Warren v Transport Accident Commission
[2012] VCC 1451
•1 October 2012
| IN THE COUNTY COURT OF VICTORIA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-04533
| BRADLEY GLENN WARREN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 25 and 26 September 2012 | |
DATE OF JUDGMENT: | 1 October 2012 | |
CASE MAY BE CITED AS: | Warren v Transport Accident Commission | |
| MEDIUM NEUTRAL CITATION: [First Revision 3 October 2012] | [2012] VCC 1451 | |
REASONS FOR JUDGMENT
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SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: Transport accident – multiple injuries – injury to the lower back said to be “serious”
LEGISLATION: Transport Accident Act 1986, s93(4)(b)
CASES CITED: Richards v Wylie (2000) 1 VR 79; Transport Accident Commission v Kamel [2010] VCC 314
JUDGMENT: the plaintiff has leave to bring a proceeding at common law to recover damages for the claimed injuries
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with Mr D Purcell | Arnold Dallas & McPherson |
| For the Defendant | Mr A Moulds SC with Ms S Manova | Hall & Wilcox |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed on 20 September 2011 by which the plaintiff applies for leave pursuant to s93(4)(b) of the Transport Accident Act 1986 (“the Act”) to bring a proceeding to recover damages for injuries suffered by him arising out of a transport accident which occurred on 8 December 2004.
2 Mr J Mighell SC appeared with Mr D Purcell of counsel for the plaintiff and Mr A Moulds appeared with Ms S Manova of counsel for the defendant.
3 The application is brought pursuant to s93(4)(d) of the Act. Sub-section (6) provides that a court must not grant leave under ss(4)(d) unless the court is satisfied that the injury is a “serious injury”.
4 The definition of “serious injury” relied upon by the plaintiff is under ss(17):
“(a) serious long term impairment or loss of a body function.”
5 The injury suffered by the plaintiff for which leave is sought is an injury to the lower back.
6 The following evidence was adduced at the hearing of the plaintiff’s proceeding:
· The plaintiff gave evidence and was cross-examined
· Dr Peterson, general practitioner, gave evidence and was cross-examined
· Dr Murphy, consultant physician in rehabilitation medicine, gave evidence and was cross-examined
· The plaintiff tendered his Court Book (“PCB”), pages 7-126: Exhibit A
· The plaintiff tendered letters of instruction dated 24 January 2012 and 17 July 2012 to Mr Dooley, orthopaedic surgeon: Exhibit B
· The defendant tendered its Court Book (“DCB”), pages 4 -117: Exhibit 1
· The defendant tendered a letter of instruction dated 13 January 2011 to Professor Disler: Exhibit 2.
Background
7 The plaintiff was born in 1974. He is now thirty-eight years of age. He lives on his own. He has a daughter, who is twelve years of age, who he sees irregularly.
8 The plaintiff attended the Catholic College in Bendigo. He completed his VCE in 1991. He commenced a course at La Trobe University in Bendigo, studying psychiatric nursing. After two years he left that course and travelled.
9 The plaintiff then entered the workforce. He worked in a variety of jobs including labouring, as a jeweller, and when he returned to Bendigo in about August 2002, he commenced an apprenticeship as a builder. That employment came to an end when he was dismissed by his employer. His application to his work, both practical and at TAFE, was tardy, and he was not punctual in meeting the hours he was required to work. The reason he gave for his dismissal by his employer in his first affidavit is quite wrong. However, he admitted the real reason why he was dismissed during cross-examination.[1]
[1]Transcript 21-23
10 The plaintiff subsequently appears to have engaged in labouring work, and to some extent, in the building industry. On 8 December 2004, the date of occurrence of the transport accident, he was due to undertake a plastering job. He enlisted the help of Scott Doherty.
The Transport Accident
11 On 8 December 2004, the plaintiff and Mr Doherty set out from a house which they shared in Mr Doherty’s car on their way to the plastering job. It was in the course of that journey that Mr Doherty fell asleep at the wheel, with the result that his car drifted off the roadway. The plaintiff attempted to control the car by grabbing the steering wheel, but without success. The car collided into a tree.
12 As a result of the collision, the car suffered significant damage. The plaintiff suffered multiple injuries to his head, chest and legs. He was able to climb out of the window of the car. The plaintiff was subsequently conveyed to the Bendigo Hospital by ambulance.
The Plaintiff's Medical Treatment
13 The plaintiff suffered multiple injuries for which he required immediate surgical treatment. He was first treated by Mr Poker, oral and maxillo-facial surgeon, to repair significant facial injuries. Those injuries comprised a fractured maxilla; bilateral fractures to the zygoma; fracture to the nose, and lacerations to the lip.[2]
[2]PCB 18
14 He was diagnosed with a small left-sided pneumothorax. Mr Barling, general surgeon, performed surgery to remove part of the left upper lobe of the plaintiff's left lung where there was a breach in the visceral pleura.[3]
[3]PCB 16-17
15 Following surgery to treat the plaintiff's most immediate surgical needs, he was diagnosed as also suffering from a number of other injuries. The plaintiff developed pain in his left shoulder; lower back pain; numbness and discomfort on the lateral side of his right thigh, and later pain in his right knee.
16 Following his discharge from the Bendigo Hospital, he was seen in the Outpatient Clinic. He then commenced a rehabilitation program at the John Lindell Rehabilitation Unit under the care of Dr Murphy.[4] At the same time, he commenced seeing Dr Peterson, general practitioner, for treatment for his injuries. Dr Peterson, and his colleagues at the Barnard Street Clinic, had been the plaintiff's family medical practitioners since about 1989.[5]
[4]PCB 22-24 and 43
[5]PCB 38-40
17 Dr Murphy referred the plaintiff to have hydrotherapy as part of a rehabilitation program to improve his fitness and functional capacity. He also treated him with a variety of medications. It would appear that at the commencement of the treatment provided by Dr Murphy, the plaintiff was prescribed OxyContin for pain relief; Tofranil, and later Amitriptyline, to treat neuropathic pain and to help the plaintiff sleep, and Pregabalin, also for the treatment of neuropathic pain.[6]
[6]PCB 22-24
18 The plaintiff underwent hydrotherapy treatment. Whilst it is not clear to me when he had that treatment, what is clear is that he engaged in a four-week supervised hydrotherapy program which was beneficial to him, in that it reduced his pain levels and improved his bodily strength.[7] The plaintiff proved to be recalcitrant to recommendations for treatment. The discharge report of the John Lindell Rehabilitation Unit dated 18 July 2005 demonstrates that the plaintiff failed to attend hydrotherapy and physiotherapy.[8] A letter to Dr Peterson dated 23 June 2008 demonstrates that the plaintiff had failed to attend eleven of sixteen physiotherapy sessions.[9]
[7]PCB 43
[8]DCB 28-29
[9]DCB 32
19 It would appear that Dr Murphy treated the plaintiff until about 2006. He ceased treating him until Dr Peterson referred the plaintiff back to him. He saw him on 27 January 2009.[10] Dr Murphy commented in a report dated 9 February 2009 that the plaintiff was on the same level of medication for his lower back and leg pain that he had been on in the past. In the history he took from the plaintiff, he noted that the plaintiff was experiencing increasing pain, and in particular, involving his right leg.[11] Dr Murphy referred the plaintiff to have an MRI scan.
[10]PCB 25
[11]PCB 25
20 Dr Murphy reviewed the plaintiff on 10 March 2009. At that time, he had the results of the MRI scan which he interpreted as demonstrating a somewhat degenerative L3-4 disc and an old crush fracture at L4. He considered that the plaintiff was also suffering neurogenic pain consistent with interference with the lateral cutaneous nerve distribution in the right thigh. He examined the plaintiff's lower abdominal wall and elicited tenderness, which he considered was consistent with entrapment of the nerve at that point. He prescribed the plaintiff Endep to help him sleep.[12]
[12]PCB 26
21 Dr Murphy reviewed the plaintiff on 21 April 2009. The plaintiff told him that Endep was not helping him. Dr Murphy altered the plaintiff’s medication to Lyrica. He advised the plaintiff to undergo remedial massage to treat neck pain and headaches.[13]
[13]PCB 27-28 and 30
22 Dr Murphy reviewed the plaintiff in June 2009. He increased the plaintiff’s dosage of Pregabalin. He noted that the plaintiff continued to take OxyContin and Lyrica.[14]
[14]PCB 32
23 Dr Murphy reviewed the plaintiff on 8 September 2009. The plaintiff told him that Lyrica had enabled him to improve his sleep pattern. He also found the remedial massage helpful. At that review, the plaintiff told Dr Murphy that he was experiencing symptoms around his cheek and mouth which led Dr Murphy to consider referring the plaintiff back to Mr Poker.[15]
[15]PCB 29
24 Dr Murphy reviewed the plaintiff on 9 February 2010. By that time, the plaintiff had ceased seeing Dr Peterson and had commenced seeing Dr Banerji, general practitioner. He obtained a history that the plaintiff continued to use OxyContin and Lyrica.[16]
[16]PCB 32
25 I will deal separately with the reasons why the plaintiff commenced seeing Dr Banerji in more detail later in these reasons. It is sufficient for present purposes to explain that by late 2009, Dr Peterson became aware that the plaintiff was using more OxyContin than prescribed by him and as a result, sought additional prescriptions from Dr Peterson, and at the same time was seeing other general practitioners in Bendigo seeking additional prescriptions. Dr Peterson refused to tolerate the plaintiff's conduct, with the result that he wrote to the plaintiff on 9 November 2009 informing the plaintiff that he would no longer prescribe him medication, and that the plaintiff should see a different general practitioner.[17]
[17]DCB 37
26 Dr Murphy reviewed the plaintiff in April 2010. The plaintiff reported an unrelated condition, and told Dr Murphy that he was having physiotherapy at a private physiotherapy clinic. He also reported that the physiotherapy was helping him. However, it is not clear to me what the physiotherapy was directed to.[18]
[18]PCB 33
27 Dr Murphy reviewed the plaintiff on 8 June 2010. He noted that the problem created by the plaintiff regarding his overuse of OxyContin had been brought under some measure of control. Dr Murphy organised for the plaintiff to have frequent pick-ups of medication which I understood to mean that the plaintiff was provided medication at more frequent intervals to audit his use of it.[19]
[19]Transcript 108
28 Dr Murphy reviewed the plaintiff on 7 December 2010. The plaintiff reported that his mood was low. Dr Murphy diagnosed depression and prescribed the plaintiff Cymbalta to treat his depression. He also referred him to Mr Mitchell, psychologist, for treatment. Mr Mitchell first saw the plaintiff on 9 March 2011.[20]
[20]PCB 108-109
29 Dr Murphy reviewed the plaintiff on a number of occasions through 2011. In his report dated 20 December 2011, he noted that the plaintiff’s depression had improved. He prescribed the plaintiff Endep to help him with his disturbed sleep pattern, and also Circadin. He referred to the plaintiff using OxyContin, Panadol Osteo and Lyrica for pain relief.[21]
[21]PCB 35-36
30 Dr Murphy reviewed the plaintiff on a number of occasions through 2012. His reviews of the plaintiff were interrupted by his long service leave. He last saw the plaintiff on 31 August 2012.[22] He essentially brought his treatment of the plaintiff up to date in his last report dated 31 August 2012.[23] He confirmed in that report that the plaintiff was using OxyContin, Panadol Osteo and Lyrica for pain relief. He also referred to the plaintiff using Movalis, which is an anti-inflammatory medication.
[22]Transcript 92
[23]PCB 36A-36C
31 The plaintiff continues to see Dr C Banerji as his preferred general practitioner. No report was obtained from Dr Banerji; however, it seemed to me to be unnecessary, because the greater proportion of the plaintiff’s relevant treatment since 2009 has been undertaken by Dr Murphy.[24]
[24]There are two Dr Banerjis. They are husband and wife and are in practice together. The plaintiff now sees Dr C Banerji (female)
32 Dr Peterson and Dr Murphy gave evidence and were cross-examined at some length by Mr Moulds. I will refer to the substance of the cross-examination later in these reasons, but essentially I was left with a strong impression that the plaintiff suffered an injury to his lower back which was treated by Dr Peterson and Dr Murphy by referral to hydrotherapy and physiotherapy, albeit unsuccessful because of the plaintiff’s recalcitrance, and otherwise by prescriptions of significant painkilling medication.
33 Despite the searching cross-examination conducted by Mr Moulds, I have not been persuaded that the plaintiff did not suffer an injury to his lower back which has resulted in an impairment of the function of his lower back with consequences which I will refer to later in these reasons.
34 I have not referred to the medical reports of other treating medical practitioners whose reports are contained in the plaintiff's Court Book. I have not done so, because the plaintiff has limited his application for serious injury based upon the impairment of function of the lower back, and the secondary psychiatric injury which is said to be a consequence of the injury to the lower back.
The 1997 Incident
35 In 1997, the plaintiff had been to a work breakup. He was walking along a railway line near Whitehills, a suburb of Bendigo, with a workmate. As he was crossing a railway bridge, he fell a significant distance, landing on to his lower back. The plaintiff was asked to estimate the distance he fell. He did so by pointing to the wall opposite the witness box and to a point part of the way up the wall, which I estimate to be about four metres.
36 The plaintiff believed that the injury which he suffered to his lower back on that occasion was a fracture to the L4 vertebra. The plaintiff informed a number of medical practitioners of the fracture and the point in his lower back where he believed he suffered the fracture. However, Dr Peterson's clinical notes, and the x-rays which he referred the plaintiff to have, demonstrate that the plaintiff suffered a fracture involving the left L3 transverse process.[25]
[25]DCB 53 and PCB 115
37 Dr Peterson's clinical note of 21 December 1997 is relevant to the fall off the railway bridge. He referred the plaintiff to have an x-ray, which was undertaken on 21 December 1997. He reviewed the plaintiff on 5 January 1998; 3 February 1998; 12 March 1998 and 1 June 1998.[26] He also referred the plaintiff to have a further x-ray, which was taken on 13 March 1998.[27] The clinical notes demonstrate that the plaintiff recovered from the injury to his lower back, and the second x-ray demonstrates a healing response at the transverse process of L3 on the left side and a satisfactory alignment of that vertebra.
[26]PCB 53
[27]PCB 116
38 The plaintiff said that he recovered from that injury satisfactorily and was left with no residual symptoms of any kind. I have read Dr Peterson's clinical notes between 1 June 1998 and the date when the transport accident occurred and have not found any reference to any lower back injury.
39 I accept the plaintiff's evidence that he recovered from that injury satisfactorily. I accept the evidence of Dr Peterson that there is nothing in his clinical notes which suggests that the plaintiff suffered a transverse fracture at L4 or that there is anything in his clinical notes which suggests that the plaintiff suffered persisting symptoms of the injury to his lower back after 1 June 1998.
The Plaintiff's Use of Medication and Alcohol
40 Mr Moulds cross-examined Dr Peterson and Dr Murphy regarding the plaintiff's excessive use of OxyContin, and his combined use of OxyContin and significant quantities of alcohol.
41 The plaintiff admitted, although reluctantly at first I thought, that he was using OxyContin in excess of the prescribed dosage. The clinical notes of Dr Peterson, and the reports of Dr Murphy, demonstrate that the invariable dosage for OxyContin was 80 milligrams, one in the morning and two at night, making a total dosage of 240 milligrams per day. The plaintiff admitted that he was taking between four and five OxyContin per day at one stage. He admitted that he went to several different medical clinics in Bendigo and obtained prescriptions for OxyContin in order to be able to take between four and five OxyContin per day.
42 Dr Peterson was taken to his clinical notes. They demonstrate attempts by the plaintiff to obtain prescriptions for OxyContin more frequently. For example, on 11 January 2007, he told Dr Peterson that his medication had been stolen;[28] on 1 February 2007, he attempted to get a prescription for OxyContin on the basis that he was going away the following week;[29] on 21 November 2007, Dr Peterson informed the plaintiff that he could not give him prescriptions until they were due;[30] on 19 December 2007, the plaintiff appears to have told Dr Peterson that he was going to Perth for the purpose of obtaining prescriptions earlier than when they were due, but in fact did not go to Perth;[31] on 17 July 2008, the plaintiff requested a prescription for the OxyContin before it was due;[32] on 27 November 2008, the plaintiff admitted overusing OxyContin and that his prescription for it had run out;[33] on7 April 2009, the plaintiff attempted to obtain a prescription for OxyContin earlier that it was due;[34] on 11 May 2009, the plaintiff admitted overusing OxyContin,[35] and on 31 August 2009, Dr Peterson spoke to the plaintiff about overusing medication.[36]
[28]DCB 65
[29]DCB 65
[30]DCB 69
[31]DCB 69
[32]DCB 71
[33]DCB 73-74
[34]DCB 75
[35]PCB 76
[36]DCB 77
43 After Dr Peterson discovered that the plaintiff had obtained prescriptions for OxyContin from other medical clinics in Bendigo, he wrote the letter dated 9 November 2009 and ceased treating the plaintiff.
44 Mr Moulds cross-examined the plaintiff, implying that the plaintiff might have obtained extra prescriptions for OxyContin to sell for profit. The plaintiff denied any such wrongdoing. There is no evidence to suggest that the plaintiff had engaged in conduct of that kind. I accept the plaintiff's evidence that he developed a dependence on OxyContin which was the reason why he saw a number of doctors, particularly in 2009, to obtain additional prescriptions for OxyContin.
45 Mr Moulds also referred the plaintiff to two other entries in the clinical notes of Dr Peterson of 1 November 2007 and 7 November 2007 when a urine screen disclosed that the plaintiff had methadone metabolite in his system. The plaintiff said that he took the methadone by mistake. He said that a housemate had placed methadone in the plaintiff's cordial bottle. The plaintiff drank it. I am not convinced that the plaintiff was telling the truth. On 1 November 2007, he told Dr Peterson that his medication had been stolen and that he wanted a further prescription for OxyContin. It was on that occasion that the urine screen disclosed the presence of methadone metabolite. Then, on 7 November 2007, the plaintiff told Dr Peterson that the reason for the presence of the methadone metabolite in his system was because he had accidentally consumed his housemate’s methadone.
46 Mr Moulds referred to the subpoenaed records of Dr Peterson; the Bendigo Health Clinic; the Queen Street Clinic; the Tri-Star clinic (both Dr Banerjis), and the Primary Care Clinic. The plaintiff had seen doctors at each of those clinics for the purpose of obtaining prescriptions of OxyContin. He did so as late as December 2010. It became evident during the latter part of Mr Moulds’ cross-examination of the plaintiff that he saw Dr C Banerji to obtain a prescription for OxyContin, and within a matter of days obtained a prescription at another clinic from a different medical practitioner.
47 The plaintiff admitted, without exception during the latter part of Mr Moulds’ cross-examination, that he engaged in that conduct and to the degree put to him by Mr Moulds. However, when specific occasions of that conduct were put to him he was unable to recollect those occasions, but nonetheless admitted that he engaged in conduct of the kind alleged.
48 The impression that I was left with after hearing the evidence of the plaintiff, Dr Peterson and the references to the various clinical notes, was that the plaintiff was abusing OxyContin. He was using more OxyContin than was prescribed as the relevant dosage. He was attempting to obtain prescriptions from Dr Peterson for more OxyContin than Dr Peterson considered was appropriate. In that setting, the plaintiff consumed someone else's methadone, and either at that time or soon thereafter, engaged in the habit of seeing other medical practitioners to obtain additional prescriptions for OxyContin.
49 All of this evidence was addressed by Dr Murphy, who put it into some context. Mr Moulds cross-examined Dr Murphy regarding his knowledge of the plaintiff's abuse of OxyContin. Dr Murphy said that he was aware that the plaintiff was abusing OxyContin. He said that he had seen the plaintiff through 2011 and 2012. In his treatment of the plaintiff, he said that he was faced with a desire to rationalise the plaintiff’s use of medication, but recognised that there was a significant difficulty in adjusting the medication prescribed for the plaintiff and its use.[37]
[37]Transcript 106-107
50 Dr Murphy expressed confidence that the plaintiff's abuse of OxyContin was under control. He said he no longer had any concerns about the plaintiff’s use of medication. He said that the plaintiff was compliant with directions regarding the use of medication. A regime had been implemented restricting the plaintiff's handling of medication which involved restrictions on when he could pick up medication, and the involvement of members of his family, which I understood to be an additional factor in auditing the plaintiff’s use of medication.[38]
[38]Transcript 110
51 It is convenient at this stage to digress and to summarise some of the evidence of the plaintiff regarding his drinking habits. The plaintiff drank heavily. He consumed mixer drinks, usually rum and cola. His habit was to drink about four such mixer drinks each night, and sometimes more on top of taking OxyContin.
52 Mr Moulds cross-examined Dr Peterson and Dr Murphy regarding the impact of alcohol combined with OxyContin, and its likely effects upon the plaintiff. Both said that the addition of alcohol would potentiate the effect of OxyContin. For example, if OxyContin created drowsiness, then the addition of alcohol would increase the drowsiness.[39]
[39]Transcript 84-85; 109-110
53 One other matter that I should refer to is some of the evidence of Dr Peterson, who described the abuse of OxyContin as likely to be deleterious to the plaintiff's health. He said it could lead to kidney failure, and other consequences. He had not seen any of those consequences in the plaintiff during the time he treated the plaintiff. He added, when further cross-examined by Mr Moulds, that one of the consequences could be confusion, disorientation and difficulty in decision-making and concentration, and then he added that there are people who take large doses of OxyContin on a regular basis which affects them less and less. In the end, all I can take of Dr Paterson’s evidence is that he did not see any signs of deterioration in the plaintiff as a consequence of the plaintiff's intake of OxyContin.[40]
[40]Transcript 89-90
54 Furthermore, Dr Murphy said that he was aware that the plaintiff had a drinking problem. He said that it was his understanding that the plaintiff had moderated his drinking habits, and that overall, the plaintiff's attitude to the use of medication and alcohol was a lot better now than it had been. Interestingly, the plaintiff gave that evidence before Dr Peterson and Dr Murphy were called to give evidence. I was reluctant to accept the plaintiff's evidence on that score, because he gave me the impression that he had abused the use of OxyContin by various methods of subterfuge which I considered to be a significant matter going to his credit. It led me to a preliminary conclusion that the plaintiff was an unreliable historian, and a person whose evidence I needed to treat cautiously.
55 However, Dr Murphy's evidence regarding his knowledge of the plaintiff's abuse of OxyContin and his use of alcohol, and the steps taken by Dr Murphy to rectify those problems, has led me to conclude that the plaintiff's evidence that he himself was taking steps to remedy his abuse of OxyContin and his use of alcohol is reliable and is evidence which I should accept.
The Lower Back Injury
56 Although Mr Moulds cross-examined Dr Peterson and Dr Murphy regarding the manifestation of the plaintiff's lower back injury, it occurred to me that he was not seriously contending that the plaintiff’s lower back injury was not caused by the transport accident.
57 It seems clear enough to me that following the transport accident, the plaintiff suffered multiple injuries which required immediate surgical treatment. In my analysis of the medical evidence from the time when the plaintiff was admitted to the Bendigo Hospital, it is clear that his facial injuries and chest injuries required immediate surgical treatment. They became the major focus of his treatment. It was later, but not much later, that the plaintiff's other injuries became apparent.
58 Dr Murphy first saw the plaintiff in May 2005. He obtained a history from the plaintiff that he had suffered pain in his lower back since the occurrence of the transport accident.[41] When he first examined the plaintiff, he noted that the plaintiff was mildly tender over the lower lumbar area.[42] At first he was of the opinion that the plaintiff's lower back injury was muscular in origin.[43]
[41]PCB 22
[42]PCB 23
[43]PCB 23
59 However, my analysis of Dr Murphy's reports points to the plaintiff making consistent complaints of pain in his lower back and pain radiating into his right leg in about mid-2008. The plaintiff gave a history to Dr Murphy on 27 January 2009 that over the previous six months he had experienced increasing lower back pain involving his right leg.[44]
[44]PCB 25
60 The plaintiff must have told Dr Murphy that he had suffered a previous injury to the L4 vertebra because Dr Murphy recorded that in a number of his reports.[45] Once Dr Murphy understood that the history he was given was wrong, he said the following:
[45]PCB 26, 31, 36C
Q.“Having the benefit of the 1997 and 1998 report and the benefit of reports post this accident, what is your opinion as to the likely scenario of the injury suffered in this accident?---
A.Yes, so my opinion is that Mr Warren, we understand, had an injury in 1997. The x-rays at that time showed a fracture of the left L3, the transverse process, and that he had a further x-ray to show the healing of that transverse process. He then reported that he made a good recovery. There were no clinical problems in the meantime and that was certainly conveyed to me by Mr Warren and his general practitioner, so he had the motor vehicle accident and initially had an x-ray which didn't show any fractures at that time. I then arranged for him to have an MRI for March 2009 and that showed that the L4 vertebra had lost height and part of the disc at L3-4 had actually herniated into the top part of L4, so my interpretation was that he had an injury in 1997, made a good recovery but had problems with back pain after his motor vehicle accident in 2004.The most likely scenario, there'd been some form of change of the structural integrity behind the spine and that it was possibly too subtle to be seen in the original x-ray but was subsequently identified by the MRI in 2009.
Q.So perhaps to pick up on that phrase, ‘structural integrity,’ you’ve used that phrase a couple of times?---
A.Yes.
Q.What is the structural integrity or the change of structural integrity that you believe occurred in this accident?---
A.The crush fracture at L4.”[46]
[46]Transcript 111-112
61 Dr Murphy referred the plaintiff to have an MRI scan, which was taken on 2 March 2009. It appears to be a scan on which Dr Murphy placed particular significance. He appears to have agreed with the radiologist’s conclusions. The radiologist reported that the L4 vertebra had lost height and part of the L3-4 disc is herniated into the superior endplate of L4 with no focal disc protrusion or canal or foraminal stenosis.[47]
[47]Dr Murphy's interpretation of the MRI scan is at PCB 36C and the MRI scan is at PCB 126
62 Mr Moulds undertook a careful analysis of the reports and clinical notes of Dr Peterson and the reports of Dr Murphy. Whilst he conceded that the necessity for immediate treatment for the plaintiff’s facial and chest injuries would have masked the presence of other injuries, for example, the injuries to the plaintiff’s lower back and right knee, he submitted that the references to the plaintiff’s lower back are subtle and occasional, supportive of the conclusion that the plaintiff’s lower back injury was rather more modest than contended for by the plaintiff and likewise, the consequences of the impairment of its function.
63 The difficulty that I have with that submission is that the two medical witnesses who were basically at the forefront the treatment the plaintiff’s lower back injury are Dr Peterson and Dr Murphy, both of whom gave oral evidence that they considered that the injury to the plaintiff’s lower back was something far more significant than one of modesty.
64 Dr Peterson said that the OxyContin was used by the plaintiff mostly for lower back pain. He added that it was not so successful in the treatment of the plaintiff's lower back pain and hence increased doses of the medication were prescribed for the plaintiff to obtain pain relief.[48] Dr Murphy provided a report dated 31 August 2012 which seems to me to be something of a review of his treatment and identification of the injuries suffered by the plaintiff which required treatment. One of those was musculoskeletal spinal pain. It was in that report that he first referred to the x-rays in 1997 and 1998 and a comparison with the MRI scan taken on 2 March 2009, and in that context referred to what he described as changes to the structural integrity of the plaintiff's lower back.[49]
[48]Transcript 70
[49]PCB 36A-36C, and in particular, at 36B and 36C
65 Furthermore, Mr Mighell submitted that it would be strange for Dr Peterson and Dr Murphy to have elevated the plaintiff’s lower back injury as a major injury if the evidence was in reality consistent with the complexion given to it by Mr Moulds that it was rather more modest. Neither Dr Peterson nor Dr Murphy then said it was modest or of little consequence, nor did they say that its manifestation was inconsistent with the pattern of development which they have observed over the time they treated the plaintiff.
The Medico-Legal Opinions
66 Professor Disler, specialist in internal medicine, rehabilitation medicine and geriatrics, examined the plaintiff in about February 2011 and in about March 2012. He was given a history of the fall from the railway bridge. He provided three reports: dated 24 February 2011,[50] 16 March 2012[51] and a second report dated 16 March 2012.[52] He was eventually provided with all of the relevant radiology demonstrating the injury suffered by the plaintiff to his lower back when he fell from the railway bridge, and the injury the plaintiff suffered to his lower back in the transport accident. Professor Disler was probably told by the plaintiff that he had suffered a fracture to the L4 vertebra.
[50]PCB 44-49
[51]PCB 50-55
[52]PCB 55A-55B
67 In his report dated 16 March 2012 (the first report), Professor Disler considered that the plaintiff had suffered a soft-tissue injury to his lower back and possible damage to the L4 vertebra; however, he said that without the radiology relevant to the injury to the lower back, that it would be impossible to tell whether the crush injury at L4 occurred as a result of the transport accident. After he was provided with all the relevant radiology he said, in his report dated 16 March 2012 (the second report), that after making a comparison with the x-rays of 1997 and 1998 with the MRI scan taken on 2 March 2009, that he considered that the loss of height of L4 shown on the MRI scan should be attributed to the transport accident.[53]
[53]PCB 55A
68 Mr Kossmann, orthopaedic surgeon, examined the plaintiff in about February 2012. He provided two reports: dated 22 February 2012[54] and 17 September 2012.[55] He was also given a history of the fall from the railway bridge and all of the relevant radiology. In his first report, he was of the opinion that the plaintiff suffered ongoing lower back pain on the basis of loss of L4 vertebral height and partial herniation of the L3-4 disc into the superior endplate of L4. In that regard, it would appear that he accepted that the MRI scan correctly demonstrated the injury which occurred in the transport accident.
[54]PCB 110-114
[55]PCB 114A-114B
69 Mr Kossmann was probably told by the plaintiff that he had a history of a fracture of the L4 vertebra, but in his second report, he was provided with the x-rays of 1997 and 1998 and concluded that the plaintiff was in error in describing the previous fracture as being at L4. He then said two things: firstly, that the plaintiff suffered an L4 superior endplate fracture with an intervertebral disc herniation at L3-4 in the transport accident; and secondly, he said he agreed with the opinion of Professor Disler that the L4 vertebra had been damaged in the transport accident.[56]
[56]PCB 113 and 114A
70 Mr Dooley, orthopaedic surgeon, examined the plaintiff for the defendant on 27 February 2012. He provided two reports: dated 22 March 2012[57] and 19 July 2012.[58] He was given a history of the fall from the railway bridge and all of the relevant radiology. He was probably told by the plaintiff that he had a history of a fracture of the L4 vertebra. He was of the opinion that the plaintiff had suffered a soft-tissue injury to his lower back comprising a muscular ligamentous type injury.
[57]PCB 20-24
[58]PCB 25-26
71 Mr Dooley was provided with the relevant radiology and commented on it in his second report dated 19 July 2012. He considered the picture evident from the radiology to be confusing, and all that he was able to say was that the fall from the bridge could have caused the fracture of the L4 vertebra, as could the transport accident.[59] Otherwise, Mr Dooley was of the opinion that the plaintiff would note intermittent lower back pain for which a low impact exercise and fitness program involving walking and cycling would be helpful.[60]
[59]PCB 25-26
[60]PCB 23
72 Mr Moulds submitted that I should have little confidence that the opinions of Professor Disler, Mr Kossmann and Mr Dooley were of any value because of the characterisation he gave to the histories recorded by Dr Peterson and Mr Murphy of occasional references to the plaintiff’s lower back. Professor Disler, Mr Kossmann and Mr Dooley were given histories by the plaintiff of persistent lower back pain, which he submitted is in stark contrast to the actual development of the plaintiff's lower back problem.
The Plaintiff’s Credit
73 Mr Moulds submitted that I should not accept the plaintiff as a truthful witness. Essentially, he submitted that the plaintiff was far from candid in describing the reasons for his dismissal from his employment in July 2004, and that he engaged in serious deception over a number of medical practitioners in order to obtain prescriptions for OxyContin.
74 Mr Mighell, on the other hand, submitted that I should accept that the plaintiff as a truthful witness. He submitted that the plaintiff had been candid in admitting the reasons for his dismissal when the real reasons were put to him, and when confronted with the serious deception relevant to the prescriptions of OxyContin, was forthcoming in admitting that he had behaved wrongfully.
75 I have determined to attack the matter of the plaintiff’s credit in an entirely different manner to the submissions made by Mr Moulds and Mr Mighell.
76 Firstly, there can be absolutely no doubt that the plaintiff suffered serious facial and chest injuries which required surgical treatment.
77 Secondly, I think it is more likely than not that the plaintiff did suffer an injury to his lower back which was masked by the serious facial and chest injuries, but became evident in time.
78 Thirdly, there is sufficient evidence of the plaintiff reporting the occurrence of lower back pain to both Dr Peterson and Dr Murphy to satisfy me that he did suffer an injury to his lower back which produced pain for which he was prescribed OxyContin as the principal form of treatment.
79 Fourthly, the radiology, and in particular, the MRI scan taken on 2 March 2009, demonstrates pathological change in the plaintiff's lower back – loss of L4 vertebral height and partial herniation of the L3-4 disc into the superior endplate of L4, which is clear objective evidence, accepted by Dr Murphy, Professor Disler and Mr Kossmann, of an injury caused by the transport accident.
80 Each of these points do not so much rely upon a finding that the plaintiff has been a truthful or untruthful historian. I think they are conclusions which I can reach safely on sound objective evidence. So, I think it is more likely than not that the plaintiff did suffer an injury to his lower back consistent with the opinions of Dr Murphy, Professor Disler and Mr Kossmann, as a result of the transport accident which has impaired the function of his lower back and has produced a number of consequences.
81 Lastly, I am fortified in reaching the foregoing conclusions because of the quality of the evidence of Dr Murphy, whose evidence I consider to be given in a straightforward manner, and given very confidently with respect to the plaintiff's current control over his use of OxyContin. The impression I was left with from the evidence of Dr Murphy is that once the abuse of OxyContin had been overcome, that he has been able to see what treatment the plaintiff requires more clearly, and that includes an identification of the injury suffered by the plaintiff to his lower back.
82 I prefer the evidence of Dr Peterson, Dr Murphy, Professor Disler and Mr Kossmann to that of Mr Dooley. It seems to me that the preponderance of the evidence supports the conclusion which I have reached thus far, and Mr Dooley’s uncertainty regarding whether the MRI scan is a true reflection of the injury suffered by the plaintiff in the transport accident does not in any manner undermine the opinions of the other medical practitioners to whom I just made reference.
83 Mr Moulds referred me to the report of Dr Mendelson dated 21 March 2012,[61] and in particular, to his curriculum vitae, which demonstrates an interest in pain medicine. Mr Moulds submitted that Dr Mendelson's opinion is, therefore, expressed with some experience and force, that what I am really dealing with is a man who is in the grips of some level of addiction to OxyContin which is compounded by his use of marijuana.[62]
[61]DCB 4-19
[62]DCB 15
84 Whilst Dr Mendelson is the author of a thesis which needs to be weighed into consideration, I am not persuaded that the thesis overpowers the evidence of Dr Peterson, Dr Murphy, Professor Disler and Mr Kossmann. None of them considered such a thesis to react in the plaintiff’s situation. I prefer their evidence to that of Dr Mendelson.
Findings
85 In summary, I find that the plaintiff suffered an injury to his lower back as a result of the transport accident consistent with the opinions of Dr Peterson, Dr Murphy, Professor Disler and Mr Kossmann.
86 I am not persuaded by the submission made by Mr Moulds that there is a necessity to disentangle the purpose for which OxyContin has been prescribed. The direct evidence of Dr Peterson is that it is mostly for the plaintiff's lower back pain, and that would seem to me to be consistent with the impressions I have of the evidence of Dr Murphy. It may well be that the plaintiff is troubled by pain to his face, chest and knee and has developed a Chronic Pain Disorder of some kind, but I do not accept that I must find the degree to which OxyContin is directed to the treatment of the plaintiff's lower back. I consider that a finding consistent with the evidence of Dr Peterson is sufficient to satisfy me that no such disentangling is required.
87 Mr Mighell submitted that I should treat the secondary psychiatric problems encountered by the plaintiff in the permissible manner in which it can be relied upon as a consequence of a physical injury, but limited in the manner it may be used by what was said in Richards v Wylie[63] and Transport Accident Commission v Kamel.[64] Mr Mighell referred me to the opinion of Dr Gill, psychiatrist, who was of the opinion that the plaintiff is suffering from a mixture of anxiety and depressive symptoms, as well as some post-traumatic symptoms.[65] Mr Mighell referred me also to the opinion of Mr Mitchell, who was of the opinion that the plaintiff was suffering from depression.[66] In contrast, Mr Moulds referred me to the opinion of Associate Professor Mendelson, who was of the opinion that the plaintiff is not depressed.[67]
[63](2000) 1 VR 79 at 86-88
[64][2010] VCC 314 at paragraphs 61-65, and in particular, at paragraphs 80-82
[65]PCB 82
[66]PCB 108-109
[67]DCB 15
88 The impression I was left with from the evidence of Dr Murphy is that he treated the plaintiff for depression at one stage by the prescription of appropriate medication, which he ceased because the plaintiff no longer required medication. I am not persuaded that the plaintiff presently has a secondary psychiatric injury of any particular order based upon the evidence of the plaintiff that his depression has improved since his use of medication has been brought under control and his medical treatment is also under control.[68]
[68]Transcript 53
89 In the end, I accept the plaintiff's evidence that he suffers from persistent pain in his lower back. I accept that he requires a dosage of OxyContin to obtain relief from the level of lower back pain he presently encounters daily. I accept that his mobility is impaired, and that simple movements and postures are painful. I accept that his capacity to undertake manual work is probably impaired by his lower back injury. Furthermore, I accept the evidence of Dr Peterson, Dr Murphy, Professor Disler and Mr Kossmann regarding the likely consequences of an injury of the kind they diagnosed affecting the plaintiff's lower back. I accept that one of the consequences suffered by the plaintiff was the onset of depression; however, I have paid little regard to it as a consequence because of my uncertainty about the nature of the plaintiff’s depressive condition now and whether it is necessarily derived from his lower back injury, as opposed to the other injuries and his abuse of OxyContin.
90 It seems to me that the plaintiff came from a rather low base in the first place. It may be that Mr Moulds’ description of him as a man with many psychosocial problems is an apt one. It is, however, for me to determine the seriousness of the impairment of the function of his lower back and the consequences produced by having regard to the particular plaintiff. In doing so, I see a man who has a disabling lower back injury which necessitates the use of very significant painkilling medication. He has suffered an impairment of the function of his lower back with consequences both in terms of pain and suffering and loss of enjoyment of life, and a reduction in his capacity for work which I consider are sufficient for the plaintiff to satisfy the statutory test of seriousness.
91 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law.
92 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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