Smith v TAC
[2010] VCC 473
•3 May 2010
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MILDURA
CIVIL DIVISION
DAMAGES-COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-06018
| NEVILLE IAN SMITH | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Mildura |
| DATE OF HEARING: | 12 and 13 April 2010 |
| DATE OF JUDGMENT: | 3 May 2010 |
| CASE MAY BE CITED AS: | Smith v TAC |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0473 |
REASONS FOR JUDGMENT
---
Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986 – Section 93 – injury to the spine
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Keogh SC and | Ryan Legal Services Pty Ltd |
| Mr B Anderson | ||
| For the Defendant | Mr W R Middleton SC and | Solicitor to the Transport |
| Ms A Ryan | Accident Commission | |
| HER HONOUR: |
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to section 94(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 8 April 2003 (“the said date”).
2 Section 94(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied
that the injury is a serious injury.”
3 The definition of “serious injury” relied upon by the plaintiff is under s.93(17)(a) – “a serious long term impairment or loss of a body function”.
4 The body function relied upon by the plaintiff in this application is the spine.
5 The inquiry under sub paragraph (a) of the definition focuses attention, firstly, upon whether the injury has produced an organic impairment or loss of body function; and then, secondly, by reference to the consequences of that impairment, whether it is serious and long term.
6 The serious injury defined by sub paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that a mental disorder can of itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.
7 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR 129, at 140-1.
8 The plaintiff relied on two affidavits and gave viva voce evidence. He was cross-examined. The plaintiff’s wife Leanne Smith swore an affidavit on 12 April 2010. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
9 The plaintiff is a married man aged fifty three, having been born on 21 June 1956. He resides in Mildura and has two adult children.
10 The plaintiff left school at the age of fifteen and was first employed as a factory labourer. He then worked in various labouring jobs over the years, including working at International Harvester in Dandenong for about twelve years. He later worked as an interstate truck driver.
11 In cross-examination, the plaintiff agreed that he had had a problem with his left hip since childhood but he denied the resultant limping gave him back pain. Further, he denied telling his physiotherapist, Ms Cooke, that he had a past history of neck pain.
12 The plaintiff moved to Mildura in 1989 and commenced work as a full time truck driver with Shell in 2002 at the Mildura depot.
13 As part of that job he had to undertake a two day defensive driving course at Shepparton on 8 and 9 April 2003 (“the course”). The plaintiff together with two other truck drivers from Shell completed the first day of the course.
14 On the second day, whilst a back seat passenger in a truck driven by a fellow worker who was under instruction (“the driver”), the plaintiff suffered injury when the driver lost control of the truck, rolling three times and knocking the plaintiff unconscious (“the accident”).
15 The next thing the plaintiff can recall was waking up out in the dirt and the driver being badly injured. In cross-examination, the plaintiff confirmed that at the time of the accident he was wearing a seatbelt. He did not know what happened; he was unconscious. The driver died a few months after the accident. The instructor died in the accident.
16 Photographs from the Major Collision Investigation Unit relating to the accident were tendered by the plaintiff.
17 The plaintiff and the driver crawled up the hill to get help, waiting for an ambulance. The plaintiff was ultimately taken to the Wangaratta Base Hospital where he was kept overnight. He underwent x-rays of his back and neck and he was advised that he had suffered a fracture of L3 and L4 vertebrae.
18 When he returned to Mildura, the plaintiff attended his regular general practitioner, Dr Murphy, whom he had been seeing for many years. Dr Murphy certified him unfit for work. The plaintiff was prescribed painkillers and referred to Jennifer Cooke for physiotherapy treatment.
19 The plaintiff was off work for about six months until returning to light duties doing light yard work. He then slowly got back to driving trucks.
20 Until mid 2007 when he was retrenched when the depot closed, the plaintiff continued working for Shell but did so with ongoing neck and back pain. He continued to take anti-inflammatory medication and used heat bags to help him get through his work. The plaintiff then found work as a truck driver with BP.
21 The plaintiff deposed that his back pain became more severe during 2008 and he needed treatment and commenced seeing a chiropractor, Tony Alessi.
22 The plaintiff had suffered from knee pain from time to time over the years which worsened in 2008 as a result of which he required a right knee replacement. He has ongoing problems with his right knee and a lesser problem with his left knee.
23 The plaintiff worked for BP for about a year before being retrenched. In January 2009, he found work as a full-time truck driver with Scott’s Transport, delivering fuel for Mobil from its Mildura depot.
24 The plaintiff has great difficulty coping with his work with Mobil. His job with BP was much easier because it involved driving to Adelaide and there was very little manual work.
25 His current job involves much more manual work. He is required to deliver diesel and petrol to farms. He has to climb ladders and drag hoses, and climb in and out of a truck on a regular basis. He also has to walk over uneven ground at rural properties.
26 The plaintiff has problems in the performance of day-to-day work, even just climbing out of the truck and climbing ladders, causing aching in his back. When he fills the tanker he has to stand on the top of the truck and hang on to ladders. This task takes about an hour and he experiences problems with back pain when standing hanging on to the ladders.
27 The plaintiff continues to suffer ongoing back and neck pain. Movement of his neck is restricted which makes it hard to drive. His lower back pain is constant and increases with activity. He cannot stand or sit for long periods in one position. His back feels very stiff and if his pain worsens, he has to stop the truck, get out and move around. The plaintiff described the site of his back pain as in the middle of his back on his belt line in the area where he suffered the fracture.
28 The plaintiff continues to take the anti-inflammatory Anaprox daily. He has been prescribed Panadeine Forte and tries not to use strong painkillers because they affect his driving and make him drowsy.
29 The plaintiff’s ability to do even simple jobs around the house has been affected by his spinal injuries. He has become more withdrawn and has very little social life.
30 The plaintiff deposed that he is no longer able to play golf because of his back and he cannot walk far enough to get round the golf course. This was his main hobby and he misses it.
31 In examination in chief the plaintiff explained that he had played golf for about fifteen or twenty years before the accident. He was a member of Riverside Golf Club (“the Club”) and at the date of the accident he had a handicap of eight or nine. He was a committee man and captain of the Club for two years and played three to four days a week.
32 In addition to normal competition, the plaintiff played pennant golf, representing the Club. He often played golf with his wife. He also had a social life connected with his membership of the Club, attending every Friday night for dinner and also attending various social functions.
33 Since the accident, the plaintiff has played golf but not for the last two years. In that time, he did not play as regularly as before the accident with the main restriction on his ability to play being his back.
34 The plaintiff’s right knee problems restricted his ability to frequently walk eighteen holes so he bought a golf cart with two friends. Using the golf cart, his knee did not restrict his golfing and if it was not for his lower back pain, he would still be playing now. He misses playing lot.
35 In cross-examination, the plaintiff thought his handicap was around eight to ten when he stopped playing golf two years ago. He was still putting in five cards a year to maintain his handicap. He agreed his handicap when he stopped playing was in the same vicinity as it was prior to the accident.
36 The plaintiff was unsure when he last played pennant golf. Initially he said it would have been before the accident but he could not remember for how long, but then said he might have played after the accident but he was not really sure. Further, he could not recall when he purchased the golf cart or when he in fact stopped playing.
37 The plaintiff was captain of the Club when he was about thirty nine, forty, or forty five; he could not remember. He was a member of the committee before the accident. The plaintiff is no longer a member of the Club. He probably stopped paying his subscriptions about the time he stopped playing.
38 Since the accident the plaintiff would have been lucky to play golf maybe once or twice a week but could not remember exactly how many times he had played.
39 The plaintiff stopped playing golf for a short time, perhaps for three months, when he had the second arthroscope on his right knee in 2005. He could not say how long before the knee replacement surgery in 2008 he had stopped playing. He has not played since that surgery but he disagreed he stopped playing because of it.
40 The plaintiff just could not play anymore because of his back. The problem is with his swing and twisting and he just could not keep going.
41 Since the accident, the plaintiff has been affected by what he saw at the accident scene, particularly the image of the driving instructor hanging out the side of the truck. The plaintiff had never seen a dead person before the accident. He tries not to think about the accident but has a lot of time to do so while driving. He also thinks it could easily have been him. Everything makes him feel sad and he is very frustrated.
42 The plaintiff underwent some counselling organised by his employer following the accident. In cross-examination, he ultimately said he thought he would have similar treatment in the future. The plaintiff denied he is not overly troubled by accident reminders.
43 During 2009 a further CT scan and x-ray of the plaintiff’s back was undertaken on the recommendation of a medico-legal examiner.
44 In late January/early February 2010, the plaintiff was forced to take a week off due to increasing back pain. His lower back has got worse and can flare at any time. He gets sharp pains if he moves the wrong way and he has lost movement and strength in his back. His neck pain has also worsened and he continues to suffer ongoing knee pain, particularly in the right knee.
45 The plaintiff does not think his spinal injury has ever recovered. He has not had treatment because it was never suggested. In general, “he just put up with things.”
46 The plaintiff agreed he had had treatment for his right knee in September 1990 from Mr Lewis in relation to a football injury. The plaintiff stopped playing football when he was about thirty six or thirty eight.
47 The plaintiff confirmed he had undergone two arthroscopes and two further surgical procedures on his right knee. He agreed there was “a build up” to the knee replacement surgery in November 2008 and that he did not rush into it.
48 Since that surgery, his right knee symptoms are not as bad as they were but he thought it would be a lot better than it is. He takes Anaprox for his right knee and his back. He has been taking it since the time of the first arthroscope in 2002. He started taking Panadeine Forte last year and takes it when his back pain gets bad enough but he denied he took it for knee pain.
49 The plaintiff denied that he was starting to get more significant symptoms in his left knee. His back pain is much worse than his right knee pain and it impacts on his activities more than his knee condition. He now weighs about one hundred and thirty kilograms. Around the time of the accident, he weighed one hundred and ten to one hundred and twenty kilograms.
50 The plaintiff was cross-examined about a number of attendances with Dr Murphy from April 2003 to May 2009. The plaintiff agreed that during that time he attended in relation to problems unrelated to his spinal condition and did not mention his back pain to Dr Murphy.
51 In July 2006, the plaintiff asked Dr Murphy for a letter supporting his need for a cart to play competition golf because of his knee condition.
52 The plaintiff could not recall what was the cause of his complaint on 20 August 2007 of a “left acute wry neck for seven days”. The plaintiff agreed that in February 2009, Dr Murphy prescribed Anaprox for his knee.
53 On 22 May 2009, the plaintiff did complain to Dr Murphy of a bad back for the last four or five months and that he was walking with a limp. Before that time, the plaintiff had not complained to Dr Murphy about his back because he just put up with it. He disagreed that he had had very little treatment for his back since the accident and then he agreed he had no cause for treatment until May 2009.
54 The plaintiff agreed he had not had any investigations between 2003 and 2009, nor had he been referred to any orthopaedic surgeon for treatment.
55 The plaintiff agreed that he had treatment from Ms Cooke, physiotherapist, for his neck for only two or three months. He then undertook a gymnasium program. His neck got better and improved to the point where he could return to driving and playing golf.
56 In his post-accident work with Shell, the plaintiff started work at 7.30 am and finished between 3.00 and 6.00 pm, depending on the season and how busy it was. Roughly he worked forty five to fifty hours a week. He agreed there was a lot of bending and ladder work involved in that job and also in his present job where he works similar hours, although no overtime. The plaintiff agreed he had a little bit of a problem doing ladder work because of his knee.
57 Sometimes the plaintiff may work a twelve hour day in his present job. He is required to drive up to three hundred and fifty to four hundred kilometres in a day. The longest single journey would be an hour and a half drive to the mine.
58 The plaintiff had problems driving to Adelaide whilst working for BP. He had to get out and have a rest over the four hour journey. Prior to the accident he had no problems driving.
59 In re-examination, the plaintiff said at the end of a long driving day he feels pretty tired and sore in his back. If he drives for an hour and a half he would probably stop and get out and have a walk on the way because of his sore back. He “just does his work and that is about it”. He will not continue with his present job for more then four or five years if he can find something else because he does not think he would be able to do it but he does not know what else he could do.
60 The plaintiff’s gross earnings before and after the accident were as follows:
Financial Year Gross Income 1999-2000 $46,555.00 2001-2002 $42,920.00 2002-2003 $42,862.00 2003-2004 $49,766.00 2004-2005 $45,398.00 2005-2006 $55,880.00 2006-2007 $57,024.00 2007-2008 $61,485.00 2008-2009 $46,910.00
Lay Evidence
61 The plaintiff’s wife, Leanne, swore an affidavit on 12 April 2010. She and the plaintiff have been married since 1980.
62 Since the accident the plaintiff has changed from being placid and easygoing to moody and grumpy. He seems unhappy about his life and has lost his main hobby of golf. The plaintiff often seems to be in pain, struggling with getting off the couch or turning over in bed, keeping them both awake. He often rubs his back as if in pain and he struggles around the house with household tasks.
63 After the accident, they ceased playing golf together. The plaintiff tried to play golf but he struggled and could not play regularly or as often because of his back and neck problems.
64 Some years later he began to experience problems with his knee and as a consequence, his friend purchased a golf cart with him. Eventually the plaintiff was forced to give up golf because he could not turn and swing a club properly because of his back. Ceasing golf has been a huge loss to him.
65 Since the accident and stopping playing golf, she and the plaintiff have played lawn bowls together for a few seasons in a corporate bowls competition. This was a big step down for the plaintiff from playing golf and he plays under huge sufferance and struggles with playing and sometimes he cannot play at all because of his back pain.
The Plaintiff’s Medical Evidence
66 Following the accident, the plaintiff initially saw Dr Murphy on 10 April 2003. On examination in July 2003, Dr Murphy thought the plaintiff would be able to return to driving in August 2003.
67 When Dr Murphy reported in September 2009, he noted that the plaintiff continued to have trouble with his back and that the recent x-ray showed localised osteophytes. He mentioned that the plaintiff had not expressed a lot to him about psychiatric injury, although he had had episodes of excessive alcohol which certainly could, in Dr Murphy’s view, be related to stress caused by the accident.
68 Dr Murphy noted the plaintiff had been back at work for several years in his normal capacity as a driver. Beyond physiotherapy and exercise the plaintiff had had treatment mainly with regard to pain relief and anti-inflammatory tablets using Panadeine Forte and Anaprox.
69 Dr Murphy considered that the plaintiff would continue to have ongoing problems with both his neck and lower back on a lifelong basis. He noted it was becoming clear the plaintiff was finding it more and more difficult to do his normal duties of working as a truck driver, particularly climbing in and out of his truck and certainly doing any heavy loading. He commented that it may well be that the plaintiff will need to change his occupation.
70 Dr Murphy most recently reported on 12 February 2010. He noted that since he reported in September 2009, the plaintiff had had some issues with his neck and back.
71 On 1 February 2010, the plaintiff had severe back pain on the weekend for which Dr Murphy prescribed more potent pain relief. He noted the plaintiff had suffered a right knee injury in December 2009 as he stepped out of his truck at work and that injury seemed to have settled over a few weeks.
72 The plaintiff also presented on 4 January 2010 with an acutely inflamed stiff neck. It was treated and resolved over a short period of time. In Dr Murphy’s view, the plaintiff preferred to adopt a “stiff upper lip” approach in relation to any post-traumatic stress symptoms that were described by the plaintiff in his affidavit.
73 The plaintiff was examined for medico-legal purposes by Mr Brearley, orthopaedic surgeon, on 26 October 2009.
74 The plaintiff told him he had constant discomfort or pain in his neck, made worse by turning his neck when driving. By the end of the day he was having very considerable back pain.
75 The plaintiff also complained of constant low back pain made worse by bending and stooping and with prolonged sitting and standing. He was unable to walk long distances and could not do any heavy lifting. The plaintiff was then taking Anaprox and having no physical treatment.
76 The plaintiff told Mr Brearley he had problems with gardening and house maintenance and he could not do heavier household tasks. He could not service his own car because he could not bend for long or get into awkward positions required. The plaintiff also told Mr Brearley that he was unable to play golf.
77 On examination, there was no tenderness or deformity of the cervical spine. There was some restriction of movement. There was no deformity or tenderness of the thoracolumbar spine but there was fairly marked limitation of movement. Straight leg raising was to sixty degrees on both sides. Deep reflexes were normal, as was sensation, except in the area of the knee replacement.
78 In Mr Brearley’s view, the plaintiff had suffered a soft tissue injury of the cervical spine in the accident. The plaintiff also had fractures of the right transverse process of the third and fourth lumbar vertebra and a laceration of the left wrist and hand.
79 Mr Brearley considered the plaintiff’s impairment was organically based and there were no suggestions of exaggeration or functional overlay. He thought that the plaintiff had had some post-traumatic stress which did not appear to be impacting on his organic symptoms.
80 Mr Brearley considered the plaintiff’s impairment would make it difficult for him to continue with his usual job and other suitable employment. He considered it unlikely, if the plaintiff were to lose his present job, he could find suitable work because of his lack of experience and also his age and ongoing disability.
81 Mr Brearley provided a supplementary report, having been provided with spinal investigation reports. Having considered these investigation findings, his impairment assessment was not altered and he further noted he agreed with Dr Murphy’s opinion.
82 Mr Brearley re-examined the plaintiff in March 2010, at which time the plaintiff reported that there had been no change in his condition and he was continuing to take Anaprox.
83 As on the previous examination, there was some restriction of movement of the cervical spine and marked limitation of movement of the thoraco lumbar spine. There were similar findings as to the legs as on previous examination.
84 Mr Brearley had available to him CT scans of the cervical and lumbar spine taken on 2 November 2009.
85 Mr Brearley concluded that in the accident the plaintiff suffered significant injuries to his neck and back.
86 In his view, while the plaintiff was fit to do his present job fulltime, he was not fit for heavy manual labour or any job which would involve repeated bending, stooping and heavy lifting. He thought this limitation was permanent but he confirmed his earlier view as to the plaintiff’s prognosis, and noted the plaintiff’s neck and back pain certainly interfered with the plaintiff’s enjoyment of life.
87 On 21 February 2010, the Medical Panel concluded that the plaintiff had an eleven per cent whole person impairment relating to accepted head, neck, shoulders, back and hand injuries.
88 Dr Lester Walton, consultant psychiatrist, examined the plaintiff for medico- legal purposes in August 2009.
89 Dr Walton concluded the plaintiff was suffering from what was becoming an increasingly chronic Post-Traumatic Stress Disorder caused by the accident.
90 Dr Walton noted psychiatric treatment had been minimal in the form of three sessions of counselling. He thought further counselling was strongly indicated but mentioned the plaintiff was afraid of that prospect and he doubted the plaintiff would benefit by cajoling him in that direction.
91 Dr Walton considered that some thought might be given to the introduction of a mood stabilising agent such as a modern anti-depressant but he was confident that that would not produce a major amelioration of symptoms, but perhaps some better control.
92 Dr Walton noted from a psychiatric point of view the plaintiff did avoid driving precisely the same truck involved in the accident because it was anxiety provoking. Further, the plaintiff was finding it increasingly difficult to continue working because of his persisting physical difficulties. He noted the plaintiff had difficulty sustaining concentration and at times became geographically disoriented and was generally forgetful.
93 In Dr Walton’s view, there would not need to be very much further deterioration in the plaintiff’s cognitive abilities before questions would be raised about his fitness to drive. Further, Dr Walton noted there was an automatic concern about any person driving a truck who entertained suicidal thoughts, although even fleetingly.
Investigations
94 An x-ray of the lumbosacral spine was taken on 22 May 2009. It showed inter lumbar discs and the lumbosacral discs were all of normal height and no underlying fracture or spondylolisthesis was present. The sacroiliac joints appeared normal and there was osteophytic lipping seen at L3-4.
95 X-rays of the lumbar spine and right knee were taken on 3 September 2009. There was satisfactory alignment of the lumbar spine. The vertebral body heights were preserved. There was narrowing of the L5-S1 disc space and no spondylolisthesis. The S1 joints were normal.
96 Corticated bone fragments were demonstrated adjacent to the medial femoral condyle of the right knee, likely related to previous surgery. It was noted there may be a small joint fusion.
97 A CT scan of the cervical and lumbosacral spine was taken on 2 November 2009. There was minor degenerative change anteriorly at C1-2, exit foraminal narrowing and minor facet joint degenerative changes. There was a minor broad based posterior disc bugle at L5-S1 and multilevel facet joint degenerative changes and no canal stenosis.
The Defendant’s Evidence
98 The Claim for Compensation signed by the plaintiff on 9 May 2003 set out the plaintiff’s accident injuries were two fractured vertebra, neck, bruised kidneys, lacerated head, possible unconsciousness, bruising and abrasions generally and stress, nervous anxiety and depression.
99 On the claim form the plaintiff noted he had been treated by a chiropractor or physiotherapist before the accident and had also had problems with his hip, knee or shoulder pain and arthritis before that time.
100 At the time of the accident the plaintiff was earning $1,210.00 gross per week, being an hourly rate of $17.29, together with overtime in the range of $700.00 a week.
The Defendant’s Medical Evidence
101 The plaintiff was examined by consultant neurologist, Associate Professor John Balla, in March 2009.
102 At that time the plaintiff described headaches, perhaps once or twice a week for a few hours and a numb feeling in the back of his head going to the top of his head. He told Professor Balla his neck was easier to move but still not moving completely normal. He got tired doing long trips. He also reported irritability with his wife and complaints of memory problems. He tended to be depressed at times and still thought about the accident and its potential implications.
103 Professor Balla thought tingling in the back of the plaintiff’s head spreading upwards was not related to the head injury directly, but rather to stretching the occipital nerves when the plaintiff suffered the neck injury. Professor Balla believed any headache the plaintiff had related to the after effects of the neck injury rather than the head injury. He noted there was a mild head injury with a brief period of retrograde amnesia and only a few minutes of post-traumatic amnesia.
104 Professor Balla thought that problems with irritability and depression related to emotional rather than physical injuries. From a purely physical point of view, he believed the head injury had no after effects and the plaintiff had made a good recovery.
105 Mr Buzzard, general surgeon specialising in spine and upper and lower limbs, examined the plaintiff for medico-legal purposes in March 2009.
106 The plaintiff told him of neck pain since the accident, which had remained stable for the last couple of years, and sometimes was associated with a sharp pain in the right lateral neck region. He told Mr Buzzard he was not taking any medication or having treatment for his neck, although he had had another lot of physiotherapy in 2008 which did not help.
107 The plaintiff also complained of a pins and needles sensation in his scalp since the accident, which was annoying but did not bother him in any other way. The plaintiff had had low-back pain since the accident which had been getting worse recently but he was not having any medication or treatment. His back pain was such that he could not walk for more than fifteen minutes.
108 On specific questioning, the plaintiff told Mr Buzzard he had headaches involving the frontal region of his head about twice a week, lasting for five to ten minutes, which he had been getting for a couple of years. He used to have dizzy turns but not anymore.
109 On examination, lateral flexion and rotation of the cervical spine was reduced. There was diminished sensation to touch extending from the posterior aspect of the scalp, forward in the distribution of the greater occipital nerves on both sides.
110 Straight leg raising tests were bilaterally negative. There was some restriction of lumbosacral movement.
111 There was no abnormality in the shoulders nor any neurological abnormality. It was noted the plaintiff had osteoarthritic changes to the small joints of both hands.
112 In Mr Buzzard’s view, the plaintiff suffered from a head injury and loss of consciousness as a result of the accident. There also appeared to have been a short period of retrograde and a short period of post-traumatic amnesia due to concussion. He thought the plaintiff had made a good recovery from that and did not think his current headaches were related to his head injury.
113 Mr Buzzard thought the plaintiff suffered from a minor spinal fracture as a result of the accident. He noted such fractures heal well without significant residual disability.
114 In Mr Buzzard’s view, the plaintiff’s major problem was his underlying osteoarthritis, affecting his peripheral joints, particularly his knees and hands, and also his spine. He thought it highly likely the plaintiff had evidence of degenerative disease in his spine at the time of the accident but he would need to see the earlier imaging. He thought, in other words, there was an aggravation of a pre-existing degenerative disease in both the neck and back as a result of the accident. In the absence of imaging, he thought it more likely than not the plaintiff’s condition was now due to the underlying osteoarthritic process rather than the accident but nevertheless there was probably a component of the accident in his presentation given there were no problems before.
115 Mr Buzzard thought the complaint of pins and needles was indicative of problems associated with the greater occipital nerves in the distribution to the scalp which he thought was possibly affected by the accident but he did not think there was any indication for any particular treatment in this regard.
116 Mr Buzzard did not think the plaintiff was now suffering from a significant employment problem attributable to the accident. He noted that his work was now more physical and he had increasing problems with his knees. He thought it unlikely the plaintiff’s back symptoms had been a limiting factor.
117 The plaintiff was examined by orthopaedic surgeon, Mr John O’Brien, for medico-legal purposes on 9 March 2010.
118 The plaintiff complained to Mr O’Brien of constant low back pain, the severity of which was approximately three out of ten, and aggravated by prolonged sitting, standing or bending, or any twisting or walking. There was no associated pain radiating into the legs.
119 On examination, the plaintiff was noted to ambulate with a left short leg limp with there being an apparent fixed flexion deformity of the right knee.
120 There was restricted cervical movement and minimal cervical tenderness. There was a very definite painful arc of abduction of the right shoulder. The thoracolumbar spine was straight with a very mild lumbar lordosis. There was restricted movement. Passive straight leg raising was to sixty degrees bilaterally.
121 Mr O’Brien noted a definite shortening of the left leg and an effusion within the right knee, and also the left knee. Power and sensation in the lower limbs was normal.
122 Mr O’Brien diagnosed a fractured transverse process on the right at L3 and L4 and symptomatic cervical and lumbar spondylosis.
123 Mr O’Brien concluded the plaintiff now presented with definite restriction of cervical movement and limited movement in the lumbar spine associated with pain. He concluded the plaintiff’s current symptoms related to symptomatic spondylolisthesis of both the neck and back, shown on x-ray, which had been an ongoing problem since the accident, obviously worse in the lower back than the neck.
124 In addition, since the accident, the plaintiff’s physical activity had been somewhat compromised by his original right knee pathology and more recently it appeared he had persistent symptoms in the right knee and now present symptoms of osteoarthritis in the left knee.
125 Mr O’Brien thought the ongoing cervical and lumbar spine pathology was consistent with the stated cause and that the clinical condition appeared to have been fairly stable for a number of years, although the plaintiff now reported some recent exacerbation of pain requiring additional analgesics.
126 Given his relative limited cervical and lumbar movements, Mr O’Brien suggested the plaintiff may well benefit from a further course of physiotherapy and a subsequent exercise program that could be self-managed. Further, he thought the plaintiff could benefit from having a hydrotherapy program or physiotherapy. Mr O’Brien had little doubt that a three to six months’ program of active treatment would definitely improve the plaintiff’s physical performance.
127 Mr O’Brien thought the prognosis would be very guarded as this was likely to be a progressive problem with there being now fairly well established chronic pain, particularly in the lumbar spine.
128 Mr O’Brien concluded the plaintiff was significantly disabled by his overall disability and was affected by multiple pathological areas but there was no doubt the neck and back pathology was a source of moderate restriction of overall activity.
129 Further, Mr O’Brien considered the plaintiff’s continuing pathology had caused definite restriction in relation to his general domestic, social and recreational activities and that was undoubtedly a permanent situation.
130 Dr Serry, consultant psychiatrist, examined the plaintiff for medico-legal purposes on 9 March 2010. The plaintiff reported to him a significant psychological impact with memories of the accident, particularly when he was sitting for long times in the truck. Accident related dreams occurred once or twice a week and invariably involved seeing the body of his instructor hanging out the side of the truck. The plaintiff also described flashbacks of similar quality. The plaintiff was comfortable driving but not as a passenger, and was on alert.
131 Dr Serry noted that in general the plaintiff had become more stressed and anxious given his pain and limitations. The plaintiff described feeling tearful and much more emotional and said he was depressed. His motivation and interests were diminished. He could still get pleasure from being with mates at the hotel. He reported a reduction in libido and energy and generally felt tired but said his concentration was reasonably well maintained. No suicidal thoughts were reported. The plaintiff’s alcohol intake had increased somewhat. Prior to the accident he was not drinking every day of the week but he now drinks six stubbies per night every night.
132 On mental state examination, the plaintiff demonstrated a reduced affective range with underlying depressive themes. He was anxious and apprehensive and there were prominent post-traumatic anxiety features. There was no abnormality of thought stream or form but thought content revealed a marked preoccupation with the accident and in particular the experience of witnessing the instructor’s body. There were no psychotic features and cognitive assessment was unremarkable and insight was retained.
133 Dr Serry concluded from a psychological point of view that the plaintiff had been stressed, anxious, frustrated and depressed as a result of the accident and its sequelae. He had managed to return to work despite ongoing physical and psychological problems. The loss of his mother when he was aged six appeared to have sensitized the plaintiff to the effects of the subject accident but otherwise Dr Serry noted the plaintiff appeared to have a reasonably sound premorbid adjustment.
134 In Dr Serry’s view, diagnostically the plaintiff had a Post-Traumatic Stress Disorder, Chronic Adjustment Disorder with Anxious and Depressed Mood and secondary alcohol abuse.
135 Dr Serry considered the plaintiff’s prognosis was somewhat guarded given his persistent symptomatology, now seven years post accident. He thought the plaintiff could potentially benefit from referral for psychological or psychiatric treatment to assist him in coming to terms with the traumatic effects of the accident, and understanding the link between his psychological reaction thereto and the early trauma of losing his mother.
136 Dr Serry considered the plaintiff’s psychiatric injuries did not directly interfere with his ability to work but they did interfere with his domestic and leisure activities and would do so for the foreseeable future.
137 The defendant also tendered a number of documents from Dr Murphy’s clinical file.
138 On 12 September 1990 Mr Lewis orthopaedic surgeon wrote to Dr Murphy advising that the plaintiff had suffered damage to his right medial ligament and to his anterior cruciate ligament playing football.
139 Mr Gardiner wrote to Dr Murphy on 16 June 2006 advising that the plaintiff was at the end of his tether in relation to his right knee and that he was putting the plaintiff on a waiting list for knee replacement surgery.
140 Ms Cooke, physiotherapist, in an undated document, noted the plaintiff’s main problem following the accident was a neck injury and limited range of neck movement.
Overview
141 I accept that the plaintiff suffered an injury to his spine – namely fractures of the transverse process at L3 and L4 and a soft tissue injury to the cervical spine in what was a very traumatic accident.
142 I am permitted to aggregate these two spinal injuries which arose out the same accident and consider them as an impairment of the spine.
143 The relevant issue for consideration is the impairment not the injury. I note however little ongoing significance is attached to the lumbar fractures by medico legal examiners in this case. The fractures were not apparent in the 2009 investigations. Mr Brearley considered them of no clinical significance and Mr O’Brien attributed any ongoing spinal problems to spondylosis not the fractures. Further, whilst there is now a finding of a broad based disc bulge, the plaintiff makes no complaint of leg pain.
144 I accept that the plaintiff was asymptomatic before the accident and that he has not suffered any further trauma to his spine since that time.
145 The impairment to the spine must have consequences in relation to each of pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, as at the date of the hearing, as being more than significant or marked, and as being at least very considerable.
146 The term “serious” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against possible impairments not necessarily in the same category: see Humphries v Poljak [1992] 2 VR 129, at 170, and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. See in particular Chernov JA at paragraph 29.
147 In addition to being “serious” the impairment must be long term.
148 Although this application was brought in relation to the spine as a whole, more emphasis was put on the plaintiff’s lumbar condition as a cause of his present complaints.
149 Whilst it was not said to be “the sole part of the plaintiff’s case”, it was submitted by counsel for the plaintiff that the interference with golf following the accident did elevate the consequences of the plaintiff’s back impairment to a serious level.
150 I accept that prior to the accident the plaintiff was a very active golfer with a low handicap of eight or nine. Whilst it is unclear from his evidence whether he was still playing pennant at the time of the accident, or thereafter, he was playing three to four times a week including playing with his wife. He also had an active social life at the Club.
151 It had been some time however since the plaintiff had been Club captain. His evidence was unclear saying this had occurred perhaps when he was thirty nine, forty or forty five. Further, whilst the plaintiff had been on the Club committee, again this was some time before the accident.
152 The plaintiff returned to playing golf about six months after the accident. He had increasing problems with his knee leading to him purchasing a golf cart with some friends on a date he could not recall.
153 The plaintiff made a brief reference to interference with golf in his affidavit deposing that he was unable to play golf because of his back and cannot walk far enough to get around the course.
154 In cross-examination the plaintiff said that he played for five years after the accident until he stopped because of his back. He has not played since knee surgery in November 2008. He thought his handicap when he ceased playing was eight or nine. He confirmed that he had to put in five cards a year after the accident and that his handicap when he ceased playing was in the vicinity of his pre accident handicap and could have been ten.
155 The plaintiff was not re-examined in relation to his handicap at the time he ceased playing golf.
156 I am not satisfied that the plaintiff has had to cease playing golf because of any worsening of his back condition. The plaintiff did not have the need for treatment for his back at the time when he ceased playing golf, the date of which is uncertain. There was no complaint of a worsening of his condition to any doctors at that time. The plaintiff may well have played pennant since the accident, he was not sure. In any event he maintained a low handicap continuing to play regularly for five years or so after the accident.
157 Although the plaintiff has suffered no financial loss as a result of his accident injuries, it was submitted by his counsel that his employment capacity had been affected in terms of the matters considered by the Court of Appeal in State of Victoria v Glover to be serious, namely that the range of employment he is now capable of performing and will be capable of performing into the future has narrowed since the accident.
158 Whilst he may experience some difficulty with work duties at the present time and also in the years since the accident, save for an initial six months off and then return to light duties the plaintiff has been able to work full time in relatively difficult work involving prolonged sitting and in his jobs at Shell and Mobil, extensive ladder work.
159 The plaintiff has only required a week off work because of his spinal condition and that was in February this year. Prior to that time and thereafter no restriction has been placed by any doctor on the nature of the duties which the plaintiff can perform.
160 After the accident, the plaintiff continued working for Shell for two years up to ten or twelve hours a day climbing up and down tankers and ladders and filling the tankers with petrol. He left that job because he was retrenched not because of his spinal condition.
161 The plaintiff then commenced work with BP doing the Adelaide run. Of recent times the plaintiff has engaged in similar work with Mobil to that which he performed at Shell with the same type of hours, save for the amount of overtime with no restriction or need for time off, save for the week recently.
162 As Ashley JA stated in Dwyer v Calco Timbers Pty Ltd (No 2) (2008) VSCA 260, at para 27, the significance of what has been lost may be informed to an extent by what has been retained.
163 In these circumstances I do not accept that there have been any employment consequences of the plaintiff’s injury that meet the test of seriousness.
164 Whilst the plaintiff has experienced pain and discomfort in his back and to a lesser extent his neck at various times since the accident, I do not accept that these consequences meet the test of seriousness.
165 The plaintiff has had very limited treatment for his spinal injuries. Save for his initial back complaint, the focus of early treatment and in fact all physiotherapy treatment was in relation to the plaintiff’s neck injury. Such treatment was over six years ago and lasted for only two or three months until the plaintiff was fit to return to work in August 2003. There has been no further spinal treatment from that time until May 2009 when the plaintiff saw Dr Murphy.
166 The plaintiff is not a man who does not go to the doctor. I accept that on numerous attendances until May 2009 for unrelated problems the plaintiff made no mention of his back to Dr Murphy nor was he prescribed any medication in relation thereto. The plaintiff, when cross-examined, agreed he was not seeking treatment in that period. Further, the plaintiff’s general practitioner has not seen the need to refer the plaintiff to an orthopaedic or other specialist. Investigations undertaken of the plaintiff’s back in 2009 followed a request by a medico legal examiner.
167 In my view, the evidence supports Mr O’Brien’s comment that the plaintiff’s spinal pathology is moderate in its restriction of his overall activity.
168 Until quite recently, medication taken by the plaintiff has been predominantly for his knee pain which has been a problem for him which first led to surgery in 2002 and then in 2005 with more significant procedures being required in 2008, with problems persisting thereafter. The plaintiff had thought that his knee would be a lot better than it has been since the 2008 surgery.
169 The first prescription of Anaprox for the plaintiff’s back was in May 2009 and Panadeine Forte was first prescribed for his back pain late in 2009.
170 I accept that the plaintiff has had a psychological reaction to the horrific accident and although an application was not pursued under clause (c) I am entitled to take such an expected reaction into account when considering the seriousness of any impairment under paragraph (a).
171 It is the impairment not the injury that is the relevant consideration. Whilst the plaintiff’s back injury was a serious one, I am not satisfied the consequences thereof as at the date of hearing are serious and long term.
172 Accordingly, his application is dismissed.
- - -
0
1
0