Starecki v Transport Accident Commission
[2019] VCC 1024
•11 July 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-00553
| KRZYSZTOF STARECKI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18, 19 and 20 March 2019 | |
DATE OF JUDGMENT: | 11 July 2019 | |
CASE MAY BE CITED AS: | Starecki v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1024 | |
REASONS FOR JUDGMENT
---
Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – aggravation of existing psychiatric impairment – whether impairment caused by transport accident – credibility of the plaintiff – disentanglement – whether consequences “severe” – relevant principles
Legislation Cited: Transport Accident Act 1986, s93(4)
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Noonan v State of Victoria [2013] VSCA 289; Humphries & Anor v Poljak [1992] 2 VR 129; Katanas v Transport Accident Commission [2016] VSCA 140; Petkovski v Galletti [1994] 1 VR 436; Demmler v Transport Accident Commission [2018] VSCA 284; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1
Judgment: Application granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Stanley with Mr O Lesage | Patrick Robinson & Co |
| For the Defendant | Mr G Lewis QC with Ms J Clark | Wisewould Mahony |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s93(4) of the Transport Accident Act 1986 (“the Act”) for injury suffered by the plaintiff in a motor vehicle accident on 16 February 2012 (“the accident”).
Relevant legal principles
2 Section 93(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” as set out in s93(17) of the Act is, relevantly, as follows:
“Serious injury’ means –
(a) serious long-term impairment or loss of a body function … .
…
(c) severe long-term mental or severe long-term behavioural disturbance or disorder … .”
4 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 or losses, fairly be described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”.[1] It has been held that the consequences to a plaintiff will relate to pecuniary disadvantage and/or pain and suffering.[2]
[1]Humphries & Anor v Poljak [1992] 2 VR 129 at 140
[2]Humphries & Anor v Poljak (ibid); see also Demmler v Transport Accident Commission [2018] VSCA 284 at paragraphs [52] and [56]-[57]
5 In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of a “serious injury”, by s93(1) of the Act, the relevant severe mental disturbance or disorder must have arisen out of or due to the accident.
6 The application was originally brought pursuant to both subsections (a) and (c) of the definition of “serious injury”; however, during his opening address, leading counsel for the plaintiff abandoned the application in relation to paragraph (a) and confined the plaintiff’s case to paragraph (c). Thus, the plaintiff’s case as put during the hearing of the application is that by reason of the accident, he has suffered a severe long-term mental disturbance or disorder in the form of an aggravation of a pre-existing Depressive Disorder, together with the onset of a Chronic Pain Syndrome and a Post-Traumatic Stress Disorder.
7 The judgment of the Court of Appeal in Mobilio v Balliotis[3] resolved the meaning of “severe”. In that case, without suggesting the use of any particular adjective to mark the distinction, Brooking JA held that the word “severe” as used in the definition, is a stronger word than “serious”.[4] Winneke P agreed with Brooking JA’s reasons and further agreed that the word “severe”, where used in sub-paragraph (c) of s(17) of the Act, was a word of stronger force than the word “serious”.[5] Phillips JA[6] and Charles JA[7] made comments to similar effect.
[3][1998] 3 VR 833
[4](ibid) at 846
[5](ibid) at 834-5
[6](ibid) at 858
[7](ibid) at 860-861
8 Applying these observations, it is clear that in order to be satisfied that the consequences of a mental disturbance or disorder is “severe”, I must conclude that those consequences are more than “very considerable” to the plaintiff.[8] In performing this analysis, it is necessary first, to identify and, next, to bring to account, all relevant circumstances personal to the claimant. Then it is necessary to make a value judgment in accordance with the principles enunciated in Humphries & Anor v Poljak,[9] giving to each identified relevant circumstance, the weight which, to the Court, appears to be appropriate.[10]
[8]See Noonan v State of Victoria [2013] VSCA 289; Mobilio v Balliotis (supra); Katanas v Transport Accident Commission [2016] VSCA 140
[9](supra) at 140, per Crockett and Southwell JJ
[10]Katanas (supra) at 19
9 As set out in s93(17) of the Act, in addition to being “serious”, I must also conclude that the relevant injury is “long term”.
10 The plaintiff bears the burden of proof on the application. The standard of proof is on the balance of probabilities.
11 The Court must assess whether the injury is “serious” as at the time the application is heard.[11] In assessing the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the transport accident.[12] The task of assessing the pain and suffering consequences of an injury, has been held to be largely a question of impression and value judgment.[13]
[11]See s93(6) of the Act, which states that leave must not be given by a court unless the court “is satisfied that the injury is a serious injury”. I take that expression to mean that the injury “is at the time at which the application is heard”, a serious injury for the purposes of the Act
[12]Petkovski v Galletti [1994] 1 VR 436, at 442; Demmler v Transport Accident Commission (supra) at paragraph [52]
[13]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
12 In determining the application, the Court must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[14]
[14]See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
13 It is well understood that a person who is injured is to be compensated only for such injuries as are proven to have resulted from the relevant accident.[15]
[15]Petkovski vGalletti (supra)
14 Applying the principles set out in Petkovski v Galletti,[16] in an application where it is alleged that the plaintiff had a relevant pre-existing condition, it is the consequences of the aggravation of that injury (in this case, a mental disturbance or disorder) which must be assessed. To undertake this task, the plaintiff must establish what injury was caused by the accident. I must then determine the consequences of that injury to the plaintiff, by comparing the plaintiff’s condition before and after that injury.[17] If I am satisfied that the additional impairment is “serious” or “severe” (as the case may be) and long term, then the applicant will have demonstrated that he is suffering from a “serious injury” under the Act.[18]
[16](ibid) at 443
[17](supra) at 444
[18]supra
15 The plaintiff relied upon three affidavits, gave viva voce evidence and was cross-examined at length. He also relied upon an affidavit sworn by his son, Lucasz Starecki.
16 In addition, both parties relied upon medical reports and other materials which were contained within Court Books tendered in evidence.[19] The defendant did not require Lukasz Starecki, or any of the plaintiff’s treating medical practitioners or medico-legal experts, to attend for cross-examination.
[19]The plaintiff’s Court Book was marked as exhibit P1; the defendant’s Court Book was marked as exhibit D1
17 I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered materials.
The Plaintiff’s background and previous injuries
18 The plaintiff was born in Poland in March 1957.[20] He came to Australia in 1982 with his wife and son.[21] He had another son once he had moved to Australia. He lives in Melbourne in a boarding house. He is divorced from his wife.[22]His sons are now adults and live in Melbourne with their families. He has three grandchildren.[23]
[20]Exhibit P1, page 5
[21]Exhibit P1, page 5
[22]Exhibit P1, page 5
[23]Exhibit P1, page 5
19 The plaintiff completed school in Poland and then studied as a building technician. He did this course for a year but did not finish it.[24] His last paid employment was working as a painter for the Port of Melbourne Authority.[25] He suffered a persistent, work-related, lower back injury twenty-seven years ago. He has been on a disability support pension for over ten years.[26] Prior to the accident, he had been taking up to four Panadeine Forte tablets per day.[27]
[24]Exhibit P1, page 5
[25]Exhibit P1, page 5
[26]Exhibit P1, page 5-6
[27]Exhibit P1, page 6
20 The plaintiff suffered from psychological ill health, including a suicide attempt necessitating a hospital admission in 1991.[28] Also in 1991, he was described by his treating psychiatrist as suffering from “severe” reactive depression.[29] He suffered from chronic pain, anxiety and depression late in 1991.[30] In mid-1992, he was described as suffering from a chronic anxiety state and reactive depression of a moderate degree. This condition was related to employment, the back injury and the marriage breakdown.[31] He was saddened and concerned by the death of a number of his friends in 2011,[32] and in particular, suffered from depression which arose in the context of the suicide of his friend, Marek, in late 2011. Following Marek’s death, the plaintiff was prescribed anti-depressant medication by his general practitioner.[33]
[28]Exhibit P1, pages 139
[29]Exhibit D1, page 15
[30]Exhibit D1, page 30
[31]Exhibit D1, page 37
[32]Exhibit P1, page 140
[33]Exhibit P1, page 140, exhibit D1, page 104, entry 5 October 2011 ff
21 As to his pre-accident condition, the plaintiff deposed to the fact that he was “a different person in the years before the accident”.[34] He said that in relation to his psychological state just prior to the accident, “the grief I experienced in 2011 was I believe, temporary”.[35]
[34]Exhibit P1, page 139
[35]Exhibit P1, page 140
22 The plaintiff’s son, Lukasz Starecki, deposed to the fact that his father had a bad back which stopped him from working before the accident; however, he also deposed to the fact that prior to the accident, his father was socially active and involved in the Dandenong Soccer Club on most weekends in winter. He described his father as “funny” and “entertaining”. He said his dad was “great” with the grandkids.[36]
[36]Exhibit P1, page 134
23 Despite the medical history indicating previous psychological issues, Lukasz does not recall his father being depressed before the accident:
“… That just wasn’t him … he … always remained optimistic about life. He had a real spark, was sociable and fun to be around … I do remember him being really upset by the suicide of a friend of his but I thought he overcame that.”[37]
[37]Exhibit P1, page 135
The accident
24 The plaintiff described the accident in the following terms:
“… on 16 February 2012, … I was driving my motorcycle in a northerly direction on Heatherton Road when a car, … cut me off and pulled up in front of me.
... I braked momentarily before impact but was still travelling at high speed at the time of the rear end collision. The impact was severe.
Following the accident, I think I lost consciousness and I do not remember for how long. When I came to, … I was very confused and felt a great deal of pain in my head, neck, all of my left side including the arm and hip. I also had pain in my groin and knees.
As a result of the accident I suffered injuries to my head, lower back, right middle finger, bilateral inguinal hernia, post-traumatic anxiety and depression … .”[38]
[38]Exhibit P1, page 6
25 Following the accident, the plaintiff was taken to Berwick and Dandenong Hospitals where he remained an inpatient for some days.[39] He deposes to having been discharged from Dandenong Hospital on 19 February 2012.[40]
[39]Exhibit P1, page 6
[40]Exhibit P1, page 6
26 After discharge, the plaintiff remained under the care of his general practitioner, Dr Felix Wilk. He was referred for physiotherapy and psychological counselling. He attended psychologist, Brenda Heideman, on and off for about five years from mid 2012. He found that the counselling was not of any significant benefit, and that the anti-depressants he was prescribed “did not help much”.[41] He also felt that the pain medication “does not help me much”.[42]
[41]Exhibit P1, page 7
[42]Exhibit P1, page 7
27 The plaintiff commenced seeing Ms Barbara Lach, clinical psychologist, in April 2018, and now sees her every couple of weeks.[43] He said that this treatment “is helping, but I feel like I am just keeping it together”.[44]
[43]Exhibit P1, pages 137 and 142
[44]Exhibit P1, page 142
Evidence of the Plaintiff and his son
28 The plaintiff swore three affidavits, the first on 1 July 2017, the second on 19 September 2017 and the third on 18 March 2019. The plaintiff’s son, Lucasz, swore one affidavit dated 15 March 2019.
29 In summary, the relevant evidence as to the pain and suffering consequences which the plaintiff experiences as a result of the accident is as follows:
Experience of pain, medication and treatment
(a) in his first affidavit, the plaintiff said that he suffered bad pain in the left neck, left shoulder, hips, knees and ankle. The pain in his neck is sharp and comes and goes. The pain in his ankle extends to his feet at times and he experiences numbness in his toes. He also said that he believes that he suffers from Post-Traumatic Stress Disorder and he continued at that time to be “more anxious than previously”. He deposed to the fact that he had become more and more depressed;[45]
[45]Exhibit P1, page 7-8
(b) in his second affidavit, the plaintiff said that at that time, the most serious physical injury was in his low back. He again made reference to suffering from stress and anxiety.[46] He deposed to problems with memory and concentration. He said that he is less tolerant of others and thinks about death “more than I have ever done … before”;[47]
[46]Exhibit P1, pages 10-12
[47]Exhibit P1, page 12
(c) some days he just stays in the house or his room and he finds that he cries often and without reason. He felt at that time that he lived a “pretty sad existence … I often feel hopeless and useless. I never felt like that before I was injured”;[48]
[48]Exhibit P1, page 13
(d) in his third affidavit, the plaintiff deposed to the following matters:
(i) he has widespread pain throughout his body. The pain is in his back, neck, shoulders, arms, groin, knees and feet. It varies from place to place:
“… Some days my back plays up to such an extent that even sitting down for a few minutes can be excruciating; other days my neck pain takes hold and sends throbs of pain into my skull. My shoulders ache, … My arms hurt and are weak … My legs are affected by numbness than runs from my groin to my toes. My legs are also weak and give way from time to time. My knees throb. I have taken to using a walking stick now when I am far from home. In a strange way I feel like my body has become to[o] heavy for my bones;”[49]
[49]Exhibit P1, page 139
(ii) he was a “different person” in the years before the accident;[50]
[50]Exhibit P1, page 139
(iii) he had suffered a back injury in a workplace incident before the accident. While that back injury prevented him from working and required the use of morphine-based medications, he still “managed a good life”;[51]
[51]Exhibit P1, page 139
(iv) before the accident, his back pain was centred in the middle of his back. He said that it would “occasionally” spread up to his neck or down to his left leg; however, it “never affected my shoulders, arms, knees or right leg”;[52]
[52]Exhibit P1, page 139
(v) he struggles with the effects of the accident. His widespread pain is such that he cannot do much at all:
“Unlike before [the accident], there is no way to accommodate or live alongside the pain I suffer today. I have pain even lying in bed – it is relentless. … .”;[53]
[53]Exhibit P1, page 140-141
(e) Lucasz said that making his affidavit was “difficult” because “it is hard to put my father’s dramatic decline into words …”.[54] He said that his father had a bad back “for as long as I can remember …”.[55] He went on to say:
[54]Exhibit P1, page 136
[55]Exhibit P1, page 134
“Whilst dad’s bad back stopped him from working and caused him discomfort he was still an active father. Dad used to come and watch me train soccer. He would also take me to see his beloved Dandenong Club on most weekends in winter. I remember he would cheer and jump about like mad on the sideline, and always after a win on the way home he would say, ‘my back will hate me for that tomorrow, but who cares!’ He loved that club and had many friends there;” [56]
[56]Exhibit P1, page 134
Medication
(f) the plaintiff presently takes Tramadol 200 milligram, one in the morning, and 50 milligram, up to four daily. He also takes Panadeine Forte, one or two daily as required.[57] He was on anti-depressant medication, but his doctor refused to keep prescribing it “because of my drinking”;[58]
[57]Exhibit D1, page 145
[58]Exhibit P1, page 142
(g) in his third affidavit, the plaintiff said “My doctors have tried all sorts of remedies – I even had injections in my shoulders in 2017, but nothing has helped”;[59]
[59]Exhibit P1, page 139
Ability to sleep
(h) he sleeps badly because of the pain. He is also woken regularly by “vivid and scary” nightmares. On “bad nights” he wakes with his heart racing and the sheets are “sodden with sweat”;[60]
[60]Exhibit P1, page 141
Activities of daily living
(i) prior to the accident, he had a wide circle of friends from within and outside the Polish community. He enjoyed the company of his sons and their families. He regularly had people over for dinner and parties. He was well known for his cooking skills.[61] He now lacks the “motivation and passion” to cook and “relies on takeaways” for food.[62] He has now turned into a recluse. He feels “awful” because his friends used to call by and encourage him but “each has slowly given up on me. I do not blame them”;[63]
[61]Exhibit p1, page 140
[62]Exhibit P1, page 141
[63]Exhibit P1, page 141
(j) sometimes he does not have the energy to attend to his personal hygiene;[64]
[64]Exhibit P1, page 13
(k) he used to ride his motorbike at any opportunity and “loved the peace and thrill” that it gave him.[65] He also loved to watch motorbike racing, especially dirt bikes. Together with his friends, he used to attend the Mildura speedway event every year, making a weekend of it with camping and fishing on the Murray River.[66] He has only seen two speedways since the accident and has only been fishing on a couple of occasions.[67] He is scared on the road now. He forces himself to get on his bike. When he rides, he does so “with so much caution and anxiety that it is no fun at all”;[68]
[65]Exhibit P1, page 140
[66]Exhibit P1, page 140
[67]Exhibit P1, page 141
[68]Exhibit P1, page 141
(l) he used to follow soccer keenly and was a “fanatical” fan of Dandenong Football Club. He was given the honour of being named the unofficial “number one supporter” of that club. He “loved that club” and had many friends there.[69] He has only been to “a few” soccer games in the last few years;[70]
[69]Exhibit P1, page 140
[70]Exhibit P1, page 141
(m) before the accident, he had a great relationship with his sons and his grand-daughters. He used to watch his grand-daughters play sport, play in the park and he read them stories: “We had real fun together.” He said that he used to make them peg dolls “and together we’d act out scenes from their favourite TV shows”;[71]
[71]Exhibit P1, page 140
(n) his eldest son, Lucasz, tries to get the plaintiff out of his room to do things but “typically I just don’t feel up to it”.[72] He has become a rather gloomy grandfather to the children: “As horrible as it sounds, I just don’t have the patience”;[73]
[72]Exhibit P1, page 141
[73]Exhibit P1, page 141
(o) he is sad about the loss of the things that he used to enjoy, including interaction with his friends, his children and his grandchildren, and his inability to ride his motorcycle as he would want to;[74]
[74]Exhibit P1, page 13
(p) Lucasz said that he used to see his father regularly. He confirmed that his father had dinner parties with his family and friends: “The house was full of noise with dad entertaining everyone …”.[75] In addition, Lucasz confirmed that before the accident, his father “was great with my girls” and used to look after them from time to time: “The kids loved him and he them – he would read them books, play games and take them to the park. There was a real joy about him when he interacted with the kids.”[76] Lucasz also confirmed his father’s love of riding his motorcycle[77] and passion for his “beloved Dandenong [Football] Club”;[78]
[75]Exhibit P1, page 134
[76]Exhibit P1, pages 134-135
[77]Exhibit P1, page 135
[78]Exhibit P1, page 134
(q) Lucasz said that since the accident, his father:
(i) does not ride his motorcycle nearly as often;[79]
[79]Exhibit P1, page 135
(ii) does not cook, and seems to have lost his friends;[80]
[80]Exhibit P1, page 135
(iii) rarely watches his daughter’s sporting events and does not play or engage with the grandchildren anymore;[81]
[81]Exhibit P1, page 135
(iv) hardly ever goes to see Dandenong Football Club. He said that when he asks his father why he does not go, “he just shrugs his shoulders”;[82]
(v) does not interact with his sons as much as he used to;[83]
[82]Exhibit P1, page 135
[83]Exhibit P1, page 135
Psychological illness
(r) he has become very sad and is depressed. He has the constant thought that there is no point to anything anymore. He tries to muster a smile but “feels glum on the inside”;
(s) there have been “lonely moments” when he has considered taking his own life.[84] He feels that he lives “a pretty sad existence”. He often feels “hopeless and useless”. He never felt like that before the accident;[85]
[84]Exhibit P1, page 141
[85]Exhibit P1, page 13
(t) he cries a lot, frustrated at what the accident has taken from him. He is angry at himself for not being able to live with and move on from the effects of the accident. He had been able to do this after the workplace injury.[86] He said that he did not cry a lot before the accident;[87]
[86]Exhibit P1, page 141-142
[87] T111, lines 30-31
(u) he avoids the scene of the accident, scared of what it will bring up: “I see the scene in my head when I daydream and that is enough to send me into a panic.” He said that when he has these “flashbacks”, he keeps “thinking of the fear I had at the time of the accident that I would die”;[88]
[88]Exhibit P1, page 141
(v) he is regularly woken by nightmares of the accident.[89] He did not have either nightmares or flashbacks before the accident.[90] He still has the flashbacks and nightmares now. He is woken by nightmares “once, twice a month, minimum”;[91]
[89]Exhibit P1, page 141
[90]T111, lines 25-29
[91]T112, lines 4-7
(w) he continues to see Ms Barbara Lach, psychologist, and has done so since April 2018. He attends every couple of weeks;[92]
[92]Exhibit P1, page 142
(x) Lucasz deposed to the following matters:
(i) since the accident, when he sees his father “it’s like a different person”;[93]
[93]Exhibit P1, page 135
(ii) his father is gloomy and sad, confused and tired looking;[94]
[94]Exhibit P1, page 135
(iii) when he asks his father over for lunch, “mostly he makes up excuses or flat out refuses. When he does come over he doesn’t appear to enjoy himself and will leave early”;[95]
[95]Exhibit P1, page 135
(iv) his conversation with his father “is now focussed almost exclusively on the pain he says that he is in, especially his neck, shoulders and back. He complains about the stress that he is under and how the accident has taken his life from him”;[96]
(v) of great concern to Lucasz is the fact that on more than one occasion his father has told him that he thinks that “killing himself would make things easier”.[97]
[96]Exhibit P1, page 136
[97]Exhibit P1, page 136
30 Under cross-examination, the plaintiff gave the following evidence:
(a) the amount he drinks depends upon how much money he has, but “it’s easy to get through a bottle of vodka”.[98] Prior to the accident, there was a short period of time where he was drinking very heavily, but usually, he might drink a bottle of vodka in a day “once, twice a month”.[99] He said this is “… not alone. With my friends”;[100]
[98]T42, lines 1-3
[99]T96, lines 13-26
[100]T95, lines 5-8
(b) he lost his licence twenty years ago for being over the limit for blood alcohol;[101]
[101]T43, lines 8-9
(c) in 1992, he spent two weeks in Kingston Park Psychiatric Unit because of a suicide attempt in connection with his divorce;[102]
[102]T46, lines 18-29
(d) his depression from that time has never completely gone away.[103] In re-examination, he said that despite this, while it took him a long time to get better, “later on I was enjoying life”.[104] He thought it took about five years after the break up with his wife to “start enjoying my life … The stress go to … much lower. I’m going to normal life.” He said that after the accident “… my life turned around again … this time very bad …”.[105]
[103]T46, lines 30-31
[104]T111, lines 1-4
[105]T111, lines 12-24
(e) he acknowledges that when he was referred to Tania Pantchenko, his doctor used the word “depressed”. The plaintiff would have described himself as “distressed” or experiencing “stress”;[106]
[106]T47, lines 2-7
(f) at times in the past he has been prescribed tablets for depression;[107]
[107]T47, lines 11-15
(g) he does not recall the specific reason why a mental health care plan was initiated in November 2011;[108]
[108]T49, lines 8-19
(h) in an average day, after he wakes up, he does some stretches, has breakfast and most days he goes to visit a friend who lives about 5 kilometres away. He drives to that place. When he comes home, he does nothing: “Many times I stay home and never go outside.”[109] He said that he has been this way since the accident;[110]
[109]T51, line 15 – T52, line 13
[110]T52, lines 14-23
(i) he agreed that he has at times spent up to six months away overseas in Thailand or Poland.[111] He does not know why he did not put this fact in his affidavit.[112] The last time he travelled was two-and-a-half or three years ago.[113] Up until then he would travel every one to two years overseas for some months at a time.[114] When he is in Thailand, he visits temples for meditation and “looking for support”.[115] He would also visit “young ladies”, which was enjoyable.[116] He denied that going to Thailand itself was particularly enjoyable, saying that he went there for cheap massages: “There was more enjoyment to stay here.”[117] He would use money he received for his birthday to pay for the airfare, or he would borrow money by getting an advance on his social security.[118] In re-examination, he said that the overseas trips prior to the accident were much more enjoyable because he could walk and see more, “I was more flexible with my body … I was much more happy”;[119]
[111]T53, line 31 – T54, line 2
[112]T54, lines 3-6
[113]T54, lines 7-8; T56, lines 3-5
[114]T56, lines 13-14
[115]T98, lines 29-31
[116]T99, lines 1-2
[117]T99, lines 15-20
[118]T99-100
[119]T113, lines 21-31
(j) he has been requested to find his passport but has been unable to do so.[120] He has looked at his son Michael’s place and has looked at his friend Slarbeck’s place.[121] He rejected the proposition that he knows where his passport is;[122]
[120]T54, lines 19-28
[121]T58, lines 1-19
[122]T58, lines 20-21
(k) he acknowledged that from time to time in the five years since the accident, his back pain has caused him trouble.[123] He agreed that he had been prescribed Tramal for back pain in October 2011 and Panadeine Forte in the weeks before the accident.[124] He said that some of the pain medication he was prescribed was for gout or kidney stones: “This is very bad pain …”;[125]
[123]T61, lines 26-29
[124]T67, lines 1-13
[125]T69, lines 25-29
(l) he denied the proposition that he had not mentioned back pain to his general practitioner immediately following the accident.[126] An examination of the general practitioner’s records demonstrates that the plaintiff did indeed complain of lower back pain (as well as pain in the pelvis) just following the accident, which pain was described as “pain +++”;[127]
[126]T62, lines 12-19
[127]Exhibit D1, page 176
(m) he agreed that he developed left shoulder pain in the years following the 1987 workplace injury;[128]
[128]T63, lines 11-13
(n) in relation to his progress following the workplace injury, he said “It was a long time ago. There was some period of time where I was very bad, and there was for some period of time later I need to be better and better …”;[129]
[129]T63, lines 26-29
(o) he agreed that he did go to see Tania Pantchenko when he was referred in November 2011. He saw her a number of times.[130] He had stopped seeing her “some period of time before the accident”.[131] He was seeing her “… when I lost a lot of friends” which caused him “some upset”;[132]
[130]T73, lines 2-12
[131]T92, lines 20-30
[132]T108, lines 12-17
(p) he said he had “more pain” after the accident,[133] including a complaint of pain in the back and pelvis immediately following the accident;[134] pain in his mid-back “for a time” after the accident; pain in his shoulders, which started “a couple of weeks” after the accident in the form of “numbness” in his arms “weakness”, as well as pain in the shoulders themselves;[135] pain in both groins, his neck and his ankle in March 2012;[136] feelings of dizziness in about July 2012;[137] pain in the right knee in November 2012;[138] problems with “flutters in the chest” and “stuttering at times” in about February 2014;[139]
[133]T78, lines 7-8
[134] T81, lines 4-7
[135]T78, lines 11-26; T87, lines 1-14
[136]T81, line 11
[137] T82, lines 20-21
[138]T82, lines 27-31
[139]T83, lines 23-29
(q) he denied the assertion that he had not mentioned any pain in his shoulders to his general practitioner until late in 2015: “No this is not true. I mentioned this one many times before … but they give me some tablets, you know? Some pain killers. If you take the pain killers for back, the pain from the shoulder is going too … .”[140] He agreed that the shoulders remain “a serious problem” as at the time of the hearing.[141] The problem with his shoulders affects him holding onto the handle bars on his motorbike, affects his sleep, his ability to put on clothes and to reach overhead;[142]
[140]T87, lines 15-31
[141]T88, lines 15-17
[142] T88, lines 18-31
(r) he agreed that he has had problems with his knees over the years. He said that the pain in his knees “come and go”.[143] This causes problems with walking. Sometimes this pain affects his sleep and other times not so much;[144]
[143]T93, lines 10-12
[144]T93, lines 19-27
(s) he has been fishing a couple of times since the accident. He had not been fishing since 2015;[145]
(t) he still rides his motorbike, but only “every five, six weeks, even longer you know … .”[146]
[145]T100, lines 10-31
[146]T101, lines 13-31
Medical evidence
31 There are numerous medical reports contained in the tendered material. The relevant portions of the medical evidence are set out below.
Pre-accident presentation
32 Various reports in the defendant’s Court book address the plaintiff’s pre-accident presentation.
33 On 26 May 1991, the plaintiff’s long standing general practitioner, Dr Felix Wilk, stated that he had first seen the plaintiff in relation to back pain on 14 December 1987. After reciting the plaintiff’s fluctuating success with recovery from that physical injury, Dr Wilk observed:
“… by November 1989 … He became considerably depressed … partially due to family reasons but predominantly due to his chronic pain syndrome and the effect it had on his enjoyment of life in general. … [He] was sent by me to a clinical psychologist for relaxation therapy and perhaps to explore other vocational options … .
In October 1990, he received an offer of gradual return to full time work … I felt that this was a little optimistic considering his condition, but he was keen to try.
As predicted, he was not able to perform the duties as offered to him … He was considerably depressed at this time, not being able to cope with his lack of improvement, and I put him off work for a month, to settle ….”[147]
[147]Exhibit D1, page 12
34 In a report dated 26 November 1991, Dr Wilk stated that at that time, the plaintiff suffered from “… a low back pain syndrome as well as moderate to severe depression … ”.[148]
[148]Exhibit D1, page 14
35 Dr Wilk’s clinical records confirm the issues which various medico-legal specialists noted in their reports (which are referred to below) in about 1991 and 1992. The prescription of the anti-depressant “Lovan” is recorded in 2002 and 2008, but aside from that, there is no other clinical record of treatment required for any psychological or psychiatric issue experienced by the plaintiff between 2008 and 2011.[149]
[149]Exhibit D1, pages 104-112
36 In a report dated 22 November 1991, Mr Neville Parker, psychiatrist, stated that the plaintiff:
“… has always kept in good health and rarely consulted doctors before this trouble [with his back] developed. He was an occasional drinker but a non-smoker before this accident. Afterwards he started drinking heavily, particularly when he became depressed, and now he is attending meetings of Alcoholics Anonymous …
… [the problems with the plaintiff’s back] have resulted in a severe reactive depression and he made a determined suicidal bid one month ago. The irritability produced by the frustrations in being unable to work … led to a break down in his marriage and that has further complicated his depression. … If work were available that he could cope with, his depression would quickly lift. …”[150]
[150]Exhibit D1, pages 16 and 18
37 On 10 December 1991, Mr Hugh Hadley, orthopaedic surgeon, expressed the view that he would have expected the plaintiff to be able to cope with working as a painter provided he was able to keep good posture:
“… but if his work involved frequent bending forwards and twisting and with him suffering from considerable nervousness and depression I feel it was reasonable for him to stop work from time to time when he did ….”[151]
[151]Exhibit D1, page 21
38 In a report dated 16 December 1991, Mr Garry Grossbard, orthopaedic surgeon, stated that he believed that the plaintiff had genuine back pain at that time “and the functional component to his level of disability is not very high … .”[152]
[152]Exhibit D1, page 23
39 In August 1992, Mr Grossbard said:
“I found [the plaintiff] to be a reasonable person who is keen to return to work but is limited by his back pain…I believe that [the plaintiff] would progress at his own pace and would probably still be at work even though in a limited capacity if this approach…[had] been used. … .”[153]
[153]Exhibit D1, page 25
40 In a report dated 24 December 1991, Dr Albert Kaplan, psychiatrist, made the following observations in relation to the plaintiff:
“… [the plaintiff] stated that he has continued to suffer from mid-back and low back pain …
… He is accused of malingering at work and this distresses him deeply …
… He becomes intensely angry when these accusations are made.
… [The plaintiff] stated that he became irritable and short-tempered with his wife and children and would scream at them … Because of his volatility, his relationship with his wife gradually deteriorated and she left him 3 years ago … He has desperately wanted his wife back and has physically assaulted her on two occasions in rage. … He had never previously been violent towards his wife and he feels remorseful about his behaviour and he commented, ‘I still love my wife. I still want her to come back’.
… [The plaintiff] commented that his social life has deteriorated … ‘I don’t go anywhere. Just working and staying home. I can’t enjoy … .’ He previously enjoyed going out to the cinema and to dances, and he played soccer with his friends and with his son. He now rarely sees his friends.
… [The plaintiff] stated that he has been depressed and he cries at times. He has generally lost interest and has lost his self-confidence. He commented, ‘I don’t believe for myself anymore’. He experiences thoughts of suicide …
The prognosis of … [the plaintiff’s] psychiatric condition is largely dependent upon the outcome of his physical symptoms. He is likely to continue to suffer from symptoms of anxiety and depression as long as his pain persists and as long as he is unable to resume his previously active life … .”[154]
[154]Exhibit D1, pages 32-34 and 36
41 In a report dated 15 May 1992, Dr Edward Cole, psychiatrist, thought that the plaintiff was suffering from a chronic anxiety state and –
“… reactive depression … of moderate degree. His nervous condition is to be seen as a reaction to his back injury and to the limitations imposed upon him by that injury …
His prognosis will hinge upon that of his underlying injury … .”[155]
[155]Exhibit D1, pages 40-41
42 On 31 July 1992, Dr David Vivian, musculo-skeletal physician, thought that “psychological and emotional factors” were playing a significant role in the disability that the plaintiff had then sustained.[156]
[156]Exhibit D1, page 49
43 On 5 October 2011, the plaintiff consulted Dr Wilk about the death of a particular friend, which appears to be the suicide death of the plaintiff’s friend, Marek.[157] On 8 November 2011, Dr Wilk prepared a Mental Health Care Plan diagnosing the plaintiff as suffering from “Depression”. He referred the plaintiff to psychologist, Ms Tania Pantchenko. The referral letter stated that the plaintiff “has a long history of ‘stress’ with recent depression … ”.[158]
[157]Exhibit D1, page 104
[158]Exhibit D1, page 121
Post-accident presentation
44 The plaintiff’s treating general practitioner, Dr Wilk, provided two reports dated 7 March 2017 and 9 October 2018 and described the plaintiff’s post-accident symptoms in the following manner:
“… [At Casey Hospital] … [h]e complained of multiple symptoms including pelvic & abdominal pain, headache & neck pain, as well as pains in various joints including knees & shoulders.
…
… I first saw him on 22/02/2012, at which time he complained mainly of back and pelvic pain. Apart from lower back tenderness there was nothing to find, and he was reassured and advised to take analgesics. These helped … in the short term and over the next few months his pains continued & he also began to experience pain in the knees & shoulders, especially the left side. Abdominal & groin pains persisted also.
…
Over time he became quite despondent about the failure of his symptoms to settle, such that he started anti depressant medications, as well as attending a psychologist, having developed a post traumatic stress condition.
… .
In summary, Mr Starecki is a 59 year old man who has sustained multiple predominantly soft tissue injuries on a background of degenerative low back disease & anxiety. [T]his has led to a chronic pain syndrome & depression which have been difficult to treat … .”[159]
[159]Exhibit P1, pages 16-17
and
“In summary, Krys is a 61 year old man who has multiple physical conditions which are probably related to his motor bike accident of 2012 …
He has also developed a quite severe post traumatic stress disorder, with depression, withdrawal, and occasional suicidal ideation.”[160]
[160]Exhibit P1, page 19
45 In a report dated 31 January 2014, Dr Brendan Hayman, psychiatrist, diagnosed the plaintiff as having evidence of Post-Traumatic Anxiety following the accident. At that time, Dr Hayman did not think that the plaintiff’s symptomatology met the criteria for a Post-Traumatic Stress Disorder. He thought the plaintiff’s anxiety symptoms were “directly consequent [upon] the motor vehicle accident”.[161]
[161]Exhibit P1, page 63
46 In a report dated 17 April 2018, Ms Brenda Heideman, psychologist, diagnosed the plaintiff as suffering from a Chronic Pain Disorder, Post-Traumatic Stress Disorder (which in 2017 she thought was “partially resolved”) and an “… adjustment disorder associated with a general medical condition with mixed depression and anxiety”.[162] Ms Heideman commented that following the accident:
[162]Exhibit P1, page 55
“Psychologically … [the plaintiff] was traumatised and had thoughts that he would die in the accident. … He reported disturbed sleep, nightmares and night sweats following the accident, feeling depressed with reduced self-motivation, feeling pessimistic with reduced self-worth. He reports difficulty socialising post-accident, weight gain along with some memory impairment and pain. He also reported significant anxiety driving near the scene of the accident, and repeated questioning of why he survived the accident. His mood and self motivation deteriorated with him reporting [a] significant feeling of loss as he was unable to participate in his usual physical activities along with reduced social contact.
…
Initial treatment focus was to manage the symptoms of PTSD associated with the motor vehicle accident.
…
… [the plaintiff] has not attended therapy since October 2017, so I am unable to comment on his progress since then.”[163]
[163]Exhibit P1, pages 55-57
47 Ms Heideman commented that while in her opinion in 2017, the plaintiff’s Post-Traumatic Stress Disorder was partially resolved, he had a Chronic Pain Disorder and a Chronic Adjustment Disorder which were highly unlikely to resolve in the medium term. She thought his long-term prognosis was “dependent upon his pain levels and his self management of this pain”.[164]
[164]Exhibit P1, pages 57-58
48 Ms Heideman’s clinical notes confirm that during consultations with her, the plaintiff’s account of his issues focussed to a large degree on his reaction to the accident and his pre-occupation with the fact that he thought he was going to die.[165] For example on 19 March 2012, she recorded
“Doesn’t know why survived, able to use bike … reduced power to his arms … pain ‘everywhere’ … cannot dress self … .
Pain to head, left arm, torso & groin initially, then pain to shoulders & left arm … .”[166]
[165]Exhibit D1, pages 154-155; exhibit P1, page 147
[166]Exhibit D1, page 154
49 When asked about these notes, the plaintiff said that after the accident “… I’ve got pain everywhere, from my knees to my shoulders …”.[167] He said that he “told everyone this one”.[168] He said that in the ten years or so prior to the accident, apart from the period during which he saw Tania Pantchenko, he was never referred to a psychologist by his general practitioner, Dr Wilk.[169] He said that he follows Dr Wilk’s advice and would have gone to see a psychologist if he had been referred to one.[170] He said that he was never on antidepressant medication for an extended period of time.[171] He confirmed that if his general practitioner had prescribed that medication for him, he would have taken it.[172]
[167]T103, lines 17-24
[168]T104, lines 6-8
[169]T109, lines 13-20
[170]T109, lines 4-5
[171]T110, lines 1-6
[172]T109, lines 1-3
50 In a report dated 16 June 2018, Dr Nigel Strauss, psychiatrist, expressed the opinion that “as a result of the motorbike accident, the plaintiff’s pre-existing psychiatric problems have remained permanently aggravated”. He also thought that the plaintiff was “traumatised [by the accident] and remains traumatised”. He thought that the plaintiff was suffering “from some post traumatic stress symptoms” as a result of the accident, and also that the accident had “permanently aggravated” the plaintiff’s “persistent depressive disorder”. Dr Strauss was of the view that the plaintiff’s prognosis was “poor”. He said that he believed that “the long term effect of the motorbike accident … has been deleterious in relation to his level of activity involving social, domestic and recreational pursuits. His quality of life has also suffered as a result … .”[173]
[173]Exhibit P1, page 90-91
51 In a report dated 14 March 2019, Ms Barbara Lach, clinical psychologist, stated that the plaintiff had been attending regular appointments with her since 4 April 2018. She said:
“… [the plaintiff reported] experiencing flashbacks and nightmares regarding a motorcycle accident during which he had sustained significant injuries…he also stated that he had been easily startled and had avoided riding his motorbike, especially in the area where the accident happened. … [The plaintiff] reported experiencing low mood, transient suicidal ideation, social isolation, problems with memory and concentration as a well as low energy levels. Problems with sleep and increased appetite have also been reported….His complaints were consistent with a diagnoses of a Post Traumatic Stress Disorder (PTSD) and a Major Depressive Disorder (MDD) … His condition is not likely to improve in the future.”
52 In a report for the defendant dated 20 August 2017, Associate Professor Peter Doherty, consultant psychiatrist, stated:[174]
“Thus, my diagnostic view is that the transport accident caused a somatic symptom disorder [where the ‘predominant symptom’ was noted to be ‘that of pain’], though there were significant pain symptoms before the transport accident. The transport accident caused an aggravation of a pre-existing depressive disorder. There were some features of traumatisation, but no PTSD condition. There is a pre-existing alcohol use disorder that continued after the transport accident.”
[174]Exhibit D1, pages 81-82; the report provided by Associate Professor Doherty dated 15 February 2019 is to similar effect
The issues
Compensable injury
53 The details and occurrence of the incident are not in dispute.
54 Having considered all of the medical evidence from both treaters and medico-legal experts from both sides, the weight of the evidence satisfies me that as a result of the accident, the plaintiff presently suffers from a mental disturbance or disorder in the form of:
(a) a permanent aggravation of his pre-existing Depressive Disorder with new features of traumatisation and anxiety arising from the accident;
(b) the onset of a long-term Pain Disorder (described by Associate Professor Doherty as a “somatic symptom disorder”), causing widespread pain throughout the plaintiff’s body which does not respond well to analgesia; and
(c) the onset of symptoms of post-traumatic stress, including nightmares, flashbacks and interrupted sleep.
The Plaintiff’s credit
55 The plaintiff was questioned closely in relation to matters affecting his credit during the hearing. Counsel for the defendant pressed the plaintiff during cross-examination about the accuracy of matters referred to both in his own affidavits and in various doctors’ reports.
56 For instance it was put to the plaintiff that far from being a recluse, he enjoyed travelling overseas and did so more than he was prepared to admit. In addition, he was asked questions about how much he socialised, his alcohol intake prior to the accident, the domestic violence in his relationship with his wife and its relationship to alcohol misuse, his experience of pain, and the onset of particular pain, especially in his shoulders.
57 In relation to each of these issues, the plaintiff answered all questions and proffered reasonable explanations. The cross-examination revealed an extensive history of problematic alcohol use which the plaintiff had not deposed to in his affidavit material (he deposed only to the onset of problem drinking after the accident).[175] During cross-examination, the plaintiff freely admitted to having had periods of alcohol abuse in the past. I also note that he had openly given Associate Professor Doherty a comprehensive history which included those matters which were not included in the plaintiff’s affidavits.
[175]Exhibit P1, page 7
58 Having observed the plaintiff’s demeanour during this line of questioning, I am not persuaded that the plaintiff deliberately misled the Court at any stage. In the end, little turned on this issue and I formed the view that my assessment of the plaintiff’s credit ought not to be influenced by this omission.
59 Having considered all of the evidence, including the relevant medical evidence which indicates that the plaintiff suffers from a Chronic Pain Syndrome (or “somatic disorder”) as a result of the accident, I am satisfied that there are in fact very few (if any) “inconsistencies” in the plaintiff’s three affidavits.
60 What at first looks like differing accounts of severe physical injuries, are in fact a well understood manifestation of a Chronic Pain Syndrome, where, by reason of a psychological or psychiatric reaction to a traumatic event or injury, a person suffers an experience of pain for which there is no or little physical cause, and which can be diffuse and varying in nature and severity from time to time. This is precisely the plaintiff’s presentation in this case. As observed by Mr Peter Gard, the defendant’s orthopaedic expert:
“… [the plaintiff’s] symptoms seem far in excess of the observed and imaged pathology. He exemplifies chronic pain behaviour exhibiting and experiencing severe pain for example in the knee and shoulder with modest pathologies. ... .”[176]
[176]Exhibit D1, page 141
61 Having had the benefit of observing the plaintiff while he was giving evidence to the Court, I formed the view that the plaintiff was a co-operative witness who appeared to be doing his best to give accurate responses to the questions asked of him. He did not appear to be artful in the manner in which he gave his answers.
62 Lucasz Starecki’s credit was criticised by Counsel for the defendant, in particular, for omitting from his affidavit details of the domestic violence between the plaintiff and his wife and the plaintiff’s alcohol misuse. Lucasz was said to have “glossed over” these prior issues.
63 I do not accept that the criticisms levelled at the content of Lucasz’s affidavit, as valid as they may be, otherwise undermine his credibility to any significant degree. From the content of his affidavit, it is clear that Lucasz was asked to comment on his father’s pre-accident personality, activities and mental state, which he did. He was not required to attend for cross-examination. In the absence of cogent evidence to the contrary, it is open to me to accept Lucasz’s account of his father’s pre and post-accident presentation as accurate, and I do so.
64 After a consideration of all the evidence and in particular, the evidence of the plaintiff, which is corroborated by the affidavit evidence of his son, I consider that he was a credible witness, in the sense of being a truthful person. I did not form the impression that he was attempting to mislead the Court or exaggerate his symptoms.
65 Furthermore, I find that the plaintiff's account of events has been consistent throughout the period during which he has seen his treating medical practitioners, consulted with the medico-legal assessors and provided evidence to this Court. I also note that in relation to the 1991 back injury, many of the doctors whose reports were tendered, expressed the opinion that the plaintiff was genuine in his complaints of pain, that there was a cause for that injury and that he firmly wanted to return to work.
66 Similarly, the comment was made more than once, that the plaintiff’s psychological issues and depression would resolve if he was able to return to productive work or manage his pain. In this respect, the plaintiff and his son swore to the fact that the plaintiff had learned to live with his back pain over the years. Despite still experiencing that pain, the plaintiff said that he “managed a good life”. That this occurred is consistent with the doctors’ views from the early 1990s.
The likely progression of the Plaintiff’s pre-existing mental disorder absent the accident
67 Mr Lewis urge me to accept that there was no evidence of “what the plaintiff’s mental state would have been absent the accident”.[177]
[177]T129-130
68 As to this, it has been held that a Court is not free, in the absence of evidence, to infer that the consequences of a plaintiff’s pre-existing injury were likely to increase, or that a particular impairment which existed prior to an accident, would be likely to worsen.[178]
[178]Petkovski (supra) at 439, paragraphs [26]-[30], per Southwell and Teague JJ
69 Similarly, the absence of evidence of a pre-accident “prognosis” does not of itself mean that I am unable to make an assessment of the plaintiff’s mental state just prior to the accident, provided there is evidence before me which allows me to make the relevant findings. I am satisfied that such evidence exists.
70 In particular, given the plaintiff’s presentation to the Court and the well documented progression of his psychological and psychiatric symptoms in the past, there is no evidence upon which I could conclude that the plaintiff’s symptoms of depression and anxiety experienced in late 2011 would, absent the accident, have worsened or deteriorated to any significant extent. To the contrary, the pattern of the plaintiff’s prior experience of psychological or psychiatric symptoms involved treatment, followed by substantial resolution.[179]
[179]Exhibit D1, page references for Dr Wilk’s notes
71 The evidence indicates, and I find that just prior to the accident, the plaintiff suffered a flare up of pre-existing depression, in the context of the suicide death of his friend. That depression was managed through the prescription of anti-depressant medication and referral to a psychologist. There is no evidence that at this time, the plaintiff’s depression was interfering with his activities of daily living, or that he experienced the intrusive and distressing symptoms from which he now suffers, such as interrupted sleep, tearfulness, episodes of panic, flashbacks and nightmares, and feelings of hopelessness and uselessness.
Is the compensable injury permanent for the purposes of the Act?
72 Having considered the relevant reports from Ms Heideman,[180] Dr Strauss[181] and Ms Lach,[182] I find that the plaintiff is likely to continue to suffer from the mental disturbance or disorder set out above, for the foreseeable future. Thus, I find that the injuries sustained by the plaintiff in the incident are permanent for the purpose of the Act.
[180]Exhibit P1, page 58
[181]Exhibit P1, page 91
[182]Exhibit D1, pages 137 and 144
Is there a need to disentangle the mental and physical consequences of the accident?
73 Counsel for the defendant submitted that in this case, there is insufficient evidence upon which I could be satisfied:
(a) of the nature and extent of the consequences which arise from particular injuries;
(b) whether the relevant injury, even if identified, is physical or mental in nature; and
(c) whether the consequences suffered by the plaintiff, arise from injuries which are as a result of the accident.
74 The exercise of making such an analysis is often referred to as “disentangling”. The plaintiff bears the burden of proof in any disentangling exercise which needs to be undertaken.
75 Having carefully considered all of the medical evidence, the weight of that evidence satisfies me that any physical injuries suffered in the t accident by the plaintiff were soft tissue injuries, which have now resolved.
76 The case as put by the plaintiff is that the pain which he has experienced since the accident throughout various parts of his body, is the result of a “chronic pain syndrome” (or “somatic disorder” as it was described by Professor Doherty). As set out above, this conclusion is readily supported by the medical evidence on both sides. No doubt, the pain which the plaintiff experiences in his lower back is at least partly attributable to his prior workplace accident; however, I am satisfied that the widespread pain and symptoms from which the plaintiff now suffers, including dizziness and pain in his neck, head, arms, abdomen, mid back, groins and legs, is the result of a mental disturbance or disorder in the nature of a Chronic Pain Syndrome, which has arisen as a result of the accident.
77 There was significant debate about the contribution which the accident made to the pain in the plaintiff’s shoulders. Much of the debate turned on when the plaintiff first complained of pain in his shoulders, there being no record in the general practitioner’s notes of a complaint of shoulder pain until some years after the date of the accident.
78 However, the evidence in the defendant’s court book discloses that on 19 March 2012, the plaintiff described the onset of pain in his shoulders just after the accident, to Ms Heideman.[183] This account was given as part of a description of “pain everywhere” and in the context of the plaintiff recounting generalised symptoms of trauma and anxiety resulting from the accident. Similarly, Dr Wilk refers to complaints of shoulder pain immediately after the accident in his report dated 7 March 2012.[184]
[183]Exhibit D1, page 154
[184]Exhibit p1, page 16
79 Having assessed all of the evidence before me concerning the pain in the plaintiff’s shoulders, I am satisfied to the requisite standard, that the plaintiff’s shoulder pain presently manifests itself in the context of the broader Chronic Pain Syndrome, from which he suffers as a result of the accident,
80 Given that, there is no need to undertake any further disentangling. The only matter left to decide is whether the consequences of the accident which have produced the mental disturbance or disorder from which I am satisfied the plaintiff now suffers, presently produces a sufficient degree of impairment to satisfy the relevant test under the Act.
Are the consequences to the Plaintiff of the accident “severe”?
81 On the basis of all of the evidence before me, I find that as a result of the accident, the plaintiff suffers from a mental disturbance or disorder which has produced the following consequences to him:
(a) daily, widespread pain in his body which does not respond well to analgesia;
(b) the prescription of daily, high dose analgesia, being two forms of Tramadol;
(c) ongoing, frequent attendances for treatment at his psychologist;
(d) permanently increased symptoms of depression;
(e) increased anxiety;
(f) nightmares associated with the accident;
(g) flashbacks and panic to do with the accident;
(h) frequently interrupted sleep;
(i) decreased tolerance of others;
(j) thoughts of suicide;
(k) frequent thoughts of death;
(l) frequent crying;
(m) feelings of hopelessness and uselessness;
(n) increased anger and frustration;
(o) an inability to go on long motorcycle rides and watch races and events;
(p) nervousness when travelling in a car;
(q) increased social isolation and loss of friends;
(r) loss of enjoyment of activities such as cooking and attending the football;
(s) sadness at what he has lost, including disruption to the previously good relationship he had with his sons, grand-daughters and friends;
(t) lack of energy; and
(u) poor personal hygiene at times.
82 I find that the consequences referred to above are long term and are consequences that are more than “very considerable” to the plaintiff. Therefore, I find that the consequences of the mental disturbance or disorder suffered by the plaintiff as a result of the accident, are “severe” within the meaning of the Act.
Conclusion
83 Accordingly, pursuant to s93(4) of the Act, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering in respect of a permanent, severe aggravation of a pre-existing mental disturbance or disorder, suffered as a result of a motor vehicle accident on or about 16 February 2012.
84 I will hear the parties on the question of costs.
- - -
0
6
0