Towers v Transport Accident Commission
[2013] VCC 409
•9 April 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-04550
| TREVOR MAXWELL TOWERS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25, 26 and 27 March 2013 | |
DATE OF JUDGMENT: | 9 April 2013 | |
CASE MAY BE CITED AS: | Towers v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 409 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the neck and back
Legislation Cited: Transport Accident Act 1986
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr JR Moore QC with Mr MT Schulze | Maurice Blackburn |
| For the Defendant | Mr D Myers with Mr PJ Gates | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 This is an application for leave to bring proceedings for the recovery of damages pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”). It arises out of a transport accident that occurred on 2 January 2001 in which the plaintiff, who was then aged thirty-one years, was a passenger when the car was hit from behind.
2 The plaintiff relies on s93(17)(a) of the Act, being a serious long-term impairment or loss of a body function, and also relies paragraph (c), namely a severe long-term mental or severe long-term behavioural disturbance or disorder.
3 The plaintiff relies on musculoligamentous injury to the neck and back with probable aggravation of underlying degenerative process.[1] In relation to paragraph (c), the plaintiff relies on a Chronic Pain Disorder or Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood.[2]
[1]Transcript (“T”) 6
[2]T7
4 I am prepared, for the purposes of this application, to treat the paragraph (a) impairment as an impairment of the body function of the spine. The defendant raised no argument that this was not a permissible aggregation of the two levels of the spine in terms of the body function.[3]
[3]T10
5 In essence, the issues before me essentially involve a defence that the paragraph (a) injury does not meet the “serious” test and the paragraph (c) injury does not meet the “severe” test.
6 This case clearly revolves around a judgment about the plaintiff as a witness. Somewhat unusually for a serious injury application, evidence from his cousin was called that could not sit with the plaintiff’s evidence in relation to activities in and out of the workplace. The cousin’s version of capacity and activity was diametrically opposed to what the plaintiff placed before me. I deal with this in more detail further, but suffice to say at the outset, that any fair reading of the plaintiff’s affidavit material would give the impression of a man who has generally been in work and, since being injured, looking for work.[4] What the plaintiff said about his work history and his attempts to get work after the transport accident is but one example of areas where I found his evidence unsatisfactory and unacceptable.
[4]Plaintiff’s Court Book (“PCB”) 7
7 In terms of his work before this accident, when one goes to the earnings and compares those with the Centrelink benefits in the four years prior to the transport accident, a clear picture emerges.[5] Without stating all of those figures, in the year 2000, there is no income at all from earnings; in 1999, the plaintiff earned $3,118 from earnings and, save for 1998, there is no year between 1997 and 2001 in which earnings have exceeded Centrelink benefits. That is not the picture that his affidavit presents.
[5]PCB 38
8 Dealing with his evidence about attempts to find work after his transport accident, the passages in his affidavit about such efforts do not sit well with his answers in cross-examination. When one looks at the questions asked of him about efforts to obtain employment in Western Australia, Queensland and in Euroa, Victoria, it is apparent to me, and I accept, that the plaintiff has really not made any real effort to get regular work in those places.[6]
[6]T36-39 and T91
9 I found the plaintiff to be a very unreliable witness. I could not accept him as accurate in many respects, including the work history pre and post accident.
10 There are other aspects of his activities that lead me to find that I could not rely on his evidence about his level of capacity at home and recreationally. While the plaintiff refers in his affidavit to certain activities around his home town that he gets involved in,[7] the level of physical endeavour he is capable of that emerged in cross-examination again does nothing for his credit. His activity with cars, mowers, and attending to the tip, looking for mowers and chainsaws, gave me the impression of a capacity that is more extensive than what the plaintiff would have me believe in his affidavits and viva voce evidence and indeed, what he has also said to a number of doctors.[8]
[7]PCB 31
[8]T65, T75 and T84-86
11 In his affidavit, he states he has been in constant pain.[9] This is to be contrasted with what he admitted in cross-examination in relation to being free of pain at times.[10] While this may be taken as something of an admission against interest, it indicated an inconsistency that cannot be reconciled with what he has told a number of doctors.
[9]PCB 9 and PCB 12
[10]T39
12 Another part of his evidence that was not satisfactorily explained was the constant moves that the plaintiff seems to have made from State to State without any real explanation of same. While he is free to live wherever he wishes, it does not sit well with a man who is motivated to get regular work, particularly after indicating that he had a long work record established in Western Australia, for example.
13 The relative paucity of treatment was also a matter that was not adequately explained by the plaintiff. This is in regard to both the paragraph (a) and paragraph (c) claims. His evidence about not following general practitioner’s advice to seek help from a psychologist or psychiatrist was unconvincing.[11]
[11]T90
14 In this case, his application meets the direct challenge of the evidence of his cousin, Mr Wayne Flakemore. He has attested, in affidavit and in the witness box, to the plaintiff working on occasions in cash jobs since this accident. The plaintiff admitted that he had been down to Mr Flakemore’s premises in Heidelberg on a number of occasions but did not admit that had he undertaken any work. The plaintiff’s explanation for why he went down to visit Mr Flakemore was implausible in my opinion, as he related it to occasions when he had been arguing with his wife in Euroa as opposed to going to work.[12]
[12]T66
15 Mr Flakemore’s evidence is that the plaintiff worked on a number of occasions for cash in the course of Mr Flakemore’s business in home maintenance. The plaintiff denied this and denied in fact, ever having done any cash work at all.[13] There is no way of reconciling the evidence between the plaintiff and Mr Flakemore in relation to this work. They cannot both be accurate, and after observing the demeanour and presentation of both the plaintiff and Mr Flakemore under cross-examination, I accept the evidence of the latter that the plaintiff has been working occasionally since this transport accident for cash jobs.
[13]T75
16 When faced with cross-examination about his visits to Mr Flakemore in Melbourne, the plaintiff demonstrated a precise memory.[14] This contrasted starkly with the occasions when he could not recall matters.[15] I found the plaintiff had a memory of convenience when it suited him.
[14]T66
[15]T13, T65, T71, T72 and T77
17 I do not accept the plaintiff’s evidence in relation to the level of his symptoms and disabilities, either physically-based or of psychiatric origin. Nevertheless, the medical evidence needs to be addressed in order to assess the strength or otherwise of this application independent of the veracity or the credibility of the plaintiff.
18 It should be mentioned that his wife gave evidence and deposed to a certain level of symptomology in the plaintiff. However, her evidence did not assist me to overcome the credit concerns expressed.
19 Mr Wayne Flakemore gave evidence that the plaintiff had not only worked for the deponent, but had also engaged with him in recreational activities on the Murray River and elsewhere. I accept this evidence. He produced twelve invoices of jobs at which he says he worked with the plaintiff on various occasions in 2008 and 2009.[16]
[16]Exhibit 1
20 Mr Flakemore was cross-examined at some length, and while it is clear the invoices that he presented did not really take the matter any further in relation to the plaintiff’s involvement on such jobs, I did not on the whole find the witness’s evidence impeached by this. He frankly admitted the deficiency in his records and even the potential involvement of the Taxation Office in cash jobs that Mr Flakemore had done himself and which did not get into his paperwork. On the whole, I found his evidence acceptable.
21 I find that the plaintiff, as a matter of probability, worked for cash with Mr Flakemore on a number of physical jobs at various premises in Melbourne in 2008 and 2009. In accepting this evidence, I reject a good deal of the consequences the plaintiff complains about in terms of incapacities. I find that the consequences of the physical and psychiatric injury that the plaintiff complains of are not as significant as he has indicated and indeed his wife has indicated. I find that the plaintiff is a man who is capable of assisting in a day’s physical work of a handyman nature and indeed, that he did such work on the occasions Mr Flakemore spoke about. In addition, he is capable of driving for about one-and-a-half hours to and from Melbourne and Euroa to do that work.
22 In turning to the medical evidence in this case, it must be borne in mind that to a large extent some of the doctors are dependent on an acceptance of matters the plaintiff has given by way of history that I do not accept as accurate. Nevertheless, an appraisal must be made of the medical opinions in the case in order to evaluate whether or not the applications under paragraphs (a) and (c) succeed against a backdrop in which I largely reject the plaintiff’s evidence in relation to his descriptions of symptoms and incapacities.
The Plaintiff’s medical evidence
23 A number of the medical reports in the Plaintiff’s Court Book have also been duplicated in the material the defendant tendered. Two CT scans dated 19 March 2001 and 25 October 2002 have been tendered and these are so outdated now that they are of limited use. An example of this is that the CT scan of 2001[17] speaks about some changes at C4-5 that were likely to be symptomatic and yet by the time of the CT scan in 2002,[18] the disc protrusion at C4-5 had regressed. I enquired of counsel whether there was any further radiology, and was informed by both parties that there was not. However, I have found in the 20 pages of pathology reports[19] at the Euroa practice, a CT scan of the lumbar spine on 30 March 2007.[20] The CT scan of the lumbar spine does not report anything other than some mild bulge at L5-S1 and a minimal bulge at L4-5. It is said in the report:
“The latter is unlikely to be of clinical significance.”
[17]PCB 39
[18]PCB 41
[19]PCB 64-83
[20]PCB 68
24 Accordingly, the radiological material does not provide much, if any, objective evidence of pathology that can be described as any more than small, moderate or mild, if one adopts the language of the radiologists.
25 The first body of medical material in the treatment chronology over four States is a set of records from the Peterborough Medical Centre in South Australia. These record several attendances in 2001 and do not assist me at all in terms of the evaluation of the plaintiff’s consequences now in 2013. The records confirm that the plaintiff had an injured neck with some low-back complaints following the car accident, but are really of no assistance beyond that.
26 The next set of materials is from the Illawarra Medical Centre in Western Australia where again, apart from some records that confirm the plaintiff attended in 2001 describing the accident and some neck and lower back pain, this material is of little use. There are several points in relation to histories that the plaintiff gave that I have now found are inaccurate, such as a note that he worked for eight years in security.[21] However, the histories given back in 2001 are of limited use now.
[21]PCB 96
27 A set of records then from the Port Pirie Health Service in South Australia again confirm some early radiology in relation to the neck and back but does not assist.
28 The medical records tendered then moved to Queensland where a Dr Gary Persley, a consultant psychiatrist, reported to the Family Law Court on 5 August 2005. The assessment took place in Brisbane and it records the motor vehicle accident, although the date is given as 2002 instead of 2001. This report is the first reference in the material to his using cannabis and contains a history in relation to his work that I do not accept as accurate, having heard all the evidence in this case. The history given is:
“Whilst living in Perth prior to the accident, he had worked up to 80 hours a week doing shopping centre security. This has been for four years, he had been in the security industry for 10 years altogether.”[22]
[22]PCB 103
29 This is but one of a large number of examples of a work history that doctors have recorded and relied on that are not accurate. The opinion given by the psychiatrist in 2005 was that he had an Adjustment Disorder and he thought it would largely revolve around managing his chronic pain. He thought there may be some assistance gained from psychological counselling and antidepressant medication.[23] Nothing is really said that assists an assessment of his consequences now, some eight years later.
[23]PCB 105
30 A report of a Queensland neurosurgeon, Dr Scott Campbell, in 2005 records neck and lower back pain as occurring following the subject accident.[24] Again, there is a work history given that I do not accept.
“At the time of the road traffic accident, Mr Towers was employed by a meatworks company as a packer/labourer. He had worked in this capacity for two months.”[25]
[24]PCB 108
[25]PCB 109
31 A little further it is recorded:
“Following the road traffic accident, Mr Towers attempted a return to work but was unable to cope and was unable to get a medical clearance.”[26]
[26]PCB 109
32 Ultimately, the neurosurgeon concluded that the plaintiff had a chronic soft-tissue musculoligamentous injury to the cervical spine and lumbar spine.[27] The report is very outdated.
[27]PCB 110
33 A similarly dated report comes from a Dr Brett Halliday, an orthopaedic surgeon, in Brisbane. He reports on 1 August 2005 that there had been only one episode of chiropractic treatment from 2002 to 2005 and that there was no active treatment occurring for the injury, save for some medications.[28] He thought there were signs of overstatement of the injuries and his opinion was that he had been left with:
“… a soft tissue injury to his cervical spine and no abnormal neurological findings.”[29]
[28]PCB 115
[29]PCB 117
34 He felt there had been inconsistencies in the examination and the:
“ … pain and clinical disability is out of proportion to the clinical and imaging findings on examination today.”[30]
[30]PCB 118
35 His opinion ultimately was that there had been a C4-5 disc protrusion but it had gone on to resorb[31] and that there had been an aggravation of pre-existing degenerative disease in the lumbar spine. He thought the prognosis was guarded and it was likely there would be some ongoing problems with his neck and lower back. He did not think the condition was likely to change.[32]
[31]PCB 120
[32]PCB 120
36 Dealing with material that is more up to date, Mr Rodney Simm, orthopaedic surgeon, has reported on several occasions in 2008, 2010 and 2012. He thought there had been a soft-tissue injury to the cervical spine and some aggravation of the degenerative pathology with a similar insult to the lumbar spine. He felt that the plaintiff had developed a chronic pain response.[33] His second report did not express any significantly different view. In his last report of 4 July 2012, he repeated the diagnoses of soft-tissue injuries to both the cervical spine and lumbar spine, and he thought there had been some possible aggravation to the degenerative pathology. He felt a chronic adverse pain response or a severe Chronic Pain Syndrome had developed.[34] He stated there was a disability for heavy manual work. However, he does not really disentangle the physical injuries from the psychiatric injuries when he quoted an opinion to the effect:
“He has previously worked in the metal trade, security and has been a mine worker and meat worker. These are all physical occupations, for which he remains incapacitated. A full assessment of his capacity for employment should include a psychiatric assessment.”[35]
[33]PCB 127
[34]PCB 140
[35]PCB 141
37 While this report indicates an ongoing consequence in relation to work capacity, for reasons I have already mentioned, this doctor, amongst others, has been reliant on a history of work and complaints I find is not accurate.
38 The plaintiff’s material ends with the psychiatric reports of Dr Strauss in 2008 and 2012. Dr Strauss has taken a history of work that involves a large number of aspects that are inconsistent with the evidence the plaintiff has given and with the figures I have already alluded to.[36] An example of this is that since the accident, “he had tried to get work unsuccessfully” and “he has applied for labouring jobs unsuccessfully”, when I find the plaintiff has not seriously attempted any regular work to speak of. The history he relies on in relation to social and recreational activity[37] is not accurate and at odds with the level of activity I accept in Mr Flakemore’s second affidavit.[38]
[36]PCB 38
[37]PCB 154
[38]Defendant’s Court Book (“DCB”) (d)
39 Dr Strauss found that he suffered a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood.[39] He thought that the plaintiff should continue with antidepressants but doubted whether he would respond to psychological or psychiatric treatment.
[39]PCB 152
40 In his last report, Dr Strauss notes a serious use of cannabis to the point of “eight joints a day”.[40] He records that the plaintiff is still not having any counselling or psychological or psychiatric treatment and that he continues to suffer from:
“… a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood associated with some features of traumatisation.”[41]
[40]PCB 162
[41]PCB 165
41 With respect to prognosis and consequences, Dr Strauss says:
“Predominantly this man cannot work because of physical factors and this also causes him upset. I believe that it will hard to rehabilitate this man from a psychiatric perspective and in this sense he has a partial incapacity for work on psychiatric grounds. He may be able to do some work from a psychiatric perspective but when all factors are considered I cannot see this man working the future.”[42]
I do not accept he is precluded from work due to physical or psychiatric injury.
[42]PCB 166
42 Bringing matters more up to date, there is a series of letters from the Euroa Medical Family Practice where a Dr Altson and a Dr Kelly have seen the plaintiff. These include a number of statements about the positive impact resolution of litigation might have on the plaintiff’s health.[43] The general practitioners consider the plaintiff has developed a Chronic Pain Syndrome and there is reference to this in a number of these short letters, together with Depression. Advice was given that he would benefit from seeing a psychologist and/or psychiatrist.[44] There is also reference to medical advice about his drug use, in particular cannabis.
[43]PCB 42, 46a
[44]PCB 46, 61
43 The only real report from that practice is one dated 17 April 2012, in which Dr Kelly describes the plaintiff suffering from chronic back and neck pain which is associated with a depressive illness. He says;
“The injuries are possibly consistent with the cause, namely having occurred after a motor vehicle accident in 2001, however it is not possible for me to attribute them to this motor vehicle accident as our first contact with Trevor occurred five years after the accident.”[45]
[45]PCB 46
44 He said, a little further on, that he felt the plaintiff had a guarded prognosis regarding resolution of his symptoms and he may (my emphasis) have permanent problems.
The Defendant’s medical evidence
45 A report of Dr G Tadros, general practitioner, of 23 March 2002 describes the plaintiff consulting that practice in August 2001 and then in October 2002, complaining of back and neck problems as a result of a car accident. The doctor has not seen the plaintiff now for over ten years, so there is nothing that assists me in his material other than the complaints in those early years.
46 There is a report from the Gympie Hospital of 9 April 2002 and some Southern X-Ray Clinic material that is of no assistance.
47 An orthopaedic surgeon, Dr H Khursandi, reports on 20 November 2002. He found a full range of flexion, extension, lateral flexions and rotations when he examined the neck and found some limitations in the lumbar spine, but his opinion was:
“Mr Tower’s symptoms in the neck and lumbosacral spine are due to degeneration of the disc as seen on the CT scan. He has no signs nor any radicular symptoms in his upper or lower extremities to suggest nerve root compression. I would be inclined to continue with his conservative treatment.”[46]
[46]DCB 8
48 He does not say anything further in relation to prognosis that would assist in assessing the plaintiff now.
49 Several letters are then included from the Euroa practice, which have already been largely referred to.
50 There is a report from The Alfred hospital of 26 August 2010 about a further 2009 accident the plaintiff was in but it does not assist with respect to the 2001 collision, save to say that neck and back were involved again.
51 Dr Andrew Gibb, a clinical neuropsychologist, examined the plaintiff on 2 June 2011. However, that assessment did not get anywhere, as the plaintiff stormed out of the assessment before any testing was completed.[47]
[47]DCB 42, DCB 47 and DCB 50
52 Professor Steven Davis, neurologist, assessed the plaintiff in 2011 and 2012, and at his last consultation, he thought the plaintiff had suffered soft-tissue injuries to his cervical and lumbosacral spines. Also, there had been protracted chronic pain features. He thought there was a very established Pain Syndrome[48] and he thought the plaintiff was able to do some work in a domestic context. He referred to some of the motorcar and lawnmower work, although it is not clear whether Dr Davis is reporting a history given to him or giving an opinion on these matters.[49]
[48]DCB 81
[49]DCB 82
53 Dr Tony Kostos, rheumatologist, felt the plaintiff’s diagnosis was a Chronic Pain Syndrome and did not believe there was any specific physical injury arising from the accident.[50]
[50]DCB 62
54 Dr Timothy Entwisle, consultant psychiatrist, reported in 2011 and 2012. He felt the plaintiff had suffered a Chronic Pain Syndrome as a result of the accident.[51] In his last report, he repeated the diagnosis of a Chronic Pain Disorder accompanied by depressive reaction, and he felt, in relation to the consequences of same:
“Mr Towers has been off work for many years. He shows no wish to return to work given his description of daily activities. He nonetheless would I believe have a capacity to return to some form of suitable employment.”[52]
[51]DCB 68
[52]DCB 88
55 Mr Michael Fogarty, orthopaedic surgeon, was the last of the doctors engaged by the defendant, and he reported on 19 November 2012. He thought that the plaintiff had sustained a musculoskeletal injury but he thought that it had resolved in terms of its connection to the January 2001 transport accident. He thought a Chronic Pain Syndrome had developed and that predominantly psychological factors were responsible for the plaintiff’s current presentation.[53]
[53]DCB 88f
56 In my view, looking at the medical evidence as whole, I am not satisfied that, in the absence of acceptance of the plaintiff as a credible witness, the medical opinions establish that the paragraph (a) injury is serious or that the paragraph (c) injury is severe.
57 For the reasons mentioned, the plaintiff’s application fails under both paragraphs (a) and (c).
58 I will hear the parties as to costs.
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