Solgan v TAC
[2016] VCC 1108
•5 August 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-02754
| YEFIM SOLGAN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 and 28 July 2016 | |
DATE OF JUDGMENT: | 5 August 2016 | |
CASE MAY BE CITED AS: | Solgan v TAC | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1108 | |
REASONS FOR JUDGMENT
Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application - Injury to the spine – disentanglement from other physical injuries – whether consequences “very considerable” – aggravation of degenerative spine.
Legislation Cited: Transport Accident Act 1986 s93
Cases Cited:Philippiadis v Transport Accident Commission [2016] VSCA 1; Richards & Anor v Wylie (2000) 1 VR 79; Petkovski v Galletti [1994] 1 VR 436; R J Gilbertson v Skorsis [2000] VSCA 51; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Australia Pty Ltd & Anor [2009] VSCA 181; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26
Judgment:Leave granted
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC with Ms E Tueno | Zaparas Lawyers |
| For the Defendant | Mr G Lewis QC with Ms F Crock | Transport Accident Commission |
HER HONOUR:
Preliminary
1 This is an application to bring proceedings pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”).
2 The plaintiff alleges he suffered injury in a transport accident which occurred on 28 August 2009. The plaintiff was driving along Glen Eira Road when he passed through the intersection of Orrong Road. The plaintiff had slowed down due to heavy traffic, when a car travelling behind him, ran into the back of his vehicle (“the 2009 accident”). The plaintiff claims the accident caused him to suffer injuries to his neck and back.
3 Mr R McGarvie QC appeared with Ms E Tueno for the plaintiff and Mr G Lewis QC appeared with Ms F Crock for the defendant.
4 The plaintiff claims he has suffered aggravation of pre-existing degenerative changes in his cervical, thoracic and lumbar spine in the 2009 accident, and the body function said to be lost or impaired is the functioning of his spine. The application is brought pursuant to sub-section (a) of the definition of “serious injury” contained in s93(17) of the Act.
5 Only the plaintiff was called to give evidence and he was cross-examined. In addition, an affidavit from his wife was tendered, as well as numerous medical reports and other documents. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this Judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions referred to in this Judgment.
6 The plaintiff has the burden of proving the impairment of his spine is both serious and long-term. The test for serious injury is subjective, in that it is the effect on the individual plaintiff that must be considered. However, that determination must be made by me objectively, in considering the seriousness of the impairment.[1]
[1]Philippiadis v Transport Accident Commission [2016] VSCA 1
Relevant background
7 The plaintiff is 78 years of age. He lives with his second wife, his mother-in-law, his wife’s daughter and her husband, and two grandchildren. The plaintiff separated from his first wife in 1973. He has an adult son from his first marriage, and his son lives in Russia.
8 The plaintiff was born at Odessa in the USSR, where he completed his secondary education and obtained a degree in engineering. He then worked as a civilian engineer in Odessa for about 30 years. The plaintiff then migrated to Israel where he bought a small bus and worked as a bus driver.
9 In 1997, the plaintiff married his second wife and they migrated to Australia in December 1998. He commenced working casually as a draftsman, designing residential housing and extensions for friends and acquaintances. The plaintiff obtained work by word of mouth, and only worked occasionally. He was essentially retired at the time of his first transport accident in 2007.[2]
[2]Plaintiff’s Court Book (“PCB”) 11
The 2007 transport accident
10 In April 2007, the plaintiff was involved in a motor vehicle accident in Western Australia in which he suffered injuries to his neck, chest and back. He was treated with paracetamol, Voltaren gel and Mobic for his neck, chest and back pain, together with Mirtazon and Temaze for post-traumatic anxiety, depression and sleep disturbance.
11 The plaintiff experienced intermittent neck and back pain throughout 2007 and 2008. His general practitioner, Dr Tan, treated him until November 2008.[3] The plaintiff also received physiotherapy treatment at Galleria Morley Physiotherapy Clinic between June and September 2007.
[3]Defendant’s Court Book (“DCB”) 32
12 A CT scan was performed on 23 April 2008. It showed lower cervical spondylosis with moderate degenerative disc change and foraminal encroachment at C5/6/7, together with lumbar spondylosis with advanced degenerative disc and posterior facet joint change from L3 to S1.[4]
[4]PCB 35
13 In May 2008, the plaintiff was examined by Associate Professor Nicol Ormonde, in relation to a claim he made under the Western Australian motor vehicle compensation scheme (“WA scheme”).[5] At that time, Associate Professor Ormonde noted the plaintiff had experienced some improvement in his neck and back from physiotherapy, but that on occasions he had radiating pain into his left leg, was restricted in home tasks, was anxious and had difficulties sleeping.[6] The plaintiff accepted this to be an accurate history as to how he was at that time.
[5]DCB 22-27
[6]DCB 23-24
14 The plaintiff claimed compensation under the WA scheme for the 2007 accident, including lump-sum compensation, together with reimbursement of his consultations with Dr Tan, physiotherapist and pharmaceutical expenses.[7]
[7]DCB 28-35
15 The plaintiff said he improved over 2008.[8] In his first affidavit, he said his symptoms had gradually improved by the middle of 2008.[9] In his further affidavit, he clarified this, stating that by the middle of 2008 his symptoms had improved a bit, but that it was not until the end of 2008 that his symptoms had improved significantly.[10] By the time the plaintiff had moved to Melbourne in April 2009, he stated that he had no ongoing pain or difficulties with his neck or back, besides mild discomfort from time-to-time.[11] The plaintiff was able to maintain his garden, mow the lawn, do household chores, as well as return to the recreational activities he had previously enjoyed, including swimming and spear-fishing.
[8]Transcript (“T”) 20, Line(s) (“L”) 24-28
[9]PCB 11
[10]PCB 18
[11]PCB 12, T21, L8-9
16 The plaintiff’s wife also provided an affidavit. She stated that by April 2009 the plaintiff had returned to his usual self and was able to assist in their move to Melbourne without apparent difficulty, and he assisted to pack boxes and move furniture.[12]
[12]PCB 25-26
17 Prior to the 2009 accident, in addition to enjoying swimming and spear-fishing, the plaintiff enjoyed using the computer to obtain news and information from Russia, going to Russian restaurants and visiting friends.
18 In May 2009, the plaintiff is recorded as lodging a claim for a pharmaceutical expense upon the WA scheme.[13] However, when asked about this claim in cross-examination, the plaintiff had no understanding as to the basis of, or nature of, this expense.[14] It was conceded by Mr Lewis in his closing submissions that no great weight could be given to this evidence.[15]
[13]DCB 29
[14]T21, L29-30, T22, L8-12
[15]T74, L24-27, T107, L19-23
19 After arriving in Melbourne, the plaintiff consulted general practitioner, Dr Boris Mezhov. The plaintiff first consulted Dr Mezhov on 16 May 2009. From then until 29 August 2009, the plaintiff saw Dr Mezhov on multiple occasions, but there was no recorded complaint by the plaintiff of neck or back pain.[16]
[16]Defendant’s Materials Folder (“DFM”) 16, 17, 18 and 19
20 On 2 June 2009, Dr Mezhov completed a disabled parking application for the plaintiff. The medical basis for this application is not stated in Dr Mezhov’s notes. A copy of the application was not tendered in evidence, and the defendant did not require Dr Mezhov to be cross-examined. When the plaintiff was cross-examined about this parking permit, he said he believed he was entitled to it because of his age as lots of his elderly friends had disability parking permits.[17]
[17]T32, L18-25, T32, L12-15
Unrelated medical conditions
21 The plaintiff has suffered multiple unrelated medical conditions, both prior and subsequent to the 2009 accident. Mr Lewis cross-examined the plaintiff at length about these conditions and his attendances upon his general practitioners.[18] The plaintiff frequently conceded that his memory was poor, and he often could not recall the attendances. However, he generally accepted the contents of the medical records as fairly reflecting his numerous medical complaints; the exception being Dr Mezhov’s notes regarding erectile dysfunction prior to the 2009 accident. I shall return to that later in my Judgment.
[18]The plaintiff saw Dr Mezhov from 2009 until early 2011, Dr Belsky from early 2011 until September 2015 and then Dr Rakhmetova since September 2015
22 The plaintiff had a history of chest problems, for which he underwent bypass surgery in May 2007. After this surgery, the medical records show that the plaintiff complained to his general practitioners from time-to-time with breathlessness and tachycardia chest pain. As recently as April 2016, the plaintiff was referred to the Alfred Hospital for a review at the Heart Clinic. The plaintiff understands there is currently nothing wrong with his heart, and that his chest pain is most likely anxiety-related. A letter from the Alfred Hospital dated 29 April 2016 confirmed his condition was most likely non-ischaemic in nature.[19]
[19]Exhibit B – Letter from Dr Lm at the Heart Centre at the Alfred dated 29 April 2016
23 In November 2011, the plaintiff suffered symptoms consistent with a stroke and was referred to a specialist at the Monash Medical Centre.[20] The plaintiff understood that he suffered a micro stroke at that time.[21] As a consequence, the plaintiff’s driver’s licence was suspended for one month. The plaintiff gave evidence that he had no further neurological problems or symptoms since that time.[22]
[20]T24, L21-24
[21]T24, L21-24
[22]T29, L15-19
24 The plaintiff has suffered diabetes for about 10 years.[23] The plaintiff’s medical records show that the plaintiff consulted his general practitioners from time-to-time in relation to his diabetes. An attendance upon Dr Mezhov in September 2009 indicates the plaintiff complained of numbness in his feet, which was considered to be possibly related to diabetic neuropathy.[24] The plaintiff takes medication daily for his diabetes.[25]
[23]PCB 11, T42, L24-25
[24]DMF 15
[25]T44, L1-8
25 The plaintiff complained to his general practitioners of vision problems in 2015 and 2016.[26] The plaintiff related these problems to his tiredness.[27]
[26]DMF 56, T36, L29-31, T37, L1-2
[27]T37, L3-4
26 The plaintiff had also previously suffered from prostate and urinary problems, and underwent prostatectomy surgery when he was about 48 years of age to address problems with painful urination. The prostate problem returned shortly after the first motor vehicle accident in 2007.[28] Since then he has been prescribed medication for the problem, which he continues to take. In his evidence he said he gets up two to three times a night to go to the toilet.[29]
[28]PCB 27.2
[29]T40, L16-18
27 The plaintiff also underwent a Hartmann’s procedure, which was surgically reversed on 20 May 2013.[30] He acknowledged this was a worrying matter for him at that time.[31]
[30]DMF 37
[31]T42, L12-16
28 The plaintiff complained to his general practitioner, Dr Belsky, in 2015 regarding right knee pain.[32] She arranged for an x-ray to be performed. No surgery was recommended and the plaintiff said he is no longer troubled by knee pain.[33]
[32]DMF 50, 51
[33]T49, L28-30
29 The plaintiff was cross-examined about shaking in his hands, as referred to by medico-legal psychiatrist, Dr Paul Kornan.[34] The plaintiff related this shaking to anxiety he experiences when driving, and understood there was no underlying physical medical condition causing this. I accept the plaintiff’s evidence on this, and consider the shaking hands a consequence of his anxiety and phobia associated driving. However, I disregard this consequence as it does not arise from his spinal impairment, the subject of this application.[35]
[34]PCB 42, T27, L25-31, T28, L1-4
[35]Richards v Wylie (2000) 1 VR 79
30 In the plaintiff’s first affidavit sworn on 7 April 2015, he claimed to have suffered erectile dysfunction as a consequence of the accident. In cross-examination, he claimed that prior to the accident he and his wife were regularly intimate, and that they had sexual intercourse approximately twice a week, “sometimes more”.[36]
[36]T46, L5-23
31 In his second further affidavit sworn on 11 July 2016, the plaintiff stated that he suffered erectile problems before the accident, but claimed that such problems became much worse after it.[37]
[37]PCB 27.1
32 The plaintiff was cross-examined regarding attendances upon his general practitioner, Dr Mezhov, in relation to erectile dysfunction on 26 May, 2 June, 15 June and 30 June 2009. The plaintiff denied suffering this condition prior to the accident.[38] When he was taken to the medical records, the plaintiff maintained he did not have a problem with erections prior to the accident. He stated that he had consulted Mr Mezhov on those occasions as he wanted to improve his erections, without acknowledging he suffered dysfunction.[39]
[38]T47, L1-12
[39]T48, L20-23
33 I found the plaintiff’s evidence in relation to this as lacking credibility, as it seemed inconsistent with the clinical records and his second further affidavit. I do not accept that his sexual relations before the 2009 accident were as frequent as he alleged. Further, I am not satisfied that the plaintiff’s erectile difficulties worsened after the 2009 accident, to the extent claimed. In such circumstances, I consider his erectile dysfunction an unrelated medical condition.
The injury and its consequences
34 The 2009 accident occurred on 28 August 2009 at approximately 8.15am. The plaintiff was driving his grandson to school. A car travelling from behind collided with the plaintiff’s car. The collision caused the plaintiff to be thrown about his seat.
35 The plaintiff complained that he felt shocked and that he had pain in his chest and neck. He called his daughter, who attended the scene and took him home.
36 The plaintiff later complained that his neck pain felt worse and that he was somewhat dizzy. He stayed in bed most of the day. At about 11.30pm, the plaintiff attempted to go to the toilet.[40] Upon standing, however, he lost consciousness and collapsed. He was taken by ambulance to the Monash Medical Centre.
[40]DMF 62
37 Following a series of x-rays, including a CT scan[41] of the brain and the neck, the plaintiff was discharged on the afternoon of 29 August 2009.
[41]DMF 65
38 On 31 August 2009, the plaintiff attended upon his general practitioner, Dr Boris Mezhov.[42] At that time, the plaintiff complained of neck pain and pain in the back of his head, as well as seeing flashing lights.[43]
[42]DMF 16
[43]PCB 12
39 The plaintiff subsequently returned to the Monash Medical Centre and was examined by specialists. He had a further CT scan of the brain on 4 September 2009, and an MRI scan of the brain on 19 September 2009. [44]
[44]PCB 36
40 On 28 September 2009, Dr Mezhov commenced “physiomed”[45] treatment on the plaintiff, which he had on multiple occasions until September 2010. The plaintiff said he obtained only temporary relief from such treatment. Dr Mezhov also prescribed sleeping tablets to assist the plaintiff with headaches and difficulty sleeping.
[45]DMF 15
41 The plaintiff was also referred to a psychiatrist in relation to his anxiety and depression. His medication was changed. Upon feeling tired and listless the plaintiff returned to his previous medication.[46]
[46]PCB 13
42 The plaintiff ceased consulting Dr Mezhov in early 2011.[47] In his affidavit, the plaintiff said that he had fallen out with him over payment of fees.[48] In cross-examination, the plaintiff said that he stopped seeing Dr Mezhov as he was unhappy with him, and that he found him rude and sometimes “inadequate”.[49] The plaintiff also acknowledged that he was aware Dr Mezhov had “written a bad report to his solicitors”.[50] The plaintiff believed the report had been written because Dr Mezhov had a personal vendetta against him.[51]
[47]DMF 2, PCB 13
[48]PCB 13
[49]T34, L25-26
[50]T35, L21
[51]T35, L11-15
43 In March 2011, the plaintiff commenced attending upon Dr Dolores Belsky at the Alexander Street Medical Centre. Dr Belsky referred the plaintiff for physiotherapy and remedial message. She also arranged for the plaintiff to undergo an MRI scan of the back on 7 November 2014. This MRI was reported as demonstrating widespread degenerative changes, with significant canal stenosis at L3-4 and to a lesser extent L4-5, with left sided disc bulging at L4-5 compressing the proximal left L5 nerve root.[52]
[52]PCB 38
44 In September 2015, the plaintiff moved to a new general practitioner, Dr Azhar Rakhmetova. He has consulted Dr Rakhmetova in relation to his unrelated medical conditions as well as his neck pain.[53]
[53]DMF 61.3
Plaintiff’s medical material
45 The plaintiff’s initial general practitioner, Dr Mezhov, provided a medical report to the plaintiff’s solicitors dated 11 October 2009. In that report, he referred to the plaintiff suffering injuries in an accident on 28 August 2009, in which the plaintiff sustained a closed head injury, concussion, whiplash injury to his neck, contusion to the chest and back, together with trauma-related shock and anxiety-related insomnia. As at October 2009, he considered the plaintiff’s long-term prognosis favourable. Dr Mezhov was of the opinion that the plaintiff did not appear to have “developed any serious long-term disability as a result of this accident.”[54] He considered the plaintiff had “regained his pre-trauma everyday living capacity,”[55] whilst acknowledging his need for ongoing rehabilitation.
[54]PCB 28
[55]PCB 29
46 Mr Lewis submitted that I should place significant weight on Dr Mezhov’s optimistic prognosis, as Dr Mezhov was an independent “before and after witness”.[56] However, I note that the report of Dr Mezhov was written more than 12 months before he ceased treating the plaintiff. Further, I note that from September 2009 to October 2010, Dr Mezhov provided the plaintiff with frequent “physiomed” treatment. While there is no further medical report from Dr Mezhov, I can infer from the plaintiff’s regular attendances upon him, that Dr Mezhov considered the plaintiff’s ongoing complaints of neck and back pain were sufficient to justify ongoing “physiomed” treatment.
[56]T76, L30-31
47 Mr Lewis also submitted that I should infer that the plaintiff had moved to a new general practitioner as he was “doctor shopping.”[57] I accept the plaintiff’s evidence that his relationship with Dr Mezhov broke down, for a range of reasons, including a dispute about billing.[58] I also accept the plaintiff found Dr Mezhov rude, and was disappointed in what Dr Mezhov had written about him to his solicitors. Considering all these factors, I do not criticize the plaintiff for changing doctors.
[57]T72, L26-27
[58]DMF 13. This record of Dr Mezhov corroborates the plaintiff’s affidavit
48 The plaintiff’s subsequent general practitioner, Dr Belsky, provided two medical reports dated 11 November 2011 and 10 January 2012. In these reports, Dr Belsky confirmed that she had consulted the plaintiff in respect of his chronic headache, chronic back and neck pain, together with insomnia arising from the 2009 accident. Dr Belsky was aware of the plaintiff’s 2007 accident, but obtained a history that he was not suffering from any ongoing pain at the time of the 2009 accident. She also obtained a history of the plaintiff suffering from anxiety as a consequence of the 2009 accident.
49 Dr Belsky noted that the plaintiff used Voltaren Emulgel, Panadol Osteo (for the pain), Imovane (for insomnia) and Valium (for anxiety). She also considered that he needed physiotherapy, hydrotherapy and medial massage on a regular basis to help him with his pain.[59]
[59]PCB 29.1-29.4
50 The plaintiff’s current general practitioner, Dr Azhar Rakhmetova, provided a report dated 4 May 2016, in which she details the plaintiff’s medical history including his unrelated medical conditions. Dr Rakhmetova noted that on 12 November 2015 the plaintiff complained of stress as a result of the accident. Her report made no specific mention of the plaintiff’s neck or back condition.
51 The plaintiff’s solicitors arranged for him to be examined by vascular and general surgeon, Mr Charles Flanc, on three occasions, in November 2010, February 2015 and February 2016.
52 When Mr Flanc first examined the plaintiff he had not been provided with the medical records relating to the plaintiff’s attendances upon Dr Mezhov prior to the 2009 accident. However, when he subsequently received these, Mr Flanc was of the opinion, based upon the plaintiff’s history and available medical information, that the symptoms in the plaintiff’s neck and back had resolved prior to the 2009 accident.[60] Mr Flanc then concluded that the 2009 accident caused a significant aggravation of a pre-existing degenerative condition of the cervical and lumbar spine, which became symptomatic following the 2009 accident and has remained symptomatic since that time.
[60]PCB 91
53 Mr Flanc was of the opinion that the plaintiff required intermittent analgesia for his neck and lower back pain, and that his injuries were stabilised and would be permanent.[61]
[61]PCB 93
54 The plaintiff’s solicitors also arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Thomas Kossmann, in May 2016. Mr Kossmann was provided with numerous medical documents relating to the plaintiff, including the medical material which related to the plaintiff’s condition after the 2007 accident. Mr Kossmann obtained a history that the plaintiff’s condition had improved over time, such that prior to the 2009 accident, the plaintiff was able to return to his recreational activities of swimming and fishing.[62]
[62]PCB 96
55 Mr Kossmann then obtained a history of the 2009 accident and reviewed the imaging taken thereafter. Mr Kossmann concluded that the plaintiff suffered aggravation of degenerative changes in his cervical and lumbar spine in the 2007 and 2009 accidents. He considered that the plaintiff’s disability in the form of pain and movement restrictions arose from the accidents and, in particular, from the 2009 accident.[63] Mr Kossmann considered the plaintiff’s condition to be substantially stabilised and that he would remain incapacitated for the rest of his life.
[63]PCB 102
56 In addition to the surgical medico-legal opinions offered by Mr Flanc and Mr Kossmann, the plaintiff also relied upon three medico-legal opinions provided by psychiatrist, Dr Paul Kornan, following his examinations of the plaintiff in September 2010, March 2015 and February 2016. The plaintiff relied on the psychiatric impact of his physical impairment, as permitted pursuant to the principles enunciated in Richards v Wylie.[64]
[64]Richards & Anor v Wylie (2000) 1 VR 79
57 Dr Kornan obtained a detailed history from the plaintiff on each examination. This included obtaining a history of the 2007 accident and the anxiety that he suffered after it. Dr Kornan also noted that soon after the 2007 accident, the plaintiff underwent cardiac surgery which he felt would have dominated his clinical picture at that time. Dr Kornan then obtained a history from the plaintiff as to the anxiety and fear he suffered travelling in a car after the 2009 accident, as well as him being depressed, anxious and irritable as a consequence of his physical pains and discomfort.[65]
[65]PCB 47
58 Dr Kornan’s opinion has persisted over the course of the three examinations, with his most recent report referring to the plaintiff’s psychiatric condition arising from his pain and discomfort, as well as a psychiatric reaction involving a specific phobia about travelling in cars.[66] Dr Kornan noted the plaintiff appeared significantly depressed. He was gloomy and had difficulties in coping.[67] He considered the plaintiff was experiencing increasing levels of depression.
[66]PCB 65
[67]PCB 66
Defendant’s medical material
59 The defendant relied upon a medical report from orthopaedic surgeon, Mr Michael Fogarty, dated 3 April 2013. Mr Fogarty had examined the plaintiff and obtained a history from him, including details of the 2007 accident. He obtained a history that the plaintiff’s neck and low back pain “settled completely”,[68] prior to the 2009 accident.
[68]DCB 3
60 Mr Fogarty considered that the 2009 accident resulted in mild cervical hyperextension injury with probable aggravation of pre-existing degenerative disc disease in the cervical spine, together with a soft tissue injury in the mid to low back, probably aggravating pre-existing condition of degenerative disc disease of the lumbar spine. He considered the cervical and lumbar spondylosis pre-existed the accident and was probably aggravated by it. He considered the plaintiff’s condition to be stable at that time.
61 The defendant’s solicitors also arranged for the plaintiff to be examined by orthopaedic surgeon, Dr Peter Boys, in March 2016. After examining the plaintiff and considering the medical material, Dr Boys ultimately concluded that the plaintiff’s medical condition was related to degenerative changes in his cervical and lumbar spine, with such changes being long-standing. He considered that while the plaintiff suffered symptoms at the time of the 2009 accident, it was a temporary exacerbation only. He further considered that the plaintiff’s current level of complaint and ongoing disabilities reflect constitutional degenerative changes which would have existed notwithstanding the 2009 accident.[69]
[69]DCB 14
Long-term
62 In order to satisfy the definition of serious injury, the plaintiff must prove the injury and its consequences are both serious and long-term.
63 I am satisfied the plaintiff’s injury and the consequences which flow from it are long-term. The pain has persisted for over six years. There is no recommendation that he undergo surgery or any other type of treatment which may lead to an improvement, in his neck or back pain.
Aggravation
64 As this is an aggravation case, there must be a comparison between the plaintiff’s pre-existing condition, with the aggravated state. Pursuant to the well-known principles enunciated in Petkovski v Galletti,[70] I must consider only the consequences arising from the aggravation.
[70][1994] 1 VR 436
65 In R J Gilbertson v Skorsis,[71] Chernov JA summarised the task before me:
“In determining whether an injury which is an aggravation of a pre-existing injury is a ‘serious injury’, it is necessary first to make a comparison between the applicant’s condition before the accident that gave rise to the second injury and to his or her condition after that incident and thereby ascertain the degree of additional impairment that has been brought about by the second injury. It is then necessary to make an assessment of whether the additional impairment is serious and long-term.”[72]
[71][2000] VSCA 51 at paragraph [40]
[72]Petkovski v Galletti (1994) 1 VR 436 at [443–444]
66 In Philippiadis v Transport Accident Commission,[73] it was noted that:
“Where a transport accident is said to cause an aggravation of an existing injury, the aggravation must satisfy the definition of ‘serious injury’ in the sense of producing a serious long-term impairment or loss of a body function. In assessing whether the definition is satisfied it is impermissible to take into account the cumulative effect of the pre-existing injury and the aggravation. Rather, an analysis must be made of the extent of impairment of the relevant body function before and after the relevant injury to determine the extent of the additional impairment that was caused by the injury. Where, as in the present case, there is more than one accident which is said to aggravate an existing injury, the aggravation resulting from each accident must be considered separately to determine whether it satisfies the definition of ‘serious injury’.”[74]
[73][2016] VSCA 1
[74](ibid) at paragraph [27]
67 Having considered all of the evidence, I am satisfied that prior to the 2009 accident, the plaintiff had recovered from the 2007 accident, such that the degenerative condition in his spine was asymptomatic. In reaching this conclusion, I rely upon the evidence of the plaintiff and his wife, which is corroborated by the clinical records and medical report of Dr Mezhov. The evidence relating to the disabled parking permit is scant, and without a copy of the application, or details from Dr Mezhov as to the medical grounds upon which he supported it, I am not satisfied it demonstrated the plaintiff was suffering ongoing neck and back pain at the time of the 2009 accident.
68 Dr Boys accepted there was a temporary exacerbation of symptoms associated with degenerative changes in the plaintiff’s spine, but considered that his current impairment relates to constitutional changes which would have existed notwithstanding the 2009 accident. This opinion ignores the plaintiff’s consistent complaints of constant pain since the 2009 accident. Further, Dr Boys does not comment or explain when the exacerbation ceased.
69 In circumstances where the plaintiff has suffered ongoing neck and back pain since the 2009 accident, and there has been no period of sustained recovery, I do not accept that the aggravation was only temporary. I prefer the opinions of Mr Flanc, Mr Kossmann and Mr Fogarty, who each accept that the plaintiff’s current impairment arose as a consequence of an aggravation of the plaintiff’s degenerative condition in his spine, and that such aggravation was caused by the 2009 accident.
70 Therefore, in assessing the plaintiff’s application, I am required to consider all consequences arising from the aggravation of his degenerative spine.
Consequences
71 The plaintiff must satisfy me that the consequences of his spinal impairment are “very considerable.”
72 I accept that since the accident, the plaintiff has suffered ongoing neck and low back pain. The plaintiff suffers pain in his neck on a daily basis, the intensity varying from day to day.[75] He said that occasionally when he is resting or has taken his pain medication the pain may go away, but that he never stays pain-free for long. The plaintiff said his pain is aggravated by movements, in particular, when he moves his head quickly or looks up and down.[76] At least once a day he suffers a throbbing pain which spreads into the back of his head and causes a headache.[77]
[75]PCB 19
[76]PCB 14 and 19
[77]PCB 19
73 In addition, the plaintiff suffers pain in his mid and low back. He suffers low back pain when he walks more than a short distance.[78]
[78]PCB 20
74 In April 2015, when the plaintiff swore his initial affidavit, he took two Panadol Osteo each day.[79] This has now increased to six Panadol Osteo each day.[80] The plaintiff also uses Voltaren Gel on his neck and low back most nights.
[79]PCB 15
[80]PCB 23
75 The plaintiff also takes Alodorm to assist him with sleeping. The plaintiff said that he finds it hard to get to sleep at night, and frequently wakes with neck pain.[81] Although the plaintiff also wakes at night due to urinary incontinence, I accept that his neck and back pain make it harder for him to go straight back to sleep after going to the toilet.
[81]PCB 15
76 The plaintiff takes two showers a day, as he gains some pain relief from the hot water.[82]
[82]PCB 15
77 The plaintiff previously enjoyed recreational activities including swimming and spear-fishing. He had returned to these activities by the time he moved to Melbourne in approximately April 2009.[83] He has tried to go swimming a few times since the 2009 accident, but found that it caused him pain in his neck and back. As he was unable to go spear-fishing, the plaintiff decided to buy a boat. He initially purchased a dinghy, but found that it was too unstable on the water and it caused him increased pain in his neck and back. He subsequently sold that dinghy and approximately two years ago bought a small motorised boat, in the hope it would be more stable. He has used this boat on only two occasions. On the last occasion, his friend assisted in loading the boat on his trailer and they were only out on the water for approximately one hour due to the pain in his neck and back.[84]
[83]PCB 21
[84]T54, L17-18
78 I also accept that the plaintiff’s neck pain makes it painful for him to read news on the internet.
79 The plaintiff said he is limited in the activities he is able to do around the home.[85] In his first affidavit, he had sworn that he was unable to mow his lawn. In his subsequent affidavit, however, he corrected this and stated that, on a good day, he can mow his lawn but that it causes an increase in his neck pain and he has to take extra medication and lie down afterwards.[86]
[85]PCB 21
[86]PCB 21
80 The plaintiff was not challenged in respect of his claim of ongoing neck and low back pain, nor in respect of the medication he takes, nor the restrictions the injury causes him, both at home and recreationally.
81 The weight to be attached to the plaintiff’s account of his pain experience will depend upon an assessment of the plaintiff’s credibility.[87] Save for my reservations regarding his erectile dysfunction, I accept the plaintiff as an honest witness and accept his evidence as to his complaints of pain.
[87]Haden Engineering v McKinnon (2010) 31 VR 1 at para [9]
82 In determining this case, I must make a comparison to other cases in the range of possible impairments. In doing so, I am mindful that I must consider the broad spectrum of cases which this Court sees. As was noted by Ashley JA and Beach AJA in Stijepic v One Force Group Australia Pty Ltd & Anor:[88]
“this includes cases which do not end up in litigation-because, it may be supposed, the consequences are glaringly apparent one way or the other.”[89]
[88][2009] VSCA 181
[89]Ibid at [42]
83 The plaintiff suffered his injury at age 71 and is now 78 years of age. As was stated by the Court of Appeal in Hawkins v DHL Express (Australia) Pty Ltd[90]:
“…Ultimately, the employer appeared to accept that the judge’s reasoning with respect to the worker’s advanced age was at odds with what ought to have been at the heart of her assessment, namely the pain and suffering consequences of his impairment. Her Honour ought not to have treated the worker’s advanced age as in itself supportive of the proposition that his injury was less than serious. This is so because it will depend on the circumstances of each individual case as to whether the age of a worker, and the ailments associated with age, exacerbate the impairment consequences experienced. I do not consider that the remarks made in Stijepic in a case concerning a young adult can be extrapolated to mean that the impairment consequences suffered by a worker of advanced age are, by reason of the worker’s age, likely to be less than serious. Nor should the remarks be read as supporting the existence of a presumption in this regard.”
[90]Express (Australia) Pty Ltd [2013] VSCA 26 at [78]
84 The plaintiff suffers other unrelated medical conditions, as do many elderly people. However, I am satisfied that none of those conditions substantially interfere with the plaintiff’s enjoyment of life, nor cause him frequent pain or restriction of his mobility. I do accept that the plaintiff’s neck and back pain cause him ongoing and significant pain on a daily basis, requiring pain medication. I also accept that his spinal injury interferes with his enjoyment of life and, in particular, his prior enjoyment of swimming and spear-fishing.
85 I consider that the consequences for the plaintiff, as detailed above, when looked at for a 78 year old man, and when compared to other cases in the range of possible impairments or losses, are very considerable.
Orders
86 The plaintiff’s application for leave to commence a claim for common law damages succeeds. I shall make consequent orders.
---
0
7
0