Webb v TAC

[2011] VCC 141

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-10-00747

ANTHONY WEBB	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	25, 27 and 28 January 2011
DATE OF JUDGMENT:	14 February 2011
CASE MAY BE CITED AS:	Webb v TAC
MEDIUM NEUTRAL CITATION:	[2011] VCC 141

REASONS FOR JUDGMENT

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Catchwords: TRANSPORT ACCIDENT – Application pursuant to s.93(4)(d) of the Transport Accident Act 1986 – aggravation of pre-existing organic brain injury – whether consequences of aggravation sufficient to constitute serious injury.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A J Keogh S C with	Slater & Gordon
Mr P B Halley
For the Defendant	Mr P B Jens	Transport Accident Commission
HIS HONOUR:

1          In this proceeding, the plaintiff seeks leave to commence a proceeding claiming damages for injuries suffered by him by reason of a motor vehicle accident which occurred on 27 October 2007.

2          The plaintiff was born on 10 February 1945, had been involved in a previous transport accident, which occurred on 17 February 2002 (“the first accident”), in which he suffered a number of physical injuries which included internal head injuries. In the transport accident the subject of the present application (“the second accident”), the plaintiff suffered a closed head injury which resulted in the development of a subdural haematoma.

3          In the present proceeding, there is no issue that one of the effects of the injuries suffered by the plaintiff in the second accident has been to exacerbate the disability with which he was left by reason of the first accident. In these circumstances, in assessing whether the consequences of the second accident are serious within the meaning of that term as employed by the provisions of the Transport Accident Act, I am required:

(i)	to make findings as to the incapacity with which the plaintiff presented immediately prior to the second accident;
(ii)	assess the difference in the plaintiff’s incapacity as at the present date[1] when compared with the incapacity with which he presented immediately prior to the second accident; and
(iii)	determine whether the effect of the second accident has been such as to increase the incapacity from which the plaintiff suffers, such that that increase in incapacity is “serious” within the mean of the Act.

[1]             Insofar as that incapacity was caused by the second accident

The Effects of the First Accident

(i)        The Medical Evidence

4          I have been provided with a number of medical reports which involved assessments of the plaintiff prior to the happening of the second accident.

• In a report dated 24 May 2004, Dr Clayton Thomas, a consultant in rehabilitation and pain medicine, opined that as a result of the first accident, the plaintiff had suffered a closed head injury involving brief retrograde amnesia. At the time of this examination, Mr Thomas obtained a history from the plaintiff in the following terms.

“He reports that his short term memory and behaviour have not changed at all and does not report any problems from the head injury aspect.”[2]

[2]             This history was inaccurate however, as there is no issue that at this time the plaintiff was suffering from some symptoms of memory loss and altered mood.

Mr Thomas opined:

“He certainly did not present with a flavour of someone who had
suffered any significant acquired brain injury.

He reports no ongoing cognitive problems. He did have a CT scan of his brain when he was admitted to the Alfred Hospital and this was reported to be normal.”

I note however that the history obtained by Dr Thomas as to the function of the plaintiff’s short term memory was inaccurate, there being no issue that at this time the plaintiff was suffering from some symptoms of memory loss and altered mood, accordingly, I find the opinion of Dr Thomas to provide some but limited assistance in evaluating the disability associated with the plaintiff’s organic brain injury.

• In a report dated 13 March 2007, Mr John O’Brien, an orthopaedic surgeon, obtained a history from the plaintiff in the following terms:

“Mr Webb stated that following the head injury, he has had problems with short-term memory and needs to write everything down. He also states that he now has ‘a very short fuse’”.

Given that Mr O’Brien’s specialty is orthopaedic surgery, he made no further comment as to the plaintiff’s head injury.

• In a report dated 27 April 2005, Dr Maurice Rosenbaum, a cardiologist, obtained from the plaintiff a history with respect to his head injury that “he suffers some memory loss following the accident but is not significantly emotionally disturbed”.

• In a report dated 20 May 2005, Dr Nigel Strauss, a psychiatrist, obtained from the plaintiff the following history:

“He said that he is short tempered with his wife and this causes problems and they have not had a good sexual relationship for many years. He said that he has been depressed since the accident and has had problems with motivation but he has not been particularly tearful or suicidal. At one stage his general practitioner put him on anti-depressants, but they affected his bowel and he said because of these side affects he stopped them, although he believes that they may have improved his mood.”

and further:

“He likes to burn DVD movies and he rides a push bike approximately 20 to 25 kilometres a day. He sees friends and likes fishing and is soon to join a pistol shooting group. He rarely watches television but he reads the newspapers.”

Dr Strauss opined:

“This man is suffering from mild depression.

There is no evidence of post traumatic stress disorder in this case.

At this stage I am not convinced that this man has suffered from the permanent effects of a head injury. However it is noted that he suffered significant physical injuries in the accident and possibly his heart problem was caused by the accident although this is not for me to comment upon.

He does suffer from some mild depression at times because of the physical injuries he has experienced and his subsequent disabilities. His depression is not severe and does not warrant treatment, although anti-depressants may assist him and one or two visits to a psychiatrist may help him to find an appropriate anti- depressant which may lift his depression. However if he does not have such treatment then his condition has to be considered stable.

No other factors apart from the accident are causing his mild
depression.

He suffers from no psychiatric incapacity for employment and from my point of view is capable of performing domestic duties and social and leisure activities.”[3]

[3]               Plaintiff’s Court Book (“PCB”) 128d

5          The medical evidence referred to above is only of marginal assistance to me in gaining an insight as to the extent of the plaintiff’s level of incapacity prior to the occurrence of the second accident. It does tend to indicate however that, from a medical perspective, the effect of the plaintiff’s organic brain injury as caused by the first accident, was not substantial.

(ii)       Affidavit Evidence

•  In an affidavit sworn 5 March 2007, the plaintiff described the injuries suffered by him as the result of the first accident and their effect upon him. The affidavit largely deals with the effects of the physical injury suffered to the plaintiff’s left shoulder and left wrist. As to the effect of his closed head injury, the plaintiff deposed as follows:

“I had a closed head injury, this I (sic) I am forgetful at times and I have to write things down. I now keep a diary; I did not do this before. I am so bad now that I cannot recall whether I have taken my medications on a particular day. I have taken to writing this down. I continue to take Warfarin (sic), which was prescribed during the cardiac surgery. I have been told I have to stay on this for life. It is dangerous if I take it twice or I forget to take it all. I get worried and stressed about this. I supposed (sic) to have had blood tests every fortnight but I go monthly. I also take medication to prevent high blood pressure. Again this was prescribed following cardiac surgery.”

6          This evidence tends to confirm the impression which I formed on the basis of the medical evidence to which I have referred, as to the extent of the plaintiff’s level of incapacity associated with the occurrence of the first accident.[4]

[4]               Defendant’s Court Book (“DCB”) 312

Injuries Suffered by the Plaintiff in the Second Accident

(i)        The Relevant Medical Evidence

7          The injuries suffered by the plaintiff by reason of the second accident are well summarised in a report dated 20 April 2009 by Dr Michael Ponsford, a consultant physician in the specialty of rehabilitation medicine, who reported upon the plaintiff’s rehabilitation at the Epworth Rehabilitation Hospital.

8          In the above report, Dr Ponsford described the plaintiff as suffering a traumatic brain injury in the second accident which involved a left fronto- temporal subdural haematoma with blood along the falx and of the tentorium, a small volume blood in the posterior horn of the right lateral ventricle and minimal associate subfalcine herniation of 3 millimetres. Dr Ponsford commented that at the time of his transfer to the Epworth Rehabilitation Centre, the plaintiff had emerged from post-traumatic amnesia but that a repeat CT scan of 5 November 2007 revealed the presence of a moderate/subacute subdural haematoma on the left with some displacement of the septum pellucidum and slight compression of the left lateral ventricle. He said that CT scans taken on 12 November 2007, 19 November 2007 and 26 November 2007 were reported by Dr Ponsford as revealing resolution of the mass effect associated with the plaintiff’s subdural haematoma and as providing no evidence of re-bleeding.

9          In the course of his treatment at the Epworth Hospital, the plaintiff underwent a neuro-psychological assessment which was reported by Dr Ponsford in the following terms:

“It was reported by the Neuropsychologist that Mr Webb had reported cognitive changes following his acquired brain injury in 2002 and had been implementing compensatory strategies. He denied any significant new changes to his cognitive skills following this accident. Overall, it was reported by the Neuropsychologist that he performed within expected ‘Average’ range, with the exception of markedly reduced verbal memory recall information. It was postulated by the Neuropsychologist that this was most likely related to his previous acquired brain injury, but possibly exacerbated by the acquired brain injury sustained in this accident.”

10        Dr Ponsford commented that:

“At the time of his discharge from Epworth Rehabilitation, Mr Webb was independent with all personal care tasks. It was reported that he declined assessment of domestic and community tasks as he reported that he was independent.”

11        In a report dated 7 April, Dr Clayton Thomas opined that the plaintiff presented with significant cognitive deficits and that his presentation:

“… very much had the flavour of someone who had suffered any

significant acquired brain injury.”[5]

[5]             PCB 71

12        Whilst Dr Thomas is a specialist in rehabilitation and it might be said that in expressing this opinion he is operating at or over the border of his expertise, I note that this opinion was expressed after Dr Thomas obtained a history from the plaintiff as to the problems he was having with his memory and he had administered a simple memory test upon the plaintiff. In the circumstances, I consider the opinion expressed by Dr Thomas to be relevant but not necessarily persuasive.

13        Professor Stephen Davis, a neurologist, has assessed the plaintiff on two occasions.

14        In his first report dated 22 October 2009, Professor Davis obtained a history from the plaintiff that he was more forgetful since the second accident.[6] He was also told that the plaintiff’s mood had been adversely affected (in that he was bad tempered and suffered from mood swings), and that the plaintiff had great difficulty learning anything new. The plaintiff’s wife emphasised to Professor Davis that the plaintiff’s memory problems were much more evident after the second accident, and gave examples of the plaintiff forgetting to turn the gas off or forgetting to lock the front door.

[6]             Professor Davis noted that this fact was emphasised both by the plaintiff and his wife.

15        Professor Davis opined as follows:

“He has had 2 head injuries in motorcycle accident, one in 2002 and undoubtedly sustained additional head injury in the 2007 accident, with a prominent subdural haematoma that was followed very closely with serial CT scans, but did not require neurosurgical intervention.

In all the reports, including those of the general practitioner, there is no doubt that there were some residual higher mental function abnormalities after his first 2002 accident. … Following the 2002 accident, he required aortic valve replacement and was on Warfarin at the time of the 2007 accident, clearly relevant to the development of this chronic subdural haematoma. He nonetheless states that he had no memory for 3 days after this accident and there is mention in Dr Ponsford’s report that neuropsychological opinion considered that there had been possible exacerbation of previous acquired brain damage, in the 2007 accident. This is certainly consistent with the history of the patient and his wife today and it seems that behavioural changes were probably somewhat more prominent than his memory difficulties. He is certainly competent with basic tasks of daily living but has some significant memory problems in terms of medication, leaving the gas on and failing to lock the door that were apparently not issues following the earlier 2002 accident.”[7]

[7]             PCB 82-83

16        Professor Davis assessed the plaintiff as having suffered a five percent brain impairment from the first accident and an additional impairment of seven per cent by reason of the second accident. He commented that this additional impairment:

“… would be completely consistent with the severity of the subdural haematoma that he sustained. I do not think that there is any evidence that he or his wife are exaggerating his problems in any way.”

17        In a further report dated 22 October 2009, Professor Davis, having reviewed a number of neuropsychological and psychiatric reports, re-stated his earlier position that the plaintiff had suffered a five per cent brain impairment in the 2002 accident and an additional seven per cent impairment in the 2007 accident, but commented that he was of the view that both of the accidents were probably contributing approximately to an equivalent degree to the plaintiff’s present disability.[8]

[8]             PCB 78

18        Professor Davis reassessed the plaintiff on 8 November 2010. On that occasion, he obtained a history from the plaintiff that:

“ … his fuse was a little shorter than it was before this accident”.

19        Professor Davis was also told that the plaintiff had difficulties with short-term memory which difficulties were more marked after the 2007 accident and included:

“ … forgetting to turn off the gas at home, forgetting medications and forgetting to lock the door. He was frustrated with these short-term memory problems and felt exposed that others knew of his limitations and shortcomings … . “

20        Professor Davis also obtained a history from the plaintiff’s wife that her husband’s memory, whilst affected by the first accident, was now much worse. She said that whilst after the first accident her husband would forget “the odd thing”, since the second accident, he had trouble remembering visitors who had seen him that day. She said that his personality had changed and that he was not the same person and that he exhibited mood swings.

21        Having assessed the plaintiff and obtained the history to which I have referred, Professor Davis maintained his previous opinion, namely that the plaintiff had suffered a five per cent brain impairment in the 2002 accident and an additional seven per cent impairment in the 2007 accident.

22          Professor Davis commented:

“His cognitive difficulties do reflect the effects of the two accidents but my estimate is that the first accident was slightly more severe than the second in terms of the organic brain injury.”[9]

[9]             PCB 76-77

23        Having regard to the fact that this comment by Professor Davis is inconsistent with the opinion expressed by him in his first report, that the impairment to the plaintiff’s brain caused by the second accident was greater than that of the first accident (which opinion was maintained by Professor Davis at the time that he authored both his second and third reports), I interpret the comment by Professor Davis that the effect of the first accident was greater than that of the second accident, as likely to be a transcription error; the true position being that the effect of the second accident was slightly more severe than that of the first accident.

24        Ms Carol Burton, a neuropsychologist, examined the plaintiff on 21 November 2010.

25        On the basis of the medical reports with which Ms Burton was briefed,[10] she expressed the opinion that the plaintiff had suffered from mild cognitive deficits from his initial injury and that it was appropriate to assess him as having a mental status impairment of five percent following the first accident. Ms Burton further opined:

“Any residual cognitive difficulties would have been exacerbated by, and added to, by the second head injury and chronic subdural haematoma. Impaired cognitive functioning when assessed in 2009 was particularly manifested in slowed processing and executive dysfunction, which appeared to be related to the second head injury, and would be consistent with radiological evidence of a chronic subdural haematoma in the left frontal region causing mass effect and midline shift with slight increase in size over time. He was evaluated as having a 9% whole person mental status impairment form the second accident. This would give a total of 14% whole person impairment.”

[10]           Which included the reports of Professor Davis dated 21 September 2009; Dr Ball dated 5 October

26        In the course of a report dated 18 May 2009, Ms Burton described the plaintiff’s performance on neuropsychological investigation as follows:

“In terms of his executive functioning, he had no difficulties with non- verbal problem solving … On the other hand he did demonstrate executive dysfunction on other tasks. Mild weakness was evident in his abstract thinking and in his verbal planning and organization most evident on verbal learning tasks, but marked weakness with significantly impaired planning, organization and judgement was seen on the Zoo Map Test. Reduced self monitoring was also evident in occasional rule breaking on verbal fluency tasks, and also demonstrated mildly reduced ability to spontaneously generate new ideas or words.”

Ms Burton continued:

“His scores on the Beck Depression Inventory 11 was 27 (sic), indicating he was reporting symptoms suggestive of severe depression. Those symptoms endorsed as severe included agitation (so restless and agitated that he had to keep moving or doing something), loss of energy (doesn’t have enough energy to do anything) and complete loss of interest in sex. Moderate symptoms endorsed included irritability, tiredness (too fatigued to do a lot of the things he used to do), concentration difficulty (hard to keep his mind on anything for very long), changed sleeping pattern (sleeps a lot more than usual), past failure and self criticalness. Mild symptoms include loss of pleasure, loss of interest in other people or things, indecisiveness, loss of self confidence, and pessimism …”

Ms Burton opined:

“When he was assessed by Dr Strauss in 2005, he was reported to be

2009; Dr MacDonald of The Alfred Hospital dated 20 April 2009; Dr Sterling dated 26 July 2008 and 5 April 2009; Dr Ponsford dated 20 April 2005; Dr Strauss dated 20 May 2005; Mr O’Brien dated 13 March 2007.

forgetful at times, had to write things down but did not lose things, his concentration was reasonable, and generally he was quite organised. However at times he was short tempered and irritable, he suffered from broken sleep, was often tired and slept whenever he could for short periods.

There was a discrepancy between his verbal comprehension skills and his perceptual organizational abilities which suggested a possible decline in verbal skills. The major factor reducing his overall scores was his very slow speed of processing: he was very slow both in his information processing speed and in his visual decision making speed, which is a strong indicator of brain dysfunction. He also exhibited mild fluctuations in attention and concentration, mildly reduced cognitive flexibility, reduced new learning capacities, and significantly reduced executive functions manifested in a marked susceptibility to interference in auditory processing (difficulty resisting the pull to the familiar), and reduced planning, organizational and judgement … It is difficult to know to what extent any of his current cognitive difficulties derive from his first head injury, but there is strong evidence of reduced cognition currently, particularly slowed processing and executive dysfunction, which appears to be related to the second head injury and would be consistent with radiological evidence of a chronic subdural haematoma in the left frontal region causing mass effect and midline shift with slight increase in size over time. … based on his assessment by Dr Strauss in 2005, his complaints were thought to be minor, he still had drive, could use electric equipment, manage domestic chores, and entertain himself, and was not considered in need of the supervision he seems to require now.

While there are likely to have been mild residual cognitive deficits from the initial head injury together with the effects of his traumatic aortic valve injury, these would have been exacerbated by the second head injury and chronic subdural haematoma. The significant slowing and frontal executive deficits that have been noted would be consistent with the history and radiological evidence.”[11]

[11]           PCB 6

27        Dr Richard Ball, a psychiatrist, examined the plaintiff on 5 October 2009. He opined that the plaintiff presented with some indication of organic consequences of head injury and that he suffered from secondary adjustment reaction with some depression and anxiety, his psychiatric problems being mild in nature, namely that the plaintiff’s chronic adjustment reaction with depression and anxiety is likely to remain the same and is largely determined by the combination.[12]

[12]           PCB 106-107

28        Mr James Drury, a clinical neuropsychologist, assessed the plaintiff on 30 September 2009 and 13 December 2010. In his first report, Mr Drury noted the plaintiff to present with deficits in relation to attention and concentration, and to working memory. He commented that the plaintiff demonstrated very limited acquisition of general knowledge but commented that the latter was likely to have been a reflection of his pre-accident ability.

29        Mr Drury opined that the plaintiff presented with a current pattern of cognitive deficits which were in the mild to moderate rather than severe range, that the basis of his deficits were likely to be multi-factorial involving residual organic damage from his 2002 accident and exacerbation of organic damage in the 2007 accident, particularly affecting attention and concentration. He also opined that the plaintiff suffered further restriction in his cognitive efficiency due to his psychological symptoms and was of the opinion that:

“ … the relative contribution of these factors is that they are each restricting his efficiency to an approximately equivalent degree, with no particular factor appearing to be predominant.”[13]

[13]           PCB 126

30        In his report dated 31 December 2010, Mr Drury opined:

“The comments made by Mr Webb (and his wife) have suggested that the effect of his 2002 accident was relatively minimal compared with that of the 2007 accident, such as he now has to write everything down and has a short fuse. It may be that there has been some exacerbation following the 2007 accident, but perhaps with the passage of time, the recollection of his earlier symptoms (pre-2007) has faded. The overall pattern of results on the current assessment is not significantly different from that of the 2009 assessment. I remain of the opinion that the relative contribution of the brain damage sustained in the 2002 and 2007 accidents is approximately equivalent. It is likely that the current memory lapses and behavioural changes are more prominent than prior to 2007, but this is as a result of compounding pre-existing deficits from the 2002 accident (i.e. the pre-2007 accident results already demonstrated cognitive and memory difficulties).”

Mr Drury continued further in his report:

“Accordingly, although I am of the view that organic brain damage has affected his cognitive efficiency, it is also likely that his psychological state is contributing to his frustration with his condition.”

And finally:

“It has now been over three years since the accident occurred, and therefore his underlying organic condition has now stabilised and no further improvement would be anticipated in that regard.[14]

[14]           DCB 283

31        The neuropsychological evidence, both from Ms Burton and Mr Drury, is consistent with the presence of subtle brain damage of an organic nature which impacts adversely upon memory and presents with associated depression. Having regard to the opinion expressed by Mr Ball in his report dated 5 October 2009, namely that the plaintiff’s chronic adjustment reaction with depression and anxiety is likely to remain the same and is largely determined by the combination of the plaintiff’s physical problems and the consequences of his head injury, I am satisfied that the plaintiff’s level of intellectual functioning and depression and anxiety is likely to remain stable.

32        There is no dispute that in both the first and second accidents, the plaintiff suffered organic brain injury. Whilst there is some dispute[15] as to whether the organic brain injury suffered by the plaintiff by reason of the second accident resulted in an impairment of brain function greater than or equal to the impairment of brain function which was caused by his first accident, the relative assessments made by the medical practitioners in this regard do not speak with any force upon the task which I am required to undertake, namely to assess the degree of incapacity which has been caused by reason of the second accident.

[15]           See and contrast the opinions of Professor Davis, Mr Drury and Ms Burton.

33        Whilst the neuropsychological testing is of some assistance in this regard, in that it provides some insight as to the areas of functioning in which the plaintiff may be affected, I am of the opinion that the evidence of greatest assistance to my task lies in the lay evidence which documents the plaintiff’s disability both before and after the second accident, assuming, of course, that I am satisfied as to the accuracy and reliability of that evidence.

34        In dealing with the relevant medical evidence in this case, I have ignored the evidence of Dr Bruce Sterling, the plaintiff’s treating general practitioner, as I have no confidence in the opinion expressed by him for the following reasons:

•  On 15 May 2009, Dr Sterling authored an application to Centrelink for a carer’s allowance by the plaintiff’s wife. In the course of that application, Dr Sterling expressed the opinion that the plaintiff was suffering from the effects of an acquired brain injury which was caused by the second accident. He certified the plaintiff as suffering from impaired cognitive function such that he needed assistance on a daily basis. He further certified that the plaintiff presented with memory loss most of the time, withdrawal from social contact most of the time, displays of aggression and depression. He further certified that the plaintiff’s condition was permanent.

•  In the course of his viva voce evidence, Dr Sterling gave the following evidence:

“Q:	You’ve crossed ‘permanent’. What does that mean, doctor?
A:	On the basis that there had been some considerable time since the accident and that the condition had remained unchanged, I assumed that it was going to be unchanged.”[16]

[16]           Transcript (“T”) 115

• In a medical report which Dr Sterling authored on 14 June 2009, he expressed the following opinion as to the injury suffered by the plaintiff in the second accident.

“In respect of the injuries from the recent (2007) accident, Mr

Webb has returned entirely to normal.”

• In the course of cross-examination, Dr Sterling confirmed the opinion expressed by him in that report.

• Neither party sought to elicit from Dr Sterling an explanation for the inconsistency between the opinion expressed by him the course of the May 2009 Centrelink application and that expressed by him in the medical report which he authored one month later.

35        Having regard to the fact that:

(i)	Dr Sterling has made what I interpret to be totally inconsistent statements as to the plaintiff’s level of disability as caused by the second accident in two documents, which were created within one month of each other; and
(ii)	no evidence was brought to my attention which would justify such a change of position on Dr Sterling’s behalf,

I do not find Dr Sterling’s opinion or evidence to be either persuasive or helpful in deciding the issues which arise in this proceeding.

(ii)       The Evidence of the Plaintiff

36        In his affidavit in support of this application sworn on 3 December 2009, the plaintiff deposed as follows:

• Whilst he had sustained a head injury in the 2002 accident which resulted in reduced memory, he remained independent in all activities of daily living and that he had been able to return to motorbike riding and to undertake his normal social and recreational activities.

• Following the second accident, his memory was much worse. He could not remember what he said, which resulted in him repeating things; he had difficulty remembering the names of family members or friends; he needed to write everything down and employed a diary and also an alarm to remember taking his medication. He said that even with this regime, he required the supervision of his family to check that he had remembered to take his medication.

• On occasions he had forgotten to lock the door or to turn the gas off; on going to the supermarket he had a tendency to forget where he had parked his car.

• Since his second accident, he had difficulty spelling words, and for this reason he had discontinued writing letters.

• Whereas prior to the 2007 accident he was computer proficient and enjoyed fixing computers, he now had difficulty using new technology.

• His attention span had diminished. He had difficulty concentrating. If he read the newspaper, he had difficulty recalling what he had read at the conclusion of his reading.

• His irritability had increased. Whereas following the first accident he had a short fuse, since the accident he had no patience any more.

• Prior to the 2007 accident he enjoyed cycling, however he has been advised that he should give up this activity and he has not returned to it.

37        In a further affidavit sworn 20 January 2010, the plaintiff deposed to the fact that since the second accident his ability to sleep had become markedly impaired. He said that he had a tendency to wake in the middle of the night and had difficulty getting back to sleep and as a result:

“… I tend to get up and walk to the kitchen, where I will sit and remain awake for the rest of the night. Prior to my 2007 accident, I did not have this problem.”[17]

[17]           PCB 11

The plaintiff’s viva voce Evidence

38        In the course of his cross-examination, the plaintiff said:

• That prior to the second accident he enjoyed fishing, camping and building things;

• That he had recently purchased a four-wheel motorbike which could only be used “off road”. He said that he had a trailer for his four-wheel motorbike, that he had recently bought a welder which enabled him to modify the trailer so that he could carry both his motor bike and his fishing boat at the same time. He described being confident enough in his safety to undertake welding activity.

• That these days he went camping with his eldest son, Daryl, or with friends, Rod Clarke and Phil Cadell. He said that when he went camping he would go fishing, that he had his own boat which he described as “a 12- foot tinny”.[18]

[18]           T 25

39        The plaintiff was cross-examined as to his activities between the first and the second accident. He said:

• that he had returned to motorbike riding and that the motorcycle he was riding at the time of the second accident had been purchased approximately one month earlier.

• That he had returned to riding a two-wheel motorcycle in the forest and that he had returned to all his recreational activities prior to the 2007 accident, save for playing the guitar.

40        The plaintiff described his most significant social interest prior to the second accident as “get out in the bush”. He was asked:

“Q:	You still do that. You still get out in the bush?---
A:	I haven’t been for a while, but, yes. I could still get out there, yes.
Q:	You have got out in the bush since the 2007 accident?---
A:	Yes, a couple of times, I have, yes.
Q:	Do you intend to go again?---
A:	Yes, I certainly do.
Q:	You’ve got a special vehicle which can only effectively be used in the bush?---
A:	Exactly, yes.”[19]

[19]           T 26

41        The plaintiff said that after the second accident he had been told by a specialist, “Don’t risk bumping your head”. In other words, “no contact sports, no water skiing, no motor-cycling, no two-wheel motor-cycling, no pushbike- riding”. He said it was for this reason that he purchased his four-wheel off- road motorbike and had given bicycle riding and riding a two-wheeled motorcycle of the type he was riding at the time of the second accident.

42        It was put to the plaintiff that after his 2002 accident he had been told to avoid vigorous activity, to which he responded, “I don’t remember being told that at all after the 2002 accident”.[20]

[20]           T 39

43        The plaintiff said that whilst he employed a diary to assist him with the use of his medication before the second accident, his memory was worse after the second accident. He said that since the second accident his memory had been different, that he had more difficulty remembering things.[21]

[21]           T 80

44        The plaintiff was taken to a number of medical histories in which he described himself as being separated from his wife. He said that he and his wife had never been separated. That whilst they had independent banking arrangements and they did their own washing, he did not regard himself as being separated as he and his wife continued to reside under the one roof.

45        It was put to the plaintiff that if he was having trouble with his memory, there was no reason why he should employ a system of separate financial arrangements from those of his wife, to which he responded,

“No, that’s not the way it’s done. Because you got to be able to look after your own stuff, your own life, your own way. You’ve got to be able to do it. I’ve always done it that way.”[22]

[22]           T 60

46        The plaintiff said that both he and his wife received independent pensions as the result of an application made by his wife to Centrelink. He said that one of the reasons for this application was that the payment of separate pensions meant that they each received a larger amount. He explained his position in these terms:

“… if your only source of income is Centrelink then that’s probably a good

enough reason.”[23]

[23]           T 61

47        The plaintiff agreed that he was able to drive. He said however, that his car would sometimes sit for two weeks without being started. He said that in the last twelve months the furthest destination that he had driven had been to Albury and that this had involved a six-hour round trip.

48        The plaintiff said his wife had always had “some form of anxiety and she is on a large heavy dose of anti-depressant medication and has been that way for the last several years”. He described his relationship with his wife as having been strained virtually for the whole time that he had been unemployed[24] and whilst he conceded that the marriage was still under strain, he maintained the fact that he and his wife were not separated,[25] and was generally reluctant to accept the position that their marriage was dysfunctional.

[24]           T 73

[25]           T 77

49        The plaintiff said that he had recently bought a new mower; new welding gear; his four-wheel motorbike and a ‘whipper snipper’ via E -Bay by means of his computer.

50        He said that before his second accident he always had a “short fuse”, that he had had “some trouble sleeping”. He said that he no longer read newspapers but kept up on the news using the computer. He accepted that he was short tempered before the second accident, that this had caused problems with his wife and that his short temper continued to cause problems with his wife.[26]

[26]           T 86

51        In re-examination the plaintiff:

• described struggling really badly with his motivation. He said that since late 2007 and early 2008, his motivation had “just gone downhill and stayed there”. He described this as affecting him in the following way, “I just don’t get out and about very much”;

• said that he had purchased his four-wheel motorcycle when he received a payout from the Transport Accident Commission;

• said that before the second accident he would go fishing two or three evenings a week but that in the last twelve months he had used his boat to fish only on some ten occasions.

52        When the plaintiff was asked why he had gone to the trouble of buying a boat but had not used it to fish regularly, he responded,

“I can’t put a finger on it. I can’t say why it is. I’m not motivated enough

to go.”[27]

[27]           T 95. See also the plaintiff’s evidence at T 102, that his lack of motivation which was responsible for his not getting into the bush regularly had come about after the second accident.

53        He was asked about his quad bike which he had owned for six or seven months and said:

“That’s been out about three or four times but usually only for an

afternoon.”[28]

[28]           T 96

54        As to camping, the plaintiff said that he had been camping three or four times in the last twelve months and that prior to the second accident in a twelve- month period he would have camped at least twenty times . It was put to the plaintiff:

[29]           T 96

Q:	“You’ve got all these things. You’ve got the quad bike, the boats. You’ve got your licence for your boat. You’re getting or you have got your licence for a gun, shooter’s licence. Getting all these things, is that getting you going to do what you want to do?---
A:	No, that’s the bit that I can’t get around.”[29]

55        He was asked as to his intention with respect to the use of the motorcycle he was riding at the time of the second accident, to which he responded:

“It’s use was going to be a bit of a last fling with a road bike, to travel across the coast and do a bit of touring. My mate Clarky rides a bike and does a bit of touring and I was going to go with him and do a bit of that and enjoy it.”[30]

[30]           T 97

56        The plaintiff described the change between the regime he employed prior to the second accident, in which he employed a diary to remind him to take his Warfarin and that which he employed after the second accident which involved him using his mobile phone alarm in the following terms:

“The mobile phone has a fairly extensive alarm system in it which is very loud. You can’t miss it if you’ve got it in your pocket, and this regime became, as soon as the phone goes off, get the tablets out of wherever you kept them, in a box, and put them straight in your mouth, don’t put them down, because if you put them down, you’re still not necessarily going to take them.”[31]

[31]           T 104

57        He described other changes in his memory as affecting him in instances such as when driving to the supermarket:

• upon being unable to find his car, thinking that someone had stolen it because he had forgotten that he had taken his wife’s car to the supermarket;

• forgetting where he had parked his car , which problem he had solved by always parking at the very end of the car park in the same area.

58        He said that before the 2007 accident, if he went to the supermarket to get three or four things he could do so without having to write that down, but now he was required to employ the use of a list.

59        As to the use of his computer and managing new technology generally, the plaintiff said that before the second accident he was very competent in managing new technology.

“If there was anybody in the household who had a problem with a new

telephone or a camera, I was the boy to talk to. I could help them.”[32]

[32]           T 107

60        He said that he was able to undertake comprehensive repairs on his computer but that he had now lost the ability to do that. Since the second accident the plaintiff said that he had lost these abilities. He said that he now had difficulty remembering how to use the facilities offered by the new telephone handset and that he had given his camera to his son because it was too complicated for him to use.

61        The plaintiff said that whilst he had always had a short temper and that his tendency to lose his temper had been exacerbated by the first accident, it was further exacerbated by the second accident.

“It became a lot shorter. There was a big difference in – I’ve never, ever done it before in my life, I had arguments and fights with my wife but even that started to happen (sic) and that was pretty upsetting to me.”[33]

[33]           T 109

62        As to the change in his sleeping patterns, the plaintiff described this in the following terms:

“After the first accident, I was just what you would probably call a light sleeper, I was easily disturbed but I could go back to sleep – I’m still just as easily disturbed but once I’m awake I seem to stay awake; I toss and turn and finish up getting up and sitting in the kitchen – I can’t switch off. I can’t stop my mind from working. I can’t relax. I can’t unwind.”[34]

[34]           T 111

63        I found the plaintiff to be a truthful witness who did his best to be accurate. With the exception of the evidence given by the plaintiff as to the relationship with his wife and in particular, whether they were living separate lives within the same household, which I found to be unconvincing, the plaintiff readily volunteered information about his capacity to engage in various activities, which evidence was potentially to his detriment.

64        Generally I considered that there was a consistency in the plaintiff’s evidence as to the effect of the second accident which was consistent with the medical evidence in this regard.

65        Given the above findings, when considered in the context of the fact that there is no suggestion in any of the medical reports upon which the parties rely upon that the plaintiff is other than a truthful historian, I accept the evidence given by the plaintiff as to the level of his incapacity following the first accident and the change in his capacity following the second accident.

(iii)      The Evidence from the Plaintiff’s Wife and Son

The Evidence of Daryl Webb

66        In an affidavit sworn 18 January 2010, the plaintiff’s son, Daryl Webb, deposed that since the second accident his father:

• had become more forgetful and “a much more angrier person”;

• was, prior to the accident, proficient at building and maintenance works and was, for example, able to fit and maintain the braking system of a trailer, but that he was now much less proficient in that regard, was often required to seek his son’s assistance and was now reluctant to volunteer to assist others with that type of work.

• had become socially withdrawn and whilst he had previously enjoyed camping, it was now a struggle to convince him to engage in that activity.

67        In the course of his viva voce evidence, Mr Webb maintained the position he had expressed in his affidavit. He said that prior to the second accident, he would see his father twice a week. “My father would visit me, say, one day in the week and I may visit him on the weekend”.[35]

[35]           T 140

68        He said that in the last twenty-four months he had been camping with his father only on two occasions, the first occasion being in approximately February 2009, and the second in December 2010.[36]

[36]           T 146

69        He said that prior to the accident, his father was very good at building and maintenance and that since the accident he could do the same sort of things as he had always done but he did not do them as well.[37]

[37]           T 148

70        He said that he had never actually seen his father ride his “quad bike” and that he was surprised that his father had bought the bike.[38]

[38]           T 152

71        He said that his father had driven to Melbourne, accompanied by his son, for the purpose of attending Court; that he was capable of making the drive but that he would not have driven to Melbourne had he not been required to attend his Court case.

72        He said that when his father went camping with him and his family, his father participated in all the activities which were involved, such as boating, fishing and chatting around the camp fire and that he seemed to thoroughly enjoy camping.[39]

[39]           T 167

73        He described the fact that prior to the accident his father had assembled his own computer from parts ordered by him.[40]

[40]           T 160

74 With respect to the evidence given by Daryl Webb, I formed a similar opinion as to the accuracy and reliability of his evidence as that which I formed with respect to the evidence given by his father. His evidence was consistent and contained statements as to his both father’s level of activity and his capacities which were readily volunteered and were not necessarily in the interests of his father’s case. See, for example, his evidence as to his father’s ability to weld,[41] to drive,[42] and his enjoyment of camping.[43]

The Evidence of Susan Webb

[41]           T 148

[42]           T 149

[43]           T 167

75        The plaintiff’s wife, Ms Susan Webb, has filed an affidavit in this proceeding which was sworn by her on 30 December 2010. Ms Webb was required to attend the hearing for the purpose of cross-examination on behalf of the defendant, but was unfit to attend Court. In these circumstances, the weight given to her affidavit evidence by must be discounted by reason of the fact that the defendant has been denied the opportunity to test that evidence.

76        In her affidavit, Ms Webb deposed that:

• Her husband was now far angrier than he had previously been and that things such as a failure to locate a missing saucepan would cause him to go up in a “fit of rage”.

• That since the second accident the plaintiff had become very forgetful. She said that whilst the plaintiff suffered from memory problems following the first accident, his family was always able to jog his memory but that since the second accident, even when an attempt is made to jog the plaintiff’s memory “the memories do not come to mind”.[44]

• She said that since the second accident her husband had left the house whilst leaving the gas on, had locked his keys in his car and “often goes to town and forgets to take his wallet”.

• She described the plaintiff as having become socially isolated and withdrawn and said that he rarely went on social outings. She deposed to the fact that the plaintiff would often agree to go on an outing, would pack the car and would at the last minute refuse to go on the trip.[45]

[44]           PCB 13

[45]           PCB 14

The Positions of the Parties

77        In its defence of the proceedings, the defendant points to the fact:

• that on 27 January 2008, the plaintiff was assessed as meeting the national medical standard to hold a licence to drive a car, motorcycle, bus or heavy truck,[46]

• that all of the problems with which the plaintiff now presents following the second accident were there to some degree and were problems for the plaintiff following the first accident;

• that the plaintiff has sought no medical treatment for his condition and that he has only on one occasion made a report to the doctors at the Shepparton Lister House Medical Centre (“the Medical Centre”) at which the plaintiff’s general practitioners practise;

• that the plaintiff was able to give thoughtful and coherent evidence in the course of the trial which was consistent with the level of the discussion which occurred between the plaintiff and Dr Sterling at the time at which the plaintiff was counselled about his desire to cease smoking.[47]

[46]           DCB 16-20

[47]           T 124-126

78        Counsel for the defendant also points to what is submitted is an inconsistency between the evidence relied upon by the plaintiff as to the poor state of his memory and the fact that he maintains a separate bank account from his wife and manages his own affairs.

79         Effectively it is the defendant’s submission that the plaintiff’s life before and after the second accident is only marginally different and that the plaintiff has not established that any differences which do exist are such as to warrant a finding in his favour in this application.

80        In response, it is submitted on behalf of the plaintiff that the combined effect of:

• The deterioration in the plaintiff’s memory;

• The deterioration in his mood and the increase in his temper;

• The plaintiff’s effective abandonment of all the activities which he enjoyed prior to the second accident which involved being out in the bush; camping; fishing; cycling and riding his motorcycle ;

• The plaintiff’s social isolation;

• The difficulties with the plaintiff’s sleep;

• The plaintiff’s loss of and ability to cope with sophisticated technology which prevents him from using his camera and undertaking substantial mechanical repairs;

• The plaintiff’s secondary depression;

are all matters which, in combination, make out the plaintiff’s case.

Findings

81        I am satisfied that as a result of the first accident, the plaintiff suffered from a number of deficits which, whilst impacting upon his life at various levels, did so at a level of significance which was readily accommodated by him and in particular, did not impact upon the plaintiff’s life such as to deny him the ability to engage in the physical activities and pastimes which were most important to him, namely fishing; camping; motorcycle riding;[48] and tinkering around at a relatively sophisticated level in activities such as welding, undertaking mechanical repairs and dealing with the ever broadening range of electrical technology which presented itself in the form of computers or cameras.

[48]           By this reference I am referring to riding a motorcycle on the highway, the plaintiff’s ability to ride a motor cross motorcycle having been lost by the physical injuries sustained in the first accident.

82        I am satisfied that the effect of the second accident, insofar as it exacerbated the organic injury suffered to the plaintiff’s brain following the first accident, has had the effect of either robbing the plaintiff of his ability to partake in these activities, or has so adversely affected his motivation that notwithstanding a retained ability to engage in some of these activities, the plaintiff does not avail himself of the opportunity to do so.

83        I am satisfied that the accident has the effect of changing the plaintiff from an active person who spent much of his time engaged in outdoor activities, to one who is now inclined to plan to engage in those activities, to surround himself with the paraphernalia which would be of assistance in engaging in those activities, but who thereafter largely fails to pursue those activities.

84        The task which I am required to perform in an application of this nature is a difficult one. It requires me to determine whether the consequences of the plaintiff’s impairment as caused by the second accident, when considered in the context that they involve an aggravation of a pre-existing condition, are such that they, in themselves, can be said to have caused the plaintiff to suffer very considerable consequences with respect to pain and suffering.[49]

[49]           See Guppy v Victorian WorkCover Authority & Anor [2010] VSCA 164 (25 June 2010); Petkovski v Galletti [1994] 1 VR 436

85        In this respect I must :

(i)	Be satisfied that the plaintiff has established that those consequences, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than significant or marked and as being at least very considerable;
(ii)	Assess the consequences in terms of pain and suffering which the second accident has occasioned to the plaintiff and determine where the facts of this case sit in the broad spectrum of cases.

86        The task which I am required to undertake has been described as involving “a value judgment, in which matters of fact and degree, and of impression, are operative,”[50] and one in which I am required to take into account –

“… not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to some extent, by what is retained.”[51]

[50]           Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181

[51]           Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260

87        I am of the opinion that the plaintiff’s impairment which arises by reason of the aggravation of his pre-existing organic brain injury, falls at the borderline of cases which could be described as being very considerable. I am of the opinion however that it is appropriate to so regard it, given that it effectively prevents the plaintiff to a very significant degree from engaging in the broad range of activity which formed the basis of his hobbies and pastimes prior to the second accident, and in that way has had a very significant and deleterious effect upon his lifestyle.

88        In the circumstances, I propose to make an order giving the plaintiff leave to commence a proceeding claiming damages for the pain and suffering consequences of the transport accident in which he was involved on 27 October 2007 and I will hear submissions from counsel with respect to costs.

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