Walpole v TAC

[2012] VCC 646

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted

AT GEELONG

CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION

Case No.  CI-11-00756

DARREN PHILLIP WALPOLE	Plaintiff
V
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Geelong
DATE OF HEARING:	7 and 8 March 2012
DATE OF JUDGMENT:	22 May 2012
CASE MAY BE CITED AS:	Walpole v TAC
MEDIUM NEUTRAL CITATION:	[2012] VCC 646

REASONS FOR JUDGMENT

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SUBJECT – TRANSPORT ACCIDENT
CATCHWORDS – Serious injury – impairment to the lumbar spine
LEGISLATION CITED – Transport Accident Act 1986 Section 93
CASES CITED – Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Humphries & Anor v Poljak [1992] 2 VR 129; Richards v Wylie (2000) 1 VR 79; West v Pac Rim Printing P/L (2003) VSCA 68.

JUDGMENT –  Leave granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Keogh SC with Mr D Purcell	Maurice Blackburn Pty Ltd
For the Defendant	Mr R K Meldrum QC with Ms S Manova	Solicitors for the Transport Accident Commission

HER HONOUR:

1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s.93(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 (“the accident”) which occurred on 3 December 2002 (“the said date”).

2 Section 93(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”. The body function pursuant to (a) relied upon by the plaintiff is the spine, particularly the lumbar spine.

4       The enquiry 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.

5       The serious injury defined by subparagraph (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.

6       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.

7       The plaintiff relied on two affidavits.  He gave viva voce evidence and was cross examined.  Sarah Winter, a friend of the plaintiff swore an affidavit on 10 November 2011.  Michael Sanders, the plaintiff’s former supervisor at Visy swore an affidavit on 15 February 2012.  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

8       The plaintiff is presently aged thirty nine, having been born in July 1972.  He had problems reading and writing and left school at the start of Year 9.

9       After leaving school, the plaintiff worked in manual jobs including on a plant farm, as a spray painter, a panel beater, a car detailer and a truck driver.  He has no training, qualifications or experience in light clerical or sedentary work.

10      At the said date, the plaintiff had been unemployed for about six to twelve months.  In cross examination, he agreed he was out of work more than in work prior to the said date.

11      The plaintiff agreed in the financial year before the said date he earned about $1,100 for a couple of weeks’ work at a plant farm and the rest of the time he received DSS payments.  He agreed that was fairly typical of his work pattern in the years before the accident.

12      The plaintiff had odd jobs here and there.  He could not find work at the time.  In cross examination, the plaintiff described that he had always been a hard worker like his parents.

13      In re-examination, the plaintiff said he was looking for work before the accident.  He was not successful, probably because he was not a very good reader and writer and he had trouble filling out application forms.

14      The plaintiff was due to commence full time employment as a house painter on 4 December 2002.  He previously had done unpaid house painting jobs for family members.

15      In cross examination, the plaintiff elaborated on this proposed job.  A friend Azzy, recommended the plaintiff to a man called Costa, with a view to doing painting work.  The plaintiff spoke to Costa who told him he had sold the painting business.  It was arranged that the plaintiff would speak to the new owner the night of the said date.  That conversation never took place. 

16      Further, the plaintiff suggested that Costa, whilst he had sold the business, was still doing painting and that he was going to put the plaintiff on anyway.

17      When it was put to the plaintiff there was no firm arrangement for him to commence the painting job, the plaintiff said “as far as he knew, one hundred per cent he was starting up.”

18      Following the accident, the plaintiff received loss of earning benefits for a period of about twelve weeks in relation to this proposed job.

Pre Accident Activities

19      Prior to the accident, the plaintiff enjoyed playing football with his son Jamie.  The plaintiff also enjoyed running, lifting weights, working on cars, cleaning the house and visiting friends. 

20      The plaintiff’s health was pretty good.  He had a motor cycle accident in about 1988 resulting in surgery to repair a lacerated liver and he broke his arm about ten years earlier.

21      At the time of the accident, the plaintiff had been in a long term relationship for about thirteen years and he had two children.  He did not live with his partner. 

The Accident

22      On the said date, the plaintiff was involved in a collision when his car was hit heavily from behind and written off (“the accident”).

23      After the accident, the plaintiff’s back felt numb.  He was taken by ambulance to Geelong Hospital where he remained under observation for a few hours.

24      Over the following days, he developed neck and back pain and saw his general practitioner, who prescribed pain medication.

25      The plaintiff subsequently underwent regular physiotherapy and hydrotherapy.  He saw a social worker and had a couple of sessions of counselling with a psychologist.  The plaintiff was also referred to a neurosurgeon, Mr Jithoo, who advised surgery could not help and referred the plaintiff to a pain clinic.

26      At the time of his first affidavit sworn in August 2010, the plaintiff suffered from low back pain, aggravated by prolonged sitting or standing, by lifting, and when he opened his bowels.  He also suffered from intermittent headaches.  He was then taking eight Panadeine Forte daily and occasionally Mersyndol.

27      The plaintiff deposed he was not able to start working as a house painter because of his injuries and he could not seek alternative employment for about six months after the accident.

28      In cross examination, the plaintiff described being on a “real down” during 2005.  He was getting morphine tablets from a friend.  At that time he decided to get a job and try and get his life back on track as he did not want his children to see him go down hill.

29      In re examination, the plaintiff confirmed that from December 2002 to mid 2005, he was very, very down because of pain and stress.  He felt awful for his children because he did not want them to see him like that.  He got a job at Quest Environmental Services (“Quest”) as he did not want his life to deteriorate.  He did not go to doctors because he had taken painkillers and he did not know what else he could do.

30      The plaintiff had tried physiotherapy and it did not do anything for him at all.  There were other pills he had tried but he had not mentioned.  He felt he was getting nowhere and the only solution he thought maybe was a back operation.  He did not enjoy going to doctors and the whole issue confused his children.  Once he got the job at Quest and later at Visy, he thought he could just keep fighting the pain and get on with his life and have a good future.

Return To Work

31      The plaintiff deposed he attended the Commonwealth Rehabilitation Service (“CRS”) in an effort to obtain employment, however, he was unsuccessful and remained unemployed until 2006 when he got a job with Visy as a truck driver. 

32      In his second affidavit, the plaintiff deposed that in late 2005/early 2006 he got a job driving an environmental vacuum truck for Quest.

33      A friend of the plaintiff’s who worked for Quest got the plaintiff the job.  The plaintiff worked there for several months.  He deposed he had trouble coping with the work and in particular he had trouble coping with the hours that were expected so he left that job. 

34      In cross examination, the plaintiff described his duties at Quest.  There was a spillage at Onesteel where the plaintiff worked for over a month or so.  He worked as a truck driver and he also operated hose equipment.  He had to monitor a hose which sucked up the spillage.  The hose was already positioned and he did not have to move it.  The pump was already running. 

35      When the tank was full, the plaintiff had to switch off the pump.  He literally had to “hang around” to wait until the tank was full.  Whilst doing so, he lay in the sleeper of his cabin on night shift watching television. 

36      Until an inspector from Quest (“the inspector”) visited the workplace, the workers at Quest were not required to supervise anything.  The plaintiff worked twelve hour shifts and never worked two such shifts in a row.  The difficult part of the job was the waiting around because the plaintiff wanted to lie down.  He was able to do so until the time the inspector visited.  At that time the plaintiff and fellow workers got into trouble because they were not watching the hoses. 

37      After that visit, the workers had to keep checking on the spillage every half hour or so.  The plaintiff was required to get out of his truck and make sure no  hoses were leaking.

38      The plaintiff agreed that this work was “dead easy” but he was very fatigued and he was worried too, because when he was at work he had to watch the equipment and he kept falling asleep.  His level of activity at work was greater than what he was doing at home at that time.

39      The plaintiff agreed it was not a physical job but he was on medication and the job worried him a bit.  He was taking Panadeine Forte which he got from his sister and he also got Mersyndol from the chemist.  Both drugs gave him similar levels of relief.

40      The plaintiff was not sure whether he lasted a month or two at Quest.  He did not see a doctor whilst working there.  He could not remember how many Panadeine Forte tablets he took during that time, but he took them when he ran out of Mersyndol.  The amount of tablets he got from his sister varied.  He could not remember.  He could not say, but it might have been three to four weeks, sometimes, when he went without Panadeine Forte. 

41      The plaintiff gave the job away because he was fatigued a lot, even before the inspector visited.  The plaintiff thought he might have missed a couple of days work at Quest, but he could not remember.

42      The job at Quest was more difficult than being at home because the plaintiff was on call and would be phoned at two in the morning.  He could not get to sleep properly and would then have to get up and go to work.  He might not have slept because of the pain and he may have also taken painkillers.  He then had to take more tablets and it was difficult to try and drive a tuck when he was in that condition. 

43      The plaintiff thought he worked maybe five days a week at Quest.  He could not remember.  Save for the Onesteel job, there were small jobs, such as at Eastlink, but there was not ongoing work and the plaintiff did not attend on regular hours. 

44      The plaintiff deposed that some time thereafter he was referred to the CRS and through that referral, he was hired by Chandler Recruitment and paid by them to drive a truck for Visy where he worked for about two years. 

45      The plaintiff deposed he was unable to cope with the continual back pain and in the second year at Visy, he needed increasing amounts of time off work to recover and could not work beyond October 2008.

46      In examination in chief, the plaintiff explained he left Visy because he was sacked – just put off.  He had had too much time off and he was struggling to keep up with the work because of his lower back pain.

47      In cross examination, the plaintiff agreed that the job at Visy was the highest paid work he had ever had.  There was very little physically difficult work but he disagreed that working there was no different to being at home. 

48      The plaintiff started work at Visy at 9.00 and his finishing time varied.  His shift could be as short as an hour but he usually worked twelve hour shifts.  He mostly worked Monday to Friday and very rarely, he also worked on Saturday.  He was expected to turn up for work every day.  He never had breaks at work and he ate his lunch whilst sitting in his truck waiting on the line at the depot.    

49      The plaintiff always drove the same truck and he was not required to connect it to any machinery.  He drove the empty truck to a container depot where he filled up the containers with recyclable cardboard using a fork lift.  The plaintiff had to secure the bins using a handle.  He then drove back to Footscray Road.  That trip varied from forty minutes to about two or three hours.

50      The plaintiff never took a week off work in the time he worked at Visy.  A couple of times he told the boss he wanted to knock off.  He took a day or two off when there was no work.  He then agreed it was not a question of him taking time off – work just was not available.  The plaintiff told his employer he was too sick or if he felt really bad, but that did not occur very often.

51      The plaintiff could not recall how much time off work he had in the second year of his employment.  He probably had weeks off.  After he took some time off, James from Chandler phoned him and said that they did not want him anymore and he was not offered further work.

52      The plaintiff agreed the job at Visy ended when he just did not turn up for work.  He did not ask for time off.  He might have rung Chandler just to say he was still unwell but he could not remember. 

53      The plaintiff agreed that he did not take a lot of time off in the last month with Visy but he was struggling at the end.  He was taking maybe a day or two days off a week.  He could not remember exactly how much time he took off. 

54      When cross examined in relation to the print out of his hours worked, the plaintiff said the time he took off was the time when he got the sack.  He agreed that by staying away from work he was at risk of losing his job.  The plaintiff agreed that if he got a doctor’s certificate, he would have a chance of keeping his job, but he did not go to a doctor, although he knew Corio Medical Centre was sympathetic. 

55      The plaintiff told a supervisor, whose name he could not recall, that he was coming late to work sometimes because of family problems.  However, the plaintiff did not have family problems, he really had back problems.  He could have been late a couple of times in the last month, but he could not remember how late and how often.  It was too far back, he could not remember at all.

56      The plaintiff denied that he took no steps to keep his job, he was fighting to keep it.  The only reason he left Visy was because he nearly left rolled the truck on the Ring Road two months before he in fact left work.  He told a friend about this incident but did not report it to his doctor or his employer.  The plaintiff then went on to say that this incident was one of the reasons he left.  He could not remember exactly.  That incident gave him a fright and it worried him he could kill someone.   The plaintiff denied he had made up this incident.

57      In re examination, the plaintiff confirmed this incident did occur.  He dozed off on the Ring Road and he woke up in a panic back on the road.  He could remember the back trailer wheels coming off the ground and he also nearly jack knifed the truck. 

58      In cross examination, the plaintiff described the stress he felt driving forty ton of weight through traffic.  It was the stress, fatigue and pain in his back that gave him a problem at Visy. 

59      The plaintiff agreed taking Mersyndol and driving concerned him but it was not as much of a problem with morphine as it worked in a different way.  The Mersyndol made him drowsy.  He agreed it did worry him taking morphine and driving.

60      The plaintiff still pushed on but he was worried that he would fall asleep whilst driving because of the Mersyndol.  He had probably taken four on the day the truck nearly rolled.  The plaintiff then said this incident was one of the reasons why he stopped work.  He was also fatigued, he was in pain all the time and he just pushed himself to the limit where it just got too much.

61      The plaintiff just kept forcing himself to work.  He felt like his life was going down hill and he did not want his children to see that.  He just tried to stick at it as much as he could working and he took tablets every day to force himself to work.  He did not go to the doctor because he just thought there was nothing else that could be done. 

62      In addition to Panadeine Forte and Mersyndol, the plaintiff also took morphine, which he got on the side from a friend.  He did not pay for it and it was in tablet form.  He used it when he was having a really, really bad day, probably once every month or so. 

63      The plaintiff agreed that the real reason he was dismissed was because he just did not turn up and he was also turning up late for work.

64      The plaintiff did not tell Quest or Visy about his back problem, because he thought he would not get a job

65      The plaintiff was cross-examined about a history given to Kay Angel at Flexi Personnel in December last year.  He told her he required regular days off for increased pain while working at Visy, but he could not remember how many. 

66      Ms Angel noted a conversation between the plaintiff and his supervisor about three months after he started work.  The supervisor asked the plaintiff what was wrong with him and the plaintiff said that he had a back injury, but told him it was not work related and was to do with a car accident.  The supervisor advised the plaintiff he would have to report this issue but the plaintiff begged him not to. 

67      In cross examination, the plaintiff denied the real reason he stopped work at Visy was because the supervisor found out he had a bad back.  The supervisor did not report him.  The plaintiff did not tell Ms Angel that there was a connection between losing his job and the supervisor finding out about his back injury because the plaintiff did not get put off work for that reason.

68      In re examination, the plaintiff described how driving home from work at Visy, he had to pull up sometimes and stand up because he felt like there was a knife going through the bottom of his back.  Whilst working at Visy, he would occasionally lie down in the sleeper at a roadhouse at McDonald’s.  The plaintiff was hassled by his employer when he was late on those occasions.

69      The plaintiff felt good about working at Visy and the work made him feel better.  He was just fighting the pain day to day.  He hoped he would have a career and buy a house.  Whilst working, the plaintiff sometimes took four to six painkillers a day.  He could not remember any days during that time he did not take painkillers. 

70      Visy did not like staff taking time off at all.  Staff could not be even just a bit late because the container would be held up and there would not be a replacement driver. 

71      Whilst the plaintiff was working at Visy, his girlfriend gave birth to their daughter.  He was stressed out but still went to work and did not see the birth.

72      The plaintiff confirmed he was in pain while working at Visy and he also had problems with sleep and fatigue.  His pain affected his sleep a lot and he might have woken up about five times a night, because he just could not get comfortable and the pain was always there.  It would then take him an hour to get back to sleep, but that varied from time to time.  His sleep pattern affected his fatigue a lot.  The pain during the day also affected his fatigue because he could not sleep properly at night and that just ran him down.

73      The plaintiff pushed himself at Visy because he wanted to get somewhere in life.  At the end of his time working there, the plaintiff felt very ordinary and he had bad pain. 

Domestic Activities Since the Accident

74      Whilst the plaintiff worked at Quest, he was living at home with his father who was working full time as a bus driver.  The plaintiff was pushing himself to do things around the house.  He did do the dishes but every day was different and some days he could not even get out of bed.

75      The plaintiff was sure he had painted his father’s house, maybe two or three times before the accident.  The plaintiff did some mowing once maybe twice after the accident but was unable to complete the job so his father did so.  The plaintiff could pull the doona up to make his bed.  Probably a couple of times he hung out the washing, but he could not remember.  His father always did the shopping.

76      The plaintiff denied that before the accident he had problems being in a crowd.  Since the accident, most of the time he had had a problem going into supermarkets.  He did not like going there but he still occasionally did so.  He could go shopping for bread and milk. 

77      The plaintiff very rarely went out with his mates and just visited them at home.  His father did most of the cooking unless the plaintiff cooked something like a Lean Cuisine.  His father had always been the cook while he lived in his house.  Occasionally the plaintiff might have done some cooking but he could not recall doing so.

78      The plaintiff’s father has done most of the housework since the accident.  Before the accident, the plaintiff was doing a lot of things around the house, but not most things.  He could not remember whether he did more than his father or not.  The plaintiff vacuumed, mopped the floor, cleaned the toilet and hung out some washing. 

79      Since the accident, the plaintiff has mopped the kitchen floor once and he has not done any vacuuming.  He agreed he was still doing some things around the house but not as much as he did before the accident. 

80      Before the accident, the plaintiff was doing hedging on the lawns, mowing lawns, “just everything from day to day,” looking after the house and cleaning the windows.  He did these activities because he respected his father and also it was a way of keeping himself busy.

81      The plaintiff deposed in August 2010 that he had lived with his father from the age of fourteen until seven months ago when his father asked him to move out.  They had been arguing a lot because the plaintiff was unable to work, he was always in pain and could not contribute to the household.  The plaintiff then obtained temporary accommodation.

82      The plaintiff could no longer lift anything heavy.  He tidied up at home but had difficulty hanging out the clothes.  He had problems standing in one spot to prepare meals.  He was unable to vacuum, mop, sweep or clean the bathroom.

83      The plaintiff’s son, Jamie, or a friend helped with those tasks and at that stage the pain management clinic was arranging for home help.  The plaintiff had difficulty putting on his jeans.  He could not bend to put on his shoes and he was restricted to wearing thongs.  On bad days, he used a plastic chair in the shower.

84      The plaintiff deposed in August 2010 that he suffered from the following main symptoms and disabilities: back pain aggravated by prolonged sitting or standing; neck pain; headaches; he could no longer engage in heavy lifting or weight lifting; he could no longer run or jog and he had difficulty engaging in physical play with his children kicking a football.

85      In cross examination, the plaintiff said he had told doctors that he suffered from migraines.  He thought he might have told Dr Soo, but he could not remember.  The plaintiff knew the difference between a migraine and a headache.    

86      The plaintiff described how sometimes he gets headaches when he gets pain in his neck and he vomits.  He thought he once told Dr Soo about vomiting associated with his headaches.  He definitely had migraines before the accident, but they were worse since.  He had not gone to a doctor about migraines because when he took painkillers for his back, they seemed to get rid of his headaches.

87      The plaintiff had problems with irritability.  He had become socially isolated.  He was nervous in a car as a passenger and a driver.  He could only walk for a short period.  He had reduced memory and concentration.  He had difficulty engaging in sex because of pain.  He had nightmares, depression and anxiety.

88      The plaintiff had become depressed and his physical limitations got him down.  He was very nervous in cars and startled easily with loud noises, which tended to lead to flash backs.  He was extremely vigilant when stationary in a car and always on the lookout for cars approaching from behind.  Seeing or hearing about accidents also upset him.

89      The plaintiff took antidepressant medication for a short time but could not cope with the side effects and ceased taking it.

90      After the accident, the plaintiff’s ability to have sexual relations decreased and he subsequently became irritable with his partner because of his injuries.  The relationship subsequently ended although they had a brief reconciliation during which time another daughter was conceived.

91      In cross examination, the plaintiff agreed that he had less sex since the accident.  His capacity was diminished and he had obtained Viagra which had assisted in different ways. 

92      The plaintiff was upset about the breakdown of his relationship and he had lost friends and had become more socially isolated.  He had been seeing a girl, but the relationship did not work out.  He felt he could not have a relationship because he could not perform sexually and he was embarrassed about that.  The plaintiff’s sleep was disturbed by pain and the accident came to mind very frequently.  He still had nightmares and tried to avoid the accident scene.  His concentration and memory had suffered and he just been prescribed Cymbalta for pain and depression, as well as Mirtazapime.

Current Situation

93      The plaintiff swore a further affidavit in February 2012, confirming he basically continued to suffer symptoms, disabilities and affect of his low back injury, as previously deposed.

94      The plaintiff continues to have constant back pan, the level of which fluctuates.  At times he has severe pain and he also gets a pain and numbness down the front of his legs. 

95      In cross examination, the plaintiff agreed the pain in his back is right down towards the bottom of his spine and in earlier days, the pain was higher up.  The back pain has been there all  the time but it has got a lot worse.  He disagreed it was many months after the accident that he felt pain in the lower back but he could not remember when it came on.

96      In re examination, the plaintiff described how his pain causes anxiety and stress.  At night, he worries how is he going to wake up and how many times he will wake up.    

97      The plaintiff continues to regularly attend Dr Soo as often as needed to get painkillers.  He continues to be prescribed Valium and Panadeine Forte, which he takes on a regular basis.  At times he also takes over the counter Mersyndol as a painkiller.  He ceased antidepressants as they did not seem to agree with him.

98      The plaintiff is presently in receipt of a disability pension.  He has been  unable to return to work due to his injuries, as he has no training, qualifications or experience working in light sedentary or clerical employment.  He is not able to do the sort of work he had done most of his working life due to his injury. 

99      The plaintiff has not felt capable of doing any physical work since the accident.  Further, he does not have good literacy skills.  His reading is okay but his writing and spelling are poor.  He has a computer at home but that is more for his son Jamie’s benefit as the plaintiff has very limited computer skills and he does not think he could do a job that required any real computer skills.

100     The plaintiff would like to be at work and it is very frustrating for him being stuck at home.  He has lost a lot of contact with friends and family and feels like he is isolated.  However, when he is in pain the plaintiff simply does not feel like going out. 

101     In cross examination, the plaintiff said that he just does not know if he would be capable of looking for work at the moment, because each day is different.  Some days he cannot get out of bed.  He is getting certificates to say he cannot do any work at all.  He cannot look for a job because he is unfit to work.  He is on a lot of medication and he also gets bad anxiety and panic attacks.

102     The plaintiff has moved back to live with his father who is aged sixty six.  Jamie, aged eleven, lives with them.  The plaintiff’s daughters, aged four and seventeen respectively, live with their mother in Corio and the plaintiff sees them regularly. 

103     There are some things as a parent that the plaintiff has no choice but to do such as taking Jamie to school.  At times, the plaintiff has also done things with his children such as going to the beach or taking them fishing.  On those occasions, he usually “loads up” with painkillers and usually pays for it afterwards with an increase in pain.  The plaintiff is determined to do as much as he can with his children but he is nowhere near as active or involved with them as he would like.

104     The plaintiff described his daily routine in cross examination.  During the day, he takes Jamie to and from school if Jamie’s mother does not pick him up.  He can make himself a cup of coffee.  More often than not, he does not wash up his own dishes. 

105     The plaintiff watches TV lying on the couch.  He spends a lot of time lying down, most of the time in pain.  When he has good days, he tries to do something.  If he can force himself, he goes outside and maybe waters the lawn or the plants.  He has tried weeding but paid for it later.  He has taken Jamie fishing and bowling once.  He has also taken Jamie clothes shopping on one occasion.

106     Not a day goes by when the plaintiff does not have back pain.  Before the accident, he was completely pain free.  He lifted weights, did bench presses and had no problem.  He could do normal things that anyone who was fit could do.

107     The plaintiff was cross examined about his activities with Jamie.  He takes him to school which is a three or four minute drive.  Sometimes if the plaintiff feels really bad, Jamie stays at his mother’s place.  The plaintiff might take Jamie to a skate park or go with him when he rides his scooter.  The plaintiff takes Jamie to the beach at Torquay and plays with his model cars with him.

108     The plaintiff has tried kicking a football with Jamie, using his right foot, but when doing so the plaintiff felt as if someone had jabbed a knife through the  bottom of his back.

109     The plaintiff has not had a trail bike since he was a young man.  The plaintiff and a friend bought Jamie a quad bike about eighteen months ago.  Jamie has not ridden it for a long time because the battery and the tyres are flat.

110     Jamie puts the bike on the trailer himself.  He is an excellent rider.  The plaintiff has plodded along on the bike which has a key start.  If he had ridden the bike, revving on its back wheels, it would have been unintended and would hurt like kicking a football.  The plaintiff would not have the capacity to put the bike on a trailer or lift it by its wheels, standing behind it, as it is not actually a light bike for a small 110 cc.

111     In re examination, the plaintiff said he feels shocking about not being able to kick the football and do things like a normal parent with his son.  The plaintiff is always making excuses why he cannot  do things with Jamie as he is too tired and run down to do things with him.  Jamie wonders what is going on with the plaintiff not working.

112     The plaintiff confirmed that Sarah Winter came over to his house and helped him with various day to day things, such as strapping and massaging his back and helping him with medical appointments.

SUMMARY OF THE PLAINTIFF’S  TAXABLE INCOME
Financial Year Ending	Taxable Income
30 June 2003	$10,836
30 June 2004	$14,522
30 June 2006	$19,052
30 June 2007	$19,786
30 June 2008	$76,164

Lay Evidence

113     Sarah Winter swore an affidavit on 10 November 2011.  She was not cross examined. 

114     Ms Winter has known the plaintiff for twelve years, over which time they have become very good friends.  They lost contact for a small period of time after the accident, however, they have remained very close friends.

115     Ms Winter found the plaintiff to be a completely different person after the accident.  He was no longer active and outgoing like he was before.  Prior thereto he enjoyed socialising with friends and he was very fit.  He was also a champion pool player and often played with her brother.

116     The plaintiff is now very slow and withdrawn and Ms Winter feels he is depressed.  He finds remembering things a problem and gets frustrated because of that situation.

117     The plaintiff now finds small day to day tasks extremely difficult.  She helps him almost on a daily basis with tasks such as picking up his son, grocery shopping and chores around the house.

118     Since the accident, Ms Winter has encouraged the plaintiff to try and walk small distances around the local area, however, his pain has continued to increase to the point where, as of a couple of months ago, he will no longer walk with her as he is in too much pain after only five minutes.

119     Prior to the accident, Ms Winter went bowling with the plaintiff and also accompanied him to the pub for a few drinks.  She cannot recall the last time they did these activities.  The plaintiff recently took Jamie bowling, however the plaintiff was unable to bowl and just sat there and watched his son.  It upsets the plaintiff greatly that he is unable to undertake certain activities with Jamie, including playing with him at the park, because he is in too much pain.

120     The plaintiff is not the same person she could recall.  He is no longer active, social or happy and his injuries have completely changed him as a person.  He is extremely dependent on her to assist him every day.  He struggles to deal with the fact his ability to do day to day activities is coming to a halt and he seems to be getting worse by the minute.

121     Recently she has noticed a disc bulging in the plaintiff’s back – a physical change she could actually see.

122     The plaintiff has tried numerous painkillers and pain relief, none of which have done anything to alleviate the pain.  He also suffers from constipation as a result of that medication.  In addition, he suffers from frequent headaches and migraines, which make him physically ill with nausea and vomiting.

123     Michael Sanders swore an affidavit on 15 February 2012.  He was not cross examined.

124     Mr Sanders was the plaintiff’s supervisor at Visy.  While the plaintiff was working, Mr Sanders regularly noticed the problems the plaintiff was experiencing with his back, getting in and out of the truck and while sitting at a desk.

125     Mr Sanders approached the plaintiff about this, as he initially thought he must have hurt himself on the job, and told the plaintiff it should be reported.  The plaintiff advised he had suffered a back injury in a previous transport accident and asked Mr Sanders not to say anything to the boss as he was fearful of losing his job if his employer found out.

126     Mr Sanders found the plaintiff to be a loyal worker who was keen to work, even at times when it was obvious to Mr Sanders the plaintiff was in pain from his back injury.  He recalled the plaintiff taking time off from Visy because of his back injury and then his employment was terminated.

Medical Evidence

127     The plaintiff’s initial medical certificate was provided by Dr Soo following an examination on 10 January 2003.  In that certificate, Dr Soo set out the plaintiff’s accident injuries of neck, thoracic back and lumbar back pain, with an unfitness to work from 3 December 2002 until 31 March 2003.

128     Dr Soo first reported in June 2003.  He noted the plaintiff presented on 9 December, a week after the accident, after he had earlier attended hospital.  On that date, the plaintiff was still complaining of pain and tenderness in the left side of his neck and thoracic back. 

129     Dr Soo reported that over the course of the next month, the plaintiff’s neck improved well and he had little trouble from it.  His back had continued to give him persistent pain.  X-rays were normal.

130     In mid January 2003, the plaintiff began to complain of lower back pain with radiation into the right leg.  The February 2003 CT scan showed a minor disc bulge at L5-S1, which Dr Soo did not think was a significant cause of the plaintiff’s pain.

131     Dr Soo then diagnosed soft tissue injuries to the neck and back and noted the plaintiff had been using analgesics and anti-inflammatory medication and he had been referred to a physiotherapist.

132     At that stage, Dr Soo thought the prognosis remained good and that the injuries could take months to settle.  He noted the plaintiff then had a limited capacity to work and he had low employment prospects.  Dr Soo expected this to be the case into the near future and noted the plaintiff would need a good course of physiotherapy.  He considered the plaintiff’s long term future still remained good, as he expected his back pain would eventually settle.

133     On 23 October 2003, Dr Soo reported to the plaintiff’s solicitors that the plaintiff had not improved much at all since the last report.  He was seeing a psychologist to help with PTSD and continuing with hydrotherapy and antidepressants. 

134     On 8 September 2004, Dr Soo requested the defendant fund an exercise program. 

135     Dr Soo referred the plaintiff to a chiropractor on 1 March 2004 for treatment of persistent back pain since the car accident.  Dr Soo noted there was a past history of L5 disc prolapse on 29 May 2003 and PTSD on 8 August that year.  Medication at that time was Panadeine Forte and Valium.

136     Dr Soo further reported in December 2010, setting out the plaintiff’s early treatment history.  Dr Soo noted that in August 2003, the plaintiff developed symptoms consistent with PTSD and depression and he was referred for counselling and commenced on antidepressants.  The plaintiff still suffered debility from that condition. 

137     Dr Soo reported the plaintiff showed little improvement by October 2008.  The CT scan then showed the same L5-S1 prolapse but also left S1 nerve impingement.  The plaintiff was finally able to see Mr Jithoo, neurosurgeon, in 2009. 

138     On review in February the following year, Mr Jithoo told the plaintiff he had a degenerate L5-S1 disc only and there were no other problems.  Surgical intervention was not anticipated and it was recommended the plaintiff attend a pain management clinic.

139     The plaintiff attended the Geelong Hospital pain management clinic (“the pain clinic”) in April and July 2010.  Some of his medications were modified and he was to commence a general rehabilitation program and recommended to have injections into the sacroiliac joints as well as psychological support for his depression and anxiety.

140     Dr Soo diagnosed chronic back syndrome, L5-S1 disc degeneration, deconditioning, PTSD, depression and anxiety consistent with the accident.

141     Dr Soo then thought the plaintiff had no capacity for work and his future capacity was extremely difficult to estimate.  He considered if there was no further treatment, the plaintiff would have no further capacity for work. 

142     Dr Soo thought the prognosis was guarded and pessimistic.  He considered future medical treatment should include further intense rehabilitation, counselling, and might include surgery in the distant future.  He thought the plaintiff needed a TAC funded intensive rehabilitation program, targeting his pain syndrome and attitude, social and family issues, depression and anxiety and general physical deconditioning.  He noted trying to achieve all that through the public medical system had resulted in eight years of waiting.

143     As at 11 November 2010, Dr Soo thought the plaintiff could work three hours a day with a lifting capacity of less than five kilograms on an intermittent basis, avoiding prolonged sitting and standing, bending and walking long distances.

144     On 1 September 2011, Dr Soo advised that the plaintiff suffered from chronic back pain due to disc prolapse.  Dr Soo requested funding for a new mattress and pillow. 

145     In his most recent report of November 2011, Dr Soo commented that the plaintiff tended to attend infrequently and he did not know the plaintiff’s  current status with his counsellor and the pain clinic.

146     Dr Soo’s notes set out that he did not see the plaintiff from 13 May 2005 until 21 October 2008 when Dr Soo reported that the plaintiff complained of “mva, has pains all the time, truck driver cannot work.” 

147     For the purposes of the Department of Social Security (“DSS”), the plaintiff was examined on 27 June 2003 by Dr Pastor. 

148     On the first examination for DSS, there was a loss of a quarter of the lumbar spinal range of movement, with referred pain and limited straight leg raising on the right.  The plaintiff reported difficulty with movements involving bending, twisting and lifting.

149     Dr Pastor then regarded the plaintiff as temporarily unfit for work.  In his view, with interventions, the plaintiff may be able to reach a level of function necessary to enter the workplace within two years on a full time light duty basis.  He considered work involving manual labour was likely to exacerbate the plaintiff’s symptoms and should be avoided.

150     There was a further DSS assessment by Dr Ching  on 10 June 2005.

151     Dr Ching noted that on examination the plaintiff was able to show a near normal range of back movement.  There was no objective evidence of any significant physical or functional impairment that would prevent full time work participation. 

152     Dr Ching considered, on the presented information, the plaintiff should avoid work duties requiring heavy lifting or repetitive physical labour.  Otherwise, in his view, the plaintiff was fit for full time light work including attendant and caretaker duties and office clerical work with vocational rehabilitation.  He noted that barriers and interventions had been considered.

153     Mr Jithoo, neurosurgeon wrote to Dr Soo in November 2009, having seen the plaintiff that day.

154     Mr Jithoo noted the plaintiff was involved in the accident and complained of back pain approximately eight to ten in severity and characterised as severe aching and cramping sensation alternating with a heavy shooting feeling in the left leg.  He had a lot of aching in the lower back with pins and needles and numbness in both calves.  The plaintiff characterised his pain as very severe and found it difficult to care for himself.  He told Mr Jithoo he was in bed most of the time and he could not stand for more than ten minutes at a time without pain. 

155     Mr Jithoo advised examination revealed an antalgic gait with a poor range of lumbar flexion and extension.  The straight leg raising test was positive on the left ten per cent.  Both knee jerks were brisk with both ankle jerks depressed but present and plantar reflexes down going.  Power was diminished in the left foot to plantar flexion Grade 4+ to 5.  The rest of the examination was normal.

156     Mr Jithoo advised review of the plaintiff’s CT scan revealed a suspicious bilateral disc bulge at the L5-S1 level.  Therefore he had arranged for an MRI scan to further delineate that and he would review the plaintiff thereafter.

157     Mr Jithoo wrote to Dr Soo on 22 February 2010.  He advised he had reviewed the plaintiff that day at which time the plaintiff complained of numbness in both thighs with back pain.  The plaintiff told Mr Jithoo his back pain was intermittent and his activities of daily living were impaired.

158     Mr Jithoo advised that the plaintiff had no neurological deficits and his MRI scan showed a degenerate L5-S1 disc.  He noted comment was made of conjoined nerve root on the right hand side.

159     Mr Jithoo recommended that the plaintiff attend the Geelong Pain Clinic.  He advised he intended to review the plaintiff in six months’ time and did not anticipate any surgical intervention.

160     Mr Jithoo reported in March 2010 that he had seen the plaintiff on two occasions.  He diagnosed discogenic back disease – L5/S1 disc degeneration.  He commented it was difficult to state whether the injuries were consistent with the cause of the accident, as he did not have access to relevant reports and radiology from the time thereof.  Further, Mr Jithoo noted degeneration of the L5‑S1 disc was commonly seen in the general population and he was only able to state that the accident may have aggravated a pre existing degeneration of the spine.

161     Mr Jithoo thought the plaintiff did not have a present or future capacity for work.  In his view, the plaintiff required assessment by a pain specialist and attendance in a pain management program.  He considered the plaintiff’s prognosis was guarded as his symptoms had continued since 2002 without improvement.  He also thought a neurological assessment may be of assistance.

162     Mr Jithoo noted the plaintiff had suffered back related symptoms since 2002.  He did not have any surgically amenable lesions as demonstrated on MRI scan.  He considered the plaintiff would require intensive pain management and spinal rehabilitation.  He thought the prognosis was guarded, given the chronic nature of the plaintiff’s complaints. 

163     In Mr Jithoo’s opinion, the plaintiff did not have a present capacity for work and indeed his capacity for future work would be extremely limited and would depend on his response to the pain management program.

Medico Legal

164     Mr John O’Brien, orthopaedic surgeon, examined the plaintiff on 11 September 2003. 

165     On examination, there was some limited movement of the thoracolumbar spine and some tenderness described.  Straight leg raising was seventy degrees bilaterally with pain described on active straight leg raising.  There was no evidence of any abnormal neurology in the lower limbs. 

166     Mr O’Brien noted there certainly seemed some painful restriction of lumbar spine movement, although there were certainly no signs to suggest nerve root irritation or compression.  Mr O’Brien suggested that was predominantly a sign of soft tissue trauma, frequently induced by the described mechanism of injury.  He suggested the plaintiff’s current pathology was consistent with the described mechanism of injury. 

167     Mr O’Brien then thought the clinical condition would appear unstable.  He remained moderately optimistic in terms of prognosis, noting that although symptoms from soft tissue trauma in the spine could be persistent, they generally recovered, albeit slowly. 

168     Mr O’Brien suggested the plaintiff required ongoing conservative treatment.  He thought the plaintiff’s persistent symptoms were currently mildly disabling, sufficient to preclude him from returning to normal heavy work.  He considered  the plaintiff was unemployable, but with reasonable conservative treatment and time, he anticipated further resolution of his symptoms.

169     Dr Edward Cole, psychiatrist, examined the plaintiff in July 2003.

170     In Dr Cole’s opinion, the plaintiff had reacted to the accident and his injuries by developing an anxiety state of mild degree, with recurrent thoughts and dreams of the accident, consistent with him suffering from a Post Traumatic Stress Disorder (“PTSD”). 

171     Dr Cole thought there was no indication for psychiatric treatment and expected there to be further gradual improvement in the plaintiff’s condition, although he doubted if he would ever forget the accident or feel completely at ease in a car. 

172     In Dr Cole’s view there was no suggestion of symptom exaggeration of either a conscious or unconscious level.  He thought the plaintiff’s employment prospects would hinge upon the prognosis of his underlying physical injury.  Dr Cole noted, unfortunately, the plaintiff was not equipped to do other than manual work and he suspected that would be some time before he succeeded in rejoining the workforce.

173     Mr Goldwasser, orthopaedic surgeon, examined the plaintiff in May 2009.

174     At that time, the plaintiff’s main complaint was central low back pain, which he found was quite disabling and he suffered also from stress and anxiety.

175     In terms of work history, the plaintiff told Mr Goldwasser of the truck driving job with Visy in which over the last year, he was taking increasing time off work and he last worked about eight months before the interview.

176     The Visy job was not heavy and there was no lifting.  The plaintiff told Mr Goldwasser he had worked satisfactorily for about a year and then started taking time off, initially one day a month and eventually two days a week at the time he stopped work.

177     At the time of the examination, the plaintiff’s most troublesome complaint was central lower back pain, made worse by prolonged sitting or standing and with activities such as lifting.  Intermittently, the plaintiff had sensations of numbness on the lateral aspect of his thighs, lasting up to an hour.  He said he felt depressed and anxious and he socialised less.

178     On examination, the plaintiff’s lower back revealed considerable stiffness with barely five degrees of flexion or extension.  Straight leg raising was sixty degrees on both sides.  When walking on his toes there was more hesitation with his left foot 

179     Mr Goldwasser noted the 2003 x-ray and CT scan and the 2008 CT scan of the lumbar spine. 

180     Mr Goldwasser was then not sure the plaintiff’s condition was substantially stabilised.  He thought it possible the plaintiff had some pre existing degenerative changes in the lumbar spine aggravated by the accident and he suggested an MRI scan was appropriate.  The plaintiff told Mr Goldwasser he had an appointment to see a specialist at The Royal Melbourne Hospital but did not know this would occur.

181     In Mr Goldwasser’s view, most likely the plaintiff suffered soft tissue strains to his neck and back, the former having improved, the latter becoming more troublesome.  He considered it possible the plaintiff had aggravated some pre-existing pathology in the lower back and he thought an MRI scan was appropriate. 

182     Mr Goldwasser then thought the plaintiff was not able to work.  He considered, in future, the plaintiff may be able to do lighter type duties that did not place heavy stress on his back and would allow him to alter his posture form time to time.  Mr Goldwasser noted a position like that may be difficult in the competitive job market.  The plaintiff also indicated he had trouble with stress and anxiety and had seen a psychologist for PTSD, which Mr Goldwasser noted may be significant in affecting the plaintiff’s recovery.

183     Mr Goldwasser thought further treatment should include an MRI scan and otherwise treatment would be along the lines for managing a chronic pain syndrome and PTSD. 

184     Mr Goldwasser noted that the reason for the plaintiff feeling worse since stopping work was not clear.

185     Mr Goldwasser thought the plaintiff’s injury had significantly affected his social, domestic and recreational activities, noting he no longer went out with friends or went running or jogging and tended to keep more to himself.

186     On re examination by Mr Goldwasser in October 2011, the plaintiff confirmed the accuracy of the previous history and said he had worked for seventeen or eighteen months with Visy and before that he had worked for Quest, also driving.  He did that job for a month because he found it was too stressful being on call.

187     The plaintiff’s major complaint on re examination was lower back pain, present all day and night.  He told Mr Goldwasser he could not stand or sit in one position for more than ten or fifteen minutes.

188     On examination, the plaintiff’s back revealed no deformity but there was some muscle guarding and tenderness in the middle of the lower back.  The plaintiff noted the whole right side of his body was less sensitive than the left, the more troublesome side.  He complained of pain in the middle of the lumbar area, which at times could extend to the thoracic area and lower to coccygeal area.  On specific testing, there was no numbness corresponding to a dermatome distribution.  The plaintiff indicated his back felt worse, while his neck had improved.

189     In terms of diagnosis, Mr Goldwasser thought there were degenerative changes at L5-S1 that were probably aggravated in the accident. 

190     Mr Goldwasser considered, taking into account the plaintiff’s education and work experience, it was highly unlikely he would find suitable work in a competitive job market.  In addition to his back complaint, Mr Goldwasser noted the plaintiff also appeared to be troubled by stress and anxiety which may be an added significant factor. 

191     Mr Goldwasser thought, although unlikely, if the plaintiff could find suitable work even on a part time basis, that was likely to give him a chance to obtain and boost his confidence and generally make him feel better in himself. 

192     As there had not been a major change in the plaintiff’s condition, Mr Goldwasser thought it mostly would remain much the same in the foreseeable future.  He noted that the plaintiff indicated he tended to feel depressed, which Mr Goldwasser thought was common for people out of the workforce for a long period of time and who had chronic pain.  He thought a psychiatric opinion may be of assistance.

193     Dr Nigel Strauss, psychiatrist, examined the plaintiff initially in August 2009 and more recently in October 2011.

194     At the time of the second examination, Dr Strauss considered the plaintiff’s situation had deteriorated.  He noted the plaintiff had become quite preoccupied with his pain and was very inactive and he lacked motivation and confidence.  As Dr Strauss had previously stated, the accident was the only cause of the plaintiff’s psychiatric problems, some of which were due to the accident itself, which was frightening, and most of which was secondary to the plaintiff’s physical restrictions and problems.

195     Dr Strauss reported the plaintiff appeared to be in a good deal of pain.  He suspected that the plaintiff’s emotional state was making him even more sensitive to perceiving pain.  Dr Strauss noted, however, there was nothing at interview to suggest that the plaintiff was deliberately over exaggerating his problems and he struck Dr Strauss as being a genuine man who had decompensated quite markedly from a psychiatric point of view since the accident. 

196     Dr Strauss thought the plaintiff was demoralised and quite inactive.  He noted the plaintiff was in receipt of a disability services pension and depended on his female friend and father to look after him.  He could only do basic tasks and lived a very inactive and isolated life, prone to a good deal of anxiety and depression.

197     Dr Strauss diagnosed a mild PTSD and a chronic adjustment disorder with mixed anxiety and depressed mood due to the accident.  He thought the plaintiff’s prognosis must be guarded.  He noted the plaintiff had done a pain management program but nevertheless he did need to be assisted and he suggested another ten visits to a psychologist.  Further, Dr Strauss suggested a few visits to a psychiatrist, so that the plaintiff could again attempt to take antidepressants and some form of activation program so he could participate more in his daily activities.

Investigations

198     Dr Soo organised a thoracolumbar spine x-ray on 8 January 2003. 

199     It was reported there was a very gentle scoliosis in the thoracic spine convex to the right.  Otherwise alignment was normal.  The disc spaces were of normal width and the pedicles were intact.  There was no sign of bone destruction.  In the lumbar spine, no abnormality was identified.  The disc spaces were of normal width and the pedicles were intact and the sacroiliac joints were normal.  There was no sign of a vertebral body fracture.

200     Dr Soo organised a CT scan of the plaintiff’s lumbosacral spine in February 2003.  It was reported no abnormality of significance was shown.

201     On 30 October 2008, Dr Soo organised a CT scan of the plaintiff’s lumbar spine.

202     It was reported there was possible fairly lateral disc protrusion on the left at L5-S1 compromising the existing left L5 nerve root and possibly also the descending S1 nerve root.  There was also bulging of the L5-S1 disc, which appeared to impinge on both descending S1 nerve roots.  There was possible mild old Scheuermann’s disease at the thoracolumbar junction. 

Vocational Evidence

203     Ms Kay Angel from Flexi Personnel carried out an employment assessment, having interviewed the plaintiff, and reported in December 2011.  Parts of her report were put to the plaintiff in cross examination.

The Defendant’s Medical Evidence

204     Mr Robert Dickens, orthopaedic surgeon, examined the plaintiff on 10 October 2011.

205     The plaintiff’s complaints then were of low back pain radiating to his left leg.  That was associated with fatigue and anxiety.  The plaintiff described the severity of his low back pain on a visual analogue scale as nine out of ten, averaging seven to eight out of ten, and never free of pain.  He noted “pins and needles” in the front of his thigh, more on the right, and in his feet, again more on the right.  His treatment was then Panadeine Forte, Mersyndol and Valium and he had stopped physiotherapy because it was not helping.

206     On examination, the plaintiff walked in a very cautious manner and said he could not walk on his heels and toes.  However, when supported by Mr Dickens, the plaintiff seemed to have normal power in both the plantar and dorsiflexors of the ankle.

207     On examination, flexion and extension range was essentially zero.  Lateral flexion was also grossly restricted, but rotation seemed to be relatively free.  The plaintiff had a flattened lumbar lordosis and any back movement resulted in significant muscle spasm.  He was tender from L3 down to S1 and out to the superior iliac spine, more on the right than the left. 

208     The plaintiff’s lower limbs were essentially normal and neurological findings were rather brisk.  The plaintiff had some sensory alteration which was global involving the whole of the leg.  However, in general, the overall findings did not suggest a radiculopathy.

209     The plaintiff told Mr Dickens that he had got an easy job at Visy undoing containers but, because of increasing pain and fatigue, he stopped work.  He told Mr Dickens he had been advised by doctors that he could never work again.  The plaintiff said he would like to work, but he would have great difficulty because of his fatigue, anxiety and panic state because of his pain.  He described feeling hopeless.

210     Mr Dickens thought it would appear, as a consequence of the accident, the plaintiff suffered minor soft tissue injury to the cervical spine, now resolved, and a soft tissue injury to the lumbosacral spine, which had produced persistent symptoms.  Mr Dickens noted from investigations, there were some degenerative changes but no evidence of radiculopathy.

211     Mr Dickens thought the plaintiff’s injuries were consistent with the accident.  In his view, the conservative treatment provided to date had been appropriate.

212     The plaintiff told Mr Dickens he could only drive short distances in an automatic car and his walking ability was grossly restricted.  His father did most of the housework and the plaintiff did not do much by way of recreational activities.

213     Mr Dickens believed the plaintiff had a back problem which was likely to continue to give him some symptoms, although in the long term he thought it more likely to improve rather than to continually deteriorate.  He did not believe the plaintiff would suffer harm from engaging in some activities. 

214     Mr Dickens did not think that it was the plaintiff’s back problem that was precluding him from undertaking certain activities.  He suspected that there were other components to the plaintiff’s problems, including his panic attacks, anxiety, and his past history, which were impacting on his capacity to return to work.

215     Mr Dickens thought if the plaintiff were to go back to work, it would be appropriate for him to be employed in a job that did not entail prolonged sitting or repeated bending or lifting of heavy objects.

216     Mr Dickens noted the orthopaedic injuries initially had an impact on the plaintiff’s work capacity but in fact he returned to work, although he ceased for a variety of reasons, one being back pain.  In his discussions with Mr Dickens, the plaintiff implied he had significant problems with panic attacks and anxiety.  Mr Dickens believed that these were more likely to be the things precluding the plaintiff from returning to work, rather than his back condition.  The fact that the plaintiff returned to work seven months after the accident would have been Mr Dickens’ expectation of the likely time for the problem to have allowed a return to work. 

217     Mr Dickens provided a supplementary report in 2012, having been provided with Dr Kostos’s report.  Mr Dickens agreed with Dr Kostos that there were significant non organic components to the plaintiff’s problem.  He also agreed that the plaintiff originally appeared to injure his upper spine, rather than lumbar, when seen in Geelong Hospital, at which time the upper spine was the major problem.  As expected, when Mr Dickens saw the plaintiff, these upper spine problems had resolved. 

218     Mr Dickens noted, however, the plaintiff must have had some lumbar spine symptoms because on 8 January 2003, he had a CT scan which was reported as normal.  A further CT scan showed minor bulging, although the radiologist reported no abnormality of significance.  Subsequently, the plaintiff returned to work and coped quite well with a number of jobs, until more recently when he ceased work.  Mr Dickens noted, interspersed with all that was the matter of anxiety and panic attacks.

219     Mr Dickens explained that the major symptoms currently were those of lumbosacral origin only.  The plaintiff’s other symptoms related to anxiety and panic attacks.  He believed the plaintiff’s current symptoms in the lumbosacral spine were unrelated to the accident.  He agreed the plaintiff did have a chronic pain syndrome.  He also agreed that the degenerative changes at L5-S1 were present and could explain the plaintiff’s symptoms.  Mr Dickens did not believe the degenerative changes were necessarily related to any accident trauma.

220     Whilst Mr Dickens thought diagnostic blocks were appropriate in the investigation of chronic low back pain, as he thought the plaintiff’s current low back pain was not accident related, he did not believe the defendant had a liability for such treatment.

221     Finally, Mr Dickens thought it appeared that the plaintiff had a focus on his injury and he alleged that he had been informed by his treating doctors that he would never be able to work again.  With those types of alleged pieces of advice, Mr Dickens suspected the plaintiff would not return to work.  Mr Dickens believed there were also psycho social and psychological factors impacting on the plaintiff’s failure to pursue ongoing employment.

222     Dr Kostos, rheumatologist,  examined the plaintiff on 22 November 2010.

223     The plaintiff advised that overall, he felt his condition was deteriorating.  His main problem was constant pain in the low back which could extend to both sides, however, he did not have any leg pain.  Pain was a problem at night and his sleep patterns were poor.  He was able to drive but he got panic attacks.  He claimed his doctor told him he had a crushed disc and nerves and he would never work again.  However, despite this, the plaintiff was still hoping he would improve.

224     The plaintiff told Dr Kostos of his medication regime and that he was also seeing a psychiatrist.

225     On clinical examination, there was a slight thoracolumbar kyphoscoliosis convex to the left in the thoracic region and to the right in the lumbar region.  All movements while standing were markedly restricted with pain in all directions.  Similar responses were noted to axial compression and simulated rotation.  The plaintiff had diffuse mid line lumbar and sacral tenderness together with bilateral paravertebral and buttock tenderness.  His hips could not be extended due to pain.  Femoral nerve stretch tests could not be performed because the plaintiff would only allow ten degrees of knee flexion and that produced back pain.  Straight leg raising was ten degrees bilaterally.  Neurologically the plaintiff’s reflexes and sensation to light touch in the legs were preserved.

226     Dr Kostos noted the plaintiff did not have any ongoing problems in his neck, but he certainly complained of ongoing lower back pain.  Dr Kostos mentioned the kyphoscoliosis and commented it was interesting to note that copies of the 2008 CT scan suggested previous Scheuermann’s disease at the thoracolumbar junction, which would be in keeping with such a diagnosis. 

227     Unfortunately, Dr Kostos noted there was no other likely diagnosis and it was certainly not possible to suggest the plaintiff had an injury because he had chronic pain with a widespread pain response.  The plaintiff also had discrepancies with inconsistencies on physical examination together with non organic findings as described by Waddell.  Therefore, in Dr Kostos’s view, the only diagnosis that could be made was that of a chronic pain syndrome.  He thought there were also significant psychiatric issues. 

228     Dr Kostos thought the plaintiff’s prognosis was poor.  In his view, it was unfortunate the plaintiff perceived he had a crushed disc and nerves, because these emotive comments had obviously left an impression on him.  Instead, what the plaintiff should have been told was that the scans cannot determine the cause of back pain and therefore they were never likely to be helpful. 

229     Dr Kostos thought the plaintiff should be reassured about the nature of those abnormalities and that they could not be considered to be the cause of his back pain.  In his view, the plaintiff should simply be encouraged to pursue an exercise program.  Dr Kostos noted, however, all of these issues appeared to be secondary to the plaintiff’s psychiatric status because he doubted anything more could be done for the plaintiff until that improved.  He thought the plaintiff’s condition at that time was stable.

230     Dr Newlands, psychiatrist, examined the plaintiff in November 2010. 

231     The plaintiff told her that in the accident, he suffered neck and back injuries, and subsequently developed frequent headaches.  He reported his current symptoms of constant low back pain worsening with some activity and he also reported headaches once or twice a week.

232     In terms of his psychiatric condition, the plaintiff said that prior to his injury, he was a sociable sort of person who had a lot of friends and was very active doing sporting things himself and also with his children.

233     Subsequent to the accident, the plaintiff believed he had lost a lot of friends because he declined invitations.  He socialised less often and believed himself to be very stressed out.  He also reported an altered sleep pattern.  He described having panic attacks in various situations, such as being in lifts or buildings or even in the open, without any specific trigger.  He was not keen on being in a car and felt worse as a passenger.  Over the last four or five months, sometimes his pain was so bad he felt nauseated and might vomit.  He reported being more forgetful and a diminution in concentration.

234     In considering the plaintiff’s description of events, his symptomatology and the information provided to her, Dr Newlands believed he had developed an adjustment disorder with mixed anxiety and depressed mood, with some features of traumatisation relevant to the claimed injury. 

235     Dr Newland thought there was no psychiatric illness unrelated to the accident.  She considered the use of antidepressant medication was appropriate and that attending a pain management clinic would be useful.  She believed the plaintiff’s psychiatric symptoms did interfere with his ability to work.  Presently, she did not believe the plaintiff would be employable, due to his ongoing persistent pain and his fear of being out of home.  She considered the prognosis remained guarded, as the plaintiff reported significant pain and had curtailed his lifestyle considerably accordingly. 

236     Given the length of time he had been away from work and the chronicity of his condition, Dr Newland doubted the plaintiff was likely to regain employment.  In her view, the plaintiff had an obvious illness belief and fear of further damage, which would certainly need to be addressed if any progress was to be made.

Wage Details

237     The Chandler Recruitment Services records set out details of the plaintiff’s hours and wage rates at Visy between 24 March 2007 and 19 October 2008. 

238     In the first year, the plaintiff worked as little as ten hours a week on one occasion, and more often than not, he worked in excess of 50 hours a week, with 38 hours of ordinary time and the balance in overtime.  In March, he worked on average 28.99 hours; April 33.88; May 52.56; June 50.98; July 55.33; August 52.79; September 49.61; October 60.73; November 57.35; and December 54.38. 

239     In I 2008, the plaintiff worked an average of 54.66 hours per week; February 52.76; March 51.41; April 56.12; May 66.62, June 57.16; July 53.58; August 52.51; September 48.68; and October 47.52. 

240     In 2008, there was one week in February in which the plaintiff worked 35 hours.  In May, he worked one week of 72 hours and a week of 70 hours later that month.  Weekly hours worked were then in the range of 50 to 60 hours until 49 hours one week in July 2008, 38 the following week, and then back to around 60 hours per week.  One week in August, the plaintiff worked 24 hours.  The following week, he worked 54 hours and the next week, 26 hours.  In the following weeks, the plaintiff worked about 60 hours per week.

241     In the last three weeks the plaintiff worked before ceasing employment, he worked 59, 41 and 43 hours. 

Overview

242     Prior to the said date, the plaintiff had no problems with his lower back or spine.  I accept that in the accident he suffered an injury to his spine, particularly in the lumbar region. 

243 The plaintiff’s claim for no fault benefits under the Act was accepted.

244     Counsel for the defendant conceded that at the beginning the plaintiff’s back condition had an organic basis that justified limited time off work, (if he had a job) and treatment by Dr Soo.  However, it was submitted that the plaintiff does not now have any back problems related to the accident as he had recovered to the point where he returned to work in 2005 and did not require treatment thereafter until October 2008.

245     Further counsel for the defendant submitted that there was a classically non-organic picture to the plaintiff’s presentation citing his complaints of constant severe pain, his fear that he would end up in a wheel chair and his claimed level of inactivity at home when the true picture was that the plaintiff was not ingesting strong prescription medication.

246     Counsel for the defendant also submitted that any chronic pain syndrome from which the plaintiff presently suffered was mild to moderate and did not meet the definition of severe.

247      However, counsel for the plaintiff did not argue that the plaintiff suffered from a chronic pain syndrome and submitted that the plaintiff ’s ongoing problems were organically based. 

248     I must determine whether, as at the date of hearing, the plaintiff’s back condition has physical consequences, or, put another way, whether it produces an organic impairment, properly characterised as falling under sub paragraph (a) – West v Pac Rim P/L supra at paras 26 and 27.

249     The plaintiff’s treaters consider his condition to be organically based. 

250     Dr Soo who has treated the plaintiff from the time of the accident has not mentioned the presence of any non organic factors in the plaintiff’s presentation.  In recent correspondence dated 1 September 2011, Dr Soo advised the plaintiff suffers from chronic back pain due to disc prolapse.  Dr Soo was not cross examined.

251     Mr Jithoo considered the plaintiff had a genuine physical problem reporting in March 2010 that the prognosis was guarded given the chronic nature of the plaintiff’s complaint.  He diagnosed discogenic back disease – L5/S1 disc degeneration.  Noting such degeneration was commonly seen in the general population, Mr Jithoo commented that he was only able to state that the accident may have aggravated a pre existing degeneration of the spine.

252     Mr Jithoo made no mention in any report or correspondence of any non organic factors in the plaintiff’s presentation.

253     From a medico legal standpoint, there is also support for the proposition that the plaintiff continues to suffer an organically based spinal condition.

254     Mr Goldwasser on initial examination in June 2009 finding very limited movement and considerable stiffness of the lower back, thought it possible that the plaintiff had aggravated some pre existing pathology in the lower back.  He made no mention of any non organic factors in the plaintiff’s presentation on examination.

255     On re examination in October 2001, noting the presence of stress and anxiety, Mr Goldwasser, whilst finding a collapsing type of weakness in the lower limbs and also that the numbness complained of by the plaintiff did not correspond to a dermatome distribution, again made no mention of any non organic factors and confirmed a diagnosis of probable aggravation of degenerative change at L5/S1 with the plaintiff’s injury.

256     Following examination on 11 October 2011, five days after the re examination by Mr Goldwasser, Mr Dickens diagnosed a soft tissue injury to the lumbar spine consistent with the accident.

257     Whilst Mr Dickens found essentially zero extension and flexion, there were also specific findings of very significant muscle spasm and a flattened lumbar lordosis.  As counsel for the plaintiff submitted, given his level of experience as a medico legal examiner, one would expect Mr Dickens would have raised non-organic factors if he thought they were present.  Further, Mr Dickens made no mention of any exaggeration on the plaintiff’s part on examination. 

258     Without having re examined the plaintiff and in the absence of any analysis or explanation, after being provided with Dr Kostos’ report, Mr Dickens changed his original view, stating that the plaintiff’s present back problems were degenerative in nature and not accident related. 

259     I accept the submission by counsel for the plaintiff that there was no analysis by Mr Dickens as to how he had reached that view and no factual foundation was provided by him in relation thereto.

260     Further, Mr Dickens simply stated that he agreed with Dr Kostos’ diagnosis of a chronic pain syndrome without providing any explanation for his adoption of that diagnosis. 

261     Save for Mr Dickens unexplained late support for his opinion, Dr Kostos is alone in the view that the only diagnosis is that of a chronic pain syndrome.

262     In October 2011, Dr Strauss thought there was nothing at interview to suggest that the plaintiff was deliberately over exaggerating his problems and he struck Dr Strauss as being a genuine man who had decompensated quite markedly from a psychiatric point of view since the accident. 

263     I am satisfied on the medical evidence that the plaintiff’s condition is organically based. 

264     The next issue for determination is whether the plaintiff’s current condition is as a result of the accident.

265     In this regard the plaintiff’s evidence is particularly relevant.

266     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph [12]:

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

267     Counsel for the defendant submitted the plaintiff’s evidence went beyond mere unreliability to being untruthful in terms of a number of issues including his Panadeine Forte intake and use of morphine, the circumstances in which he left Visy, his evidence that he had an increasing amount of time off in the second year of his employment and his description to Flexi Personnel of the level of his symptoms.

268     Whilst at times I had significant difficulty understanding the plaintiff’s evidence particularly as to the reasons why he left Visy, I generally found him to be a truthful witness, who sometimes tended to exaggerate the extent of his symptoms.  However, I accept that he is a very unsophisticated man who did his best in the witness box.

269     In particular, I accept with his patchy work record, limited finances and his family responsibilities, the plaintiff would not have left his lucrative, easy job at Visy had it not been for his back condition and his resultant problems at work as confirmed by Mr Sanders.

270     Counsel for the defendant submitted that the plaintiff’s condition had substantially improved by mid 2005 and that he did not leave jobs thereafter due to any back problems.

271     It was submitted that attendances on Dr Soo leading up to 2005 were essentially for certificates and showed a picture of an improving back condition with straight leg raising back to normal in May 2004, although the plaintiff’s back was then still tender.

272     On examination in August 2004, the plaintiff’s back was not tender and forward flexion was nearly to the ankles.  Having attended for back pain twice in September 2004, the plaintiff next attended in February 2005 requesting a DSS form.  When next seen in May 2005, the plaintiff was prescribed Panadeine Forte.

273     The plaintiff next attended on 21 October 2008.

274     It was submitted that these records showed a picture of improvement consistent with a return to work and the plaintiff being able to continue in his work.

275     However, I accept the plaintiff’s explanation as to his progress during this time and that there was no real improvement in his condition.  Whilst it is fair to say, as submitted by counsel for the defendant that the plaintiff is not doctor shy, I accept the plaintiff simply thought there was no more to be gained from treatment.  He wanted to get on with his life so his children would not see him down and out as he described.

276     I accept that by 2005 the plaintiff had a chronically painful condition for which he was prescribed Panadeine Forte in May of that year.  Beyond that time, the plaintiff had problems confirmed by Mr Sanders.  The plaintiff desperately wanted to work and he tried to keep going with the assistance of various types of medication until he had to cease work because of back pain in October 2008.

277     It is not a situation of the plaintiff’s condition being quiescent for a long time after a recovery on 2005 and then re-emerging in late 2008, unrelated to the accident, as counsel for the defendant submitted.

278     Further, counsel for the defendant submitted that the plaintiff did not stop  working at either Quest or Visy because of back pain.

279     It was submitted that the plaintiff conceded Quest was a very, very easy job and it had to be queried why he was on call if his job was to monitor a hose which was constantly operating.  It was submitted all workers on night duty experience problems sleeping.  Further, during the time the plaintiff worked at Quest, despite his evidence as to suffering pain and difficulties, he did not see a doctor.

280     Again, during the eighteen months the plaintiff worked at Visy, he did not seek any medical treatment.  It was submitted that I should not be satisfied the plaintiff left that job due to back pain.  There was no increasing amount of time off required as he deposed and the plaintiff did not explain clearly or consistently the reason for his departure from that job.

281     In response, counsel for the plaintiff submitted that the plaintiff’s explanation for leaving these jobs should be accepted.  On the plaintiff’s own admission both jobs were very easy, yet he was unable to cope with even the lightest duties.

282     I accept that the plaintiff did have difficulty getting up and going to work at Quest when he had back pain.  Work at Visy was hard on the plaintiff’s back as his former supervisor Mr Sanders confirmed.  He regularly noticed the plaintiff having problems performing his duties and noted the plaintiff’s keenness to work even when in obvious pain

283     Mr Sander’s evidence which was not challenged, was consistent with the history given by the plaintiff to Ms Angel from Flexi Personnel.  Mr Sanders could have been cross-examined about the wage records but his attendance was not required.

284     Despite the absence of treatment from May 2005 until October 2008, I am satisfied the plaintiff’s back problems continued even with very light work.  He continued to require painkilling medication, albeit from somewhat unorthodox sources, namely tablets from his sister and the use of morphine.

285     I accept that the plaintiff did not seek medical treatment in this period as he was trying to get on with his life, finally having obtained regular well paid employment.

286     Whilst there was not an increasing absence from work apparent in the wage records for the period before the plaintiff left Visy in late October 2008, I am satisfied that he left that job, by far the most lucrative job he had ever had, because of his back pain.

287     On ceasing work the plaintiff immediately returned to Dr Soo seeking DSS certification at its request.  The plaintiff reported having “pains all the time and a motor vehicle accident ages ago – truck driver- cant work.”

288     The plaintiff continues under Dr Soo’s care.

Consequences

289      I accept that since the accident, the plaintiff, now a disability pensioner, has experienced ongoing fluctuating back pain which at times is severe and he also experiences numbness down the front of his thighs.

290     As a result of his back condition, the plaintiff is significantly restricted in his ability to bend and lift and engage in any manual activity.

291     To deal with his pain, the plaintiff has taken a variety of medications with Dr Soo’s notes indicating prescriptions of Panadeine Forte in February, June and September last year and in May 2010 and Lyrica in November 2008. 

292     I accept that the plaintiff’s capacity for employment has been significantly affected by his back injury.

293     The plaintiff is an uneducated man who on the few occasions he worked prior to the accident, engaged in unskilled, manual work.

294     I accept that the plaintiff was to embark upon a painting job after the said date, in relation to which payments were made by the defendant for loss earnings benefits.

295     After an absence of three years from the workforce following the accident, the plaintiff tried the very light work at Quest but was only able to work for about six weeks.  He had problems at Visy as referred to earlier, confirmed by Mr Sanders.

296     Whilst doctors who have expressed a view about the plaintiff’s current work capacity did not have full details of the hours worked by the plaintiff at Visy, their opinions are still valid given there was nothing arduous or heavy about the plaintiff’s duties in that job or at Quest.

297     Mr Jithoo thought the plaintiff did not have a capacity for work and indeed his future capacity would be extremely limited and would depend on his response to a pain management program.

298     In November 2010, Dr Soo thought the plaintiff had the capacity to work three hours a day on very restricted duties due to his physically based injuries.

299     Mr Goldwasser considered, taking into account the plaintiff’s education and work experience, it was highly unlikely he would find suitable work in a competitive job market.  He also noted the plaintiff’s apparent stress and anxiety may be an added significant factor. 

300     Whilst Mr Dickens thought anxiety and panic attacks were more likely precluding the plaintiff returning to work than his back condition, he considered that if the plaintiff were to go back to work, it would be appropriate for him to be employed in a job that did not entail prolonged sitting or repeated bending or lifting of heavy objects

301     Dr Kostos did not comment on the plaintiff’s work capacity and Mr O’Brien’s report is too outdated to be of any relevance to the plaintiff’s present condition.

302     In addition to his inability to now engage in heavy unrestricted manual work because of his back condition, the plaintiff can no longer jog or play freely with his son.  The plaintiff is also limited in the amount of housework, gardening and home maintenance work he can now undertake.

303     The plaintiff depends on Ms Winter to assist him in a number of daily tasks.

304     The plaintiff’s pain results in lack of sleep and resultant fatigue and anxiety.

305     When assessing the seriousness of the plaintiff’s impairment pursuant to sub paragraph (a), I am also entitled to take into account the expected mental consequences of such impairment – see Winneke P in Richards v Wylie supra.

306     In this regard, both Dr Newlands and Dr Strauss found the plaintiff to be suffering from an adjustment disorder in relation to his accident related pain and restrictions and the resultant changes to his lifestyle. 

307     As the plaintiff has had back pain since the accident ten years ago, without any significant improvement, I am satisfied that his impairment is long term.

308     Taking into account all the evidence, I am satisfied that the plaintiff has a serious injury in relation to his lumbar spine and I grant leave to bring proceedings for damages in relation to the accident.

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