. As a result of my inability to play golf on an ongoing basis, I believe that my fitness has reduced. I miss being able to play golf.
I recently attended the Golf Club for a celebratory lunch for 40 years plus members which was the first time I have attended the Club for many years. I realized how much I had missed out on with the building of the new clubhouse and tennis and lawn bowls and swimming facilities and the re-design of the two golf courses none of which I had seen before the function.”[15]
[15] Third affidavit, paragraphs [11]-[12] at PCB 24
21There is no reference to osteopathic or massage treatment, or to any pre-existing neck pain.
22In his fourth affidavit sworn 2 August 2023 (i.e.: the day before the hearing), Mr Slocombe describes suffering neck pain so bad that it justifies him undergoing “brutal” radiofrequency denervation every six months or so. He says he takes Valium and Panadeine Forte about once a week when his neck pain and headaches are particularly severe and Panadol regularly, six to eight tablets per day. He says he needs to rest to manage his neck pain and usually rests a couple of times a day. He says lying down gives him the most relief from his pain. He says the neck pain is constant, and on both sides of his neck, and regularly extends into his shoulder blades. He describes a deep aching pain in his neck, with intermittent stabbing and burning pain when he moves, which travels into his shoulder blades. He says the pain gives him headaches, and that he has headaches every day. He says he has a constant headache which varies in intensity. He says the pain in his neck increases on sitting for a long period, standing for a long period, leaning over, sitting at the computer holding his neck in a flexed position, and walking long distances. He says he has restricted range of movement in his neck and struggles to look up and down and move his neck from right to left. He says that standing, in particular, aggravates his neck. He says he struggles to conduct neck checks when driving.
23He says he has not been able to return to play golf, although he did try initially after his accident. He says that, prior to the accident, “I played twice a week for more than 30 years”.[16] As to the reason why he ceased playing golf, he says:
“… I ceased playing as my neck pain took away my enjoyment of the game, as well as in 2016 I was focussing on my business and family interests.”[17]
[16] Fourth affidavit, paragraph [19] at PCB 30
[17] Fourth affidavit, paragraph [19] at PCB 31
24He explains the course of his neck condition since the accident as follows:
“Over the years since the transport accident, I have tried to tough it out and put up with the pain. I tried to live my life as normally as I could, and I was keen to build up my business. My neck pain seemed to wax and wane, although I attended for regular conservative hands-on treatment. I had more and more pain when I played golf. I did not play for a while, because of my neck pain and there were also periods when I was busy with my work, and then I tried playing again, but then it would lead to a worsening of my neck pain. I tried to live life as normally as possible and most of the time not playing golf which made my neck more painful. Whenever I tried to do more strenuous activities, such as painting, lifting weights or other activities which put a strain on my neck, my neck pain increased. I think that I was hopeful it would remain as it had been prior to the transport accident. I would also take quite a lot of over the counter medication such as Panadol and Nurofen to mask the pain, so I could keep going. However gradually my pain worsened to the point and so much so that I went to see Dr Wang in 2019, who then referred me to Dr Taverner.”[18]
[18] Fourth affidavit, paragraph [23] at PCB 31-32
25For the first time he provides some details of his pre-existing neck symptoms:
“Prior to my accident, I suffered from some neck pain and some lower back pain. I was attending an osteopath on a semi-regular basis. I used to go with my girlfriend who had plantar fasciitis. I found the sessions of osteopathy helped me generally, including my neck pain. I also had a CT scan in April 2015 which I am told showed degenerative changes in my neck. I continued to play golf and go on golf trips, although playing golf did hurt my neck on occasions. I was driving a lot and on occasions this made my neck pain worse.
…
In my earlier affidavits, I did not mention that I attended a chiropractor at Absolute Body Health Solutions, Dr Walker, on a number of occasions from December 2016 to March 2017 for my neck.
I refer to my earlier affidavit regarding attending Melissa Arndt (sic), osteopath. I attended her prior to the transport accident for neck and back pain from 2014. I am told that I mentioned to her that I saw a practitioner in North Melbourne, but I am unable to recall this.”[19]
[19] Fourth affidavit, paragraphs [26] and [29]-[30] at PCB 32-33
Mr Slocombe’s oral evidence
26As a witness, Mr Slocombe’s evidence alternated between confident and self-serving assertions, and admissions of lack of memory of specific events. For example, when asked at the start of his cross-examination whether his neck pain interfered with playing golf prior to the accident, he said “[n]ot at all”; and volunteered that his neck and lower back pain prior to the accident was minor. After being shown clinical notes of consultations in relation to his neck, he maintained “[t]he current problems with the neck are much more severe than anything I had before”.[20] In re-examination he said:
“I never had the blinding headaches pre-accident that I had post-accident. My neck was able to be manage quite adequately, it didn't really impinge on my work or on my sporting activities or anything else I wanted to do. But after the accident, I have to be extremely careful because the slightest thing will trigger it off, like lifting something too heavy or playing golf was just too risky. So that's the difference between before and after, in my opinion.”[21]
(sic)
[20]T18, L8-10
[21] T50, L16-24
27The certainty with which he gave answers to these questions stood in marked contrast to his response to being shown clinical records of consultations in relation to neck pain prior to the accident. In the course of cross-examination, Mr Slocombe was taken to clinical notes of at least fifteen occasions on which he attended his osteopath, Dr Arnts, in relation to neck pain or headache prior to the accident. These consultations included:
(a) a consultation on 31 July 2014, in which neck and shoulder pain is described as a “[c]hronic complaint”, and there is a reference to ultrasound and x-rays on his right shoulder and neck;[22]
(b) a consultation on 1 August 2014, in which he describes experiencing “RHS Cx spasm”;[23]
(c) a consultation on 5 August 2014, in which he is described as “V. sore following golf on sunday and monday … Neck and LB worse now, on Rt side”;[24]
(d) references to headaches on 21 August 2014,[25] 2 September 2014,[26] 9 September 2014;[27] 17 April 2015[28] and 11 June 2015;[29]
(e) a reference to Dr Arnts explaining to Mr Slocombe “that he seems to be aggravating his Rt Cx pain and Lt LB pain with each time he plays golf;[30]
(f) a note on 23 April 2015 that he would be getting a CT scan of his neck and shoulders and would be seeing his GP next week;[31]
(g) a description of his neck being “so sore yesterday he had to lie down, usually this improves after 1 hour with heat … Shoulders are always sore”.[32]
[22] Defendant’s Court Book (“DCB”) 77-78
[23] DCB 76
[24] DCB 76
[25] DCB 74
[26] DCB 75
[27] DCB 75
[28] DCB 69
[29] DCB 66
[30] DCB 73
[31] DCB 68
[32] DCB 67
28He was also taken to:
(a) clinical notes for a different osteopathic practice, Doctors of Osteo, which recorded a consultation on 18 December 2015, in which he described right neck pain referring into the shoulder blades;
(b) clinical notes for his GP:
(i)on 11 August 2011, in which he was prescribed Panadol Osteo and told to apply gentle massage and local heat to his shoulders;[33]
(ii)on 18 November 2014, in which he is recorded as seeing an osteopath for “chronic neck and back pain”;[34]
(iii)on 24 February 2015, in which he received a referral to his osteopath and was described as having “[s]ymptomatic neck OA” which “increases his general lethargy and lack of ability to exercise/maintain fitness etc”;[35]
(iv)on 25 April 2015, in which he was described as having “[n]eck and shoulder pain for years and USS done of shoulders … Also wants to do a CT of his neck”[36] and was prescribed Mobic capsules.
[33] DCB 16
[34] DCB 26
[35] DCB 27
[36] DCB 28
29When shown these clinical notes, Mr Slocombe repeatedly professed a lack of any recall of the consultations and, therefore, an inability to either confirm or deny that the treatment described in the notes took place. He could not recall how he came to have a CT scan of his neck. He said he was unaware of having sought treatment from a medical practitioner (other than an osteopath) for his neck. He did not know whether he had chronic neck pain in November 2014, as described in his GP’s clinical notes. He had no recollection of having neck pain so severe he had to lie down. He sought to dismiss his consultations with osteopaths as having aches and pains and being “pampered”.
30He was unable to explain why his first three affidavits did not provide details of his pre-existing neck and shoulder pain, beyond asserting that he answered the questions put to him by his lawyer, and they were ultimately prepared by his lawyers.
31The fourth affidavit made some disclosure of pre-existing neck and shoulder pain and treatment. However, even that affidavit, when taken together with his oral evidence and documents tendered at trial, indicated a lack of reliability in his evidence. For example, he asserted in his fourth affidavit and oral evidence that, before the accident, he regularly played golf twice per week. In fact, golf records for the year prior to the accident recorded him regularly playing once a week, only occasionally playing twice or more per week, and in some weeks not playing at all. As I have already noted, in oral evidence he responded “[n]ot at all” to the question of whether his neck pain interfered with playing golf. This is contradicted, not only by the clinical records of his osteopath, but also paragraph 26 of his fourth affidavit, in which he states:
“… I continued to play golf and go on golf trips, although playing golf did hurt my neck on occasions. I was driving a lot and on occasions this made my neck pain worse.”
(Emphasis added.)
32I am conscious that clinical notes are not always accurate records of what occurs in the course of a busy practice. I am also conscious of the reality that affidavits tend to be drawn by lawyers on instructions. However, the detail and number of Mr Slocombe’s consultations in relation to neck and shoulder pain prior to the accident cannot fairly be described as mere “aches and pains” which benefited from being “pampered”.[37] Nor can his failure to properly disclose that neck and shoulder pain be satisfactorily explained away as a failure by a solicitor to ask the right questions, particularly in a context of detailed disclosure of Mr Slocombe’s prior medical history in other respects. Even if, as Mr Slocombe asserted at one point, he simply “signed the affidavits as they were put to”[38] him, this, in itself, would draw into question the reliability of what is contained in those affidavits as a whole.
[37] T43, L26-27
[38] T46, L10-11
33There are two explanations for the lack of express reference to neck pain prior to the accident in Mr Slocombe’s first three affidavits which are more plausible than the one provided by Mr Slocombe under cross-examination. The first is that Mr Slocombe lacked any accurate recollection of the extent of his neck and shoulder pain prior to the accident. The second is that Mr Slocombe sought to downplay his prior history of neck pain, because he believed that doing so would further his case. Whichever is the case, I have concluded that Mr Slocombe is not an accurate historian in relation to his neck and shoulder pain and headaches prior to the accident. Mr Slocombe’s evidence in relation to this issue is not sufficiently reliable to be accepted.
34The accuracy of Mr Slocombe’s description of his current symptoms was also impacted by having a symptom focus and a tendency to making self-serving absolute statements. For example, when assessed by Associate Professor Peter Doherty on 19 June 2023, he complained that his sleep was affected, not just by his neck pain, but also by his shoulders and lower back pain.[39] He confirmed that this was the case in cross-examination.[40] However, in his fourth affidavit, he attributes his poor sleep entirely to his neck pain. His explanation for this was again that “I just answer the questions that are put to me, they make the affidavit for me and I swear it”.[41]
[39] PCB 232
[40] T44, L4
[41] T44, L25-26
35On the other hand, Mr Slocombe frankly admitted that his elbow pain has recovered and abandoned that aspect of his claim. He has also undergone denervation procedures which he describes as brutal. I have had regard to the generally positive comments made by the medical experts in relation to the consistency of Mr Slocombe’s currently-reported symptoms with his presentation. I have also borne in mind that there is a distinction between being able to honestly report on current symptoms and providing reliable evidence of past symptoms.
36I accept that Mr Slocombe currently experiences neck pain and headaches which can be quite severe at times, although the denervation procedure is effective to reduce its severity. I also accept that, when severe, those symptoms are sufficient to reduce his capacity to play golf, and has an impact on his sleep and the performance of day-to-day activities.
Medical evidence
37I turn, then, to consider the expert medical evidence relevant to the question of the extent to which the accident aggravated Mr Slocombe’s neck condition.
38Mr Slocombe relied heavily upon two reports by Mr Peter Wilde, medico-legal orthopaedic surgeon. However, it is apparent from his report that Mr Wilde relies upon an inaccurate history given by Mr Slocombe, stating:
“… He made light of a pre-existing history of occasional neck and back stiffness for which he consulted an osteopath. He had never sought medical care for this and it had never interfered with his work or lifestyle, including golf and tennis.
…
… He kept working but found that the persistent symptoms interfered with his ability to perform his job. He told me that he had to stop playing tennis and golf. He was playing at Peninsula Golf Club twice a week and now he misses this activity. He has not played since the motor vehicle accident.”[42]
[42] PCB 177-178
39The clinical records demonstrate that Mr Slocombe had consulted his GP in relation to his neck pain and that there had been at least some interference with his golf prior to the accident. Further, the golf records tendered in evidence do not support his assertion that he played golf twice per week, nor that he has not played golf since the accident. Counsel for Mr Slocombe submitted that Mr Wilde’s report should nevertheless be preferred because Mr Wilde discloses his chain of reasoning:
“I am of the view that Mr. Slocombe’s current persistent symptoms in his neck and low back and right elbow were materially contributed to by the motor vehicle accident. He has reported symptoms constantly since the motor vehicle accident despite adequate and appropriate treatment. … .”[43]
[43] PCB 184
40The difficulty for Mr Slocombe with this contention is that the chain of reasoning provided by Mr Wilde is not consistent with the evidence before the Court. The clinical notes do not support Mr Wilde’s assumption that Mr Slocombe has reported symptoms constantly since the motor vehicle accident despite adequate and appropriate treatment. To the contrary, the clinical notes reveal that Mr Slocombe had a few initial occasions of treatment from his GP and his osteopath for neck pain after the accident and was prescribed Mobic by his GP. However, he ceased taking Mobic in May 2016;[44] and had a break of nearly one-and-a-half years from receiving osteopathic treatment from Dr Arnts between April 2017 and September 2018.
[44] DCB 30
41Mr Slocombe’s fourth affidavit states that his neck pain “seemed to wax and wane”. Mr Slocombe admitted, in cross-examination, that it was his elbow and eyesight that was the major concern in February 2016, rather than his neck.[45] He also admitted playing golf on three or four occasions after the accident. There is also a reference in the clinical notes to a further occasion on which his neck had been better and he played golf and “[h]it some really good shots” in October 2016.[46]
[45] T26, L23ꟷ T27, L2; see also T28, L31 – T29, L5
[46] DCB 55
42Further, in February 2016 (i.e., some two months after the accident), Mr Slocombe was involved in establishing a new drycleaning business which, according to the evidence of his partner, started off well, but was detrimentally impacted by a “gradual decline” in Mr Slocombe’s physical and mental health.[47] That business appears to have been very demanding. Thus, for example:
[47] Affidavit of Gayle English paragraph [17] at PCB 36
(a) Associate Professor John Drago, a consultant neurologist, records that:
“… He is no longer playing golf or having lunches with friends but this may relate to his engagement with his dry cleaning business and the need to focus on this. … .”;[48]
[48] PCB 48
(b) the notes of clinician Dr Travis English on 19 September 2018 describe a “[t]ypical day” as being “pick-up deliveries, 7am(ish) (2.5 hours on the road), gets home around 6pm”;[49]
(c) on 5 October 2018, Dr Arnts describes Mr Slocombe as “[h]as been really good until today … Driving is more comfortable … Been ‘snowed’ under with work. Many long hours in front of computer”;[50]
(d) on 5 November 2018, Dr Arnts records Mr Slocombe as having had a:
“Huge weekend- painting, rubbish removal. Alot (sic) of heavy lifting and load
…
Actually responded quite well to the exercise and movement
Continuing to improve
No headache this morning and woken really well”.
[49] DCB 44
[50] DCB 42
43The objective evidence provided by the clinical notes thus supports neither Mr Wilde’s assumption in relation to the severity of Mr Slocombe’s pre-accident symptoms, nor his assumption that Mr Slocombe has experienced constant symptoms since the accident.
44My concerns in relation to the history relied upon by Mr Wilde are also applicable to the reports of treating pain physician, Dr Murray Taverner. Dr Taverner first saw Mr Slocombe in 2019, nearly four years after the accident. He notes, in his first report, that Mr Slocombe “had some investigation for neck and shoulder pain before the motor vehicle accident”,[51] however there is nothing in Dr Taverner’s reports to suggest that he was aware of the extent of Mr Slocombe’s pre-existing neck pain and headaches, or the fluctuating course of his treatment and symptoms after the accident. To the contrary, the history he takes from Mr Slocombe is that:
“… Since this accident he has experienced upper neck and debilitating fronto-occipital headache that has affect (sic) his memory, concentration, caused depression with features of PTSD.”[52]
(Emphasis added.)
[51] PCB 67
[52] PCB 83
45In the circumstances, I prefer the evidence of the medico-legal orthopaedic surgeon retained by the defendant, Mr Michael Dooley. Mr Dooley records that he was told by Mr Slocombe that he had been “generally fit and well in the past”.[53] However, he notes that “[i]t is evident that prior to the motor vehicle accident Mr Slocombe had been aware of chronic neck pain over many years”.[54] His report is balanced, acknowledging some aggravating effect of the car accident on Mr Slocombe’s symptoms of neck pain:
“… A doctor learns never to say never and never to say always. While I accept that consequent upon the musculoskeletal injuries sustained in the motor vehicle accident, Mr Slocombe will note some ongoing intermittent neck pain and intermittent right elbow pain, I believe that much of his ongoing symptomatology relates to the natural evolution of underlying degenerative disc change. I remain of the view that it is important for Mr Slocombe to remain generally active and to undertake regular low impact exercise.”[55]
[53] PCB 206
[54] PCB 207
[55] PCB 213
46He concludes:
“From an orthopaedic point of view, Mr Slocombe’s ongoing symptoms relate mainly to the cervical spine. I believe that the soft tissue injury that he sustained to his cervical spine in the motor vehicle accident contributes to ongoing symptoms in this regard. I believe that in the main, ongoing symptoms relate to natural evolution of the underlying degenerative change.”[56]
[56] PCB 213
47This opinion accords with the objective evidence outlined above, which demonstrates a pre-existing history of neck pain and headaches, a worsening of neck symptoms immediately following the accident, but then a break from osteopathic treatment lasting for many months and a concurrent capacity to work very intensely in a new business, albeit one which could not be sustained, as Mr Slocombe’s mental and physical health “gradually”[57] declined. I accept Mr Dooley’s opinion.
[57] Affidavit of Gayle English, paragraphs [17]-[19] at PCB 36
Serious injury
48To be granted leave to sue for damages, Mr Slocombe must establish that he has suffered a long-term impairment of his spine which is “very considerable and certainly more than ‘significant’ or ‘marked’”. The burden of proof lies upon Mr Slocombe.
49I have accepted the opinion of Mr Dooley that the accident may have had some contribution to Mr Slocombe’s ongoing symptoms, in the form of intermittent neck pain. However, I also accept his view that the main cause of Mr Slocombe’s ongoing symptoms is the natural evolution of his underlying degenerative condition.
50In all the circumstances, I am not satisfied that Mr Slocombe has ceased playing golf by reason of an aggravation to his neck condition caused by the accident. I am not satisfied that Mr Slocombe’s sleep has been negatively impacted by reason of an aggravation to his neck condition caused by the accident. I am not satisfied that Mr Slocombe’s capacity to perform the usual activities of daily living, such as self-care, housework and driving, has been negatively impacted by reason of an aggravation to his neck condition caused by the accident.
51I accept that, for some months after the accident, Mr Slocombe required additional osteopathic treatment and medication by reason of the accident. However, I am not satisfied that Mr Slocombe’s need for long-term medical treatment and medication has been significantly increased by reason of an aggravation to his neck condition caused by the accident.
52I am not satisfied that any adjustment disorder, or other psychiatric condition, suffered by Mr Slocombe consequent on his neck pain, is attributable to an aggravation of his neck condition caused by the accident.
53I am not satisfied that the consequences of any aggravation of Mr Slocombe’s neck condition caused by the accident are “very considerable”. I am not satisfied that Mr Slocombe has suffered a serious injury. The proceeding is dismissed. I will hear from the parties on the question of costs.
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