Toniolo v Transport Accident Commission

[2010] VCC 1630

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-09-05977

RUGGERO (ROGER) TONIOLO	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	7 and 8 October 2010
DATE OF JUDGMENT:	16 November 2010
CASE MAY BE CITED AS:	Toniolo v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2010] VCC 1630

REASONS FOR JUDGMENT

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Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986 – Section 93 – impairment of the cervical spine – vestibular dysfunction.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms N Wolski	Burt & Davies
For the Defendant	Mr W R Middleton SC and	Solicitor to the Transport
Ms R Annesley	Accident Commission
HER HONOUR:

1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s.94(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 24 February 2008 (“the said date”).

2 Section 94(6) of the Act provides:

“A court must not give leave under sub-section (4)(d) unless it is satisfied

that the injury is a serious injury.”

3          The definition of “serious injury” relied upon by the plaintiff is under s.93(17)(a) – “a serious long term impairment or loss of a body function”.

4          The body function relied upon by the plaintiff in this application is the cervical spine, and vestibular dysfunction.

5          The inquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.

6          The serious injury defined by sub paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can of itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.

7          In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR 129, at 140-1.

8          The plaintiff relied on one affidavit sworn on 20 May 2010 and gave viva voce evidence. He was cross-examined. He also relied on a number of affidavits from lay witnesses, namely Michael Zimmerman, sworn 30 May 2010; Slavica Kormanic, sworn 3 June 2010; Rana Sundram, sworn 15 June 2010; Peter Eglezos, sworn 15 June 2010; Jutta Toniolo, sworn 28 June 2010; and Dr Anthony Gittins, sworn 9 August 2010.

9          In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.

The Plaintiff’s Evidence

10        The plaintiff is present aged sixty two, having been born on 9 August 1948 in Belgium. He undertook an apprenticeship as a fitter and turner from 1964 to 1968 and he then migrated to Australia.

11        From that time, the plaintiff worked consistently in his trade. In the mid 1980s, he hurt his back lifting steel whilst working for Repco. He was off work for six months and his employment was then terminated.

12        The plaintiff then commenced sub-contracting to Kleerkut Engineering despite his back condition. He worked in that role for five years without incident until 1989, when his back gave way and was then forced to cease work in his trade.

13        The plaintiff then attempted to get himself alternative employment and he undertook courses in the gaming industry, but was unsuccessful in getting employment because of his back condition and age. The plaintiff then applied for a Disability Pension in 1992.

14        The plaintiff deposed that despite his back condition, his genuine belief was that he would have remained active but for the injuries suffered on the said date. He loved life. He had a good sense of humour and derived great pleasure from family, friends and neighbours.

15        Whilst a Disability Pensioner as at the said date, the plaintiff nevertheless considered his general health to be excellent. He remained active within limits and remained independent. He also was an active member of the community, socialising regularly with others. He enjoyed assisting friends or family, or others in the network connected to his family, such as his son’s school, and he felt he had something worthwhile to offer. He enjoyed life and looked forward to each new day.

16        Prior to the said date, the plaintiff did not consider himself disabled. Although his back prevented him from working formally, it did not prevent him from leading a fulfilling, rewarding life.

17        Even with his low back condition, prior to the said date, the plaintiff was able to do lawn mowing, weeding, pruning, watering, planting and light handyman jobs. In addition to his own gardening, the plaintiff also mowed the lawns of several friends and neighbours and enjoyed being outdoors. With his back injury, he was just careful he did not exert himself. He wore a back brace about three times a month.

18        Prior to the said date, the plaintiff played social tennis with his younger son on a reasonably regular basis. The plaintiff enjoyed playing golf and also enjoyed playing and interacting with his young grandchildren, lifting them and running around with them.

19        Prior to the said date, the plaintiff often took extensive walks with his dog and also walked his neighbour’s dog. At times, he walked up to eight kilometres a day on medical advice because of his back condition

20        The plaintiff deposed that over the years before the said date, he also suffered from other various medical conditions from time to time, including viral labyrinthitis, irritable bowel syndrome, reflux, high cholesterol and angina, which was his most significant pre-accident condition.

21        The plaintiff required an angioplasty and stent, but after that procedure his condition markedly improved. He still had some minor ongoing issues and attended hospital for heart-related problems but his condition was significantly improved.

22        In re-examination, the plaintiff confirmed that since the angioplasty, his heart was pretty good and investigations had shown his heart was fine. He has not been given any instructions or advice to restrict his activities because of his heart condition.

23        None of these medical conditions caused the plaintiff any significant long-term issues or interfered with his capacity to live independently and enjoy his life prior to the said date.

Cross-Examination of the Plaintiff

24        The plaintiff could not remember how his health was in the days leading up to the said date. He thought he was in good health; he did not know.

25        Before the said date, the plaintiff had had infections and a lower back problem, for which he was sometimes taking Panadeine Forte, and he was also sometimes taking Temazepam for anxiety and sleeping.

26        The plaintiff confirmed his affidavit evidence as to his good health, save for his back condition before the said date. Besides his back condition, he confirmed that he was independent and active in the community, socialised with others, enjoyed others, helped out at his son’s school and did not regard himself as disabled. However, everything changed after the said date.

27        In cross-examination, the plaintiff agreed that he probably saw Dr Sticklen about ten times before the said date because of problems with dizziness. In re-examination, the plaintiff could recall having an infection with dizziness in 2003.

28        The plaintiff has been attending Dr Sticklen since December 1995 and, prior to that, was seeing Dr Bennett in Windsor.

29        The plaintiff was cross-examined as to a number of entries which he could not specifically recall, but said if Dr Sticklen had reported them he agreed they were correct.

30        The plaintiff could not recall first complaining of dizziness and nausea on 4 October 1996 but agreed that was right if that was what Dr Sticklen reported. The plaintiff made a similar comment as to a report of blurred vision on the first consultation on 2 December 1995.

31        The plaintiff agreed he had had sleeping problems before the said date because of his lower back and also he had had problems with anxiety and depression. He described himself as an anxious person and that he was prescribed medication from time to time for anxiety, depression, and also sleeping problems.

32        The plaintiff agreed he had a mental breakdown when he was forty and he required treatment.

33        The plaintiff was prescribed Panadeine Forte, Voltaren and Celebrex for his back on occasions.

34        The plaintiff could not recall a long attendance with Dr Sticklen on 13 May 1996 when Dr Sticklen recorded that the plaintiff was anxious and advised that he was not enjoying life. The plaintiff agreed he was thinking about suicide and those sorts of things then but he could not recall that his libido was down.

35        The plaintiff could not recall, but did not deny the following complaints:

• 20 May 1996, requested medication for sleeping;

• 21 May 1996, hobbies nil, not adjusted well to changes in his life and saw himself as hardly done by;

• 2 February 1998, dizziness and some numbness of the left thumb;

• 23 September 1999, complaining of dizziness for one to two weeks when he eats;

• February 2000, chest pain, left arm heavy, anxious.”

36        The plaintiff could recall in March 1998 having anxiety and poor sleep, when he was prescribed Ducene. In May 1998, he was taking Voltaren regularly for his back. He agreed that in April 2000, he saw Dr Bennett for his back but he did not recall having an injection. The plaintiff agreed that on 27 February 2002, he had pains in the hips, and Panadeine Forte and Voltaren were prescribed.

37        The plaintiff could not recall but did not disagree with the following entries:

• 11 August 2000, chest pain and dizziness and tinnitus for two days;

• 4 January 2002, poor mood, stress anxiety, poor sleep, no sex drive and diagnosis of mild depression;

• 12 February 2003, sore lower legs, also a bit dizzy sometimes.

38        The plaintiff did not know whether he had had left shoulder problems prior to the said date and could not recall an attendance on 6 August 2003 when recurrent left shoulder ache and left CP was noted.

39        The plaintiff did not have a specific recollection of the following attendances but agreed that he had an infection in 2003:

• 26 August 2003, vertigo, heavy headed few days. Viral labyrinthitis;

• 17 September 2003, still has occasional dizzy spells, stressed with lack of sleep, not keen on a brain CT;

• 24 September 2003, still persistent vertigo with certain head positions and recurrent headache, diagnostic imaging requested CT scan plaintiff declined on 21 December 2005.

40        The plaintiff could not recall complaining of morning headaches on 22 September 2005.

41        The plaintiff agreed that in January 2006, his lower back pain was worse, and that it flared up all the time.

42        On 15 February 2006, he was taken to hospital by ambulance for his heart.

43        The plaintiff could not recall but did not deny the following entries:

• 17 March 2006, complained of left arm and neck discomfort for twenty four hours, did not sleep;

• 4 August 2006, complained of discomfort in the neck, has lower back pain, looks well;

• 11 October 2006, rheumatoid factor, upper limb, girdle pains and dizziness;

• 27 October 2006, right lower cervical spine, muscle spasm, poor posture watching TV;

• 17 January 2007, fasted for blood test, no postural dizziness, no chest pain;

• 12 February 2007, trapezius tight, some cervical spondylosis car smashed, at repair shop (the plaintiff agreed that he was in the car in that accident);

• 1 March 2007, some dizziness last few days. Periodic not postural. No headache, ear pain tinnitus;

• 7 March 2007, head CT diagnostic imaging requested (the plaintiff could not recall having this test);

44        The plaintiff could not remember in the ten days prior to 7 March 2007 having had pressure, sensation and dizziness in the occipital area. The plaintiff would have had neck massage at that time if it was noted, but he could not recall.

45        The plaintiff could not recall, on 16 March 2007, having left shoulder and neck pain. When asked about the attendance at Emergency at Maroondah Hospital on 6 March 2007, the plaintiff explained that when he had his stent he had a heavy neck, causing him to seek medical treatment.

46        The plaintiff could not remember going to the Maroondah Hospital in 2002 complaining of neck and arm pain.

47        The plaintiff could not recall attending Maroondah Hospital on 16 March 2007 complaining of “intermittent left shoulder and neck pain since IC with wife that morning”.

48        The plaintiff thought that an entry in 4 February 2008 about going to hospital probably involved chest pain.

49        The plaintiff could not recall one week prior to the said date complaining of pain in the trapezius and T4 facets, and being prescribed Panadeine Forte.

50        In re-examination, the plaintiff confirmed that before the said date, his back condition did not stop him doing his gardening or gardening for his friends or driving or going on regular walks, walking up to eleven kilometres with his wife every weekend, nor did it stop him taking his neighbour’s dogs for a walk.

51        The plaintiff could always do a lot of things even with his back but he had to be careful. Sometimes he had bad days and had to stay in bed for three days but “that was not too many times.”

February 2008 - the Pension

52        The plaintiff agreed he was examined by Dr Sticklen in relation to his application for a Belgium pension on 19 February 2008.

53        The plaintiff agreed the form completed in relation to that examination set out that prior to the said date, he had severe right elbow pain and that that was the case.

54        The plaintiff did not regard himself as sixty per cent disabled at that time. He could not remember having restriction of neck movement to thirty degrees on that examination.

The Accident

55        The plaintiff suffered injury in a transport accident on the said date when his stationary vehicle, waiting to do a right-hand turn, was hit from behind by a vehicle which had earlier been hit by a third vehicle, causing it to collide with the plaintiff’s vehicle (“the accident”).

56        The plaintiff’s car was extensively damaged and written off for insurance purposes. The force of the collision caused his seat to break off its mountings.

57        In cross-examination, the plaintiff said that he could not see the third car in the accident, and from his own observation he did not know at what speed that vehicle was travelling.

58        The plaintiff agreed there was no head impact and he did not lose consciousness in the accident.

59        After the accident, the plaintiff refused to go to hospital in the ambulance which attended, primarily because he had his son and wife with him at the time and he decided to go home to see how he progressed.

60        At that time, the plaintiff was experiencing intense shoulder, neck, right arm and low back pain and he was in shock. He also suffered an aggravation of his previous low back condition.

61        Over the next night, the plaintiff experienced severe burning pain in his neck and shoulder, and also pain in his right arm and low back.

62        The following day, the plaintiff attended Dr Tiong at Dr Sticklen’s clinic. Dr Tiong prescribed a number of medications and advised the plaintiff to return for review if his condition did not improve.

63        The plaintiff’s pain persisted, and he deposed that within days of the accident, he also developed headaches and dizziness and he noticed his neck pain was extending bilaterally into both shoulders and there was associated tingling and numbness.

64        In cross-examination, the plaintiff said that he could not remember whether he had had complained of dizziness on the first attendance with the doctor after the accident but he had dizziness a few days after the accident. He could not remember whether the 17 March attendance was the first time he had complained of dizziness.

65        Over the next month, the plaintiff saw Dr Sticklen for review on six occasions as his condition was getting progressively worse. Over that time, the plaintiff was prescribed Panadeine Forte, Tramal, Brufen and Indocid. He could not tolerate some of these medications and others had little effect on his condition. He was also referred for physiotherapy treatment and acupuncture, but derived very little benefit, if any, from that treatment.

66        X-rays of the plaintiff’s neck, low back and right elbow were performed at the end of March 2008, after which the plaintiff was referred to Dr Lovell, a spinal specialist, for assessment. The plaintiff first saw Dr Lovell in May 2008.

67        At the time of Dr Lovell’s assessment, the plaintiff’s main problem was neck pain radiating into both shoulders, more on the left. The pain also frequently radiated down his right arm, causing some tingling and numbness in his fingers. His walking was limited and his sleep was significantly disrupted. In addition, he was experiencing headaches and frequent episodes of dizziness.

68        Dr Lovell organised an MRI scan, after which he advised the plaintiff to undergo nerve blocks in his neck. Despite the plaintiff’s initial reluctance to undergo this TAC funded procedure, the plaintiff eventually went ahead with the injection in the hope of obtaining some relief from his symptoms and obtaining a long term benefit.

69        Nerve block facet joint injections at C3-4-5 were performed on 28 August 2008 and in September 2008. On 5 November 2008, the plaintiff underwent a radio-frequency denervation procedure which provided no long term benefits.

70        The plaintiff returned to Dr Lovell for further review in early 2009. He then treated the plaintiff with anaesthetic and cortisone injections into his neck, but he indicated to the plaintiff there was really nothing more he could for him.

71        As a result of right arm pain and tingling, the plaintiff was referred to Mr Dowling, plastic surgeon. Following nerve conduction studies in August 2008, he recommended the plaintiff undergo an ulnar nerve release or decompression.

72        This procedure was performed by Mr Dowling in December 2008. The plaintiff deposed, following that procedure, he continued to have swelling in the elbow joint, as well as pain and discomfort. However, in cross-examination, the plaintiff said he no longer had problems with his right arm since this procedure.

73        The plaintiff was referred to Mr Campbell, ENT specialist, for assessment of his dizziness, and he subsequently arranged for the plaintiff to undergo a range of tests and investigations.

74        As far as the plaintiff knows, these tests were normal, suggesting there was no problem with his ears or eyes that might be causing his dizziness or balance problems and he suspected the problems related to his neck condition.

75        In cross-examination, the plaintiff could not remember if he had undergone the CT scan suggested by Mr Campbell. The plaintiff knew he went to Frankston Hospital once for “a big test on [his] head”.

76        As a result of strong and reasonably large doses of medication since the accident, the plaintiff has developed gastric problems, in relation to which he has been prescribed medication. He still, however, frequently experiences stomach cramping, indigestion and diarrhoea and at times he has constipation. It is necessary for him to be very strict with his diet because of this problem and he now rarely eats meat.

77        Since November 2008, the plaintiff has been attending regular hydrotherapy at the Croydon Leisure Centre. On 25 May 2010, the defendant advised the plaintiff it would pay for a further gymnasium swimming session. On 20 August 2010, the defendant provided further funding for the plaintiff’s gym swim program.

78        In late September 2009, the plaintiff was referred to Dr Clayton Thomas, consultant in rehabilitation and pain medicine. He recommended the plaintiff be assessed for a pain management program at the Victorian Rehabilitation Centre.

79        The plaintiff was assessed for a program on 7 January 2010 and underwent an eight week program, commencing on 1 March 2010. During that program, the plaintiff attended three times a week, receiving physiotherapy, occupational therapy, hydrotherapy and psychological support.

80        The program was extended for another two weeks at the end of the eight- week program and it was completed on 6 May 2010. The plaintiff deposed that, unfortunately, he cannot say there has been any real improvement in his condition following the program.

Current Treatment and Medication

81        Since the accident, the plaintiff has undergone all therapies and treatments recommended to him. Some have given him temporary relief, while others have aggravated his condition at times.

82        In the past, the plaintiff also used morphine patches, as well as cortisone injections. None of these procedures have led to any long term relief or any substantial improvement in his condition, although hydrotherapy has been the most helpful and he has continued to attend on a near daily basis for an extended period of time.

83        The plaintiff also uses a TENS machine twice a day, having been instructed by his physiotherapist how to most effectively make use of the machine.

84        Unfortunately, the plaintiff considers his condition has continued to deteriorate with the passage of time. He has got the impression from Dr Sticklen there is little more that can be done for him by way of treatment so the plaintiff is very concerned about his future.

85        The plaintiff presently takes between four and six Panadol Osteo a day. He takes two Sandomigran tablets for headaches in the morning, prescribed by Dr Thomas. He takes Voltaren twice a day – “for everything - for [his] back and neck pain”. He takes an anti-depressant tablet, Cymbalta. Twice, maybe three times a week, he takes Panadeine Forte.

86        The plaintiff continues under Dr Sticklen’s care. He suggested the plaintiff see Dr Lovell on 11 October to have a cortisone injection in both sides of his neck.

Symptoms

87        On a daily basis, the plaintiff continues to suffer from a range of persistent and debilitating symptoms which impact on his ability to perform activities of daily living.

88        The plaintiff has severe pain and stiffness in his neck, which often extends into both shoulders. The pain feels like electricity passing through his neck. The pain is worse on the left side and frequently radiates up to the left temple and into his shoulder. Sometimes right sided neck pain flares up as well and extends into the plaintiff’s right shoulder.

89        The plaintiff has a very significant restriction of movement to his neck and left shoulder and also tenderness in that region. On occasions there is numbness and tingling in the fingers of both hands, with the left being worse.

90        In cross-examination, the plaintiff said that he could not remember having neck pain before the accident.

91        In re examination the plaintiff said that there was a big difference between his pre-accident neck discomfort and his current situation. “The dizziness, the pain, the electricity from his shoulders from the accident is completely different - sometimes it is scary.”

92        The plaintiff then said he probably had some neck discomfort before the accident but he had pain afterwards. Now when he gets neck pain he loses his balance and has the electricity which he did not have before the accident.

93        The plaintiff explained there was a big difference between the heavy neck and the stent and his present sore neck.

94        The plaintiff suffers from headaches every morning. The pain in his head caused by the headaches extends across the front of his head. The headaches often last between forty five minutes and an hour and have been a regular occurrence since the accident.

95        In cross-examination, the plaintiff said that it was very rare that he had headaches before the accident and he could not recall having had headaches. When he gets electricity, it comes from the back of his head, the pain goes into his shoulders but the headache itself is in the front of his head.

96        In re examination the plaintiff said that he probably had some headaches before the accident but now he gets them every morning and they are different in nature, coming from the back of his head.

97        The plaintiff could not remember telling Professor Davis he was adamant had had not had neck pain or dizziness before the accident.

98        The plaintiff has experienced dizziness since the accident which is an increasingly annoying and frustrating problem, causing him significant concern.

99        There is a definite sensation of light headedness rather than a spinning sensation. Sometimes he feels faint or has a feeling of imbalance and that dizziness is triggered by even the most minor movement and can last anywhere from five to ten minutes.

100       The dizziness has caused balance problems for the plaintiff and has resulted in him having at least six falls over the last few months. On occasions when he has fallen, he has suffered further injury. As a result of the most recent fall, he suffered soft tissue injury to his right ankle and extensive bruising and tenderness over his right lower leg.

101       In re examination the plaintiff said that the dizziness comes and goes lasting between five and ten minutes. When the plaintiff has a bad day he has to lie down in bed for about ten minutes. The dizziness occurs about twice on a good day and on a bad day four or five times.

102       Post-accident dizziness is completely different to how the plaintiff felt before as there is the feeling of electricity. He feels like he wants to fall and it is not as if the room is spinning. Prior to the accident, he had never lost his balance or had any falls.

103       The plaintiff now uses a walking stick for support and stability.

104       In re examination the plaintiff said that he tries to go walking two or three times a week, forcing himself, as he loves it. He walks 300 or 400 metres almost every day as he can compared to eight kilometres or so before the accident and the eleven kilometre walk, which he used to do twice a month.

105       The plaintiff’s dizziness substantially limits his activities and has, in particular, a very substantial impact on his capacity to drive. The plaintiff avoids driving whenever possible because he does not want to put himself or family members at risk.

106       On occasions the plaintiff also experiences a sensation of dizziness when he rolls over in bed.

107       In cross-examination, the plaintiff said that before the accident he was lightheaded; he had dizziness a few times.

108       The plaintiff said he was not feeling too bad in the witness box, having taken two Panadol Osteo, but he was feeling a bit dizzy. His worst problem is dizziness and electricity, and pain in his shoulders.

109       The plaintiff frequently suffers from nausea, sometimes associated with strong medication he has taken but at other times caused by severe pain.

110       The plaintiff’s low back problem was aggravated by the accident and he now has more significant pain and discomfort than previously was the case. Movements of his low back are substantially more restricted than before the accident.

111       The plaintiff’s concentration and memory are significantly affected as a result of his pain. He forgets he has to perform certain manual tasks requiring the use of tools clockwise and does so anti-clockwise.

112       Since the accident, the plaintiff has undergone a very significant personality change. He is frustrated, angry, irritable, bored, restless, depressed and pessimistic, whereas before he was a happy-go-lucky, optimistic and carefree individual. He now tends not to be interested in others as he struggles to deal with his own issues. He has difficulty communicating with other people and no longer socialises.

113       The plaintiff’s ongoing constant pain has resulted in him becoming very depressed. He hates the fact that he is reliant upon others, particularly his wife, who has had to take over the family responsibilities.

114       The plaintiff is not actively suicidal but often wishes he could just simply fall asleep and never wake up as a means of escaping his ongoing pain.

115       The plaintiff’s sleep is very poor. He frequently wakes throughout the night, sometimes because of pain and sometimes because of nightmares, and he wakes up sweating. He often wakes with a headache, blurred vision or vertigo. He lacks energy and motivation and at times remains in bed because of pain and discomfort and “there is too much to face”.

116       The plaintiff’s neck pain is four or five times worse than his back pain ever was. His worst accident-related problem is his neck condition with associated dizziness.

Consequences

117       The plaintiff’s current inability to drive is one of his major limitations. Not only is driving extremely provocative of pain, but he also has substantial restriction of his neck and is unable to turn his head in a very quick manner whilst driving.

118       More significantly, neck movements can cause dizziness and that is why the plaintiff is reluctant to drive and he worries about losing control of his car. Accordingly, he predominantly relies upon friends and neighbours to assist him and his family in driving to hydrotherapy and on other occasions.

119       The plaintiff now has a disability parking sticker which he did not have before the accident.

120       The plaintiff has not mowed any of his neighbours’ lawns since the accident, nor has he done any home maintenance, save for a little bit of weeding. He has had to pay a gardener to do his gardening. The only home maintenance the plaintiff now does is pull out the odd weed.

121       Since the accident, particularly given his neck and right elbow conditions, the plaintiff has not been able to play social tennis with his son. He no longer plays golf and he is prevented from interacting with his grandchildren as he did previously, with lifting of them causing an aggravation of his neck condition.

122       The plaintiff is also worried, if he experiences dizziness, he may drop his grandchildren. This restriction in his contact with them is very disappointing for the plaintiff.

123       Since the accident, the plaintiff’s walking tolerance is severely limited to about two hundred metres and has resulted in weight gain and increasing discomfort in his low back. He could do more walking if it was absolutely necessary but it would result in significant aggravation of his pain.

124       The plaintiff uses a four point walking stick paid for by the defendant to assist him with walking and to provide support and stability because of his dizziness. In cross-examination, the plaintiff confirmed that he does not need a walking stick because of his back, he needs it because he loses balance.

125       The electricity the plaintiff described from his neck goes into his shoulders, previously only on the left but now also on the right, causing him to lose his balance. He has fallen five or six times. His wife saw him fall on one occasion, after which he had to have x-rays of his foot and knee. The plaintiff does not go to the doctor every time he has a fall. He thinks he has been once or twice after a fall.

126       Because of his neck condition and associated dizziness, the plaintiff can no longer participate in working bees at his younger son’s school as he did before the accident.

127       Further, he is significantly restricted in his ability to be intimate with his wife. As of May 2010, they have not been intimate for over a year.

128       Prior to the accident, the plaintiff considered himself totally independent, but he now relies on his wife for simple tasks, such as putting on his shoes and socks as well as underpants. He requires assistance to cut his toenails and have a shower. He is otherwise “okay” with personal hygiene. Sometimes his wife washes his back because of his lower back problem.

129       As a result of his dependency on others, the plaintiff is suffering from depression, frustration and anger, and he loses his temper very easily.

130       The plaintiff, having previously been a good sleeper, now finds it very difficult to sleep and sometimes difficult to sleep at all. He is kept awake by pain and frequently wakes suffering from a headache, which is like a migraine, as well as blurred vision and vertigo.

131       The plaintiff no longer has an interest in socialising, as emotionally he does not feel like it and often feels depressed and has no energy or motivation.

132       Prior to the accident, the plaintiff found a lot of pleasure in reading. As a result of neck pain, he finds it difficult to hold a book in a flexed position and also he has difficulty concentrating.

133       Whilst he has not been precluded specifically, he has been advised against air travel by his doctor. He did not attend his mother’s funeral or his daughter’s wedding which were held overseas.

134       In January 2010, the plaintiff’s daughter was married in Sri Lanka but his condition prevented him from being able to manage the trip to attend the wedding, which he would have loved to do. A few weeks before his daughter’s wedding, the plaintiff’s mother died in the Philippines but, as the plaintiff was unable to travel by plane, he was prevented from attending her funeral, which was devastating and very sad for him.

135       The plaintiff did not attend these occasions because he was scared to travel because of the dizziness and neck pain, and he was frightened to travel at a high altitude.

Video Surveillance

136       The plaintiff agreed that when shown at the Medicare office on 24 August 2010 filling out some forms at a bench, he moved his head from side to side freely. He explained there are some days that are good, and some are bad.

137       The plaintiff drives occasionally and he drove to the Medicare office on 24 August. He is okay to drive about two kilometres. He drives a short distance two or three times a week. He has good neighbours who take him to the pool and shopping. He avoids driving because he is a bit scared. He uses his mirrors and he also turns his whole body when driving. If his wife is with him she looks out for other cars. The defendant is funding a camera which is to be put in the back of the plaintiff’s car to assist him driving.

138       The plaintiff does exercises everyday to help him move his head and not his whole body when he is looking various ways. He is not stiff all the time. He explained that he was a bit stiff in the witness box.

139       The plaintiff agreed that he was not shown on film walking with a limp and that he did not need his stick because of his back. He took the stick for security reasons because of his vertigo. He now always takes his stick with him.

140       The plaintiff has been told by the rehabilitation people to walk as much as he can. His back does not interfere with his ability to walk and it is only a problem with bending and lifting.

Lay Evidence

141       Michaela Zimmerman swore an affidavit on 30 May 2010. She and her husband first met the plaintiff in about 2002 and they live two houses apart. Over that time they became good friends.

142       Mrs Zimmerman was aware the plaintiff was involved in the accident.

143       Prior thereto, the plaintiff was a very social neighbour, happy and friendly. He was always willing to offer assistance to friends and neighbours.

144       Before the accident, the plaintiff took the Zimmerman’s two German Shepherd dogs for walk, sometimes on a daily basis. When they were away the plaintiff looked after the Zimmerman’s house and their dogs and collected their mail.

145       After the accident, the plaintiff was unable to do the many things he previously did. He was unable to continue walking the dogs regularly and he stopped walking with his wife for exercise.

146       The plaintiff also stopped regularly driving his family. He stopped gardening, mowing lawns, and doing general home maintenance, such as painting.

147       Since the accident, the plaintiff has complained to her of a lot of dizziness and associated problems with walking and sleeping. There has also been a clear change in the plaintiff’s demeanour and he is a lot more withdrawn. He does not socialise as much with the neighbours.

148       Slavica Kormanic swore an affidavit on 1 June 2010. Mrs Kormanic’s late husband was the plaintiff’s best friend.

149       Prior to the accident, the plaintiff always offered assistance if required and after the death of her husband, the plaintiff assisted her on occasion by mowing her lawns and pruning trees and bushes in the garden. Since the accident, the plaintiff has not mowed her lawns or done any gardening for her and she now pays someone else to do it.

150       Mrs Kormanic was aware the plaintiff was involved in the accident and also that prior thereto he had a low back condition and at times he would wear a back brace. She noted, in any event, the plaintiff managed comfortably to perform various tasks.

151       She continues to talk to the plaintiff on a regular basis over the phone and there are also times when the plaintiff comes to visit her but not as regularly as before the accident.

152       The plaintiff is now not as talkative and is withdrawn. He will often say he is not feeling well. Since the accident, the plaintiff frequently complained about his neck and described how he feels like he has electricity going through it. Once, when the plaintiff and his wife visited her, the plaintiff had to lie on the floor of their living room for about ten minutes because of his neck pain.

153       On a number of occasions the plaintiff has also told her he suffers from dizziness which is a big problem. Since the accident, he has used a walking stick for stability.

154       The plaintiff has been very depressed since the accident and he is no longer carefree or happy. He feels he has lost his independence and is concerned about the pressure that is put on his wife by his injury.

155       Rana Sundram swore an affidavit on 15 June 2010. He has known the plaintiff for about twelve years and is aware he was involved in the accident.

156       Whilst in the process of undertaking renovations on a rental property owned by him and his wife, Mr Sundram met the plaintiff, who lived nearby. From that time their families became very good friends.

157       When the rental property was tenanted, the plaintiff assisted him by mowing the lawns and attending to the gardens on occasion as necessary. The plaintiff and his wife also assisted with the general presentation of the property, focusing on the garden. The plaintiff also informally supervised some work carried out at the property.

158       Prior to the accident, the plaintiff told Mr Sundaram that he had a low back problem. Mr Sundram was aware the plaintiff would wear a brace to support his low back. The plaintiff had mentioned his back condition to him in the context of performing some lawn mowing.

159       Mr Sundram gained the impression the plaintiff was able to perform most tasks but needed to be careful of his movements. However, the plaintiff was nevertheless able to undertake a range of tasks.

160       The plaintiff walked regularly, was independent and able to drive without restriction. After the accident, things changed significantly. The plaintiff regularly complained about his neck and also about experiencing giddiness.

161       Mr Sundram sees the plaintiff about once every four to six weeks, with his wife seeing the plaintiff and his wife more regularly. Since the accident, the plaintiff relies more on others for assistance. On a few occasions he has driven the plaintiff to certain places.

162       The plaintiff no longer takes regular long walks and is now reliant on a walking stick. He appears very depressed and has put on weight.

163       The plaintiff has taken a lot of medication and continues to attend the pool on a regular basis.

164       The plaintiff is not the same happy person as he was before the accident. However, he maintains relationships with his friends and neighbours to try and maintain some normality in his life.

165       Since the accident, the plaintiff has not helped with the lawn mowing, gardening or cleaning on the investment property, nor has he mowed Mr Sundram’s own lawn.

166       Peter Eglezos swore an affidavit on 15 June 2010. He is the plaintiff’s next- door neighbour and over a period of time became friends with him. He is aware the plaintiff was involved in the accident.

167       Prior thereto, the plaintiff was lively and outgoing and was quite active.

168       The plaintiff walked very regularly and often when Mr Eglezos got home he saw the plaintiff returning from one of his walks. The plaintiff also regularly took another neighbour’s German Shepherds for a walk.

169       The plaintiff mowed Mr Eglezos’ lawns on a regular basis and would often mow the nature strip in front of their houses. The plaintiff also often lent a hand when Mr Eglezos was doing car maintenance.

170       Prior to the accident, Mr Eglezos was aware the plaintiff had a low back condition which did not appear to stop him. He remained active and independent on a daily basis. Since the accident, things had changed dramatically and the plaintiff “has become a miserable old bugger”.

171       Mr Eglezos presently sees the plaintiff three or four times a week. The plaintiff no longer walks the distances he did previously and he now walks tentatively with a stick. He knows the plaintiff has fallen on a few occasions.

172       The plaintiff hardly ever drives now. On a few occasions he has had to drive the plaintiff to and from places because he has not felt capable of driving. There have been occasions when he has picked up the plaintiff’s wife from work because the plaintiff was unable to do so.

173       Since the accident, there has been a very significant change in the plaintiff’s personality and demeanour.

174       Mrs Jutta Toniolo, the plaintiff’s wife, swore an affidavit on 28 June 2010. They met in 1972 and married in 1979.

175       Mrs Toniolo has been in receipt of a Carer’s Pension since retiring from formal employment in 2009 on the basis that she is providing for the plaintiff. She and the plaintiff have lived at their current Mooroolbark address for the past sixteen years.

176       Mrs Toniolo was in the car in the accident with the plaintiff and their son. The collision caused a significant amount of damage to their vehicle, with the driver’s seat being broken off its mounting.

177       Very soon after the accident, the plaintiff complained of a burning sensation in his neck and right shoulder, and also right elbow discomfort. The plaintiff’s low back condition settled in time after a period of aggravation.

178       For prolonged periods, the plaintiff had significant difficulties with his right elbow, but in recent times there has been a very substantial improvement.

179       Since the accident, the plaintiff has had nearly constant pain in his neck which tends to be severe. He has associated stiffness, discomfort and dizziness which have had a substantial impact on his daily activities and emotional condition.

180       Prior to the accident, the plaintiff was very happy and outgoing. They enjoyed a full marriage. Regularly on Sundays they would go for a morning walk together, walking to Croydon and back, a distance of approximately eleven kilometres. The plaintiff had no problems walking this distance despite his low back condition. Mrs Toniolo continues to take these walks without the plaintiff and he now walks only to the end of the street with her.

181       Following the accident, the plaintiff stopped walking the neighbour’s two German Shepherds.

182       Prior to the accident, the plaintiff regularly played tennis with their son who is now aged sixteen. The plaintiff also drove their son to competition tennis.

183       Prior to the accident, the plaintiff did all the gardening at home and would happily mow the lawns of several of their neighbours. The TAC is now paying for a gardener.

184       In addition to gardening, the plaintiff also did other maintenance tasks. He painted the interior of their house and did some external painting. He no longer does any tasks of this nature since the accident.

185       The plaintiff previously loved reading. However, since the accident, he no longer reads as much as he did. He cannot read for long and if he tries to read for an extended period he gets severe pain and discomfort in his neck. Also, he has been unable to concentrate for long periods because of pain.

186       Because of these difficulties, the plaintiff does not watch much television, such as soccer, which he used to enjoy.

187       Prior to the accident, the plaintiff loved playing with their five grandchildren. He often took them to the local school where he played ball games and kicked the football with them. Since the accident, he is very restricted and no longer plays with the grandchildren and he cannot bend down or run with them.

188       Prior to the accident, the plaintiff was sociable and outgoing. He assisted friends and neighbours with gardening and cleaning. Since the accident, he no longer does so and he cannot assist her with cleaning duties, such as vacuuming and washing the floors, as he did previously.

189       Prior to the accident, the plaintiff was independent with all personal care tasks but he now requires help at times with tasks such as cutting his toenails and putting on his socks and underpants. He requires a shower stool when showering and she has to help him dry his feet.

190       The plaintiff is now reliant upon a walking stick which he uses almost constantly. It provides him with greater stability. He has had a couple of falls which have resulted in him sustaining further injury.

191       Prior to the accident, the plaintiff remained active despite his low back condition. Sometimes a particular movement caused a flare up but he recovered in a very short time. He occasionally wore a back brace but nevertheless remained independent and capable.

192       The only routine the plaintiff now has is attending the pool on daily basis or exercises in the water.

193       Prior to the accident, the plaintiff suffered some general medical conditions including angina, which was the most problematic. However, after heart surgery his condition improved. He remained mildly anxious about his ongoing heart condition but he led an active and happy life.

194       Prior to the accident, she relied on the plaintiff to drive. However, since then, the plaintiff’s driving has been severely restricted and he avoids driving because of his neck symptoms and dizziness. He is unable to turn his head and neck freely. Once, after the accident when in the car with the plaintiff and their son, the plaintiff became dizzy, which was worrying for them all.

195       There have been occasions when it has become necessary for the plaintiff to drive, such as going to a doctor’s appointment. When he drives he is very nervous and anxious and drives with extreme caution and limits his driving as much as possible. She now uses public transport and walks more regularly.

196       Prior to the accident, she and the plaintiff holidayed at Apollo Bay twice a year, staying at a friend’s house. They have not taken a holiday since the accident.

197       The plaintiff’s sleep is now very poor and he often jumps whilst asleep. He also sweats a lot and wakes a lot during the night, both because of nightmares and pain.

198       The plaintiff continues to have near constant pain in his neck, which is very tender to touch. There are often days when he stays in bed for most of the day because of pain and dizziness. Some evenings she will massage his neck but there are times when he is unable to tolerate her touching his neck and other times massage helps marginally.

199       Mrs Toniolo also uses Ice Gel on the plaintiff’s neck which provides some temporary relief on occasions. She encourages him to use relaxation tapes. The plaintiff also uses a TENS machine at home twice a day.

200       Their daughter, Manuela, was married in January this year in Sri Lanka. Mrs Toniolo went to the wedding. Unfortunately, the plaintiff could not go. His condition prevented him from travelling the long journey on the plane. The plaintiff was devastated by the fact that he could not attend.

201       The plaintiff’s mother lived in the Philippines and he used to speak to her once a month on the telephone. She died in January 2010.

202       Unfortunately, due to his physical condition, the plaintiff was unable to travel to the Philippines for the funeral, which he would have done if possible. It was very distressing for the plaintiff not to be able to participate in the funeral.

203       The plaintiff’s personality has changed since the accident. Previously he was patient and tolerant. Now he is very quick tempered, easily angered and irritable. Previously he was sociable and outgoing but now he spends much more time on his own.

204       The plaintiff does not show the same levels of affection and intimacy towards her. The fact he suffers pain daily prevents them from being intimate with one another. The plaintiff has talked to her about no longer wanting to live and not wanting to be here. She sees how he suffers on a daily basis.

205       Dr Anthony Gittins swore an affidavit on 9 August 2010. He met the plaintiff in about October 2009 at the Croydon Leisure & Aquatic Centre, where they both do hydrotherapy.

206       With the passage of time they became friends and the plaintiff discussed his treatment with him and his various restrictions as to driving.

207       He has often seen the plaintiff moving in a guarded manner clutching or holding his neck and on occasion has seen him grimacing at the pool.

208       The plaintiff complained to him that he had problems driving the seven to eight kilometres to the pool. Dr Gittins assists the plaintiff and sometimes picks him up, transporting him to and from the pool, having driven him there since last October about seventy five to one hundred times.

209       The plaintiff mentions from time to time that he still experiences chest pain associated with angina. More regularly he complains of neck pain and associated dizziness.

Investigations

210       An x-ray of the cervical spine organised by Dr Sticklen on 25 March 2008 showed moderate spondylitic change in the mid and lower cervical segments.

211       An x-ray of the lumbosacral spine taken on 28 March 2008 showed discogenic narrowing at L5-S1 with gas in the disc nucleus, indicating internal desiccation of the nucleus. There appeared to be minor wedging of the D12 and L1 vertebral bodies and there were noted to be marginal osteophytes related to the end plates at D11 and D12, as well as L1 particularly.

212       An MRI scan of the cervical spine taken on 8 May 2008 indicated mild degenerative changes within the mid cervical spine. Disc bulges were present from C3-4 to C5-6 levels, with a disc bulge at C5-6 extending into the foramina, leading to moderate bilateral foraminal narrowing which may be compromising the exiting C6 nerve roots on either side. There was also moderate narrowing to the C4-5 foramina bilaterally, secondary to osteophytic lipping of the uncovertebral joints.

213       The MRI scan of the plaintiff’s brain of the same date was normal for his age.

214       An ultrasound of the left shoulder was carried out on 26 June 2008. It was noted there was some fluid in the subdeltoid bursa which impacted on the coracoacromial ligament on abduction.

The Plaintiff’s Medical Evidence

215       The plaintiff has been a patient of Dr Sticklen’s clinic since 10 August 1999, and since August 2005 he has mainly been seen by Dr Sticklen at that clinic.

216       In his report dated 27 March 2008, Dr Sticklen set out that in April/May 2000, the plaintiff received treatment when he had some back spasms, having been an invalid for several years due to a low back injury in 1987. Voltaren and Celebrex were prescribed in October 2000. In February 2002, there was another episode of right lower back/leg pain.

217       In January 2002, the plaintiff was given a short course of anti-depressant medication. No further anti-depressant treatment had been prescribed as of the date of the report.

218       On 14 February 2006, the plaintiff developed chest and left arm pains and dyspnoea. On 15 February 2006, he was admitted to Maroondah Hospital with a diagnosis of unstable angina and then transferred to Box Hill Hospital where, on 20 February 2006, he underwent an angioplasty.

219       Dr Sticklen reported that the plaintiff had intermittent mild chest pain since then but investigations had not shown any cardiac deterioration.

220       Dr Sticklen noted the plaintiff was a very anxious man and frequently presented with anxiety symptoms, and he had been on Diazepam, five milligrams, for years, but recently had been able to reduce the dosage to two milligrams.

221       Dr Sticklen noted there was no history of neck pain predating the recent motor vehicle accident.

222       There was only one record of a short bout of dizziness between 26 August 2003 and 24 September 2004. This was diagnosed as vertigo due to viral labyrinthitis. There was no neck pain. Blood pressure was normal and the labyrinthitis did not persist beyond the normal three to four-week span of the labyrinthitis infection. Dr Sticklen noted this was quite different to the dizziness since the recent car accident – not vertigo.

223       The plaintiff presented after the accident on 25 February 2008, at which time Dr Tiong diagnosed “whiplash, not severe”.

224       Dr Sticklen next saw the plaintiff on 4 March 2008 when he was complaining of neck bilateral arm pain and tingling. Dr Sticklen then diagnosed musculoligamentous strain of the left C0/1-2, C3-4, C5-6 and T4 facet joints, right elbow and medial epicondyle bruise and secondary occipital.

225       Dr Sticklen referred the plaintiff to Carolyn Hatcher, physiotherapist, who prescribed Panadeine Forte and Temazepam for insomnia.

226       On 17 March 2008, the plaintiff complained of dizziness, neck pain and nausea. On 20 March 2008, he was still having headaches.

227       On 31 March 2008, Dr Sticklen referred the plaintiff to Dr Martin in Glen Waverley for laser acupuncture treatment. On 3 April 2008, the plaintiff complained of some dizziness, which Dr Sticklen felt was due to the neck injury. Stemetil was prescribed for dizziness on 24 April 2008.

228       Dr Sticklen ordered an MRI scan, but the plaintiff was not prepared to undergo it because he was claustrophobic. The plaintiff was then referred to Dr Lovell at the Metro Spinal Clinic for an opinion.

229       The plaintiff ultimately underwent the MRI scan. He saw Dr Lovell on 22 May 2008. Dr Lovell agreed that, after viewing the MRI, the plaintiff’s neck pain and dizziness were most likely due to either facet joint irritation or disc bulges at C3-4 to C5-6.

230       On 9 July 2008, Dr Sticklen suggested the plaintiff try a Norspan patch for ongoing headaches and dizziness. At that stage, the plaintiff was referred to Mr Symington, neurologist, for an EMG test for his right elbow pain.

231       On 5 August 2008, the plaintiff advised that he was almost falling over with dizziness and had started to use a walking stick. At that stage, Dr Sticklen filled out an application on behalf of the plaintiff for a disabled parking permit.

232       Dr Lovell carried out a nerve block procedure on 28 August 2008, after which there was very good pain relief, but, unfortunately, such relief only lasted for about three or four hours.

233       Dr Sticklen noted, as he had stated previously, there may have been some mild degree of wear in terms of the cervical spine pre accident, but there were no symptoms at all. The plaintiff had had quite significant disabling symptoms since the accident.

234       In a report dated 17 February 2009, Dr Sticklen confirmed the plaintiff had no history of the complaints suffered in the accident prior thereto. He had no reason to disbelieve that the plaintiff’s neck pain and dizziness were having a major effect on his life.

235       In his August 2009 report, Dr Sticklen advised there was no sustained history of frequent or continuous neck pain.

236       Dr Sticklen summarised the pre accident attendances where there was some reference to neck pain or dizziness.

237       Dr Sticklen thought that the 17 March 2006 attendance, where neck and left arm discomfort was noted, referred to anxiety and angina-related problems.

238       Neck discomfort was noted by Dr Singh on 4 August 2006, about which Dr Sticklen could not elaborate.

239       The attendance of 11 October 2006 noting dizziness and upper limb girdle pains were associated with a viral infection which could cause aches and pains in the upper limbs.

240       The entry noting right lower neck discomfort on 27 October 2006 was shortly after this probable viral illness.

241       There was no evidence the plaintiff was actually injured in the car accident which he mentioned on 12 February 2007. It was possible the plaintiff had some longstanding cervical spondylosis that was stirred up by the stress related to that transport accident. The plaintiff made no complaint of neck pain until after the accident.

242       Dr Sticklen noted that since the accident, the plaintiff had attended at least once or twice every week with neck pain and dizziness, often severe. The plaintiff could only walk slowly and often felt he would fall. On some days he felt unable to drive.

243       Dr Sticklen noted that all previous episodes of neck pain and dizziness had been transient and of negligible significance. Therefore, Dr Sticklen considered that even if there was mild pre-existing cervical spondylosis, it was of negligible significance prior to the accident.

244       He confirmed that all episodes of dizziness had been circumscribed and so put down by him to be viral rhinitis. At that stage, Dr Sticklen thought the plaintiff should go to a formal pain management program.

Video Surveillance

405       The first film of four minutes was taken over 19, 28 and 30 October 2009. The plaintiff was shown on these dates walking along the footpath. At all times he carried a stick, at times using it or carrying it in either hand. On the first date, he was shown walking quite slowly for about two and a half minutes.

406       There was two minutes of film taken of the plaintiff on 24 August 2010. The plaintiff was shown walking normally on the street and at a shopping centre at 10.50 am, 11.14 am and 12.13 pm. On each occasion he was using/carrying the stick in his right hand.

407       There was film of nearly four minutes’ duration taken on 25 August 2010. From 11.04 am for about three minutes, the plaintiff was shown standing at a wall counter at Medicare completing some paperwork. During that time, he moved his head freely without restriction. He was then shown walking out of the Medicare office, walking normally carrying a walking stick.

408       The defendant admitted there was a total of forty minutes of surveillance undertaken.

Overview

409       Whilst the defendant conceded the plaintiff suffered injury to his neck in the transport accident, it was submitted there was no ongoing organic condition resulting in a loss of body function which was serious and long term as required by Richards v Wylie (supra).

410       It was submitted that the diagnoses of the plaintiff’s condition were totally inconsistent and that radiological investigations had failed to show any significant neck problem.

411       However, whilst there is not a consensus of medical opinion as to the diagnosis of the plaintiff’s condition, the preponderance of medical evidence is that the plaintiff suffered a soft-tissue injury to the neck in the form of whiplash in the accident, also causing aggravation of the pre-existing degenerative disease.

412       Although Professor Davis thought the plaintiff’s symptoms were out of proportion to the clinical findings, he also noted that clearly the organic nature of the plaintiff’s condition had been strongly reinforced by other medical practitioners.

413       I accept that this neck condition causes the plaintiff ongoing pain and restriction.

414       Counsel for the plaintiff submitted that the neck injury and the associated problems of headaches and dizziness “was the better way home for the plaintiff” rather than the separate application brought in relation to vestibular dysfunction.

415       I agree with this submission, and I am not satisfied there is a separate distinct vestibular problem as a result of the accident.

416       There was no evidence of loss of consciousness or a specific head injury suffered by the plaintiff in the accident. Further, there has been no objective finding of the vestibular dysfunction on testing.

417       I accept Mr Millar’s view, shared to some extent by Professor Davis and Mr Campbell, that the plaintiff’s dizziness is a form of cervicogenic vertigo.

418       The issue of aggravation arises in relation to both the plaintiff’s neck injury and the associated problem of dizziness.

419       In this case, where there is evidence of pre-existing neck problems and dizziness, and also a back injury which is not the subject of this application, I must consider what the evidence discloses as to the plaintiff’s prior condition and determine whether the additional impairment resulting from the accident is serious and long term.

420       In Petkovski v Galletti [1994] 1 VR 436, the Full Court of the Victorian Supreme Court accepted the proposition that –

“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”

421       As counsel for the defendant conceded, if I accept the plaintiff’s present symptomology is accident-related, the plaintiff might be on a strong foundation to say he has a serious injury. However, it was submitted that the plaintiff had these problems prior to the accident and, accordingly, his application must fail on a Petkovski v Galletti analysis.

422 Looking at the plaintiff’s pre-accident condition necessarily involves consideration of the plaintiff’s credit, in addition to medical and other evidence.

423       I accept that the plaintiff is a genuine, credible witness who did his best to explain a number of medical problems both before and after the accident

424       There is no comment by any medical examiner of any inconsistencies or exaggeration by the plaintiff of his complaints on examination.

425       The video taken in August 2010 was before a recent relapse in the plaintiff’s condition and the plaintiff’s presentation on film was consistent with his report to Dr Sticklen around that time, that he was feeling the best he had for some time and that he had benefitted from the pain management program.

426       Whilst extensive cross-examination was directed to the plaintiff’s pre-accident condition, and criticism made of his lack of recall of problems with his neck and also of dizziness, I do not accept that the plaintiff was suffering ongoing problems of any significance in either regard prior to the accident.

427       When specific entries in Dr Sticklen’s notes were put to the plaintiff in cross- examination, the plaintiff accepted such entries were true if recorded by his doctor.

428       An examination of such entries does not provide an ongoing history of significant neck or dizziness problems. Significantly, there were no attendances in either regard in the twelve months before the accident.

429       Much of the plaintiff’s pre-accident neck complaint was associated to some extent with his heart condition or the viral illness. The plaintiff may have undergone cervical massage on one occasion but he did not require ongoing treatment or medication for his neck prior to the accident.

430       The plaintiff did not experience, nor did Dr Sticklen record, any neck pain having an electricity type character as the plaintiff has described since the accident.

431       As Dr Sticklen confirmed, the plaintiff’s neck pain and dizziness before the accident was not what he would describe as frequent or continuous.

432       Significantly, Dr Sticklen thought that the plaintiff did not have a significant problem in either regard prior to the accident and that thereafter, the plaintiff has attended him about fifty times a year for both problems which were of greater severity at that later time.

433       Whilst there were a few mentions of headaches in Dr Sticklen’s notes pre- accident, the plaintiff did not complain of daily headaches described by him since the accident.

434       The dizziness suffered in 2003, which was the most significant complaint in this regard, was related to a short-term viral infection and was of a different nature to the plaintiff’s present imbalance problems.

435       Clearly, the plaintiff had a significant back problem, causing him to cease work in 1990, as a result of which he has been in receipt of a Disability Pension since 1992.

436       Whilst the plaintiff acknowledged that prior to the accident he had to be careful with his back and that he required ongoing medication in that regard, I accept that he led a relatively active life for a man who had left the workforce and that he enjoyed a wide range of activities in a network of family, friends and neighbours.

437       The numerous lay witness who have provided affidavits in this matter, knowing of the plaintiff’s back injury, support the plaintiff’s evidence in this regard.

438       Whilst such affidavit material at times included hearsay, opinion and character evidence, overall I accept this evidence, which was totally unchallenged, and I do not treat it with some degree of scepticism as I was urged to do by counsel for the defendant.

439       I do not accept the submission that the plaintiff was significantly disabled before the accident by virtue of his back complaint or other medical conditions.

440       I accept that prior to the accident, the plaintiff was a relatively active man getting on with his own life. I accept that the sixty per cent disability certified by Dr Sticklen shortly before the accident related to the plaintiff’s industrial capacity, with his back condition accounting for nearly all of that assessment.

441       Prior to the accident, the plaintiff walked extensive distances. He engaged in gardening and related activities, both on his own behalf and for neighbours and friends. He had no particular problems sleeping. He was able to drive without restriction. He could read for lengthy periods.

442       Since the accident, the plaintiff has required very frequent ongoing medical treatment from Dr Sticklen and his neck and dizziness complaints have been more frequent and severe than prior to the accident.

443       Various modalities of treatment, including nerve blocks, radio-frequency denervation, cortisone injections, acupuncture, physiotherapy, hydrotherapy and pain management have been undertaken without any long-term benefit.

444       The plaintiff continues to require a range of medication for his neck pain, headaches and emotional condition.

445       I accept that since the accident, the plaintiff has continued to experience electricity/shooting type pain in his neck, worse on the left side, radiating into his shoulder – a complaint recorded by Dr Sticklen only since the accident and confirmed by the plaintiff’s wife.

446       At times that pain is so bad that the plaintiff has to lie on the floor, as confirmed by Mrs Kormanic, who witnessed such an episode.

447       Since the accident, the plaintiff has suffered daily headaches associated with his neck pain, for which he has been prescribed and continues to take Sandomigran – medication not required prior to the accident.

448       The plaintiff at times has significant restriction of neck movement and tenderness in that area, requiring massage from his wife.

449       Dizziness is a particularly serious component of the plaintiff’s neck pain affecting his ability to drive and also to walk. Dr Sticklen has noted the onset of both problems since the accident.

450       On a regular basis the plaintiff has required the assistance of Dr Gittins to drive him to hydrotherapy. On other occasions, Mr Sundram and Mr Eglezos have assisted the plaintiff in this regard.

451       Clearly the plaintiff walked long distances before the accident. He enjoyed walking with his wife and also walking the Zimmerman’s dogs. His ability to do so was not affected by his back condition.

452       Because of his neck pain and associated dizziness, the plaintiff is now only able to walk much shorter distances and he is constantly reliant on a walking stick, as demonstrated on video.

453       Because of problems with balance, the plaintiff has had five or six falls, reporting a number of such occurrences to his doctor, and on one occasion suffering a leg injury as a consequence of a fall.

454       Balance and dizziness problems have prevented the plaintiff travelling by plane to attend his mother’s funeral, and also his daughters wedding, which took place overseas – both circumstances causing the plaintiff significant stress.

455       As a result of his accident injuries, the plaintiff is no longer able to maintain his own garden and home and he no longer helps out neighbours in relation to the maintenance of their properties, as confirmed by Mrs Kormanic, Mr Sundram and Mr Eglezos

456       The plaintiff is restricted in his ability to play freely with his grandchildren and he can no longer play tennis with his son.

457       Sleep disturbance is a significant problem for the plaintiff. He frequently wakes with pain, as confirmed by his wife. He lacks energy and motivation the following morning, and he sometimes stays in bed as there is “too much to face; too much to face”.

458       As Maxwell P said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph 44, it is a matter of great significance for a person to be denied, seemingly for the rest of their life, the ability to enjoy uninterrupted sleep

459       Since the accident, because of his injuries, the plaintiff has difficulties in his sexual relationship with his wife and they have not been intimate for some months. Further, the plaintiff is now reliant on his wife to assist him with some matters of personal hygiene and dressing.

460       As a result of his neck injury and associated problems, the plaintiff has suffered some anxiety, depression and frustration. I am permitted to take into account these expected mental consequences of the plaintiff’s accident injuries when considering the seriousness of his impairment: see Richards v Wylie (supra) at paragraphs 16-17 per Winneke P.

461       Given the plaintiff’s symptoms have persisted for over two years without any sustained improvement, and also that no further treatment has been offered to improve his condition, I accept that the plaintiff’s impairment is long-term.

462       In my view, the consequences of the plaintiff’s accident injuries to his neck and associated dizziness and headaches, when compared to other cases in the range of possible impairments, can be fairly described as “at least very considerable” and more than “significant” or “marked”.

463       I am satisfied the plaintiff has suffered serious injury to his cervical spine as a result of the accident.

464       Accordingly, leave is granted to bring proceedings for damages.

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