Tanfara v Transport Accident Commission
[2020] VCC 680
•2 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-01994
| DAVID TANFARA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27, 28 and 29 April 2020 | |
DATE OF JUDGMENT: | 2 June 2020 | |
CASE MAY BE CITED AS: | Tanfara v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 680 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the neck and lower back – whether both constitute a single body function of the spine – whether the plaintiff suffered an injury to the spine in the transport accident – whether the spinal injury was aggravated through a subsequent event – whether the impairment consequences of the spinal injury are “serious” – creditworthiness and reliability – film
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited:Ansett Australia Ltd v Taylor [2006] VSCA 171, Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8; Richards & Anor v Wylie (2000) 1 VR 79; Sednaoui v Amac Corrosion Protection Pty Ltd [2017] VSCA 66; Transport Accident Commission v Florrimell [2013] VSCA 247
Judgment: The plaintiff’s originating motion is dismissed with costs.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis with Ms C Moore | Maurice Blackburn |
| For the Defendant | Mr R Middleton QC with Ms A Wood | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1 On 10 June 2011, the plaintiff was riding his motorcycle through a roundabout near his home when the driver of another vehicle failed to give way, colliding into the left side of his motorcycle, resulting in him becoming dislodged from the motorcycle.
2 The plaintiff suffered multiple injuries resulting from the transport accident, including injuries to his neck and lower back. It is those injuries which he says have resulted in a long-term impairment or loss of the function of his spine, with impairment consequences which he submitted are “serious”. Despite reliance on the spine as the loss of body function, the real focus of the plaintiff’s case was on the impairment of the function of his lower back.
Appearances
3 Ms M Pilipasidis of counsel appeared with Ms C Moore of counsel for the plaintiff, and Mr W Middleton QC appeared with Ms A Wood of counsel for the defendant.[1]
[1]After two days of hearing the plaintiff and the defendant provided me with very helpful written submissions canvassing all of the issues which I have referred to in the body of these reasons. The provision of the submissions was accompanied by oral submissions.
Executive Summary
4 I am satisfied that the plaintiff suffered injuries to his neck and lower back in the transport accident, together constituting a single body function, being the spine.
5 I am satisfied that the injury to his spine has resulted in a long-term impairment of the function of his spine which has impairment consequences for him, but I am not satisfied that those impairment consequences are “serious”.
The issues
6 The defendant raised a number of issues in response to the plaintiff’s case. The manner in which the issues were raised and pursued necessitates me examining a significant body of evidence.
7 The defendant raised the issue of causation. It submitted that the evidence was such that I could not be satisfied that the plaintiff suffered injuries to his neck and lower back resulting from the transport accident.
8 Next, the defendant made a sustained attack on the plaintiff’s credit, inviting me to conclude that the plaintiff was neither creditworthy nor reliable. Furthermore, the defendant submitted that if I was satisfied that he was neither creditworthy nor reliable, then that would impact upon what I accepted of other aspects of his evidence, and, more particularly, the impairment consequences which the plaintiff claims are “serious”.
9 Next, the defendant also made a sustained attack on whether the plaintiff has suffered impairment consequences of the nature claimed and to the degree claimed.
10 Whilst there were other issues raised by the plaintiff and the defendant, they were part of the substrata of each of these main issues. I think the most convenient way to deal with the body of evidence relied upon by the plaintiff and the defendant is to deal with the evidence chronologically.
The prior lower back injury
11 In chronological terms, the starting point is the plaintiff’s prior lower back injury.
12 On 4 March 2011, the plaintiff suffered a fall at work, resulting in multiple injuries, but of relevance, an injury to his lower back. He attended the Frankston Hospital on that day.[2] Under cross-examination, the plaintiff denied any memory of that incident. He said that he became aware of it through his solicitors. Presumably, his solicitors obtained the clinical notes of the Frankston Hospital and showed them to the plaintiff.[3] In the absence of any material evidence from the plaintiff about that incident and the attendance at the Frankston Hospital, the parties relied upon what they could make of a rather poor reproduction of the clinical notes.[4]
[2]Plaintiff’s Court Book (“PCB”) 10
[3]Transcript 58, and later at Transcript 102-103 he said he had forgotten attending the Frankston Hospital on 4 March 2011
[4]PCB 177-180
13 What I have gleaned from those clinical notes is that the plaintiff, among other things, complained of pain over his lower lumbar region, and a tingling sensation in his buttocks and toes, and numbness over his buttocks. He was noted to have a bruise and tenderness over his lower back at the L4-5 level. The plaintiff was discharged. He was provided with Panadeine Forte, and told to return if he needed to.
14 The principal uses made by the defendant of the clinical notes were twofold: firstly, that when he completed a TAC Claim Form dated 20 January 2012, and in answer to Question 22, he denied being hospitalised in the preceding five years, and in answer to Question 23, he denied suffering any prior “lower back condition or pain”.[5] Secondly, the defendant made a comparison between the hospital’s record of his complaints of injury when he attended on 4 March 2011, and what the hospital recorded when he attended on 11 June 2011, being the day after the occurrence of the transport accident. The purpose of the comparison was to demonstrate that if he had suffered injury to his neck and lower back in the transport accident, that the hospital would have recorded those complaints in the same degree of detail that it recorded his complaints on 4 March 2011.
[5]PCB 153
15 The plaintiff’s nondisclosure of what occurred on 4 March 2011 potentially raises the issue of his credit; however, I think the better way of dealing with this is to ask the question, what difference does it make that he suffered injury to his lower back on 4 March 2011? I do not think it makes any difference, because it would appear that the plaintiff recovered from that injury, and otherwise it is not suggested by the defendant that the consequences of that injury persisted to any degree and to any extent. I think it can only go to a question of credit worthiness and no further.
16 I think there is something in the second way the defendant seeks to rely upon the clinical notes of the hospital recorded on 4 March 2011. It is quite obvious from the clinical notes of the Frankston Hospital of 4 March 2011 and 11 June 2011, and also the clinical notes of Dr Stabelos, general practitioner, of 20 January 2012, that the plaintiff gave a reasonable description of injury and the cause of injury. That fortifies me in concluding that if he was suffering from an injury then he would make a reasonable complaint of it and its cause. He did not complain of injuries to his neck and lower back when he attended the hospital on 11 June 2011 despite maintaining that they were troubling him significantly at that time; however, that is not to say that he did not suffer those injuries. I will deal with the question of causation in more detail below.
The transport accident
17 The defendant made a sustained attack on the plaintiff’s evidence relevant to the occurrence of the transport accident, his subsequent treatment at the Frankston Hospital, and his return to work. It was undertaken to demonstrate that the plaintiff had given an exaggerated account of how the transport accident occurred, had not complained of any neck or lower back injuries when treated at the hospital, and exaggerated the period of time that he was off work before being able to return.
18 The plaintiff said that on impact he was “thrown from the bike onto the road”.[6] Under cross-examination, he said that his motorcycle was struck on the left side, which caused it to fall to the right. He described his bodily movement as ricocheting off the bike. He got up off the roadway. He was in “total shock”. He walked to his home, which was only about 15 meters away.[7]
[6]PCB 10
[7]Transcript 35
19 The defendant surveyed other accounts allegedly given by the plaintiff which it submitted were different and some exaggerated for the purpose of the plaintiff attempting to demonstrate that it was a transport accident of such gravity as to be likely to cause him significant injury. Under cross-examination, the account recorded at the Frankston Hospital was put to the plaintiff: “… car hit his rear wheel, fall to L side with motorbike landing on him on R side.”[8] The plaintiff answered that he possibly gave that account.[9] It was then put to him that he had told a number of medical practitioners that he was “thrown, catapulted from the bike a number of feet”. That is not an accurate account of what he is alleged to have said to a number of examining medical practitioners, but the thrust of what they recorded.[10] When the account he allegedly gave to the hospital was put to him a second time, he denied that what was recorded was what he said to attending staff at the hospital.[11]
[8]PCB 183
[9]Transcript 54-55
[10]Mr Tonietto, chiropractor, “thrown several metres from the bike” at PCB 59; Mr Simm, orthopaedic surgeon, “knocked to the roadway” at PCB 87, and Mr Aliashkevich, neurosurgeon, “was thrown … onto the ground about 10 m away” at PCB 59
[11]Transcript 55
20 What is not controversial when all of this is analysed is that there was a transport accident. It occurred when another vehicle collided with the left side of the plaintiff’s motorcycle. The motorcycle fell to the right side. The plaintiff became dislodged from the motorcycle, but whether he was thrown from it to the extent described is not possible for me to say, except that having denied the account recorded by the Frankston Hospital, what I am left with is his initial account in his affidavit that he was thrown from the motorcycle.
The birthday party
21 Under cross-examination, part of the history recorded by Mr Speck, orthopaedic surgeon, was put to the plaintiff that he “hopped up straight away” following the occurrence of the transport accident.[12] The plaintiff agreed that he did so,[13] and that he walked the short distance to his home. Under further cross-examination, the plaintiff was asked about his movements that night. It was his birthday. He went across the road from his house to the house of a friend where he consumed alcohol, describing his consumption as having drunk “a fair bit”.[14] He enjoyed his birthday, not returning to his house until 1.00 or 2.00am in the early hours of 11 June 2011.[15] The plaintiff then attended the Frankston Hospital the following day.
[12]PCB 31
[13]Transcript 59
[14]Transcript 55-56
[15]Transcript 60
The next attendance at the Frankston Hospital
22 The plaintiff was adamant that he complained of pain in his neck and lower back when he attended the Frankston Hospital on 11 June 2011. The plaintiff did not obtain a report from the hospital. Both the plaintiff and the defendant spent some time in an attempt to interpret the cryptic clinical notes of the hospital:[16] The defendant, for the purpose of demonstrating that the plaintiff made no complaint of pain in his neck and lower back; and the plaintiff, for the purpose of demonstrating that there were some notations made consistent with at least an identified problem related to the plaintiff’s lower back.
[16]PCB 181-186. The clinical notes are out of chronological order and combine attendances on 11 and 17 June 2011
23 There does not appear to be a time recorded when the plaintiff was first seen in the emergency department. There is a notation that he was discharged at 3.00pm. The principal part of the clinical notes records that a Dr Nguyen, hospital medical officer, examined the plaintiff. He/she recorded that the plaintiff complained of “generalised weakness … (indecipherable) - bilat - leg weakness when … (indecipherable)”. It would appear that Dr Nguyen conducted an extensive examination of the plaintiff, noting injury to the right elbow and right ankle, and then referred him to have both x-rayed. As far as I can see, no other abnormality was detected.
24 The defendant emphasised that when Dr Nguyen examined the plaintiff’s head and neck, no pain nor midline tenderness was elicited. The plaintiff emphasised that the history of bilateral leg weakness and the examination requirement that the plaintiff stand on his heels and toes is suggestive of an examination relevant to an abnormality in the plaintiff’s lower back, and therefore, consistent with a complaint of lower back injury.
25 The plaintiff was also adamant that he observed Dr Nguyen, or perhaps some other member of hospital staff, make a diagram on which the notation was made, identifying the plaintiff’s complaint of lower back injury;[17] however, there is no such diagram in the clinical notes as one would expect there to be if one was made. The only diagram is one in the margin identifying the elbow as a matter of concern.
[17]Transcript 53
26 Subsequently, Dr Nguyen drafted a handwritten note which I presume was given to the plaintiff for the purpose of the plaintiff providing it to his own treating medical practitioner. It refers to the plaintiff suffering generalised weakness with bilateral weakness and body ache. It also refers to the plaintiff’s right elbow, ankle and the prescription of painkilling medication. The advice noted on it was that the plaintiff was to attend a medical practitioner in three to five days if he was no better. He did not do that.[18]
[18]Transcript 54
27 The plaintiff next attended the Frankston Hospital again on 17 June 2011. The clinical notes refer only to complaints of pain in the plaintiff’s right hand, with pain radiating into his fingers and pain in his right ankle. He was provided with nonsteroidal anti-inflammatory medication, and told to take time off work if the pain he was experiencing persisted.[19]
[19]PCB 185
28 Subsequently, a medical officer of the Frankston Hospital drafted a handwritten note which I also presume was given to the plaintiff for the purpose of the plaintiff providing it to his own treating medical practitioner. Unfortunately, much of it is difficult to decipher; however, what I am able to decipher is that it refers to the plaintiff’s right hand and right ankle, noting generalised tenderness in the right hand, but otherwise noting no other abnormalities. Certainly, there is no reference to injury to the neck or lower back in that note.[20]
[20]PCB 182
29 If the plaintiff did make complaints of suffering injury to his neck and lower back as he asserts he did, then it is remarkable that the attending medical practitioners made no note of those complaints. What is clear from an analysis of the attendances at the Frankston Hospital on 4 and 17 June 2011 is that it is reasonably clear that notes were made identifying the parts of the body which the plaintiff identified as being a source of pain. Subsequently, he was examined on both occasions, referred for x-rays on 4 June 2011, and prescribed medication on both occasions to treat the pain about which he was complaining.
30 On my analysis of the clinical notes of the Frankston Hospital, and the plaintiff’s evidence, I am not satisfied that he made any complaints of any substance on either occasion that he attended the hospital of pain in his neck or lower back; however, as already observed, that is not to say that he did not suffer injury to his neck and lower back.
Delayed complaint
31 The cross-examination proceeded on the basis that the plaintiff did not complain of pain in his neck or lower back on either occasion he attended at the Frankston Hospital. On that premise, it was put to him that the first complaint he made of pain in his neck and lower back was to Dr Stabelos on 20 January 2012. He denied that was so. He agreed that he did not pursue the advice given to him by Dr Nguyen to attend a medical practitioner in three to five days if he was no better. He said that he had attempted to see a number of medical practitioners for his transport accident injuries. On each occasion he did so, he was told by those medical practitioners that “we don’t do TAC”.[21] I am not satisfied that he made such attempts. He said nothing of the sort in any of his affidavits, and made no effort to identify when he made the attempts, the identity of the medical practitioners from whom he sought treatment, nor the injuries for which he sought such treatment. My impression of that evidence was that it was a knee-jerk attempt by the plaintiff to fill the gap between the occurrence of the transport accident and when he first sought medical treatment from Dr Stabelos.
[21]Transcript 54
32 The clinical note made by Dr Stabelos on 20 January 2012 is brief; however, it contains adequate factual content which persuades me that the plaintiff did suffer injury to his neck and lower back. The relevant clinical note reads as follows:
“MBA June 2011-was going thjrough (sic) round about and was clipped by car-went to Frankston Hospital next day-no fractures-but pain +++ low back, left leg, R wrist and ankle
now left leg gets numb easily esp if sitting for long periods and driving-aches to L buttock and posterior thigh to L shin and lateral toes paraesthesiae and heel pain
neck achy as well
this has been the case since accident but now getting worse
wakes AM stiff low back and aches abdomen.
… .”[22]
[22]Exhibit B
33 The plaintiff has been examined by a number of medical practitioners and paramedical practitioners for the purpose of treatment and medico-legal assessments. I think it is a fair conclusion that they have all operated on the basis that there is no issue of causation. It is not clear to me which of the medical practitioners and paramedical practitioners were provided with the clinical notes of the Frankston Hospital and had the issue of causation raised for their consideration, except for Mr Doig and Mr Speck.
34 The TAC provided Mr Doig with a letter of instruction dated 18 October 2017.[23] In Attachment 2 to the letter of instruction, he was provided with a summary of the plaintiff’s attendances at the Frankston Hospital. The summary refers to the plaintiff’s complaints of injury, and, although not expressly stating that the plaintiff made no complaint of pain to his neck and lower back, that is evident from the summary. In Attachment 1 he was asked a series of questions, including “Provide comment on your clinical findings in the relationship of the pathology to the transport accident”.
[23]Exhibit C
35 The TAC provided Mr Speck with two letters of instruction, dated 17 August 2018 and 6 November 2019.[24] The letters of instruction are drafted differently to the letter of instruction sent to Mr Doig; however, in the first letter of instruction, Mr Speck was asked to provide a diagnosis “of any physical injuries attributable to the transport accident on 10 June 2011”. He was provided with the clinical notes of the Frankston Hospital. In the second letter of instruction, he was asked the same question regarding attribution.
[24]Exhibit C
36 At the time when Mr Doig examined the plaintiff on 15 November 2017, he was left with the impression by the plaintiff that he had “lower back discomfort at the time” of the occurrence of the transport accident.[25] At the time when Mr Speck first examined the plaintiff on 19 September 2018, he was likewise left with the impression that at the time of the occurrence of the transport accident and his attendances at the Frankston Hospital, that “he was complaining mostly of neck pain extending down to the right shoulder and back pain”.[26]
[25]DCB 20
[26]DCB 32
37 Neither Mr Doig nor Mr Speck commented on the absence of reference to the plaintiff’s neck and lower back in the clinical notes of the Frankston Hospital, nor did they more seriously investigate the issue of causation. It is difficult to know, but it would appear that they were driven to accept that causation was not an issue from the history they were given at the time when they examined the plaintiff.
38 I do not propose to rehearse each history taken by treating medical practitioners and paramedical practitioners, and other medico-legal assessors because, as I have already observed, none of them were asked to make any analysis of causation and nor did they. They proceeded on the basis that it was not an issue.
39 The strong impression I am left with when I consider the whole of the plaintiff’s evidence is that he did not complain of injury to his neck and lower back when he attended the Frankston Hospital. I accept, despite my misgivings about the plaintiff’s creditworthiness and reliability, that he developed pain principally in his lower back, but also in his neck, from the time of the occurrence of the transport accident, which eventually led him to seek and obtain medical treatment from Dr Stabelos when the immediate problems with his right hand and right ankle receded, leaving him with emerging pain in his neck and lower back. I think the clinical note of the attendance by the plaintiff on Dr Stabelos of 20 January 2012 is of critical importance in persuading me that there is no issue of causation. Furthermore, the fact that the issue of causation was directly raised with Mr Doig and Mr Speck is also of importance, because it was raised for their consideration, and on the assumption that they attended to the task as they were asked to, their analyses is that they saw no reason why causation should be doubted.
Admission by the TAC
40 The plaintiff tendered a letter from the TAC dated 9 October 2015. In summary, the letter admits that the plaintiff suffered injury in a transport accident entitling him to relevant no fault payments. The plaintiff submitted that the defendant can now not deny that the injuries to the plaintiff’s neck and lower back were not caused by the subject transport accident. Although I am satisfied that the injuries to the plaintiff’s neck and lower back were caused by the transport accident, I feel obliged to address this issue.
41 There is a line of authority commonly relied upon in serious injury applications brought under the Accident Compensation Act 1985, and its successor, that similar content in letters amount to an admission of causation. I was referred to Ansett Australia Ltd v Taylor.[27]The observations made in Ansett have been subsequently considered in Ifka v Shahin Enterprises Pty Ltd[28] and Sednaoui v Amac Corrosion Protection Pty Ltd.[29]
[27][2006] VSCA 171 (“Ansett”)
[28][2014] VSCA 8
[29][2017] VSCA 66, and also Transport Accident Commission v Florrimell [2013] VSCA 247
42 It is not as simple as pointing to an admission of this kind and essentially saying that is the end of the matter. Whilst an admission of this kind must not be ignored, the question of the extent to which an acceptance of liability for no fault payments may constitute an admission can be problematic, and I think it is in this case.
43 The level of scrutiny of the plaintiff through cross-examination, the plaintiff’s attendances at the Frankston Hospital, and what is recorded in the clinical notes of the hospital were not made as patent to the likes of, for example, Mr Doig and Mr Speck, for the purpose of obtaining their considered opinion on the question of causation. On the basis of my summary of the evidence thus far, I think it has become reasonably apparent that there was an acceptance of liability for no fault payments based upon untested evidence.
44 I have not ignored the admission in its entirety, but I am uncomfortable in solely relying upon it in the manner submitted by the plaintiff where I now have the whole of the primary evidence of the occurrence of the transport accident, the scrutiny of the plaintiff’s evidence through cross-examination, the plaintiff’s evidence of attendances at the Frankston Hospital in the clinical notes of the hospital, and the benefit of the plaintiff and the defendant’s analysis of the body of that evidence. I think it is that evidence which I must assess in determining causation, which I think significantly reduces the weight that I should accord to the plaintiff’s reliance on the admission.
Events between 20 January 2012 and 14 June 2014
45 The plaintiff worked for DGL Industries from June 2011 through to October 2012 in the construction of a desalination plant in Victoria.[30] He had one day off work on 27 June 2011 for an unspecified condition. He saw Dr Grossman, general practitioner, on that day, who provided him with a medical certificate entitling him to be off work.[31] His work with DGL Industries came to an end when the construction of the desalination plant reached completion.
[30]PCB 9 and 11
[31]Transcript 50
46 The plaintiff worked between five to six days a week, depending on weather conditions. The sixth day of work, when he worked six days, was a day of overtime.[32] According to the summary of the plaintiff’s earnings, he earned $104,331 with DGL Industries for the financial year ending 30 June 2012. It was by far the largest income he had earned and would earn.[33]
[32]Transcript 62
[33]PCB 172
47 While the plaintiff was still employed by DGL Industries he took a holiday. He left Australia on 18 July 2012 and travelled to Croatia. He returned after two months, on 10 September 2012.[34] He then resumed working for DGL Industries. Under cross-examination, he said there were two reasons why he took the holiday. One was because of his “symptoms”. I assume he meant symptoms of pain in his lower back. Another reason was to see members of his family who reside in Croatia.[35]
[34]The defendant located information which permitted it to calculate the precise dates on which the plaintiff travelled overseas on this occasion and on subsequent occasions to which I will make reference. None of the dates were controversial.
[35]Transcript 65
48 The plaintiff was out of work from the cessation of his work with DGL Industries until he obtained work with I & D Construction (“I & D”) in January 2013. The work involved working on a construction site at Cranbourne. One of the tasks he performed was removing timber formwork from around setting concrete.[36] In his first affidavit, he described working for six months with I & D. He found the work to be “tough” because of the injury to his lower back, and he was experiencing depression and also panic attacks when he was “near traffic”. He ceased work with I & D in about May 2013. He then took six months off work.[37] It was during that six-month period off work that he travelled to Croatia from 17 June 2013 to 24 September 2013.
[36]Transcript 62-63
[37]PCB 11 and 169
49 Under cross-examination, the reasons why he ceased work with I & D were described very differently. At first he said that he was having pain, presumably in his lower back, which led him to put his hand up for redundancies that were offered by I & D.[38] He subsequently agreed that he provided Centrelink with information that the reason why he ceased working with I & D was because of a shortage of work. He also agreed that he had no time off work during the time he worked with I & D.[39]
[38]Transcript 66
[39]Transcript 65-68
50 The plaintiff then obtained work with BlueScope Steel from 14 January 2014 to 19 March 2014. He obtained the job through a labour-hire company known as Adecco Labour Hire.[40] The work involved general labouring. He said that the work aggravated his lower back injury which impacted upon his capacity to continue working. He worked five days per week from 7.00am to 2.00pm.[41]
[40]PCB 169
[41]Transcript
51 The plaintiff then returned to work with I & D, again as a labourer. It is not clear when. It was while working for I & D that in June 2014, he was struck by a piece of plywood, which he says resulted in a temporary exacerbation of his neck and lower back symptoms. He ceased working for I & D after that incident.[42] Under cross-examination, he elaborated on how the exacerbation occurred. He said that a piece of plywood fell on top of the helmet he was wearing. As he tried to protect himself from it with his hand, he said that it “must have jolted me back or twisted it which flared up in a severe way”.[43]
[42]PCB 170
[43]Transcript 64
52 Up until the event of June 2014 occurred, the plaintiff had not had much medical treatment. When Dr Stabelos saw the plaintiff on 20 January 2012, he appears to have considered that the plaintiff may have had an identifiable problem with his spine with sciatica. He referred him to have a CT scan, which was taken on 21 January 2012. The radiologist concluded that there were appearances of L4-5 central spinal canal stenosis, partly due to a broad-based posterior disc, and L5-S1 disc degeneration.[44]
[44]PCB 140
53 The plaintiff subsequently saw Dr Stabelos on 21 and 27 January, 24 February, 2 and 16 March, 29 June, 6 July and 13 and 17 December 2012 for problems principally with his lower back, with pain radiating into his legs. He was prescribed Voltaren, Panadeine Forte and Temazepam.[45] He was referred to have an MRI scan, which was taken on 15 March 2012. The radiologist concluded that at L4-5, there was a diffuse disc bulge with an associated central annular tear and facet joint and ligamentum flavum hypertrophy, producing mild central canal and bilateral sub-foraminal lateral recess narrowing. In her conclusions, the radiologist considered that there was some possible irritation of the traversing L5 nerve root bilaterally.[46]
[45]Exhibit C
[46]PCB 141-142
54 Dr Stabelos referred the plaintiff to Mr Tonietto, chiropractor. The plaintiff first saw him for treatment on 30 January 2012.[47] He saw him for treatment before going overseas in July 2012. He did not return to see him until July 2014,[48] nor did he have any other treatment nor the use of prescription medication before that date.
[47]PCB 52
[48]PCB 52
An exacerbation versus an aggravation/further injury
55 The plaintiff submitted that what occurred on 14 June 2014 was an exacerbation of an already damaged lower back or a flareup. The defendant submitted that when an analysis is made of what occurred subsequent to 14 June 2014, it is obvious that the plaintiff sought and obtained a significant amount of medical treatment which is highly suggestive of the plaintiff having suffered a new injury. I am not satisfied that is the case.
Medical treatment post 14 June 2014
56 After the occurrence of the event of June 2014, the plaintiff saw Dr Stabelos on 7 June 2014 complaining of acute lower back pain over the preceding week, with pain radiating into both legs. He prescribed him Panadeine Forte. At a consultation on 18 June 2014, the plaintiff discussed the transport accident, and it would appear he informed Dr Stabelos that he had not had problems with his lower back prior to the transport accident. Dr Stabelos noted that there was no “obvious incident” which triggered the painful lower back condition for which he was treating the plaintiff. It would appear the plaintiff did not tell him about the event of June 2014. Dr Stabelos also discussed the plaintiff undergoing an epidural injection and obtaining a neurosurgical opinion at that consultation.
57 At the next consultation on 11 July 2014, Dr Stabelos prescribed the plaintiff OxyContin and Endep. By that time he had referred the plaintiff to have physiotherapy. The plaintiff was unhappy with the physiotherapy treatment, which led Dr Stabelos to refer him back to Mr Tonietto, chiropractor. At the next consultation on 17 July 2014, there was further discussion about obtaining a neurosurgical opinion, other treatment and the appropriateness of the plaintiff returning to work because of the risk of re-injury, and advice that he not engage in heavy manual labour. The descriptions of the treatment provided by Dr Stabelos are then taken up by his reports. The last entry in the clinical notes which were tendered in evidence is 22 January 2015, at which time the plaintiff continued to complain of pain in his lower back, and depression.[49]
[49]Exhibit C
58 Dr Stabelos then referred the plaintiff to have a further MRI scan which was taken on 16 June 2014,[50] and then to a number of specialists for treatment. The first of those was Dr Punchihewa, neurologist, who saw the plaintiff in July 2014. He examined the plaintiff and also the recent MRI scan. He considered that the MRI scan demonstrated degenerative changes in the spine, but with no convincing evidence of significant foraminal stenosis or lumbar canal stenosis. He did not find any other abnormalities relevant to the plaintiff’s spine.[51]
[50]PCB 143-144
[51]PCB 31-32g
59 Dr Stabelos referred the plaintiff to Mr Goldschlager, neurosurgeon, who saw the plaintiff in June 2015. He examined the recent MRI scan. He appears to have agreed with the appearances on it because he summarised the findings on the MRI scan as an L4-5 disc prolapse, causing right L5 nerve root compression and mild canal stenosis. He considered that the sciatica complained of by the plaintiff was explained by the disc prolapse. He also found neurogenic claudication which he considered to be a new symptom. He recommended obtaining updated imaging to look for the cause of the claudication which, at that point, he considered to be a worsening of the L4-5 canal stenosis.[52] The plaintiff did not produce any further evidence from Dr Goldschlager.
[52]PCB 175-176
60 The plaintiff was also treated by Mr Moar, physiotherapist.[53] He is probably the physiotherapist to whom the plaintiff referred in a consultation with Dr Stabelos. He was not happy with the treatment he was receiving, so he was then referred back to Mr Tonietto, who next saw him on 1 July 2014. The plaintiff told Mr Tonietto that in June 2014, he experienced increasing pain in his lower back and referral of pain into his right leg, with numbness over the right posterior thigh and calf. His treatment of the plaintiff was interrupted when the plaintiff left to go overseas on 25 July 2014. He recommenced treatment of the plaintiff in January 2015. He then saw him in March, June and November 2016, in February and July 2017, in August and November 2018 and in March and June 2019.[54]
[53]PCB 29-30
[54]PCB 59-62
61 There appear to be significant gaps in the plaintiff’s treatment. From about March 2016, although he saw Mr Tonietto infrequently between early 2016 and mid-2019, he did not see Dr Stabelos for a significant period of time until he was referred to other specialists to whom I will now refer.
62 Dr Stabelos referred the plaintiff to Dr Lee, consultant in rehabilitation and pain medicine. He saw the plaintiff on 14 December 2018. The plaintiff told Dr Lee that he was experiencing constant pain in his lower back and pain which he described as an electric feeling with deep aching and spasms. Walking for more than 500 metres would result in leg pain. Dr Lee’s preliminary view was that the plaintiff was coping reasonably well. He considered that more active treatment might benefit the plaintiff.[55]
[55]PCB 63-64
63 Dr Lee referred the plaintiff to Dr Chou, consultant in anaesthesia and pain medicine, on 15 January 2019. Before the plaintiff saw Dr Chou, he was using a morphine patch, amitriptyline and had trialled slow release Oxycodone. He was advised by Dr Lee that the combination of medication he was using was “dangerous” and that he would need to stop taking that medication.[56]
[56]PCB 21
64 After Dr Chou examined the plaintiff, he considered that the plaintiff was suffering from facet joint and sacroiliac joint arthropathy. On 3 April 2019, he performed a right-sided L3 to L5 medial branch block and right-sided sacroiliac joint injections. The plaintiff told him that he obtained significant relief for about three weeks before these symptoms gradually returned. He underwent a repeat of the injections on 5 February 2020. He obtained a similar level of relief for about three weeks.[57] It would appear that Dr Chou ceased treating the plaintiff after he reviewed him on 6 March 2020. He recommended that the plaintiff attend a gym and do swimming. He made a request of the TAC for funding for both the gym and swimming.
[57]PCB 70-71 and 21
65 Dr Stabelos referred the plaintiff to Mr Panagiotopoulos, psychologist. He commenced treating the plaintiff in March 2015 until March 2016, after which there was a break before he recommenced treating the plaintiff in February 2019. He provided two reports, dated 8 March 2016[58] and 5 December 2019.[59] He obtained a history from the plaintiff of the transport accident and the impact it had on him emotionally. The upshot of his treatment and assessment of the plaintiff was that the plaintiff was likely to experience a significant level of emotional distress characterised by depressive symptoms, anger, fear and anxiety. He noted some intermittent suicidal ideation, feelings of insecurity and general vulnerability. He considered that the “biggest barrier” to improvement in his psychological state was linked to his physical recovery and limited future employment opportunities.[60]
[58]PCB 42-46
[59]PCB 47-51
[60]DCB 51
66 Dr Stabelos also referred the plaintiff to Dr Kishore, psychiatrist. He saw the plaintiff on 1 November 2019. He provided a report bearing the same date.[61] He obtained a history from the plaintiff of the occurrence of his injuries and his work history. He noted that the plaintiff’s presentation was complicated by a “significant alcohol and cannabis use disorder”. The plaintiff told him that he had ceased using cannabis in June 2019 and noted an improvement in his mood. After examining the plaintiff, he considered that he was suffering from an Adjustment Disorder with a prolonged depressive reaction with anxiety symptoms. He recommended to Dr Stabelos a number of treatment methods which included, among other things, a review if necessary, psychotherapy and the use of an antidepressant medication for one to two years after full remission of his symptoms.
[61]DCB 65-67
67 At present, the plaintiff appears to continue to see Dr Stabelos. It would appear that he continues to attend a gym and do swimming.[62] He continues to see Mr Panagiotopoulos for counselling.[63] He has obtained treatment from Mr Tonietto on and off over the last two years.[64] He is currently taking Cymbalta which he describes as being a pain reliever as well as an antidepressant.[65]
[62]PCB 21-22
[63]PCB 22
[64]PCB 23
[65]PCB 22
Work post June 2014
68 Following the event of June 2014, the plaintiff stopped working with I & D. He went onto Centrelink benefits. He subsequently went overseas from 25 July to 29 December 2014. He again visited his family in Croatia.
69 The plaintiff’s estimates of what work he then pursued are very unsatisfactory. The best that he was able to do is to estimate that in late 2015, he worked for Fire Rating Solutions Pty Ltd for two or three weeks. He said it was a physical job. He was unable to cope with it because of lower back pain. He considered that the problems he encountered demonstrated that he could not work in the construction industry again.[66] He then obtained work with PPG, which is a paint manufacturer. He worked Monday to Friday from 6.00am to 2.00pm with some overtime on Sundays. He was designated as a full-time casual employee. He did not take any time off due to his lower back injury. He was offered a full-time job. He was required to undergo a urine test and have a medical examination. The urine test returned traces of cannabis. He was then fired. He last worked for PPG in March 2019.
[66]PCB 170
70 The plaintiff then returned to work for Barra Steel, an employer for which he had worked previously in 2011. He worked for one month doing spray painting work. He considered that it was light work and he was able to cope with the tasks he was required to perform.[67]
[67]PCB 170-171
71 The plaintiff is now working at the Woolworths Distribution Centre and has been since October/November 2019. He believes the job is unlikely to be available to him beyond August 2020.[68] He works between 24 to 30 hours per week. His usual hours of work are either from 6.00am to 12.00pm or from 12.00pm to 6.00pm. He usually works four days per week. At present, due to the Covid-19 virus, he has been offered more work because of an increased demand for goods and services provided by Woolworths. He has worked up to 36 hours per week at an hourly rate of $37 per hour. The work he undertakes requires him to use a forklift-type vehicle which he described as a “transporter”. He stands on the transporter using it to unload rubbish from semitrailers for the purpose of recycling.[69]
[68]PCB 171
[69]Transcript 80-82
Earnings and trips overseas
72 The plaintiff’s annual earnings were relied on by the defendant to demonstrate that the plaintiff has earned significant income despite his complaints of disabling pain, and despite occasions when he has taken significant periods of time off work to travel overseas. It is convenient at this point to summarise his earnings.
73 The following is a summary of the plaintiff’s earnings taken from a table prepared by the plaintiff:[70]
[70]PCB 172-173
Year ending Earnings 30 June 2011 $50,733.00 30 June 2012 $104,331.00 30 June 2013 $54,192.00 30 June 2014 $36,461.00 30 June 2015 $3,569.00 30 June 2016 $47,693.00 30 June 2017 $56,865.00 30 June 2018 $76,942.00 30 June 2019 $46,774.00 Current employment from October/November 2019 to August 2020 approximately $57,720.00 for a financial year based on 30 hours per week at $37 per hour
74 The plaintiff has not always worked a full year. He has travelled overseas almost every year since 2012. The following is a summary of his overseas travel:
· Croatia - 18 July to 10 September 2012
· Croatia - 17 June to 24 September 2013
· Croatia - 25 July to 29 December 2014
· Indonesia/Bali - 6 April to 13 May 2016
· Croatia - 17 July to 19 October 2016
· Thailand - 13 October to 26 October 2017
· Croatia - 14 February to 23 March 2018
· Croatia - 6 July 2019 to 4 September 2019.
The medico-legal injury assessments
75 I will firstly turn to the plaintiff’s medico-legal assessments.
76 The plaintiff was examined by Mr Simm, orthopaedic surgeon, on 24 February 2015. He provided a report dated 24 February 2015.[71] He did not re-examine the plaintiff. His opinion is of limited value because he examined the plaintiff after the plaintiff had been absent from Australia for nearly six months. When the plaintiff returned, he was unable to resume employment with I & D because of his absence from that employment.
[71]PCB 86-94
77 Mr Simm examined the plaintiff and considered the CT scan and the two subsequent MRI scans. He considered that the plaintiff had suffered a soft tissue injury to his lumbar spine with an aggravation of pre-existing asymptomatic advanced lumbar disc degeneration. He also considered that the transport accident possibly caused some damage to a compromised L4-5 intervertebral disc, contributing to a minor increase in the size of the protrusion. Otherwise, he considered that the plaintiff’s clinical course related to anticipated advanced constitutional degenerative disc changes.
78 In relation to the plaintiff’s neck, he considered that he had suffered a soft tissue injury.
79 Mr Simm’s consideration of the plaintiff’s capacity to work is of little value because it predates the plaintiff returning to significant labouring work.
80 Mr Syme, urologist, examined the plaintiff on 7 July 2015. He provided a report dated 11 July 2015.[72] He referred to a clinical note of Dr Stabelos dated 16 March 2012 in which Dr Stabelos noted that the plaintiff suffered from erectile dysfunction since separating from his wife ten years previously. After examining the plaintiff, he considered that the plaintiff did not suffer from any organic condition causing dysfunction of his bladder or sexual function. He added that if there was an erectile dysfunction, it was psychogenic in origin, and that it predated the transport accident to some extent.
[72]PCB 95-97
81 Mr Aliashkevich, neurosurgeon, examined the plaintiff in August 2018, and provided a report dated 3 August 2018,[73] and again re-examined the plaintiff in December 2012, and provided a second report dated 9 December 2019.[74] After examining the plaintiff on two occasions and considering the radiology he was provided, he considered that the plaintiff suffered from an annular fissure and disc protrusion at L4-5, advanced disc degeneration and foraminal stenosis at L5-S1, leading him to conclude that the plaintiff was suffering from chronic and refractory mechanical low back pain and right leg pain. He also considered that the plaintiff was suffering from chronic and refractory neck pain, with arm and shoulder pain.
[73]PCB 98-107
[74]PCB 108-118
82 Mr Aliashkevich considered that the plaintiff’s use of conservative treatment had failed. He considered that he required the imposition of significant restrictions on activity, which is set out in his second report.[75] His overall assessment was that the plaintiff was fit for reduced suitable part-time employment. His prognosis was guarded. He considered that the plaintiff might need further investigations and treatment, and that there were prognostic red flags as predictors for an unfavourable long-term outcome.[76]
[75]PCB 117
[76]PCB 117-118
83 The defendant had the plaintiff examined by Mr Doig, orthopaedic surgeon, and Mr Speck.
84 Mr Doig examined the plaintiff on 15 November 2017. He provided a report dated 20 November 2017. After examining the plaintiff and considering the radiology he was provided, he considered that the plaintiff had suffered an intervertebral disc injury at L4-5 on the background of pre-existing degenerative changes. He considered that there might be further deterioration in the disc in time. He also considered that the plaintiff’s prognosis was guarded, and that he was most likely to suffer from chronic back pain with restrictions, with the potential to deteriorate over the years. He considered that the plaintiff had a capacity to perform full-time employment in what he understood was lighter work with PPG.
85 Mr Speck examined the plaintiff on 19 September 2018 and provided a report dated 26 September 2018,[77] and again on 13 November 2019, and provided a second report dated 3 December 2019.[78] After examining the plaintiff on both occasions and inspecting the radiology he was provided, he considered that the plaintiff’s symptoms in his lower back were due to an aggravation of degenerative changes present in facet joints without radiculopathy, and that he had suffered a resolved soft tissue injury to his neck in the presence of degenerative changes.[79]
[77]DCB 29-39
[78]DCB 40-48
[79]DCB 46
86 Mr Speck considered that the plaintiff has been, and continues to be, fit for work with PPG, noting that his employment with PPG was terminated because of the adverse urine test. He also noted that the plaintiff’s current treatment is attending a gym, otherwise he considered that the plaintiff could undertake all of his usual domestic activities.
The medico-legal psychiatric assessments
87 Dr Weissman, psychiatrist, examined the plaintiff on 19 January 2015. He provided a report bearing the same date.[80] He obtained a history from the plaintiff of the occurrence of his injuries and his work history. He examined him at a time when the plaintiff was out of work, having ceased work with I & D. He noted that the plaintiff felt more depressed being out of work and that he was less socially active and engaging in fewer physical activities, and he also noted that the plaintiff was experiencing erectile dysfunction which the plaintiff told him was a consequence of his injuries. Dr Weissman considered that the plaintiff was suffering from an Adjustment Disorder with Depressed and Anxious Mood of mild to moderate intensity or severity. He considered that his psychiatric symptoms were stable.[81]
[80]PCB 72-85
[81]PCB 81
88 The plaintiff was examined by Dr Epstein, psychiatrist, on 24 September 2019. He provided a report bearing the same date.[82] He obtained a history from the plaintiff of the occurrence of his injuries and his work history. After examining him, he considered that prior to the plaintiff’s employment with PPG being terminated, that the plaintiff was suffering from a Post-Traumatic Stress Disorder and a Mild Chronic Adjustment Disorder with Depressed Mood. He considered that, subsequently, his depression had worsened significantly, with the plaintiff now suffering a Major Depressive Disorder with frequent suicidal ideation. He noted that if the plaintiff was able to obtain work consistent with his physical capacity, then his mental state would improve considerably.[83]
[82]PCB 119-135 Associate Professor Doherty
[83]PCB 133
89 The plaintiff was examined by Associate Professor Doherty, psychiatrist, on 13 February 2020. He provided a report dated 2 March 2020.[84] He was provided with a significant body of medical reports and radiology. It would appear that he obtained a reasonably accurate and extensive history of the transport accident, the plaintiff’s injuries and the treatment he was provided. He understood that the plaintiff had been diagnosed with Post-Traumatic Stress Disorder, Major Depressive Disorder and an Adjustment Disorder with Depressed and Anxious Mood. He considered that with the effluxion of time, the plaintiff’s psychiatric problems had remitted over time, and were not causing the plaintiff any significant interference with daily living and no impact on his capacity for work.
[84]DCB 50-67
The Plaintiff’s consequences
90 The plaintiff has sworn four affidavits on which he relies, in addition to his oral evidence, to demonstrate what the consequences are which are attributable to his injuries. I should just pause here for one moment to again observe that the major focus has been on the plaintiff’s lower back, and far less so on his neck.
91 In summary, the plaintiff says that he has suffered the following impairment consequences of the impairment of the injury to his spine, and principally his lower back:
· Constant sharp pain in the lower back, worse on the right side going down into the right buttock and right leg.[85]
[85]PCB 12
· Pain made worse by walking, bending and twisting.[86]
[86]PCB 12
· Pain and stiffness in the neck.[87]
[87]PCB 12
· Pain in the neck, worsened by moving his head from side to side.[88]
[88]PCB 12
· Headaches due to the neck injury.[89]
[89]PCB 12
· The need for the treatment referred to above.
· Interrupted sleep, now managing five hours of broken sleep due to waking with back pain. Sleep is also interrupted by traffic noise triggering panic attacks.[90]
[90]PCB 12
· Dressing now takes longer.[91]
[91]PCB 13
· Driving a car is difficult, especially longer trips, with feelings of stress and anxiety being in traffic and entering the roundabout near his home.[92]
[92]PCB 13 and 14
· Loss of confidence riding his motorcycle, and now only riding a few times each year. The plaintiff sold his motorcycle probably in 2019.[93]
[93]PCB 13 and Transcript 84
· Interference with recreational activities with his son, for example playing tennis, playing football and helping out at his football training.[94]
[94]PCB 13
· Interference with other physical activities - tenpin bowling with his son and riding a pushbike.[95]
[95]PCB 14
· Avoidance of prolonged walking and going upstairs. Walking up one flight of stairs at his home produces more lower back pain.[96]
[96]PCB 14
· Interference with sexual activity.[97]
[97]PCB 14
· Interference with social activities, for example going to a local pub with friends.[98]
[98]PCB 14
· Emotional upset, with feeling very low, resulting in increased use of alcohol and marijuana.[99]
[99]PCB 14
· Incapacity for work in the construction industry.[100]
[100]PCB 14-15
· Loss of income measured against what he was earning at the time of the transport accident of between $1,400 and $,2800 gross per week as a labourer.[101]
· A reduction in his capacity in labouring work.
[101]PCB 14
92 The foregoing is a summary of the impairment consequences contended for by the plaintiff taken from his first affidavit, and confirmed in his subsequent affidavits, and supported by an affidavit sworn by his daughter, Ms Amber Pandelias.[102]
[102]PCB 26-28
Are the impairment consequences “serious”?
93 There are many reasons why I do not accept the plaintiff’s case. I am satisfied the plaintiff suffered an injury to his lower back and neck, but neither, whether individually or treated as a spinal injury, have impairment consequences which are much more than mild.
94 Firstly, the plaintiff has had relatively conservative treatment, and at present is only having intermittent treatment from Mr Tonietto, prescription of Cymbalta, and otherwise is attending the gym and swimming. He no longer takes medication, but uses natural remedies.[103]
[103]Transcript 108
95 Secondly, an assessment of the treatment obtained by the plaintiff since January 2012 demonstrates that he had very little treatment, save for intermittent conservative treatment, until June 2014, when he saw Dr Stabelos, who referred him to the specialists to whom I have referred above and whose evidence I have summarised.
96 Furthermore, the plaintiff is no longer being treated by Dr Lee, Dr Chou, or Dr Kishore, which demonstrates that he does not require anything more than the conservative treatment he is having at present. The inference is that he is tolerating what pain he suffers, and the interference he has with his general mobility. I think this demonstrates that the nature and extent of the lower back injury is more likely to be consistent with the opinion of Mr Speck, who considered that the plaintiff was significantly more physically able than in the opinion other medical assessors. The results of his last assessment of the plaintiff on 13 November 2019 were of an aggravation of facet joint degeneration which he expected to settle. Of importance is that he considered that the plaintiff was fit for the work which he was performing when he first examined him. That opinion seems to be consistent with the plaintiff’s present circumstances that he does not need any significant medical treatment and has been and is able to work in what is very probably physically demanding work.
97 Thirdly, the plaintiff has been capable of, and continues to be capable of, significant physical work as a labourer. He was very capable of working for DGL Industries, and indeed, worked for it uninterrupted until the construction of the desalination plant had reached completion. By inference, if that work remained open to him, that he would have continued in that work, earning a very significant income.
98 Furthermore, the event of June 2014 did not reduce his capacity for work because he subsequently obtained work with PPG as a labourer. If he had not failed the urine test, that work would have remained open to him as a permanent employee and he would have continued in that work, earning a very significant income.
99 Fourthly, the plaintiff is presently working with Woolworths in as many hours as he has been offered. The Covid-19 virus has enabled him to work up to 36 hours per week earning a significant income. It is noteworthy that he does not complain of having any increased problems with his lower back when he works those hours.
100 Fifthly, in the background of the plaintiff’s demonstrated capacity for work and relatively modest treatment at present, his complaints of chronic pain are exaggerated and inconsistent with the undoubted stresses and strains that he endured in undertaking work with PPG and now with Woolworths.
101 Sixthly, I do not accept that the plaintiff’s erectile problems are due to his lower back injury. Mr Syme referred to a previous history recorded by Dr Stabelos of erectile problems, and when Mr Syme examined the plaintiff, he could not find any basis upon which the plaintiff suffered those problems due to his lower back injury. It is noteworthy that the plaintiff did not refer to his prior erectile problems in any of his affidavits. He denied having any such problems previously.[104]
[104]Transcript 107-108
102 Seventhly, under cross-examination, the plaintiff was asked about his ability to walk distances and his ability to walk up a flight of stairs at his home. He referred to having difficulty with both in his affidavits. He said that he avoids prolonged walking and going upstairs because it increases his lower back pain. He said that he can walk about 500 metres before he experiences a burning sensation in his calves and thighs which is something like a pressure build-up.[105] The films shown to the plaintiff demonstrate a very different picture.
[105]Transcript 86
103 The plaintiff was shown two films. The first was taken on 25 August 2018.[106] The second was a compilation of film taken on 8, 13 and 26 November 2019.[107]
[106]Exhibit 1
[107]Exhibit 2
104 My summary of the first film is as follows:
· 8.58am to 9.40am, the plaintiff was seen outside his home. He walked to his car. He entered his car.
· 9.41am, the plaintiff walked up what appeared to be three steps to a landing and then up a set of steps to a landing outside his front door.
· 11.11am to 11.57am, the plaintiff was seen outside is home.
· Between 11.59am and about 12.45am, the plaintiff walked from his home and back again, a period of about 46 minutes.
· 12.46am, the plaintiff walked up the steps to the landing outside his front door.
105 My summary of the second film is as follows, commencing on 8 November 2019:
· 8.57am, the plaintiff was seen outside his house and he backed the car out of the driveway.
· 10.27am, he was in the side garden. He entered the house through a side door.
106 Then, on 13 November 2019:
· 10.37am, he was observed with a bag over his shoulder.
· 12.55pm, he was wearing a black hoody, and entered his car, after which he drove away.
· 1.01pm, he walked up the steps to the landing outside his front door
· 2.41pm, he descended the steps from the landing outside the front door.
· 3.48pm, he bent into the rear passenger seat of his car through the open door.
· 4.01pm-4.04pm, he was near his car and was walking.
· 5.34pm, he walked back to his car.
107 Then, on 26 November 2019:
· 10.05am, he was on what appeared to be a side patio of his house carrying cushions and chairs into his house.
· 11.01am, he descended the steps in the landing outside the front door.
108 Under cross-examination, the plaintiff was asked whether he saw any difficulty exhibited when he walked up the steps and along the nearby roadway. He stated that “I didn’t say I had difficulties walking up the stairs. I said I feel pain when I go up the stairs.”[108] Under further cross-examination, the plaintiff expressed surprise that the film taken on 25 August 2018 showed him walking for up to 50 minutes, and walking up the steps with apparent freedom and absence of any observable difficulty. He was taken to an affidavit in which he swore that he avoided prolonged walking and going upstairs because it caused him increased pain. He was unable to identify any aspect of what he saw on the films suggesting he had any such difficulty. He denied that what he saw in the film was inconsistent with the back pain he experiences.[109]
[108]Transcript 90-91
[109]Transcript 91-92
109 Under re-examination, the plaintiff appeared to remember 25 August 2018 with some clarity. He said that he drove his car to Carrum to have some work done on it. He then caught the train back to Frankston and walked from the Frankston station to his house. He estimated that he was walking for 20 to 25 minutes “up and back” which I took to mean that in delivering the car, he then walked for 20 to 25 minutes, and did the same in collecting the car.[110]
[110]Transcript 124
110 Under cross-examination, the plaintiff described the chairs he was lifting as light wicker chairs. He did not disagree that he was bending normally and picking up the chairs normally.[111]
[111]Transcript 105
111 Eighthly, the plaintiff’s estimate that he has suffered a loss of gross income of between $1,400 to $2,800 gross per week is an exaggeration. The defendant submitted that a comparison with what the plaintiff earned for the financial years ending 30 June 2008 to 30 June 2011 demonstrates that his highest gross earnings were with Barra Steel of $58,686 or $1128.50 (rounded off) gross per week. In fact, even with the income earned with DGL Industries, the plaintiff would not have exceeded $2,000 gross per week.
112 Ninthly, under cross-examination, the plaintiff agreed that his lower back injury has not interfered with his ability to travel. He said that he requests an exit seat so that he can stand and move around freely because he does get agitated on a flight. I assume he meant that he needs to move around because his lower back plays up.[112]
[112]Transcript 111
113 Tenthly, the plaintiff is able to drive his automatic car. He is self-sufficient with respect to performing necessary domestic chores and looking after his own hygiene and dressing requirements. He performs all of his own domestic chores – washing clothes, cleaning and vacuuming. He prepares his dinner and cleans up. He does not require any assistance to undertake domestic tasks.[113]
[113]Transcript 84
114 Eleventhly, the psychiatric assessments which best suit the plaintiff are based upon the plaintiff’s subjective complaints of pain and disablement which I do not accept are anywhere near as grave as the plaintiff makes out. It is noteworthy that the psychiatric assessors who considered that the plaintiff has a significant psychiatric condition also consider that the extent to which it will continue to trouble the plaintiff is inextricably connected to the nature and extent of his lower back injury. It is obvious by now that I do not accept plaintiff’s evidence that his lower back is anywhere near as troublesome as he makes out, and therefore, it must follow that his psychiatric condition is likewise nowhere near as troublesome as some of these psychiatric assessors believe it to be. It is also noteworthy that he is no longer having any psychiatric treatment, but is being maintained on a relatively modest dose of Cymbalta as recommended by Dr Kishore. There is no evidence from Dr Kishore to demonstrate whether the plaintiff is in a period of full remission, and is using Cymbalta as a measure to maintain remission or to actually treat active symptoms of his psychiatric condition.
115 I should add at this point that whether the plaintiff is suffering active symptoms of his psychiatric condition are to be considered as an impairment consequence consistent with Richards & Anor v Wylie.[114]
[114](2000) 1 VR 79
116 In conclusion, I am not satisfied that what impairment consequences the plaintiff has presently are much more than mild. In summary, I have reached this conclusion based upon what I have made of the plaintiff’s credit worthiness and reliability, his undoubted capacity to work and earn significant income, his capacity to function well in the context of daily activities, the absence of a need for anything other than low level medical and rehabilitative treatment, and the fact that in an overall sense the plaintiff appears to be significantly more active and physically capable than he has been prepared to admit to. I have reached that conclusion after making a comparison with like impairments as I am obliged to do.
Orders
117 I order that the plaintiff’s Originating Motion be dismissed with costs.
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