Traljic v Transport Accident Commission
[2010] VCC 1989
•6 December 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-01200
| ZORAN TRALJIC | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 and 19 November 2010 |
| DATE OF JUDGMENT: | 6 December 2010 |
| CASE MAY BE CITED AS: | Traljic v Transport Accident Commission |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1989 |
REASONS FOR JUDGMENT
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Catchwords: Application pursuant to s.93(17) Transport Accident Act 1986 – injury to lumbar spine – Reliability of plaintiff’s evidence as to relationship between accident and current disability– whether impairment to lumbar spine satisfies the criteria of being “at least very considerable” and certainly more than “significant” or “marked”.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B W Collis QC and | Maurice Blackburn |
| Mr A B D Ingram | ||
| For the Defendant | Mr M R Titshall QC with | Solicitor to the Transport |
| Mr J Valiotis | Accident Commission | |
| HIS HONOUR: |
1 In this application, the plaintiff seeks leave pursuant to the provisions of s.93(17)(a) of the Transport Accident Act (“the Act”) to commence a proceeding seeking damages for injuries he suffered by reason of a transport accident which occurred on 18 October 2002, in the course of which a prime mover being driven by the plaintiff collided into a power pole in Footscray Road, Footscray (“the transport accident”). The injury relied upon is one to the lumbar spine with its associated impairment of the function of the lumbar spine.
2 There is no issue that the transport accident occurred in the course of the plaintiff’s employment with Toll Transport Industries as a driver. Neither is it in issue that the transport accident involved considerable force.[1]
[1] See the photograph of the prime mover which the plaintiff was driving at page 303 of the Plaintiff’s Court Book (“PCB”)
3 It is contended by the defendant however that the injuries suffered by the plaintiff are not such as to satisfy the definition of “serious injury” as laid down by the Act.
4 In this application, the plaintiff gave evidence and was cross-examined. Otherwise, the parties relied upon tendered material in the form of affidavits, medical reports and records.
5 The position taken by the defendant in its defence of the application is essentially that:
•
whilst no criticism is made of the plaintiff’s truthfulness or his motivation to work, his ability to continue performing the heavy duties required by him as a truck driver until the intervention of an injury sustained by him to his right shoulder in 2007, casts doubt upon the reliability of his memory as to the nature and extent of the symptoms which were caused by the transport accident;
•
I should not be satisfied in these circumstances that the plaintiff has established that the symptoms of back pain from which he presently suffers, were caused by that accident.
6 In this application, the plaintiff relies upon two affidavits, the first sworn by him on 17 October 2008 and the second on 18 October 2010.
7 In his first affidavit, the plaintiff describes the collision as involving sufficient force to break the power pole with which his prime mover made contact, and deposed as follows:
• The collision caused extensive bruising to his buttock and leg, with the result that he was “off work for a week or two.[2] • Following the collision, he suffered from persisting lower back pain which led him to consult his general practitioner, Dr Reddy. At the time of that consultation, namely 23 October 2002, the plaintiff was experiencing both back pain and bilateral shoulder pain. • Over the weeks and months which followed the collision, the plaintiff’s shoulder symptoms settled considerably; however, he continued to suffer from ongoing lower back pain which he described as being – [2] PCB 16
“… a significant source of concern to me. I found that when I was undertaking my truck driving work and using a manual clutch mechanism, that I was suffering increasing symptoms with my back but also problems extending into my left leg. I carried on at work despite these problems although I did complain regularly about the clutch mechanism which I was required to operate.”
•
During 2004, one of the plaintiff’s bosses recommended he seek physiotherapy treatment and referred him to a physiotherapist in the Melbourne Central Business District, who the plaintiff then consulted for approximately twelve months. The plaintiff continued to suffer from pain and limitation of movement in his back and returned to Dr Reddy in December 2004. Dr Reddy then referred the plaintiff for a CT scan.[3]
•
He advised Dr Reddy that the nature of his employment, and in particular his requirement to lift heavy trucking gates, was causing him pain and accordingly, that Dr Reddy wrote to his employer alerting it of the problems the plaintiff was having with his back and advising his employer that the plaintiff’s work would place him at risk of suffering an aggravation of the injury to his back.
•
In October 2005, a worksite assessment was undertaken as to the plaintiff’s working conditions and a recommendation was made that he avoid sitting for periods longer than an hour and fifteen minutes, that he undergo physiotherapy and that he should not undertake the heavy manual lifting tasks. The plaintiff deposed further:
[3] The scan dated 2 December 2004 revealed the presence of a disc bulge at the L4-5 level mildly indenting the spinal theca and a large left para-median disc herniation at L5-S1 impinging and displacing the left S1 nerve root posteriorly – PCB 196
“The nature of my work meant that I continued to place strain on my spine as I went about my daily duties for my employer and I continued to have ongoing pain and disability. I was asked by my employer to attend Dr Gross at the Bridge Street Industrial Clinic in Port Melbourne on 8 February 2007. He referred me for a further CT scan.”[4]
[4] PCB 30
•
Following the above investigation, Dr Gross referred the plaintiff to Mr Kavar, a neurosurgeon, who advised him that whilst the condition in his back was amenable to surgery, he should avoid surgery for as long as possible.
•
On 23 August 2007, the plaintiff suffered a bilateral injury to his shoulders whilst attempting to secure the sides of a Tautliner. The injury was diagnosed as involving bilateral rotator cuff tearing, by reason of which the plaintiff underwent arthroscopic decompressions of his shoulders in the course of two procedures, the first performed on 8 November 2007 and the second on 10 July 2008.
• The symptoms caused by his back injury included:
(i)
constant pain in the lumbar spine, the condition in his lumbar spine continuing to deteriorate with his symptoms of pain being exacerbated by cold weather;
(ii) stiffness in the back; (iii) symptoms in his left leg; (iv)
the need to manage his back pain by using medication in the form of Panadeine Forte, Voltaren tablets and Voltaren Gel;
(v)
his symptoms being exacerbated by standing, sitting and driving for long periods of time, and those symptoms affecting his sleep, such that:
“I wake on a nightly basis and often get up out of bed and walk
around a bit.”
He continued:
“My sexual relations with my wife have been affected by the pain that I am in. I do have periods when the back pain is lesser in severity but even then I have to be careful not to overexert myself or I am liable to suffer from significant deterioration in my level of symptoms.”
8 In this second affidavit, the plaintiff described his present condition in the following terms:
•
He was prescribed Panadeine Forte and Voltaren and usually took two Panadeine Forte tablets a day, depending on his level of pain, together with Voltaren.
•
He was never free of back or leg pain although the severity of his symptoms varied. Although he was employed in lighter duties at work, he found that even undertaking those duties increased his level of pain. As to his pattern of sleep, he said that he woke nightly and was often required to get up out of bed and to walk around in an attempt to relieve his symptoms. He said his sexual relationships with his wife had been “considerably affected by pain also”. He said that working in the garden caused increased levels of pain which might “last for a number of days” and that he attempted to control his symptoms by restricting the activities in which he was engaged.
9 The plaintiff relies upon an affidavit sworn by his wife, Snezana Traljic, sworn 18 October 2010 in which she deposed to the fact that she undertook most of the domestic chores in order to relieve the plaintiff of activities which might expose him to further back pain and that the only way that the plaintiff “seems to be able to control the level of pain is if he controls the activities which he performs and which might be liable to cause increased levels of pain”. Otherwise Mrs Traljic deposed to the fact that she had read her husband’s affidavits and agreed with the matters deposed to by him in those affidavits.
The Viva Voce Evidence
10 In the course of viva voce evidence, the plaintiff said that following the car transport accident he developed bruising of the left buttock which extended down to his knee. He said that he was off work for two weeks and then returned to normal duties but had ongoing problems with his back which eventually resulted in him being referred for x-rays in 2004. He accepted that there was a gap of nearly two years between the transport accident and the taking of the x-rays but said:
“I did have pain but I didn’t know what the problem was, if it was going to
go away or not and that’s when they did the x-rays, 2004.”[5]
[5] Transcript 24
11 He accepted that it was not until December 2004 that the pain in his back was sufficiently bad to cause him to see a doctor. He said that at the time of the transport accident, in the course of his employment as a driver, he was driving “Tautliners” and that these vehicles consisted of a prime mover with a trailer which contained curtains and gates. He described the gates as being approximately 2.5 metres long, being constructed of tubular steel rods and as weighing between 40 and 50 kilograms. He said in the course of a day he would be required to manhandle the gates into and out of position on the side of the truck; that he would manoeuvre twenty-four gates in this manner in the course of a day, each of which were lifted into a shoulder high position as they were located on, and removed from the trailer of the Tautliner.[6]
[6] Transcript 31-33
12 The plaintiff accepted that between November 2002 and the date upon which he injured his shoulders in 2007, he had very little time away from work and worked up to a 50-hour week. He was asked the question:
“Q: Your pain didn’t stop you doing the Tautliner gates each and every
day did it?---A: Well, I kept doing it but it was pain and yes, putting up with it. Q: Sure, and at that stage pretty minimal treatment?--- A: Mmm. Q: In fact for a couple of years no treatment at all?--- A: Yes. Q: Is that right?--- A: Well putting up with the pain and working, yes.”[7] [7] Transcript 36
13 In the course of the plaintiff’s cross-examination, no issue was taken with the description given by the plaintiff as to his present level of symptomology.
The Medical Evidence
14 The medical records of Dr Reddy document the fact that the plaintiff presented with a painful back on 23 October 2002. Two days later upon the plaintiff’s further presentation to Dr Reddy, his notes reveal that the plaintiff demonstrated the presence of straight leg raising to 90 degrees on both the left and right sides. Thereafter the plaintiff did not re-present to Dr Reddy with symptoms of back pain until 2 December 2004, on which date he was noted as presenting with symptoms at the L5-S1 level.
15 In a note dated 9 December 2004, Dr Reddy documented that the plaintiff suffered pain all of the time and that he had aggravated his back injury by lifting heavy gates whilst at work.[8]
[8] I interpret this as being a statement that the transport accident initiated a condition which was subsequently aggravated by the duties involved in the plaintiff’s work and as such that the transport accident materially contributed to the condition with which he presented.
16 On 28 February 2005, the plaintiff presented to Mr. Travis Haupstein, a manipulative therapist, with a stiff lumbar spine associated with “an old lumbar spine injury”. Mr. Haupstein commented:
“I have mobilised his spine, commenced a self-stretching program and plan another three or four sessions over the next two months. … I feel Zoran may require only occasional physiotherapy thereafter.”[9]
[9] DCB 18
17 At the end of May 2005, Dr Reddy contacted the plaintiff’s employer seeking a worksite assessment and a modification of the plaintiff’s duties.
18 On 22 June 2005, Dr Reddy wrote to the technical case manager employed by Toll Industries, enclosing a CT scan of the plaintiff’s lumbar spine and commenting:
“Of particular significance is the L5-S1 disc herniation affecting the left S1 nerve root. This disc injury will place Zoran under real risk of aggravation, particularly lifting (e.g. heavy doors, boxes etc.) and sometimes for no apparent reason.
Orthopaedic surgery may have to be seriously considered if his symptoms warrant an operation.
I would recommend worksite assessment by a qualified professional and modification of work as advised.”[10]
[10] PCB 37
19 In the course of a worksite assessment undertaken on 7 October 2005,[11] the plaintiff reported that he suffered from intermittent flare-ups of severe back pain which lasted two to four weeks, the most recent occurring approximately a week ago. He reported the presence of generally centralised pain in the lumbar region with occasional left leg pain, stating that the pain was always present in his lower back and that he suffered from flare-ups of acute increased pain in his back and also leg pain, which occurred every few months.
[11] PCB 38
20 As the result of the worksite assessment, a recommendation was made that the plaintiff trial a specially designed seat, that he avoid sitting for periods longer than 60 to 75 minutes, that he receive physiotherapy instruction as to “specific trunk stretches” and that he should not engage in heavy manual lifting after prolonged sitting.[12]
[12] PCB 41
21 On 15 November 2005, the plaintiff presented to Dr Gross at the Bridge Street Clinic with a history that since the transport accident he had been suffering from ongoing pain in his low-back with radiation of pain mainly to the left side of his low-back and into his left leg. On examination, no tenderness was noted in the plaintiff’s lumbar spine and the presence of minimal pain was reported in the left lower back with right lateral rotation of the spine. A certificate for light duties was issued, directing that the plaintiff not undertake “any chaining or dogging, not to lift more than 10 kilograms and no repetitive bending, pushing or pulling”.
22 On 8 February 2007, the plaintiff again attended Dr Gross, complaining of continuous low-back pain with a history that his symptoms had increased in the last two to three weeks and included a continuous dull ache down his left leg and into his foot. He reported difficulty bending and pain whilst driving. A CT scan arranged on that day was reported by Dr Gross as revealing a large disc protrusion pressing on the left S1 nerve root.
23 The plaintiff was examined by Professor P Teddy, a neurosurgeon, on 2 March 2007. Professor Teddy obtained a history from the plaintiff that following the transport accident, he had developed lower back pain which had failed to resolve. An examination at that time failed to reveal any significant restriction in straight leg raising, plantar flexion of the left foot or tenderness.
24 The plaintiff re-presented to Professor Teddy in April 2007, at which time an examination revealed the plaintiff to have “improved considerably” and the only persisting neurological abnormality was that of absent ankle jerks.
25 An examination of the plaintiff in 2009 by Professor Teddy revealed the presence of a full range of pain-free back movement with unimpaired straight leg raising. An MRI scan undertaken at that time revealed the presence of “only a small right paracentral annular fissure with the disc bulge contacting but not compressing the L5 nerve root”.
26 In a report dated March 2010, Professor Teddy expressed the opinion that the plaintiff’s disc prolapse had largely healed; that the plaintiff remained fit to perform light duties within his workplace, that he had only a limited capacity to undertake his pre-injury duties and that his injuries have largely stabilised and his impairment was permanent.
27 Mr David Brownbill, consultant neurosurgeon, in a series of reports commencing 5 February 2009 and concluding with a report dated 24 September 2010, expressed the opinion that the plaintiff had suffered lumbosacral disc damage by reason of the transport accident, that he was unfit to perform his pre-injury duties but that he was capable of undertaking suitable employment avoiding heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting.[13]
[13] The tenor of Mr Brownbill’s reports is clearly that the plaintiff’s condition is largely stabilised.
28 Mr Ian Jones, orthopaedic surgeon, in a report dated 19 September 2010 opined that the plaintiff had suffered an L5-S1 disc prolapse of the lumbar spine, the consequence of which was manifesting as back pain, lower back pain and stiffness. He opined that it is likely that the plaintiff’s condition would continue such that he would experience activity-related lumbar back pain.
29 Professor Stephen Davis, a neurologist, in a report dated 4 February 2010, expressed the opinion that the plaintiff’s back problems were related directly to the transport accident’ and that whilst this condition may have been aggravated by his employment, his condition was caused by the transport accident and not “work-related lifting strains”.
The Defendant’s Position
30 In this application, the defendant contends that the plaintiff has not established that he should be granted the leave he seeks for two reasons :
• Firstly, it is put that the plaintiff’s ability to undertake heavy physical work during the five years between the transport accident and the intervention of his bilateral shoulder injuries in 2007, when considered in the context of the absence of the need for any significant medical treatment during this period, is evidence of the fact that the plaintiff did not sustain an injury of any consequence to his lower back in the transport accident. It is put that heavy work which the plaintiff undertook after the transport accident is more than sufficient to explain, in a causative sense, any incapacity with which the plaintiff presents in his lumbar spine at the present time. • Secondly, it is put that the condition in the plaintiff’s lumbar spine in any event, does not give rise to an impairment which satisfies the test of serious injury under the Act.
The Relevance of the Plaintiff’s Ability to Undertake Heavy Physical Work during the Five Years Between the Transport Accident and the Intervention of his Bilateral Shoulder Injuries in 2007
31 I am satisfied that the plaintiff is a stoic individual and the fact that he continued to work performing heavy unrestricted duties between the transport accident and the intervention of the injury to his shoulder in August 2007 is most probably explained by the presence of that stoicism rather than by the insignificance of the injury sustained in the transport accident.
32 I am persuaded to make this finding by reason of the following facts:
(i)
There is no issue that the CT scan of 2 December 2004 revealed the presence of a large paramedian disc herniation at the L5-S1 level which impinged and displaced the left S1 nerve root posteriorly.[14] When this radiological finding is considered in combination with:
[14] PCB 196
ƒ
the history given by the plaintiff to the Work Solutions assessment team in October 2005 that he was experiencing flare-ups of severe lumbar pain which lasted two to four weeks in association with his work;
ƒ the recommendation by Work Solutions made in October 2005,
which I interpret as being that the plaintiff should not engage in
heavy manual lifting without adequate assistance; andaccount is taken of the fact that until late in 2007 the plaintiff continued on a daily basis to manhandle a minimum of twenty-four trucking gates (each of which weighed between 40 and 50 kilograms) by lifting them above shoulder height and locating them into position upon the Tautliner which he was driving;[15] a compelling case is made as to the plaintiff’s willingness to accommodate pain in order to meet the physical demands of work, and accordingly as to the level of his stoicism. In these circumstances the plaintiff’s evidence that he put up with back pain whilst performing his duties during the period between the transport accident and December 2004 becomes persuasive.
(ii) In my opinion, further evidence of the plaintiff’s stoicism is found in the limited time which the plaintiff has taken away from work since December 2004, notwithstanding the well documented condition which has been present in his lumbar spine and the bilateral injuries suffered by him to his shoulders which were treated surgically in November 2007 and July 2008.
[15] Transcript 33
33 I also note the absence of any medical support for the position that the transport accident was not a significant contributor to the plaintiff’s current presentation.
34 Whilst the medical records of Dr Reddy[16] make only passing mention of the presence of a painful back in the years immediately following the transport accident, it is clear that Dr Reddy accepted the relationship between the transport accident and the condition present in the plaintiff’s lumbar spine as revealed by the CT scan of 12 December 2004, when he wrote his report of 25 June 2005. The relationship between the transport accident and the plaintiff’s current presentation is also accepted by Mr Kahn;[17] Mr Brownbill;[18] Professor Teddy;[19] Mr Jones;[20] and Professor Davis.[21]
[16] PCB 159-162
[17] See his opinion at PCB 88
[18] See his opinion at PCB 116
[19] See his opinion at PCB 148
[20] See his opinion at PCB 273
[21] See his opinion at PCB 282
35 For these reasons, I am satisfied that the transport accident did materially contribute to the plaintiff’s present symptoms and disability of the lumbar spine.
Analysis as to whether the Condition in the Plaintiff’s Lumbar Spine Gives Rise to an Impairment which Satisfies the Test of Serious Injury under the Act.
36 The fact that the plaintiff is not inclined to exaggerate the symptoms from which he suffers is attested to by the evidence given by him, to his potential detriment, in the course of the serious injury application brought by him with respect to his bilateral shoulder condition in which he accepted without hesitation that following his surgery he had recovered almost completely the movement in his shoulders and that the condition in his shoulders impacted very little upon his lifestyle.[22] Further, the description by the plaintiff as to the current symptoms from which he suffers in his back was not the subject of real challenge by the defendant, and no issue has been taken with the evidence given by the plaintiff and his wife in the affidavits which they have sworn in which they describe the consequences to the plaintiff of the condition of his lumbar spine.
[22] Transcript 13-14
37 In these circumstances, I am satisfied that the plaintiff suffers from a condition in his lumbar spine which :
•
Generates constant back pain, the severity of which is exacerbated by activity which places a strain upon his spine;
•
Creates the need to ingest medication in the form of Panadeine Forte and Voltaren on a daily basis;
• Interferes in the plaintiff’s sexual relationship with his wife; •
Interferes with the plaintiff’s ability to sleep such that he wakes regularly by reason of pain and is then required to walk around to try to relieve his pain;
•
Restriction in his ability to undertake domestic chores and to work in the garden;
•
Gives rise to a permanent restriction in his capacity to work which confines him to modified duties,[23] and that notwithstanding the modification of the plaintiff’, the effect of the plaintiff’s work is still such that increases his pain level as each day progresses.
[23] Although there is no evidence that this restriction has to date impacted upon the plaintiff’s level of income, I do not regard that fact as obviating the relevance of this restriction in a fifty-year-old manual worker.
38 The statutory test established by the Act requires a judgment-based evaluation of the evidence. The term “serious” requires the impairment and its consequences to be viewed objectively and also to be judged on an external comparative basis against other possible impairments or losses of a body function for the purpose of determining whether they may fairly be described as being at least very considerable and more than significant or marked. The task which I am required to undertake has been described as involving “a value judgment in which matters of fact and degree and of impression are operative”.
39 I am satisfied that the consequences which I have found to have been caused to the plaintiff by reason of the injuries sustained by him to his lumbar spine in the transport accident are appropriately described as being more than significant or marked and at least very considerable when considered in the context of the range of possible impairments or losses. Further, the evidence satisfies me that those consequences will persist for the foreseeable future at their present level.
40 In the circumstances, I am satisfied that the plaintiff has suffered an injury which fulfils the definition of “serious injury” within the meaning of s.93(17)(a) of the Act and I propose to make an order granting the plaintiff the relief which he seeks.
41 I will hear the parties as to the precise terms of the order which I should make and also upon the issue of costs.
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