Stouraitis v TAC
[2019] VCC 2166
•20 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-17-04229
| JOHN IOANNIS STOURAITIS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3, 4 June and 7 October 2019 | |
DATE OF JUDGMENT: | 20 December 2019 | |
CASE MAY BE CITED AS: | Stouraitis v TAC | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2166 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to the spine
Legislation Cited: Transport Accident Act 1986
Cases Cited:Spence & Anor v Gomez [2006] VSCA 48; Gennimatas v TAC [2002] VSC 552; Transport Accident Commission v Zepic [2013] VSCA 232; Altona Bus Lines & Anor v Lococo [2002] VSCA 159; Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260; March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 504; Petkovski v Galletti [1994] 1 VR 436
Judgment: Leave granted to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Fitzpatrick with Mr Y Chen | Slater & Gordon |
| For the Defendant | Mr D Masel QC | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1 The plaintiff is aged 36 years. He was a stationary driver of a van that was rear-ended on 15 September 2011. A little less than two years after the transport accident, and in celebration of his 30th year, he travelled to the United States of America. Whilst in Las Vegas he experienced a sudden deterioration in the condition of his back. On his return to Australia he was found to have suffered a significant prolapse. He underwent low back surgery on 4 August 2014 by way of a right L4-5 microdiscectomy performed by Mr de la Harpe.
2 The plaintiff’s Originating Motion dated 12 September 2017 seeks relief by way of the grant of a serious injury certificate so as to allow him to commence proceedings at common law for damages. At the hearing of the application the plaintiff was represented by Mr Fitzpatrick of counsel together with Mr Yen of counsel and the defendant was represented by Mr Masel of Queen’s Counsel together with Ms Manova of counsel.
3 The plaintiff’s application was not without complications. First, the transport accident aggravated the plaintiff’s already vulnerable lumbar spine. It was common ground between the parties that at the date of the transport accident the plaintiff presented with a spinal condition. Second, because of the period of time between the transport accident and the surgery for the prolapse, the issue of causation became important. Third, the defendant argued that the plaintiff’s credibility has been proved to be unreliable. Finally, in the event I was disposed in favour of the plaintiff, the defendant contended, that the consequences occasioned by the aggravation injury as a result of the transport accident, are not when assessed according to range, “serious”.
4 A point relied on by the defendant at the outset was that plaintiff had not identified the physical injury sustained in the transport accident of September 2011 to which the loss of body function relied upon relates. The defendant submitted this was a failure of first principles by the plaintiff. The defendant argued that in the event the plaintiff relied upon the transport accident having caused an aggravation by way of an injury to the lower spine by reason of an annular tear then based on the opinions of Mr Siu, the plaintiff had already presented with an annular tear in 2007.
5 For the reasons that follow, I am not persuaded by the defendant’s criticism of the plaintiff’s case. I am satisfied that the plaintiff identified an injury caused to the spine that was made worse by the transport accident. I am satisfied that the injury caused by the transport accident is one by way of aggravation of degenerative changes to the structures of the plaintiff’s lumbar discs. I am satisfied that the injury comes within the scope of the reasoning of the Court of Appeal in Spence & Anor v Gomez[1] and may be seen to be encompassed as an injury in which the transport accident caused an aggravation of a pre-existing condition in which the aggravation itself is a serious injury. If I am wrong in this analysis, then I would be satisfied the case also meets the description posited by Maxwell P in Spence, that is, that the injury suffered by the plaintiff in the transport accident caused an acceleration in the development of his pre-existing lumbar spine disease which would in any event have caused a deterioration.
[1][2006] VSCA 48
6 Despite being satisfied that plaintiff experienced pain before the transport accident, I am satisfied that he came to suffer a serious long term impairment of the lower lumbar spine as a direct result of the transport accident. The interaction between the test imposed at law, and the evidentiary requirements for a plaintiff in such a case, was explained by Buchanan JA in Altona Bus Lines v Lococo[2] as follows:
“If it can be demonstrated that a subsequent history would not have occurred but for an earlier injury, or the effects of the subsequent injury were more severe because of the earlier injury, then the subsequent injury, or the additional effects thereof, as the ace may be are consequences of the original injury and may be taken into account in considering whether the original injury produced a severe long term impairment of the body function…”
[2][2002] VSCA 159
7 The burden of proof resides with the plaintiff and the standard of proof is the balance of probabilities.
8 There are undoubtedly some issues identified by the defendant that have made the plaintiff’s case more complex but, to some degree, I am also satisfied that defendant’s submissions have raised hurdles for the plaintiff that he is not required to clear. However, before analysing the competing legal contentions in greater detail and identifying the reasoning that I have applied reaching my decision, it is necessary that I address the essential factual background.
The transport accident
9 The fact that the plaintiff sustained an injury in a transport accident within the meaning of the Transport Accident Act 1986 (“the Act”) on 15 September 2011, as a result of his stationary car being struck by another vehicle is not in doubt. The question of whether the accident occurred at high speed, perhaps at approximately 60-70 kilometres per hour, an estimate that the plaintiff has given at times to certain people, was on the other hand, the subject of significant contention by the defendant. The defendant devoted considerable attention in cross-examination, and by way of final address, to the question of the speed at which the plaintiff’s car was hit by the other vehicle. However, I have not found it necessary to make an adverse finding about speed in the determination of the application and whether the plaintiff’s estimate of it was untruthful as opposed to unreliable.
10 The fact that the plaintiff’s evidence revealed some uncertainty about the speed at which he was hit by the other vehicle, is not evidence of untruthfulness by him. Neither have I been persuaded to find him dishonest after having considered those parts of the evidence to which Mr Masel directed my attention and that he argued suggested that the plaintiff had overstated the speed at which he was struck. Finally, I have not concluded that the plaintiff’s dishonesty in connection with an insurance claim he made as a result of his back problems encountered while traveling on holiday in the United States some three years after the transport accident is evidence of a tendency on his part of dishonesty.
11 Mr Masel endeavoured to bolster his arguments by reference to photographs of the damage to the plaintiff’s vehicle. However, photographic evidence of damaged panels is not forensic evidence of crush force, and the statements attributable to the other driver following the accident, to which Mr Masel took the plaintiff in cross-examination, is no more reliable as constituting alternative speed. No expert opinion was offered to establish speed. The defendant did not, for example, provide a contemporaneous record such as a police report to contest the reliability of the plaintiff’s account. Finally, I note that the defendant offered no evidence to suggest that the dynamic force of some lesser speed striking the plaintiff’s stationary vehicle could not have resulted in injury capable of inflicting a long-term vulnerability to an already compromised spine. I accept that Mr Siu offered an opinion, but his expertise is not of that order[3]. Therefore, in the absence of contrary expert opinion evidence, I am not satisfied that the plaintiff’s evidence should be rejected. I make no adverse finding on the question of the plaintiff’s account of speed at the time he was impacted.
[3]I have not found it necessary to assess the contentions by the defendant concerning relative expertise and of the primacy of Mr Siu’s opinion in this case according to the decision in Dasreef Pty Limited v Hawchar [2011] 243 CLR 588
Immediate aftermath of accident
12 The defendant submitted that I should have some regard to the absence of attendance for medical attention by the plaintiff in the proximate aftermath of the accident. A clinical note recorded by the plaintiff’s general practitioner on the day of the accident when the plaintiff attended on him was of a “Typical whiplash”. The comment under “Examination” noted the plaintiff being “Very tender right side of neck Reduced flexion and lateral extension on right Nil bruising”.[4]
[4]Dr Karamoutos clinical note dated 15 September 2011 Exhibit P7. See also cross-examination of plaintiff at T38
13 I am not persuaded that the defendant’s arguments regarding the plaintiff’s attendances for medical attention and his account of pain and of a worsening in the period after the transport accident speaks against the probability that he suffered an injury caused by the transport accident. The account of the record of the plaintiff’s medical attendances in the aftermath of the accident are not of themselves evidence that his injury was less typical than atypical. The plaintiff’s case is not one of an immediate and significant manifestation of serious injury but rather of an evolving worsening of an existing degenerative vulnerability.
The pre-existing condition
14 A good deal of forensic attention in this application was devoted to an examination of the condition of the plaintiff’s spine before the September 2011 transport accident and the course of the plaintiff’s life thereafter up to when he suffered the significant pain episode in the United States in July 2013 that resulted in spinal surgery in August 2014.
15 The first recorded account of the plaintiff encountering low back pathology dates to 2004 following on from an incident when he fell down stairs and landed on his backside. Since then he experienced low back pain that warranted medical care.
The approach to the application
16 Before considering the extent to which the September 2011 transport accident aggravated the plaintiff’s vulnerable back, it is helpful to identify the approach required at law in such a case. The Act requires that a person suffer an injury “as a result of a transport accident”. Neither the Act nor accident compensation legislation, that provides a similar gateway mechanism in order to permit a person to commence action at common law for damages, requires a single cause of an injury such that more than one cause will defeat a claim for the grant of a serious injury certificate. The existence of concurrent causes of an injury is not uncommon[5] and whilst from an evidentiary standpoint a plaintiff may encounter more difficulties in the conduct of such an application, the legal requirement is fixed and requires that a plaintiff must prove on the balance of probabilities that the effects of an aggravation to a pre-existing disease caused by a transport accident can be measured and found to be serious after having stripped away the consequences that the plaintiff may suffer because of any persisting and pre-existing injury.
[5]See: Gennimatas v TAC [2002] VSC 552
The approach to credibility
17 Because a considerable part of the defence to the plaintiff’s application related to his credibility, it is apt that I identify the approach I have applied to that issue. The defendant submitted that the plaintiff’s credibility had been undermined when he made a false claim on his travel insurance policy provider following on from his injury in the United States in July 2013.
18 The credibility of an applicant as an historian can have considerable relevance in determining the question of seriousness of injury. For example, medical opinions may be subject to reliability where a diagnosis is based in whole, or in part, on an account furnished to a doctor that is incomplete or false. However, the issue of credibility is not always cut and dried. There may be instances in which, despite the unreliability of a plaintiff’s history given to a doctor, whether deliberately or not, the ultimate medical opinion is not affected by reason of the availability to the doctor of other sources of information to buttress a diagnosis. The credibility of a plaintiff may still, however, remain an issue of importance in assessing consequences and their significance when attested to by a plaintiff because his general integrity has been impugned. Further still, in some cases the objective medical record may be so lacking in material particulars and reliance on the plaintiff too uncertain as to enable any sensible finding. Each case calls to be decided on its own facts.
The evidence
19 The plaintiff relied on the following evidence:
· Affidavits of John Stouraitis sworn 12 May 2015, 1 May 2019
and 29 May 2019[6]
[6]Exhibit P1, Plaintiff’s Court Book (“PCB”) 10-27
· Affidavits of Anna Stouraitis sworn 1 May 2019, 23 May 2019[7]
[7]Exhibit P2, PCB 28-34
· Affidavits of Effie Stouraitis sworn 30 April 2019, 29 May 2019[8]
[8]Exhibit P3, PCB 35-43
· Report of Troy Bertoli dated 30 July 2013[9]
[9]Exhibit P4, PCB 50
· Report of David de la Harpe dated 17 November 2014[10]
[10] Exhibit P5, PCB 53-69
· Report of Stuart Game dated 10 June 2018[11]
[11]Exhibit P6, PCB 70-71
· Report of Peter Karamoutsos dated 15 January 2015[12]
[12]Exhibit P7, PCB 72
· Reports of Sarah Mantorella dated 16 April 2012, 6 March 2015 and 29
April 2019[13]
[13]Exhibit P8, PCB 73-86
· X-ray lumbosacral spine dated 20 December 2004[14]
[14]Exhibit P9, PCB 87
· X-ray lumbosacral spine dated 10 March 2006[15]
[15]Exhibit P10, PCB 88-89
· MRI of lumbar spine dated 5 July 2007[16]
[16]Exhibit P11, PCB 90
·MRI lumbosacral spine and ultrasound left shoulder dated 20 January 2012[17]
[17]Exhibit P12, PCB 91-92
· MRI lumbosacral spine and R hip 31. October 2013[18]
[18]Exhibit P13, PCB 93-94
· MRI cervical spine 7 February 2014[19]
[19]Exhibit P14, PCB 95-96
· CT of lumbar spine dated 26 September 2015[20]
[20]Exhibit P15, PCB 97-98
· MRI lumbar spine dated 28 September 2015[21]
[21]Exhibit P16, PCB 99-100
· MRI cervical spine dated 23 June 2017[22]
[22]Exhibit P17, PCB 101-102
·Report of Paul D’Urso dated 25 March 2019[23]
[23]Exhibit P18, PCB 103-107
· Reports of Russell Miller dated 15 March 2019, 9 September 2015, 11
February 2015, 30 December 2012[24]
[24]Exhibit P19, PCB 108-133
· Reports of John Owen dated 23 April 2019 and 15 May 2019[25]
[25]Exhibit P20, PCB 165-183
· Report of Russell Miller dated 30 May 2019[26]
[26]Exhibit P21, PCB 186-189
· Report of Dr David Fish dated 4 June 2012[27]
[27]Exhibit P22, PCB 190-196
· Report of Troy Bertoli dated 30 July 2013[28]
[28]Exhibit P23, PCB 197
· TAC claim form[29]
[29]Exhibit P24, PCB 206-216
· Email of John Stouraitis dated 1 June 2019[30]
[30]Exhibit P25, PCB 217-218
· Greensborough Medical Centre (exceprts)[31]
[31]Exhibit P26, PCB 219-238
· Supplementary report of Paul D’Urso dated 3 June 2019[32]
· Report of David de la harpe dated 28 August 2019[33]
· Letters from TAC dated 31 March 2014, 21 January 2014 and 18
December 2013[34]
· Affidavit of John Stouraitis dated 19 September 2019[35]
· Affidavit of Anna Stouraitis dated 25 September 2019[36]
[32]Exhibit P27, PCB 260-261
[33]Exhibit P28, PCB 264-266
[34]Exhibit P29, PCB 267-275
[35]Exhibit P30, PCB 272-275
[36]Exhibit P31, PCB 276-277
20 The defendant relied on the following evidence:
· Report of Dr Robert Hjorth dated 19 December 2012[37]
[37]Exhibit D1, Defendant’s Court Book (“DCB”) 25-27
· Doncaster Osteopathic Clinic: clinical notes[38]
[38]Exhibit D2, DCB 28-105
· Doncaster osteopathic clinic: patient questionnaire dated 3 June 2007[39]
· Police incident report printed 19 August 2019[40]
· Coloured photographs of the plaintiff’s vehicle[41]
· Instruction letter to Dr de la Harpe dated 29 May 2019[42]
· Instruction letter to Dr Kevin Siu dated 19 September 2019[43]
· Instruction letter to Dr Kevin Siu dated 1 October 2019[44]
· Medical report of Dr Kevin Siu dated 22 September 2019[45]
· Medical report of Dr Kevin Siu dated 2 October 2019[46]
· Coloured photograph Toyota Hiace SBV 2002 from justcars.com.au[47]
[39]Exhibit D3, DCB 106-107
[40]Exhibit D4, DCB 108-110
[41]Exhibit D5, DCB 111-126
[42]Exhibit D6, DCB 127-128
[43]Exhibit D7, DCB 129-142
[44]Exhibit D8, DCB 143-145
[45]Exhibit D9, DCB 146-155
[46]Exhibit D10, DCB 156-160
[47]Exhibit D11, DCB 169-171
21 It has not proved necessary for me to refer to each of the exhibits relied upon by the parties in my reasons. However, I have read all of the evidence and given consideration to it. Also, my reasons do not address every submission made by counsel. My reasons, however, do address those parts of the evidence and of the parties’ submissions that I have considered probative to the issues I have decided.
The lay evidence
22 The plaintiff’s wife and mother and cousin swore affidavits,[48] but they were not required by the defendant for cross-examination. Their evidence, therefore, was received unchallenged.
[48]Exhibits P2 and P3 (PCB 28-43) and two affidavits of Niko Kyriakouleas sworn 22 May 2019 (PCB 44-49).
23 The plaintiff in his affidavit deposed to having worked for the family business, which was involved selling capital equipment in the panel beating industry. He said that at the time of the transport accident he was working as the general manager and sales representative for the business and he undertook a good deal of travel, office work and physical activities such as demonstrating how to use equipment to potential customers and also installing equipment on weekends. At the date of his first affidavit he said he was taking Tramadol, Naprosyn and Neurofen Plus on an as needs basis but he had tried to limit medications due to a concern about their effects.
24 The plaintiff said that he had endeavoured to continue work after the transport accident and his duties were informally modified to try and accommodate him. He ceased travelling interstate and overseas as often as he had in the past and he also ceased undertaking large equipment installations. Following his surgery in 2014, he said he realised that he would not recover his pre-accident capacity and he commenced to feel a burden to his family and frustrated in himself by his inability to perform all aspects of the job as he once had. He therefore ceased working with the family business in January 2015 and commenced a new job managing a carwash in Brighton. He said that job was much less physical as it involved largely greeting customers, receiving money and moving vehicles around.
25 The plaintiff addressed the consequences he has experienced. He said that whilst the surgery performed in August 2014 improved the pain in his legs that he had suffered following the transport accident the pain in his back remained. He said he struggles with bending, particularly backwards, twisting and lifting. He said he has a high pain tolerance but will suffer the consequences if he overdoes activity. He described limitations including sitting for long periods of time and particularly so if a chair lacks back support. He finds that standing brings on pain if he has remained upright for prolonged periods.
26 He described his love of running and having relinquished it due to the consequences associated with flare-ups of back pain. He spoke of having taken up, and then needing to surrender, playing soccer as has also been the case with his previous pursuits of weight training and camping.
27 He said he had enjoyed working for his family and had hoped to continue working there in the long-term.
28 In his second affidavit made 1 May 2019, the plaintiff addressed the fall he had in 2004 and of the flare-up of pain in July 2007 following a match of tennis. He noted that he had been referred for an MRI scan on 5 July 2007. He said physiotherapy had not resolved his pain and Dr Game had referred him to a osteopath.
29 The plaintiff deposed to his belief that he had recovered well from the earlier incidents of spinal pain and he pointed to his resumption of a broad range of activities. He referred to having resumed playing of competitive league soccer.
30 The plaintiff characterised the consequences of the transport accident as very significant in terms of his level of activity. He said that despite having continued playing high-level soccer after the transport accident he was unable to cope because of pain and he had to give it away entirely. He said he endeavoured to continue playing the game socially but referred to an occasion where he was undertaking a social kick with friends and his back locked up and he was admitted to Box Hill Hospital. He said he will not take painkillers because he is unwilling to use them and prefers to manage his pain through exercise and training. He said he has an ice bath twice a week and hot baths two or three times a week which he says he finds a benefit. He continues to attend his osteopath.
31 He said he has limited sitting and standing tolerances.
32 He commenced employment as a parts manager where his work is mainly administrative although there is an occasional need for some handling of light stock items. He said he is managing his employment. He said he believed that he would have been capable of earning considerably more in the family business than the amount of $1,200 net he currently earns.
33 He said that he had been a keen shooter involved in both target shooting and live shooting and would travel the country and camp out while hunting and shooting rabbits, hares and quail. He said he had intended to expand his hunting activities to include deer but he has now ceased hunting entirely and has not been camping for years.
34 He said that prior to surgery he estimated his pain averaging at 8/10 and since surgery it averages 4/10.
35 The plaintiff’s wife deposed that they had a child who was born in 2015. She corroborated a number of matters deposed to by the plaintiff including the fall down stairs in 2004 but from which she considered he had recovered fairly well. She said the plaintiff had previously been able to help with all activities around the house and actively pursued his employment with the family company. She deposed that their intimate life was healthy and that they had been very happy together. She noted that following the transport accident considerable change developed and the plaintiff was in substantial pain and was not able to be as physically active as before. She said she found their intimate relationship suffered considerably with the plaintiff restricted by pain. She noted that strained relations with his parents had developed because of his inability to continue with his employment in the family business. She said that the plaintiff has encountered increasing difficulty holding and handling their son and that it would fall to her to be responsible for bathing and lifting and carrying him. She said the plaintiff was reticent about lifting his son because of the strain on his spine. The plaintiff said in re-examination that he has lifted his son and when asked why, he said, “because he’s my son”[49]. Ms Stouraitis deposed that she undertakes the overwhelming majority of cleaning, vacuuming, mopping and cooking and other domestic chores. She also deposed that the bulk of the weeding and like activities in the garden has fallen to her.
[49]T159
The plaintiff cross-examined
36 I accept the defendant’s submission that in a number of respects in giving his evidence the plaintiff was not impressive. On occasions, he responded reluctantly to questions in cross-examination concerning matters he had deposed to in his affidavits concerning the condition of his back and the need for attention to it between 2004 and 2011. However, I was not satisfied that the plaintiff’s answers were of such a nature and quality to have persuaded me that he was deliberately intending to mislead.
37 The plaintiff, on close questioning by Mr Masel, conceded that a number of activities he had pursued before the September 2011 accident, such as running and playing soccer, and that he said he had to give away because of the effects on him of the transport accident, had in fact been interrupted because of episodes of back pain before September 2011.
38 The plaintiff also agreed in cross-examination that he had experienced “flare-ups” of low back pain since he fell down stairs in 2004. He agreed that after the fall down stairs Dr Game, his general practitioner at the time[50] organised for him to attend an osteopath, Ms Martorella.
[50]Dr Game became ill and the plaintiff’s general practitioner became Dr Karamoutsos
39 The plaintiff was cross-examined at some length about the content of Ms Martorella’s notes of his attendances after 2004 and before September 2011. I think it is reasonable to say that the plaintiff was somewhat at sea when questioned about them. By and large, when the contents of a note was put to him in cross-examination, he was able only to adopt the note. He said this was because he had no independent recollection of the attendances or the reasons for them. The plaintiff’s lack of specific recollection of attendances from some years past is understandable. The notes, however, reveal that not all of his attendances on his osteopath were because of back pain but they did include pain and discomfort or a “tightness,” as the plaintiff characterised it, and brought on by activities of sport (the plaintiff having commenced playing an amateur soccer competition in 2010) or sleeping in unfamiliar beds when travelling overseas on account of his family’s business.
40 Against the background of the plaintiff’s attendances on his osteopath in the period before September 2011, the defendant referred to the paucity of the picture the plaintiff painted about the condition of his pre-accident back to Mr Miller, the orthopaedic surgeon on whom he attended for examination.
41 Mr Miller’s précis of the plaintiff’s account of episodes of low back pain included that in approximately 2007 he had attended his general practitioner and undergone an MRI and that his back symptoms had essentially resolved and there had been no ongoing back symptoms until the transport accident in September 2011. After being reminded of the attendances on his osteopath and it being suggested to him by Mr Masel that his reporting of back pain to Mr Miller was not correct the plaintiff said “possibly”.[51]
[51]Transcript (“T”) 35
42 Because the plaintiff’s memory of attendances was lacking his answers to many questions asked by Mr Masel was essentially to adopt a default response of being willing to agree “if the notes say that”.[52] This adoption of the content of notes extended to references to flare-ups of pain that were mainly attributable to playing sport but also to everyday events acting as triggers, which the plaintiff explained could be “possibly garden work” and “lifting things around the house, like wood” and “installing large capital equipment” for the panel beating business. The plaintiff also agreed that travel could be a pain trigger, as could sleeping on unfamiliar beds in hotels.
[52]T13
43 The plaintiff described the nature of the flare-ups he experienced between 2004 and 2011 as amounting to a “slight tightness in my back” that on occasions interrupted “certain” of his activities.[53]
[53]T15
Assessing the course of events between 2004 and 2011
44 I am satisfied on the evidence, that between 2004 and September 2011 the plaintiff encountered occasional flare-ups of low back problems. I am also satisfied that in the period between the stair fall in 2004, and the particular experience of pain in July 2007 problems with the plaintiff’s back appear to have largely settled insofar as medical attention or osteopathic treatment was concerned. There is no evidence to suggest that the effect of the fall down the stairs in 2004 impeded the plaintiff’s life in any material respect beyond an occasional interference. The plaintiff was largely asymptomatic.
45 On 4 July 2007 the plaintiff attended on Dr Game and complained about low back pain that he had experienced for approximately a month and that the back pain had been particularly sore as a result of having played a match of tennis the previous day.
46 The plaintiff had an MRI scan of his lumbar spine the next day. It showed disc protrusions of L4-5 and L5-S1 contacting the nerves without definite compression.
47 I am satisfied that between July 2007 and August 2011 the plaintiff’s back condition became more intrusive than it had been between 2004 and July 2007. The plaintiff’s attendances for osteopathic treatment to his lumbar spine has persuaded me of that progression. The plaintiff attended as follows:
· seven times between 3 August 2007 and December 2007;
· five times in 2008;
· once in 2009;
· eight times in 2010;
· five times in 2011 (up to the date of the transport accident).
48 On 18 February 2009, the plaintiff attended his general practitioner, Dr Nathan, as a result of a different transport accident. The relevant clinical notes identify the plaintiff having experienced some right lower back muscle tenderness. That accident was not relied on as a matter of substance by the defendant although it was mentioned among many possible contributions to the plaintiff’s subsequent disc prolapse by Mr Siu.
49 Although in the period of time between February 2009 to September 2011, the plaintiff continued with his osteopathic treatment, he had no occasion to consult his doctor about his lower back. I think that is a fact of some noteworthiness.
50 In 2010 the plaintiff commenced to play amateur soccer with Old Trinity Grammarians and trained in a team and participated in weekend matches. I am satisfied that in the period the plaintiff was playing competitive soccer the osteopath’s notes reflect that he experienced interruptions due to back, glute and upper leg pain.
51 Although the plaintiff returned to amateur soccer following the September 2011 transport accident, the regularity of his attendances became more chequered and he last played competitive soccer on 2 April 2013[54] that is, before the trip to the United States in July 2013. I regard that development as also consistent with a progressive and increasing vulnerability in the plaintiff’s back.
[54]See DCB 137 letter of instructions para 20 from TAC to Mr Siu dated 19 September 2019.
52 Furthermore, and noteworthy in my judgement, is that in the three months following the transport accident, from September 2011 to December 2011, the plaintiff attended his osteopath on nine occasions. In the period of time from January 2012 to May 2012 the plaintiff attended his osteopath on 11 occasions. His attendances for his back were considerably more frequent than had been the case before the transport accident. In addition to the increased frequency of attendances on his osteopath after the transport accident, so too, was it the case with his attendances on his general practitioner. Prior to the transport accident the plaintiff’s last attendance at his doctor for a spine related complaint was in February 2009, whereas, after the transport accident, and in the year that followed, he attended his doctor on 10 occasions. It is in the course of these post-transport accident attendances on his local doctor that the plaintiff is for the first time prescribed Tramal and in March 2013 Panadeine Forte.
Subsequent imaging
53 The defendant directed a lot of its attention to the conclusions that could be drawn from imaging. The MRI scan of 20 January 2012 made no reference to an annular tear but identified “features of early disc degeneration with marginal annular disc bulging at both the L4/5 and L5/S1 levels. Minimal thecal sac displacement is seen at the L4/5 level.” Dr Fish and Mr D’urso who examined the plaintiff and provided reports to the plaintiff’s solicitors both referred to the presence of an annular tear on the scan.
54 In my opinion, the controversy about the comparison of imaging and the defendant’s submissions about the importance of it is, ultimately, not determinative to the outcome of the plaintiff’s application.
The overseas trip
55 On 30 July 2013 the plaintiff experienced sudden severe back pain and sciatica. He said he was unable to stand and required medical attention at the hotel at which he was staying with his wife in Las Vegas[55]. He was seen at his hotel by Dr Bertolli, a local doctor, who administered the plaintiff with a cortisone injection. Dr Bertolli subsequently provided to the plaintiff two versions of a medical report of treatment he had received and, furthermore, he included reference to the mechanism and cause of injury to the plaintiff’s low back. The first version of the report referred to “Acute low back pain radiating down legs right to left, back (undecipherable) unable to walk for than a few steps has lumbar multilevel disc bulge from old MVA.” The second version referred to “acute severe back pain, whole length of back and down the legs, muscular spasms… Started after twisting moving luggage and sitting on a long flight.”
[55]The accounts of the trip and the onset of pain that were given by the plaintiff’s wife and his cousin were broadly consistent.
56 The plaintiff used the version of the report provided by Dr Bertolli that implicated the mechanism of injury to his back as having been lifting/twisting of luggage and a long haul flight to the United States in support of a travel insurance claim. The plaintiff did not provide to his insurer the version from Dr Bertolli that implicated the transport accident or, as Dr Bertolli described it, the “old MVA”.
57 In his second affidavit, the plaintiff endeavoured to explain his conduct on the basis that he had not wanted to be left liable for potentially significant medical expenses in America.
58 The claim on the insurer that gave the account of how the accident, damage or injury or illness occurred, was written by the plaintiff’s wife on the plaintiff’s authority. It described: “Picking up luggage and combination of sitting on a long haul flight. Pain began to start in the buttocks area.” The plaintiff said he told Dr Bertolli that he had been picking up luggage, but he also told him about the car accident from September 2011. The plaintiff obviously must have done so because the first version of the report referred to the transport accident. The first report included “Acute lower back pain radiating down legs”. The second report was worded differently and included, “Acute severe back pain, whole length of the back and down the legs.” The plaintiff denied that he had experienced pain “down the whole length of his back”.[56] The second report also included,” Started after twisting moving luggage and sitting on the long flight”. It was put to the plaintiff that the inclusion by Dr Bertolli that he had experienced pain down the whole of his back was because he had told him so, but the plaintiff could only proffer by way of explanation that it was something the doctor had put down.[57]
[56]T73
[57]T74
59 Concerning the insurance claim made by the plaintiff, he agreed with Mr Masel that the truthful answer in the circumstances would have been for the him to have made a disclosure such as, for example:
“Yes, I have had a similar problem, because I’ve had back pain after sitting on flights, I’ve had pains in my back, I’ve had an injury to my back, I’ve had an injury to my back in 2004 when I fell down the stairs, I’ve had problems with my back in 2007”.[58]
[58]T75
60 Mr Masel’s cross-examination of the plaintiff on the matter of the false insurance claim was an instance in which the plaintiff exhibited a reluctance to give unqualified answers. Ultimately he accepted the falsity of his declaration to the insurer. When it was put to him more than once by Mr Masel whether he accepted that the answer he gave in the claim form was false, he said, “we’ve discussed it”; “we’ve discussed it”. When he was asked if he agreed that the answer he supplied was not true, he said, “To a certain extent”.[59] When Mr Masel asked the plaintiff if he understood that he had not given an honest answer, he said, “Correct”.[60] I note that the insurer paid the claim.[61]
[59]T75-76
[60]T77
[61]T77
The plaintiff returns home
61 On 31 October 2013, having returned to Australia, the plaintiff underwent a further MRI scan of the lumbar spine, the report of which read:
“Moderately large central and right paracentral disc protrusion at L4/5 with compression of the traversing right L5 nerve root in the subarticular recess, explaining the patient’s right sciatica”.[62]
[62]PCB 94
62 The plaintiff underwent a right L4-5 microdiscectomy under the hand of Mr de la Harpe on 5 August 2014. By all accounts, the surgery remedied the plaintiff’s referred left leg pain, but not his low back stiffness and pain. The plaintiff agreed his left pain had been rectified.
63 I have already mentioned that the plaintiff relinquished playing soccer and, whilst I accept that there were interruptions to his soccer due to back pain prior to the transport accident, the surrendering of it occurred in April 2013, that is, after the accident but before the trip to America.
64 The plaintiff accepted that he might in any event have given soccer away because of the pre-accident condition of his back and because of the inevitable progression of age.[63] In re-examination, however, he said he would have anticipated having continued to play the:
“ …Sunday league which is you don’t have to train Tuesday and Thursday but you can still play Sunday and a lot of the boys that I used to play with in 2010 and 2011 still play Sunday and some play on the weekend, on the Saturday, competitive. It’s a bonding with the boys going out”.[64]
[63]T78
[64]T155-156
65 When asked if he enjoyed the camaraderie that accompanied the game he said that he did.[65]
[65]T155-156
66 I am satisfied that the plaintiff gave away playing amateur competitive soccer because of the increasing difficulty occasioned by pain he suffered following the playing of a match or training whereas previously he had been able to manage his occasions of pain by recourse to his osteopath and by taking breaks from playing and/or training. I have taken into account the observation by Mr Masel made in the course of final submissions that the plaintiff only took up the playing of amateur competitive soccer in 2010 and that the loss, if it is attributable to the worsening of the plaintiff’s lumbar spine caused by September 2011 car accident, is not a matter of much import by way of consequences. I am not persuaded of the force of that submission. In particular, I am satisfied that it would be wrong for me to not pay some regard as part of the overall evidence to the enjoyment the plaintiff derived from having picked up a team sport as an adult and the camaraderie he said he had derived from playing with others. The fact that he has adopted alternative forms of exercise facilitated through the use of a personal trainer is one thing, but it is also an example of the plaintiff being required to substitute that which he once enjoyed and that also provided physical fitness and team esprit with alternative pursuits as a result of the transport accident.
67 Mr Masel pointed out that in July 2018 the plaintiff told his treating myotherapist on whom he attends every four to six weeks for “general maintenance,” that he had been training “really hard in the gym and getting stronger and losing fat and feeling good overall”. Mr Masel also referred to evidence that the plaintiff travelled to Bali in July 2018 and, on his attendance for a general check up on 2 December 2018, the plaintiff had remarked that his exercise “is going well, lumbar area feeling good”. I have had regard to those instances.
The primary competing medical opinions – Mr Miller, Mr Owen and Mr Siu
68 Earlier I said that a large amount of medical and radiological evidence by way of x-rays and imaging formed part of the received evidence and that not all of it had proved necessary for me to refer. That is not the case with respect to the opinions of Mr Miller and Mr Owen, both being orthopaedic surgeons, who furnished medico-legal opinions that the plaintiff and defendant relied upon for different reasons. The plaintiff, in addition, also relied on the report provided by Mr Owen to the Transport Accident Commission. Mr Owen wrote (in a passage cited by both plaintiff and defendant) that:
“I think it is reasonably logical to accept that he had a disc problem at L4/5 prior to the accident. The accident made his L4/5 disc problem worse and more symptomatic and the long haul flight was a provocation leading to the disc protrusion. I see this is as a continuum or aggravation rather than a new injury”.[66]
[66]Exhibit P20, PCB 167
69 In the course of final address, the defendant submitted that Mr Owen’s opinion in the passage extracted above is of no assistance to the plaintiff because Mr Owen had been provided with a dubious history of the speed of the impact of the accident. Furthermore, his opinion, whilst implicating the accident as one of a series of factors in an ongoing narrative of circumstances that culminated in the need for surgery, ultimately does not prove that aggravation injury is in itself “serious”. I am not persuaded by the defendant’s submission about the shortcomings in Mr Owen’s report. First of all, it is for a judge to determine if an injury is a serious injury at law and no one else. Second, I have already made reference to the evidence about speed and the lack of evidentiary worth in the defendant’s criticisms of it. Thus, I do not accept the defendant’s submissions regarding Mr Owen’s opinion not being of assistance to the plaintiff as part of a consideration of evidence of whether the transport accident of September 2011 has been productive of serious consequences to the plaintiff on that analysis.
70 Mr Miller provided a number of reports to the plaintiff’s solicitors. Mr Miller saw the plaintiff both before the trip to the United States of America in July 2013 and thereafter. Therefore, I think, he had something of an advantage to those who had not including Mr Siu who was requested to provide a “desktop” report on the plaintiff. Mr Miller was provided with medical and like records (including imaging) parts of which identified the not inconsiderable history of the plaintiff’s lumbar spine. Mr Miller concluded that the September 2011 transport accident amounted to an important cause of the plaintiff’s lumbar spine condition.
71 Mr Miller’s first report was provided at the request of the plaintiff’s solicitors on 30 December 2012 after he undertook an orthopaedic assessment of the plaintiff. He noted that the plaintiff had estimated the vehicle that struck him was travelling “at perhaps 60-70 km an hour”. He also reported that the plaintiff had referred to an episode of low back pain in approximately 2007 that was of sufficient note to have sent him to his general practitioner and thereafter investigation by way of an MRI had followed.
72 The plaintiff told Mr Miller that his back symptoms “essentially fully resolved and there were no ongoing back symptoms until the accident in 2011”. He noted that the plaintiff only had enjoyed a moderate response to conservative measures and he considered it was unlikely that the plaintiff would be assisted by surgery. He considered the prognosis for his lumbar spine as only “fair”.
73 I am satisfied that Mr Miller consciously engaged with the matter of causation in his report under the heading of “Relationship to Accident”. He accepted that the relationship of the plaintiff’s physical condition to the accident was “complex” but he also considered that despite the short period of lumbar spine symptoms in 2007 the plaintiff appeared to have made a good recovery. Therefore he considered the plaintiff’s clinical state on examination reflected the ongoing effects of the injury received in the motor vehicle accident of September 2011. Mr Miller thought that the plaintiff had suffered a muscular-ligamentous strain to his lumbar spine and aggravation of degenerative disease as well as a probable aggravation of discal-pathology at L4-5 and L5-1 caused by the transport accident.
74 In February 2015, Mr Miller, in answer to the plaintiff’s solicitors request for an impairment assessment and a report, wrote that he had examined the plaintiff again on 4 February 2015. Mr Miller observed that there had been a significant development by way of the surgery performed by Mr de la Harpe. He wrote:
“Since he was last reviewed by me, he has suffered a significant deterioration in his clinical status, leading to a requirement for surgical intervention by Mr David de la Harpe”. [67]
[67]Report of Mr R Miller dated 11 February 2015, Exhibit P19, at PCB 124
75 Mr Miller expressed his confidence that the transport accident of September 2011 amounted to a significant contribution to the plaintiff’s condition and that the accident “contributed to the requirement for surgery and his current clinical condition”. Mr Miller said that, in his opinion, the transport accident “has been a cause and in my opinion an important cause for the involution of the lumbar spine condition”.
76 In his report dated 30 May 2019[68], Mr Miller said that following on from his review and comparison of the findings on MRI scans of the lumbar spine of 5 July 2007, 20 January 2012 and 31 October 2013, that “there was a marked deterioration between the January 2012 and October 2013 scan.”
[68]Ex P21
77 Mr Miller said that although the plaintiff’s previous history had disclosed a vulnerability in his spine, the transport accident contributed to the requirement for surgery to the lumbar spine which followed the Las Vegas vacation.
78 Mr D’Urso, neurosurgeon, in a supplementary report provided to the plaintiff’s solicitors dated 3 June 2019[69] wrote the following:
[69]Exhibit P27
“It would appear that John was symptomatic following a motor vehicle accident in which he was involved on 13 September 2011. He reported back pain which was prone to intermittent flare ups with physical activity. I note investigation at that time by way of an MRI scan on 20 January 2012 demonstrated a broad-based central prolapse at L4-5 with an annular tear. There was evidence of a central prolapse also at L5-S1.
Subsequently whilst in the United States, John suffered a significant worsening of his condition, where disc prolapse at L4-5 was noted to be significantly greater on MRI imaging on 30 October 2013. This deterioration would appear to be directly related to an injury which would appear to have occurred in a motor vehicle accident on 13 September 2011. The injury to the L4-intervertebral disc appears to be a direct consequence of a motor vehicle accident”.
79 He went on to say in the same report:
“Subsequent deterioration with increasing prolapse would appear to have resulted in the need for surgery been performed on 5 August 2014.”
80 Satisfied as I am that the plaintiff experienced a marked worsening, as reflected by the imaging and by an increased severity and frequency of flare-ups of pain in the region of the lumbar spine, I am also satisfied that the most logical cause of the worsening condition is the transport accident of September 2013.
The alternative contention
81 The defendant contended that the empirical evidence in the form of clinical notes do not support a deteriorating condition. The defendant argued that Mr Miller’s reporting had not identified the effects of the plaintiff’s fall down stairs in 2004. The defendant said that the clinical note of the radiology of the lumbosacral spine dated 20 December 2004, subsequent to the fall down stairs in approximately October 2004, reported its findings that:
“…there is loss of the normal lumbar lordosis presumably on the basis of some muscle spasm. The disc spaces appear intact. The bony architecture of this vertebral bodies what could be seen of the posterior elements and exit foraminae appear normal. The sacrum and sacroiliac joints show no abnormality”.[70]
[70]Exhibit P9, PCB 87
82 The defendant imputed a deficiency in Mr Miller’s reporting by reason of not having made reference to the plaintiff’s back problems prior to the transport accident, and not attributing any role to the 2004 fall, and to the speed of the impact. I do not accept the criticism. The alleged insufficiency relied on by the defendant in Mr Miller’s path of reasoning and said to affect his opinion, is the failure to engage with the defendant’s premise of the importance of the fall down stairs, and contending that by failing to address it, the report is, as Mr Masel, characterised it, “next to useless”.[71]
[71]Defendant’s written submissions paragraph 53
83 I think it is evident that Mr Miller expressed an opinion that the plaintiff suffered a pre-transport accident injury to his lumbar spine involving the L4-5 and L5-S1 discs, most particularly at the L4-5 disc, and “this rendered the spine vulnerable to the development of further problems and indeed [the plaintiff] did develop further problems with an L4/5 disc prolapse which required surgery”. There really was no occasion for Mr Miller to expressly apportion some element to the 2004 stairs fall because of itself it added little if anything that was not sufficiently picked up by the manifestation of the plaintiff’s condition including pain by 2007 that was addressed by Mr Miller. Mr Miller said that in his view:
“the requirement for surgery relates predominantly to pre-existing vulnerability in the lumbar spine that relates to all of the effects of the motor vehicle accident in September 2011. I acknowledge the difficulties in making such a determination.”
84 Secondly, I think it is tolerably clear that Mr Miller did sufficiently strip away the effects of the pre-transport accident injuries. Notably, the experiences of pain in 2007, and whether caused by the 2004 in my view not being ultimately to the point, he determined that the plaintiff’s history indicated a comparative resolution of his symptoms as opposed to what he considered to have been a marked difference since the transport accident.
85 Mr Siu provided reports dated 22 September 2019 and 2 October 2019[72] upon which the TAC placed considerable reliance. Mr Siu gave a very detailed account of the plaintiff’s history. Matters of importance he noted included:
[72]Exhibit D9 and D10
· The plaintiff was gainfully employed and regularly played soccer and both his personal and professional life were intruded upon intermittently because of flare-ups of back pain that sent him to physiotherapy and osteopath treatment.
· MRI from 20 January 2012 showed mild annular disc bulging with minimal thecal displacement at the L4-5 disc.
· The MRI from January 2007 was said to have shown a disc protrusion at L4-5 and L5-S1 contacting the nerves without definite compression.[73] There had not been a significant appearance of change shown between the MRI of 2007 and 2012.
· Following the return from Las Vegas, the plaintiff saw Mr de la Harpe, who organised an MRI on 30 October 2013, which showed “a significant disc prolapse at L4/5” and that the plaintiff was symptomatic with right side low back pain such that, in conjunction with the MRI findings, Mr de la Harpe recommended surgery which was subsequently carried out as approved by the TAC.
[73]PCB 148
86 Assuming the existence of an annular tear, Mr Siu said the same would have recovered with fibrous scar tissue forming. He said that despite the fact that the annulus would be nowhere near as strong as a normal annulus, consideration needed to be given to whether there was another event forcing a frank disc protrusion. He suggested the trip to Las Vegas, a long flight in a confined position and the moving of luggage, “is likely to have caused more apparent and significant disc prolapse”.
87 Mr Siu referred to the plaintiff’s long-standing history of degenerative lumbar spine osteoarthritis and of his need for regular treatment from an osteopath and physiotherapist. He considered the September 2011 accident to have been “minor” and that the investigation undertaken not long after the accident did not show a significant deterioration compared to what had been shown on imaging in 2011. However, two years later in 2013, after the flight to Las Vegas and the accompanying luggage, the plaintiff suffered a disc prolapse at L4-5 necessitating surgical intervention.
88 Mr Siu considered that the accident of September 2011 was not the main cause of the plaintiff’s subsequent deterioration but rather that it was one chapter in the plaintiff’s long history. Mr Siu said that, as a result of the car accident, the plaintiff most likely suffered a musculoskeletal injury and he may well have suffered an annular tear at that stage. However, he emphasised that, between 2011 and the subsequent significant disc prolapse identified in the MRI of 2013, there would have been healing of the annulus “although I emphasise that it would not be as strong as a normal annulus but there is some protection”.
89 Mr Siu also propounded that the annular tear could have been the result of the plaintiff’s activities of daily living. He did not consider an annular tear to be a good predictor of a subsequently occurring disc prolapse. He said that it was more likely to have been the long flight in a confined space, lifting and twisting while retrieving and depositing luggage, to have been the cause of the frank disc prolapse against a background of pre-existing lumbar degenerative osteoarthritis.
90 Mr Siu’s opinion expressed in his supplementary report furnished to the defendant was that absent the transport accident the disc prolapse shown in 2013 radiology would have occurred at some time but that it was impossible to predict when.
91 In my judgment there is a degree of speculation in the reporting by Mr Siu and a degree of tension as well in his written opinions. The speculation is centred on his opinion that the disc prolapse would have occurred regardless of the transport accident. The tension is exhibited by the fact that the radiology cannot track the extent of increasing vulnerability caused by the assault from the transport accident. In my view, the better indicator is to assess the surrounding facts so as to ascertain if a change to the plaintiff’s circumstances following the transport accident can be objectively assessed as more serious because of increasing interference with the plaintiff’s activities of life due to pain. Against that method of measurement and assessment I am satisfied the aggravation of the transport accident is serious.
92 Like so many aspects of expert medical evidence that courts are called on to decide, the determination of causation must be informed by a dose of common sense as has been expressed by the High Court in March v Stramare (E & MH) Pty Ltd.[74] I am not persuaded, and therefore, I am not satisfied, that the opinion of Mr Sui is the preferable account to explain causation. Very notably, Mr Siu did not exclude the plaintiff having suffered an annual tear caused by the transport accident and thereby rendering him vulnerable to the frank disc prolapse that would appear to have occurred in Las Vegas and was serious. The osteopathic and physiotherapy the plaintiff took after the transport accident increased, as did his attendances on his doctor, and the strength of his pain medication. These are all indicative of the transport accident having rendered the already vulnerable spine more symptomatic to a significant extent for the first time and that occurred in 2013.
[74](1991) 171 CLR 504
93 I am comfortably satisfied that there is sufficient objective evidence that has identified a worsening of the plaintiff’s lumbar spine and increased frequency of need for attention to it before the trip to the United States in July 2013. I am satisfied the plaintiff experienced a continuing decline in the condition of his lumbar spine following the September 2011 transport accident. I am satisfied that whilst in the United States he was engaged in activities that were no more out of character that he had been able to perform before the accident in his everyday life, including long overseas flights and transporting luggage. I am not persuaded that Las Vegas comprises a separate and frank injury event unrelated to the serious additional vulnerability occasioned to the lumbar spine by the September 2011 accident.
94 I have given consideration to the opinion of Mr Siu who identified the existence of circumstances in the plaintiff’s domestic and professional life that could have caused the annular tear. These included the activities of daily living, lifting generally, a transport accident in 2009, playing in an Old Grammarians soccer team, gardening, performing wok duties, the September 2011 transport accident or any number of post-accident events. Mr Siu said of the disc prolapse at L4-5, for which the plaintiff came to surgery in August 2014, that the September 2011 accident could not be seen as “the main cause of his subsequent deterioration. It was one chapter in his long history”. The point is, however, that the transport accident need not be the whole story, and one chapter in the story, if sufficiently cogent, may be sufficient to establish causation.
95 The preponderance of evidence has persuaded me that the transport accident caused a serious aggravation of the plaintiff’s lower spine and the effects of the aggravation rendered the pre-existing condition of the spine more vulnerable to the happening of the prolapse. The plaintiff’s spine had coped well enough with his engagement in his everyday life including travelling as part of his work and, more latterly, with sport. The intrusions to the plaintiff by the condition of his spine and the treatment it warranted before the accident was of a noticeably lesser frequency than followed it. The need for more frequent osteopathic treatment and attendances on his treating doctor, and the uptake in medications, reflected a deterioration in the lumbar discs that proved incapable of coping with the ongoing demands placed on it by the plaintiff’s travel in the middle of 2013.
96 In approaches identified as appropriate in an aggravation injury case, I have been mindful of the decision of the Court of Appeal in AG Staff and Ribbon v Filipowicz.[75] There is an important distinction to be borne in mind between accumulating the effects of separate injuries and using each as part of an assessment whether they had materially contributed to a plaintiff’s ultimate consequences. This is impermissible for the reason that to do so is to offend the principle that a defendant may only be held liable for the injuries his negligence has caused a plaintiff. It is, however, proper to make an assessment whether a non-serious previous injury has been made worse. In this case, I am persuaded that the previous injury has been made worse in a measurable and serious way by the September 2011 accident according to the evidence I have detailed.
[75][2012] VSCA 60
Credit
97 The matter of the plaintiff’s credit cannot be glossed over or its significance ignored. It was an important issue and unsurprisingly so. When faced with his injury in the United States, the plaintiff took action to have out of pocket costs of treatment covered by his travel insurance policy. The plaintiff lied to the insurer in an effort to obtain a financial benefit when, on his claim form, he ticked “No” to the question if he had previously suffered from the same or a similar injury. The insurer paid his out of pocket costs. The plaintiff said he understood that he needed to link the circumstances of his travel to his symptoms. The circumstances of his travel were themselves false when he declared to his insurer that his symptoms “started after twisting moving luggage and sitting on a long flight”.[76]
[76]PCB 197
98 In my judgment in assessing the extent to which the plaintiff’s impugned credit affects other aspects of his application, I have had regard to a number of surrounding circumstances and facts, including that the plaintiff enquired if he could access assistance from the TAC before he made the claim on his insurer. As well, one of the two reports made by Dr Bertolli identified the occurrence of the September 2011 transport accident. I am satisfied that the inclusion of reference to it is indicative that the plaintiff regarded that injury as important for the purposes of giving the doctor an honest picture of his back condition. The defendant would have it that this amounts to no more than evidence of the plaintiff’s deceit, and that he armed himself with two accounts, one that mentions the travel as the culprit so as to be able to access his insurance, and the other with reference to the transport accident, such that it could be used by him in furtherance of a claim on the TAC. I am not prepared to find that level of planned duplicity on the part of the plaintiff.
The plaintiff before and after the transport accident
99 I am required[77] in a case where there is a pre-existing condition to undertake an analysis of the extent of impairment of a body function before and after the relevant injury and the claimed aggravation must itself be a serious injury. In delineating the impairment consequences to the plaintiff from his pre-existing condition before the September 2011 transport accident, I have already referred to evidence of how the plaintiff was able to go about his life before it occurred, including by reference to his affidavit evidence and that of his wife, mother and cousin. In sufficient measure, I have been able to satisfy myself about relevant matters also by recourse to objective medical evidence and without reliance being had exclusively to the plaintiff’s reliability.
[77]See: Petkovski v Galletti [1994] 1 VR 436
100 I am satisfied by the evidence that the plaintiff was someone who was working in the family business and carrying out physical activities as well as traveling overseas on a regular basis. I am satisfied that he intended to continue to do so.
101 The plaintiff said that he enjoyed running and his attempts to do so since the accident have resulted in pain. He said it its loss is a source of frustration to him. This loss was accompanied by the need to surrender weight training, something he said he had previously enjoyed. He also deposed to having previously enjoyed camping, but the tasks associated with getting equipment set up is painful, and he no longer does so. He deposed that his intimate relationship with his wife has deteriorated.
102 I am satisfied that the previous episodes of back pain that the plaintiff encountered following the fall down stairs in 2004, and of pain in 2007, were not sufficiently serious to have impeded him in the aforementioned activities. In my judgement, the occasion of pain in 2007 is perhaps more accurately to be regarded as an exacerbation of the 2004 injury and not an aggravation of it. If I am wrong about that, then the 2007 aggravation was temporary, interfered only sporadically and was largely asymptomatic. It was not a problem that beset the plaintiff to any measurable extent.
103 The plaintiff said that when he commenced playing soccer with Old Trinity Grammarians in 2010 it involved two training sessions during the week and playing a game on a Saturday. He said he was able to pursue weight training with two or three sessions per week. Despite the occasional interruption by pain the plaintiff was by and large able to maintain that regime. He said his soccer with Old Trinity Grammarians ended and his attempts to continue to play soccer proved unsuccessful. He pointed to one occasion when his efforts at playing a social game with friends resulted in his back locking up and being hospitalised.
104 I am satisfied that the plaintiff has separated out and identified the fact that the transport accident of 2011 was the cause that brought him to surgery in 2014 as a result of the significant disc prolapse. It did so either independently of the pre-existing condition of his back, or the aggravation was itself, of sufficient seriousness as to have hastened the need for such surgery in accordance with the opinion of Mr Siu, who has said that the plaintiff would have come to a significant disc prolapse at some time. On balance, I regard this as the better explanation. Hence, the need for surgery would in any event have occurred at some indeterminate stage but logically, at a materially different time. On Mr Siu’s analysis, the need for spinal surgery was hastened because of the transport accident and that is a consequence that is capable of being judged as more than significant to a plaintiff who was, at the time, a relatively young man, and may be fairly judged according to range as serious. The aggravation injury of the transport accident has been proved to be material.
Pain and suffering consequences
105 I have taken into account the submission made by the defendant that, even if it is accepted for the sake of argument, that the plaintiff had lost some things in consequence of the transport accident, he has proved adept at adapting and adopting other outlets by way of alternatives. Therefore, the defendant submitted that the consequences were not at least very considerable when assessed according to a range. The decision of the Court of Appeal in Dwyer v Calco Timbers (No 2)[78] is relevant. In that case, and dealing with the question of measuring whether an injury is serious, Ashley JA observed that the court must draw a comparison between what the plaintiff has lost and what the plaintiff has retained and that in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained. I have undertaken that exercise and I am satisfied that in many respects the plaintiff has been affected by the transport accident and that his retained capacity is informed by the necessity to have calibrated and substituted some activities but, however, this has not been possible across the board and what he had retained does not outbalance the significance of those things that have been taken away. I am satisfied that the injury is a serious long term impairment.
[78][2008] VSCA 260
106 In reaching my conclusion I was mindful of the submissions made by Mr Masel and the evidence to which he directed me in support of the contrary conclusion. I acknowledge that there is some force in his submission that by reason of a number of identified activities of the plaintiff’s ongoing daily life he can be seen to have retained a good deal. I have noted those matters of evidence relied on by the defendant including that since the plaintiff’s surgery he has experienced improvement but recounts a degree of persisting back pain. His medication is taken as required and is not of a high order. He continues to maintain employment. He participates in sport, although in re-examination, the plaintiff could not say what the sport was that the osteopath’s note dated 5 January 2016[79] was intended to refer to having engaged in, although he was definite it was not soccer. The defendant also referred to evidence that the plaintiff could still engage in domestic actives reported by Dr Slesenger Occupational Physician in a report dated 19 April 2019 and that was at odds with the evidence of the plaintiff’s wife but on which the plaintiff was not challenged. The plaintiff is not a recluse but he need not be in order to meet the threshold for the grant of a serious injury certificate. The plaintiff’s inability to continue in the family business, whilst not advanced as an element of economic loss, has nonetheless caused considerable distress and friction between the plaintiff and his parents and I have taken it into account. I regard it as proper to do so. The plaintiff’s evidence was that he has come to other employment as opposed to having remained in and taken over the family business in due course because of the effects of pain and his limitations on his capacity to continue with his pre-injury duties in that business. The interference and deterioration in the plaintiff’s personal relationship with his wife is a fact that I regard as more than significant or marked and at least very considerable. I am not persuaded that I should the reject Ms Stouraitis’s evidence because she was caught up in her husband’s false insurance claim. I accept her account. The measure of subjectively assessed pain the plaintiff has described is low to moderate. However the potential for further deterioration to the plaintiff’s already operated on back[80] is also serious for a man of his still relative youth.
[79]DCB 61
[80]The potential for “a degree of degenerative progression which can be difficult to determine and predict” as reported by Mr D’Urso, Neurosurgeon in his report dated 25 March 2019 at PCB 107 Ex P18
107 For the reasons expressed, I am satisfied that the plaintiff has established an entitlement to a grant of a serious injury certificate by reason of his impairment when compared with other cases in the range of possible impairments or losses and as fairly described as at least very considerable and more than significant or marked.
108 I will hear the parties on any further matters required to give effect to my decision.
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