Smith v Transport Accident Commission
[2019] VCC 269
•14 March 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-00970
| ROBERT JOHN SMITH | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 February and 1 March 2019 | |
DATE OF JUDGMENT: | 14 March 2019 | |
CASE MAY BE CITED AS: | Smith v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 269 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Neck injury – delayed reporting of the injury – whether the plaintiff suffered a neck injury – concurrent medical conditions – credit – whether the impairment consequences are “serious”
Legislation Cited: Transport Accident Act 1986
Cases Cited:Richards & Anor v Wylie [2000] VSCA 50; Acir v Frosster Pty Ltd [2009] VSC 454; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: The plaintiff’s originating motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person | - |
| For the Defendant | Mr G Lewis QC and Ms S Manova | Solicitor for the Transport Accident Commission |
HIS HONOUR:
Introduction
1 On 3 May 2012, the plaintiff suffered injury to his neck in a transport accident. As he entered a roundabout, the driver of another car entered it, colliding into the passenger side of the plaintiff’s car. His body was thrown to the left. As a result of the impact, he hit his head on the right-hand door pillar.
2 The plaintiff submits that he has suffered a serious long-term impairment or loss of the function of his neck, with pain radiating from his neck into his right upper limb.
3 The defendant submitted that there is some doubt about whether the plaintiff actually suffered a neck injury, and for a number of reasons has not suffered a serious injury.
4 The plaintiff appeared in person. Mr G Lewis QC of counsel appeared with Ms S Manova of counsel for the defendant.
5 After considering all the evidence, I am not satisfied that the plaintiff has suffered a serious long-term impairment or loss of the function of his neck.
The Plaintiff’s case
6 The plaintiff swore two affidavits on 9 January 2017[1] and 25 February 2019.[2] The former solicitors for the plaintiff forwarded an unsworn affidavit to the defendant. The defendant included it in the joint court book.[3] The purpose of its inclusion was its use in an attack on the plaintiff’s credit.
[1]Joint Court Book (“JCB”) 123-128
[2]JCB 133-136
[3]JCB 129-132
7 The plaintiff described experiencing pain almost immediately following the transport accident, but he did not specifically state where he was experiencing that pain. I assume it was in his head and neck because he then added that the pain “eventually travelled down my right arm to my fingers”.[4]
[4]JCB 125
8 The plaintiff saw Dr Tine, general practitioner, of the Tristar Medical Group, on 27 September 2012. According to his clinical notes, the plaintiff told him that he suffered injury to his right shoulder in a transport accident which occurred some six months beforehand. After that consultation, the plaintiff complained of right shoulder pain over the preceding two months which had worsened over the preceding week.
9 Dr Tine referred the plaintiff to have an x-ray and an ultrasound of his right shoulder. He prescribed him Voltaren Rapid. He next saw the plaintiff on 28 September 2012. He additionally prescribed Panadeine Forte, presumably for pain relief. He next saw him on 5 October 2012, when the plaintiff complained of right shoulder pain with pain radiating down his right arm and occasional neck pain. He referred the plaintiff to have a CT scan because of a suspicion of nerve root impingement in his neck.
10 Dr Tine’s clinical notes are incomplete. There is a clinical note of a subsequent consultation which does not contain the date of the consultation; however, it notes that the CT scan disclosed left C7 nerve root impingement. He noted, however, that the plaintiff’s symptoms of neck pain, radiating right shoulder and arm pain were right-sided, not left-sided, which called into doubt whether the nerve root impingement was of any clinical significance.[5]
[5]JCB 41. The content of the clinical notes is confirmed in Dr Tine’s report dated 29 November 2015 at JCB 182-183
11 The plaintiff last saw Dr Tine on 26 July 2014. In between the first consultation and the last consultation, he had prescribed him Voltaren, Panadeine Forte, Tramadol, Endep and Endone.[6] Dr Tine referred him to a physiotherapist and to Mr Etherington, orthopaedic surgeon.[7]
[6]Endep is prescribed for the treatment of psychiatric issues. The other medications are prescribed to treat musculoskeletal pain.
[7]JCB 182-183. The plaintiff did not obtain a report from any physiotherapist or Mr Etherington
12 The only reference to any treatment provided by Mr Etherington is in the plaintiff’s first affidavit. He was advised to have a cortisone injection. He could not lie down with both arms above his head for the purpose of undergoing the injection, with the result that it did not proceed.[8]
[8]JCB 126
13 The plaintiff has had very little medical treatment since leaving the care of Dr Tine. He next saw Dr Wissfeld, general practitioner, of the Corio Medical Clinic, on 18 February 2014. At that consultation, the plaintiff told Dr Wissfeld of his addiction to drugs and alcohol, and his ongoing depression and anxiety. The treatment which she formulated was directed to each of those medical problems.[9]
[9]JCB 60
14 The first reference to the plaintiff’s neck injury is a fleeting one on 8 May 2014 when the plaintiff saw Dr Wissfeld. She noted that the plaintiff had undergone a CT scan, MRI scan and an injection at The Alfred hospital Orthopaedic Clinic. The plaintiff did have a CT scan, but there is no evidence that he underwent an MRI scan and if the injection is the same injection which Mr Etherington advised, then it is clear from the plaintiff’s own evidence that he did not have it.[10]
[10]JCB 59
15 The plaintiff attended the Corio Medical Clinic for treatment for the right elbow and right knee injury on five occasions between 2 and 7 December 2014.[11] An ambulance record dated 29 November 2014 refers to an occasion when the plaintiff fell down stairs, injuring his right elbow and right knee.[12] The only subsequent reference to the neck injury occurred when the request was made by the plaintiff’s former solicitors for a medical report regarding injuries which the plaintiff suffered in the transport accident. The clinical note of 20 October 2015 reveals none of the medical practitioners at the Corio Medical Clinic had seen the plaintiff for such an injury.[13]
[11]JCB 58-59
[12]JCB 55
[13]JCB 58
16 The plaintiff’s treatment by medical practitioners at the Corio Medical Clinic came to an end after he had an altercation with one of them on 21 April 2017. An entry into the clinical notes dated 31 August 2017 refers to the medical history of the plaintiff being transferred to “Myhealth Medical Centre”.
17 The clinical notes of the Myhealth Medical Centre cover a period from 29 August 2017 to 5 December 2017. The only reference to the neck injury is at a consultation on 20 November 2017, when the plaintiff requested a medical certificate for three months for a shoulder problem.[14]
[14]JCB 61-64
18 The plaintiff says that he has neck pain which radiates into his right shoulder and right arm. He described the level of the variable pain as being between “2-7/10”.[15] Dr Tine prescribed the plaintiff the medication which I have referred to earlier, but there is no medical evidence pointing to the plaintiff currently receiving prescriptions for any painkilling medication.
[15]JCB 134
19 However, the plaintiff says that he is taking between four and six Panamax per day. He says he is frequently taking two OxyContin per day provided to him by unnamed friends. He takes Cymbalta to treat anxiety and depression.[16] He also says that he “was recently told by a surgeon that I may need a fusion of my neck”.[17]
[16]JCB 134-135
[17]JCB 135
20 There is no evidence to support a conclusion that the plaintiff needs to take any medication, and certainly not OxyContin. If the plaintiff has been given advice that he requires surgery, then that is of enormous importance to his case. There is no medical report or clinical note which supports the plaintiff’s statement that he has recently seen a surgeon and has been given any advice of that sort. None of the surgeons who have examined the plaintiff on a medico-legal basis support the notion that the plaintiff requires medication of the kind and quantity that he is taking, nor that he requires surgery.
21 Mr Doig, orthopaedic surgeon, examined the plaintiff on 11 August 2016. He found vague tenderness over the cervical spine on examination. He concluded that the plaintiff had suffered an aggravation of pre-existing asymptomatic cervical spondylosis. He did not consider that the disc prolapse shown on the CT scan was relevant; however, he considered that the plaintiff warranted a guarded prognosis, and that he was likely to continue to have “some troubles” which might be alleviated by conservative treatment.[18]
[18]JCB 20-22
22 Mr D’Urso, neurosurgeon, examined the plaintiff on 22 June 2018. He found weakness in the right upper limb, mild global weakness, and some restriction of movement in the neck. He considered that the plaintiff could well have aggravated an underlying degenerative condition in his cervical spine which precipitated the symptoms complained of by the plaintiff.[19]
[19]JCB 137-140
23 Mr Speck, orthopaedic surgeon, examined the plaintiff on 27 June 2018. He found restriction of movement in the base of the plaintiff’s neck. He considered that the degenerative changes in the cervical spine were unrelated to the transport accident. Otherwise, he considered that the plaintiff had sustained some soft tissue injuries which had resolved.[20]
[20]JCB 10-19
24 Dr Stark, neurologist, examined the plaintiff on 17 October 2017. He found restriction of movement in the plaintiff’s neck and no neurological deficit in his right upper limb. He considered that the plaintiff had suffered an aggravation of cervical spondylosis associated with referred pain into the right arm to the forearm and hand.[21]
[21]JCB 5-9
25 The preponderant view of the examining medical specialists is that the plaintiff has evidence of degenerative changes in his neck which was pre-existing. It is probable that the transport accident aggravated those degenerative changes, resulting in neck pain, and that what right upper limb pain he has is referred pain without a neurological cause.
26 It is evident that the histories given to each of the medical specialists is different; for example Mr Speck understood that the plaintiff had obtained medical treatment very soon after the occurrence of the transport accident, and Mr D’Urso understood that the plaintiff was unable to engage in a variety of activities because of the nature and extent of the impairment of function of his neck. For reasons which I think are now obvious, the plaintiff did not seek medical treatment for quite some time, and for the reasons which I will set out below, I do not accept that the plaintiff has suffered the degree of impairment consequences which he says he has.
The Plaintiff’s consequences
27 The plaintiff described significant consequences of the impairment of the function of his neck in both of his affidavits (ignoring his unsworn affidavit):
· Fluctuating pain in the neck with radiation into the right shoulder and arm varying from 2 to 7 out of 10 in degree.
· Burning pain in the arm every two days or so, with a hot feeling and throbbing.
· Pain worsened on reaching, presumably with the right arm.
· The need for medication, which I have summarised above.
· Interference with sleep.
· Difficulty engaging in surf fishing, bowling, competition darts, trailbike riding, gardening and undertaking domestic chores.
· An incapacity for work limited to the light work he undertook for a friend.[22]
[22]JCB 135-136
28 Additionally, the plaintiff relies upon his mental response to the impairment of function of his neck.[23] It is very difficult to determine whether the plaintiff has suffered any discernible mental response. The clinical notes of the Surf Coast Medical Centre commence with a consultation on 16 February 2004 through to 22 November 2011. They demonstrate that the plaintiff was consuming a significant volume of alcohol; using cannabis; suffering from anxiety; suffering significant interference with his sleep, and was treated by the prescription of different types of medication to treat his anxiety.[24]
[23]Richards & Anor v Wylie [2000] VSCA 50
[24]JCB 24-35, and also the letter of Surf Coast Community Mental Health Services dated 8 September 2008 at JCB 36-37
29 Tragedy struck the plaintiff when his son committed suicide. That event had a serious and dramatic effect upon the plaintiff’s mental well-being. He described his grief reaction resulting in him hitting drugs and alcohol very hard.[25]
[25]Transcript 38
30 The extent of the plaintiff’s drug and alcohol problems is clearly demonstrated by an assessment undertaken by Barwon Health Community & Mental Health on 8 May 2007. He was referred to that service because of his drug and alcohol use. He was using 3 to 5 points of ice a week, 3 grams of cannabis per day and having ten or more alcoholic drinks per day.[26]
[26]JCB 65
31 It was my impression from this evidence that the plaintiff’s resort to drugs and alcohol has been very longstanding and has continued to the present time at approximately the same levels. His mental state has been fragile at various times and has continued to be compounded by the loss of his son. From all of that, it is difficult to discern what his mental response to the impairment of function of his neck has been in order to determine whether it is a consequence that he can rely upon.
32 If the plaintiff’s physically-based consequences were taken at face value, then one might be driven to conclude that his impairment consequences are of some significance; however, the conclusion I have reached is that they are not.
33 Perhaps the most telling evidence against reaching such a conclusion is the film taken of the plaintiff on 5, 7 and 10 November 2018.[27] The film mostly comprised about 45 minutes of the plaintiff in his garden. It had previously been provided to the solicitors for the plaintiff. It was fast forwarded at points with the plaintiff’s approval. The most telling parts of the film are as follows:
[27]Exhibit 2
· Sawing a piece of flexible board with his right hand using a handsaw for some minutes.
· Vigorously sanding the edge of the flexible board with sandpaper for some minutes.
· Throwing an object forcefully involving a full rotation of his right arm at shoulder level with his right hand.
· Winding what appeared to be plastic coated wire around a tall steel bar using his right hand for some minutes.
· Vigorously pulling at a starter cord on a Whipper Snipper placed on the ground whilst leaning over it. He did that up to ten times. On a series of occasions he jerked on the cord three to four times in quick succession, paused and then repeated the same movements.
· Lifting a large television using both hands from his house into a car, although the plaintiff said that it comprised the casing for a television only.
· Holding a spray can in an elevated position with his right hand spraying an object for some minutes.
· Intermittently bending his upper spine and moving both of his arms freely at shoulder level throughout the period of the film.
34 The movements undertaken by the plaintiff were so vigorous and undertaken so often over an extended period of time that it is very difficult to reconcile what I saw on the films with the degree of disablement he described in his affidavits and what he told examining medical practitioners.
35 In Peak Engineering & Anor v McKenzie,[28] the Court of Appeal made it clear that where there are two different injuries concurrently producing pain and suffering consequences, that it will ordinarily be necessary to make findings about all the pain and suffering consequences which are operative at the date of the trial in order to determine which of the pain and suffering consequences are attributable to which injury.
[28][2014] VSCA 67
36 The defendant submitted that the plaintiff has a serious drug habit comprising daily use of ice and cannabis, and also the use of OxyContin which is a known opioid. The defendant submitted that the inference to be drawn from his serious drug habit is that it must, of itself, have consequences affecting his physical and mental health.
37 The plaintiff has been candid in his affidavits that he has been the victim of drug addiction for a very long time. Additionally, he has fallen into criminal conduct which has seen him serve a number of terms of imprisonment. The terms of imprisonment are of no consequence, but the drug addiction is. As a matter of commonsense, drug addiction affects the user’s physical and mental capacities. The plaintiff has not adduced any evidence to demonstrate what the pain and suffering consequences are of his drug use, if any.
38 There are a number of documents in the court book which refer to the plaintiff’s drug use. For example:
· A letter from the Magistrates’ Court of Victoria to Dr Wissfeld relevant to his use of illicit drugs and alcohol.[29]
[29]JCB 52
· The discharge summary of Cardinia Alcohol and Other Drugs Service undertaken by the Salvation Army referring to an admission to treat drug withdrawal.[30]
[30]JCB 53
· The clinical notes of the Corio Medical Clinic and the My Health Medical Centre (referred to earlier) demonstrate some aspects of the plaintiff’s use of illicit drugs and alcohol.
· The plaintiff’s reference in his first affidavit to the need for counselling when his son died, and the need for detoxification from drugs and alcohol.[31]
[31]JCB 126
39 The plaintiff suffered a number of symptoms which were diagnosed as pericarditis. Those symptoms included central chest pain, exacerbated by deep breathing. He was treated in the cardiology clinic of the Geelong Hospital.[32]
[32]JCB 68-69 and 70
40 Under cross-examination, the plaintiff said that he needed to be careful accepting that he has a “dickie heart”.[33] Under re-examination, which I conducted, he said that the heart condition does not affect his ability to garden and ride his bicycle which he rides up to 10 kilometres per day.[34]
[33]Transcript 47
[34]Transcript 65
41 However, a condition which is supervening, such as the plaintiff’s heart condition, is not to be taken into account. Such a supervening condition is relevant to the assessment of damages not serious injury. That was the conclusion reached by J Forrest J in Acir v Frosster Pty Ltd[35] relevant to a calculation of the plaintiff’s “without injury” earnings. It seems to me to equally apply to the question of whether the plaintiff has suffered a serious injury constituted by the necessity to prove pain and suffering consequences and pecuniary disadvantage.[36]
[35][2009] VSC 454
[36]at paragraphs [158]-[179]
Credit issues
42 The defendant submitted that the plaintiff’s credit is very much in issue. It pointed to a number of examples of the plaintiff providing contradictory accounts on material issues.
43 The film demonstrates very clearly that the plaintiff is very capable of engaging in vigorous activity over the course of a day in his garden.
44 Furthermore, when he was cross-examined about his use of drugs and alcohol, he said that they are of little consequence to him because he is able to ride his bicycle 10 kilometres without any difficulty. That is a physical activity which is most likely to place stress and strain on the plaintiff’s upper body, and in this particular case, on his neck, shoulders and arms.
45 In the plaintiff’s first affidavit he said that he has not been able to work since the occurrence of the transport accident except for working as a carpet layer for three hours per day on three days.[37] He is recorded as having said that he has not worked since the transport accident on a number of occasions.[38]
[37]JCB 126
[38]To Alfred Health at JCB 184; to Dr Stark at JCB 9; Dr Paoletti, psychiatrist, at JCB 156, and to Mr Speck at JCB 12
46 The plaintiff’s description of his work changed significantly by the time he swore his second affidavit. There, he said that he has worked for a friend in a carpet laying business for seventeen years, but not for the last two or three years, and only because he had a disagreement with his friend. He described the work as light labouring work.[39] The defendant submitted that the revelation that he has worked since the transport accident occurred following the defendant’s service of the plaintiff’s Facebook extracts which refer to him working.[40]
[39]JCB 134
[40]For example JCB 79, 80 and 81
47 The impression I was left with after reading the plaintiff’s second affidavit is that he has been working in light labouring work consistently over normal hours. I consider that conclusion to be open because the plaintiff did not say anything to the contrary which I would have expected had it been the case that he was working, for example casually or limited hours; however, under cross-examination, surprisingly, he said that in one year he did three jobs for his employer each of which lasted one week, and in one year he did no work.[41]
[41]Transcript 62
Conclusion
48 I accept the plaintiff’s evidence that he suffered an injury to his neck in the transport accident. I do not accept his evidence that it is as severe as he described it in his affidavits. The opinions of the medico-legal specialists demonstrate that the injury suffered by the plaintiff in the transport accident is an aggravation of degenerative changes which have resulted in neck pain, and that what right upper limb pain he has is referred pain without a neurological cause.
49 Dr Tine treated the plaintiff by the prescription of medications which are commonly used to treat moderate to severe pain; however, what is unclear is what he was treating the plaintiff for. The CT scan demonstrates a discal problem which might have been causing the plaintiff pain, but it was not considered to be consistent with the neck pain complained of by the plaintiff.
50 The plaintiff has had very little medical treatment for the neck injury since he left the care of Dr Tine. He subsequently saw other general practitioners, but their clinical notes demonstrate that their treatment was mostly for other medical issues with the neck injury being referred to only fleetingly.
51 I do not accept that the plaintiff required any further medical treatment. The clinical notes I have reviewed reveal that when he developed a medical condition, he sought medical treatment. So, his failure to obtain any medical treatment for the neck injury did not occur because he could not obtain that medical treatment or that he was prevented from obtaining it for some reason.
52 It is difficult to know what to make of the plaintiff’s use of drugs and alcohol except to conclude that it is difficult to accept that they have not had a serious impact on his general day-to-day activities. I think that is evident from the fact that the clinical notes, and other medical material, demonstrate longstanding use of drugs and alcohol and the need at various times to seek medical treatment, and on one occasion to detoxify.
53 Similarly, the plaintiff has an active anxiety and depressive condition which required significant treatment prior to the transport accident, and has continued to trouble him significantly, and as I have already remarked, it has been seriously compounded by the death of his son. That latter event led him into a downward spiral and increased drug and alcohol use.
54 The evidence regarding the impact of the plaintiff’s use of drugs and alcohol and his anxiety and depression are barely sufficient for him to discharge the burden he bears to demonstrate that they are not concurrent conditions of the kind referred to in Peak Engineering[42] producing pain and suffering consequences and pecuniary disadvantage.
[42]Supra
55 The plaintiff saw Dr Paoletti, psychiatrist, who examined the plaintiff on 2016[43] and on 10 July 2018.[44] I have compared the history he obtained from the plaintiff and from all of the documents relevant to the plaintiff’s psychiatric state prior to the occurrence of the transport accident. What this has led me to conclude is that there is really no discernible difference between the plaintiff’s psychiatric state beforehand and following the transport accident. I do not think that Dr Paoletti obtained a sufficiently detailed history to conclude that the plaintiff’s Anxiety Disorder is a direct effect of the transport accident, and that it has impacted on the plaintiff’s capacity for work. Importantly, the plaintiff told Dr Paoletti that he has not worked since the transport accident, which is clearly wrong. That is clearly contrary to the plaintiff’s own evidence. That must have been an important factor weighed up by Dr Paoletti when expressing his opinion relevant to the plaintiff’s impairment consequences.
[43]JCB 153-166
[44]JCB 168-180
56 Lastly, and I think most importantly, is the film which demonstrates that the plaintiff has the full, free and unrestricted use of his neck, right shoulder and arm. I have stated a reluctance in previous cases to make much of film except where it is commented upon by a medical practitioner who is best placed to determine whether the film is of any consequence or not; however, there are films which so obviously demonstrate activity inconsistent with stated impairment that the films overwhelm other evidence relevant to claimed impairment. I think that is the case here. I think the fact that the plaintiff is able to be so active and put his neck, right shoulder and arm to vigorous use are entirely inconsistent with his evidence in his affidavits, and the history he gave, for example to Mr D’Urso. Furthermore, the plaintiff’s capacity to ride a bicycle as much as he does is an additional factor demonstrating that he is less physically incapacitated than he says.
57 As far as the plaintiff’s capacity to work is concerned, that is also difficult for me to work out what to make of his evidence. The earlier evidence is that he has not worked. The later evidence is that he has worked, but then his explanation under cross-examination is that he has hardly worked. I think the combination of what the plaintiff said in his second affidavit and the short references to him working on his Facebook page lead me to conclude that he has probably worked more than he is prepared to admit.
Orders
58 On this analysis of the evidence, I do not accept that the plaintiff’s impairment consequences are “serious”. At best I think the evidence of the nature and extent of that impairment is consistent with the medical evidence which I have summarised above. Therefore, I order that the plaintiff’s Originating Motion be dismissed.
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