White v TAC
[2019] VCC 1051
•15 July 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-03549
| MARC WHITE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 & 20 June 2019 | |
DATE OF JUDGMENT: | 15 July 2019 | |
CASE MAY BE CITED AS: | White v TAC | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1051 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to the spine – whether consequences “very considerable”
Legislation Cited: Transport Accident Act 1986
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Philippiadis v Transport Accident Commission [2016] VSCA 1; Stijepic v One Force Group Australia Pty Ltd & Anor [2009] VSCA 181
Judgment: Application successful
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin QC with Ms R Dal Pra | Maurice Blackburn |
| For the Defendant | Mr S Smith QC with Ms A Wood | Transport Accident Commission |
HER HONOUR:
Preliminary
1 Mr White is a 48 year-old man who was injured in a transport accident on 4 May 2015, when the bicycle he was riding was struck from behind by a car (“the transport accident”). As a consequence of this accident, Mr White claims to have suffered injuries to his lower back, left shoulder and right elbow. Mr White stated that whilst he has made a reasonable recovery from his shoulder and elbow injuries, he continues to suffer from persisting lower back pain. Mr White has returned to his pre-accident activities of cycling and golf, but claims that he does so with pain, and that he cannot now enjoy or participate in these activities in the way that he previously had.
2 In order for Mr White to be entitled to claim common law damages, the impairment of his spine must satisfy paragraph (a) of the definition of “serious injury” contained in s93(17) of the Transport Accident Act 1986.
3 At the commencement of the hearing, the Transport Accident Commission (“the TAC”) conceded that Mr White had sustained an injury in the transport accident under paragraph (a). However, in circumstances where Mr White had suffered pre-existing back complaints, for which he required regular osteopathic treatment, the TAC alleged that it was necessary for me to consider only the consequences arising from the aggravation of his pre-existing impairment. The TAC disputed that the consequences of this aggravation can be described as at least very considerable.
4 Only Mr White was called to give evidence, and he was cross-examined. Also in evidence were medical reports and other material, including an affidavit from his wife. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those aspects of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my judgment.
5 For the reasons which follow, I am satisfied that the consequences to Mr White from his spinal impairment can be described as at least very considerable, such that he should be granted leave to commence common law proceedings.
Mr White’s life before the transport accident
6 Mr White is married, and has two children aged 11 and 8 years of age.
7 Mr White completed Year 12, following which he undertook the first two years of a Bachelor of Business Degree. He then left university, and thereafter worked as a general manager and business consultant in a number of businesses. At the time of the transport accident, Mr White was general manager of a children’s clothing label business, which he ran with his wife. In his spare time, Mr White said that he had a very active sporting life, and that cycling was his main hobby. In his first affidavit sworn in support of this application, Mr White said that he was a member of two cycling clubs, and that he usually cycled five to six times per week, totalling around 300 kilometres per week, including hill climbs. Mr White said that he used to complete a 100 kilometre ride most weeks.
8 In this affidavit, Mr White also said that he played golf three times per month, and that he had a handicap between 9 and 14. He said that he played social tennis and squash, and that he also enjoyed playing in an annual fathers’ football team, for which he trained weekly over a three month period.
9 Mr White said that he also had a busy social life, and was active in caring and playing with his young daughters.
10 Mr White said that he had previously suffered some left arm and shoulder pain, for which he received physiotherapy treatment, and from which he made a full recovery. Mr White also said that he had previously undergone an appendectomy, and that he had to wear a halter monitor, for an increased heart rate.
11 I note that Mr White made no reference in this affidavit to any pre-existing lower back symptoms. In the initial part of his cross-examination, Mr White said that prior to the transport accident, he had no specific problem with his back. The TAC sought to challenge this aspect of Mr White’s evidence on the basis of a medical record written by physiotherapist, Ms Jodie Porter, whom Mr White first consulted on 7 May 2015, a few days after the transport accident. Ms Porter recorded the following past history in respect of Mr White:
“Lx pain prior to the incident occasionally
Had previous acupuncture
Aggs by lifting in the wrong way
Osteo 1 x month to click back and cx in to place”
12 Ms Porter also noted the following social history:
“200-300 km/week on bike
Golf occ 1 x month- pulls up poorly
Previous push ups and sit ups - elbow pain and left rotator cuff aggravated so stopped…”
13 Mr White accepted that he had previously received osteopathic and acupuncture treatment for his lower back, but did not accept that it was for lower back “pain”, instead describing it as an “inconvenience”. Mr White repeatedly emphasised the amount of cycling he was doing at the time, and said that he obtained such treatment to help his body deal with the associated stress the cycling placed upon him.
14 Mr White said that he could not recall aggravating his lower back when lifting objects incorrectly, and said that whilst he can recall pulling up poorly after golf, he recalled that it was his right elbow that sometimes caused him difficulty.
15 Mr White’s medical records from general practitioner, Dr Michael Minogue, at the New Street Medical Centre, indicated that he attended on several occasions from April 2012 until the time of the transport accident, for a range of ailments. None of these attendances, however, were in relation to lower back pain.
The transport accident and its consequences to Mr White
16 After the transport accident, Mr White said that he was taken by ambulance to the Alfred Hospital, where he was diagnosed as suffering un-displaced fractures of the transverse processes of the L3 and L4 vertebrae. In addition, Mr White was treated for a laceration to his scalp; abrasions to his upper back, left flank and left thigh; and a haematoma and grazes to his right elbow. Mr White was admitted to the ward, and discharged home the following day.
17 On 7 May 2015, Mr White attended upon Ms Porter and was provided treatment in respect of his lower back and right shoulder injuries.
18 On 8 May 2015, Mr White attended upon Dr Minogue who obtained a history of the transport accident and the injuries he had suffered, including the fractures at L3 and L4. Dr Minogue noted that Mr White had commenced physiotherapy treatment and prescribed him Targin and Endone medication.
19 On 14 May 2015, Mr White re-attended upon Dr Minogue, who noted that he was seeing a physiotherapist twice a week, and that he was “slowly improving”, but had issues with bending and sitting.
20 On 4 June 2015, an ultrasound was performed on Mr White’s left shoulder, which was reported as demonstrating a partial thickness tear of his left supraspinatus tendon, with associated subacromial bursitis.
21 On 25 June 2015, Dr Minogue noted that Mr White was continuing to undergo rehabilitation, and that his neck and left shoulder remained an issue. At that time, Dr Minogue ceased Mr White’s prescriptions for Targin and Endone, and instead prescribed Temaze and Voltaren. He also referred Mr White to Sports physician, Dr Kal Fried, in relation to his left shoulder pain.
22 On 26 June 2015, Mr White attended upon Dr Fried for advice in relation to his persistent left shoulder pain. Dr Fried noted that Mr White reported that his lower back pain and right elbow pain, were “resolving steadily” and that he had been managed with physiotherapy treatment. At that stage, it was noted that Mr White’s sleep was generally unimpaired, save for those occasions on which he rolled onto his left shoulder.
23 Dr Fried administered a cortisone injection into Mr White’s left shoulder, and recommended that he continue with physiotherapy treatment thereafter.
24 Mr White said that he continued to attend for regular physiotherapy treatment throughout this time. On 29 July 2015, Ms Porter noted that Mr White reported that his lumbar pain was “good” and that he only had “pain with too much sleeping”. Ms Porter noted that Mr White had returned to cycling, and that he was “good up to 80km.”
25 At his next attendance on 12 August 2015, Ms Porter noted that Mr White had increased his cycling, and that he was now doing three rides per week, totalling 200 kilometres. Ms Porter noted that Mr White was unable to sit for more than two to three hours at a time.
26 In November 2015, Mr White returned to work on light duties. He said that he was struggling to sit and stand at this time, which made interstate travel difficult, and which subsequently affected his business.
27 At this time, Mr White commenced Keiser physiotherapy, which he initially undertook two to three times per week.
28 On 15 June 2016, Mr White attended upon Dr Minogue in relation to his lower back pain. At that time, Dr Minogue noted that Mr White experienced back pain after having lifted a couple of boxes into his car. The record also referred to a recent calf injury that Mr White had sustained whilst playing football, as well as him having hurt his neck playing basketball. Dr Minogue prescribed Mr White Endone, Voltaren, and Temaze.
29 In the middle of 2016, Mr White commenced football training for the annual Dads’ football match. In his first affidavit, Mr White said that whilst he tried to train, he was very limited.
30 In July 2016, Mr White was continuing to receive Keiser physiotherapy on a regular basis. At an attendance on 19 July 2016, it was noted that Mr White was well and riding up to 70 kilometres on flat roads, with hills being his main issue. It was also noted that he was participating in football training with no issues.
31 In August 2016, Mr White played in the Dads’ football match. At his Keiser physiotherapy session on 16 August 2016, it was noted that Mr White complained of mild right hamstring tightness during the second half of the match as well as after the game, together with a mild overstretch in his right calf.
32 On 30 January 2017, Mr White attended upon Dr Minogue as he continued to experience issues with his back. Dr Minogue noted that Mr White’s back pain was aggravated by flying (which was a requirement of his work), that it was affecting his sleep, and that he could not painlessly lift his children. In addition, Dr Minogue noted that Mr White’s cycling was restricted, especially on the hills, and that he suffered soreness when playing golf, after 15 holes, as well as when playing tennis. Dr Minogue prescribed Mr White Voltaren and Temaze.
33 On 1 May 2017, Mr White attended upon Dr Minogue and reported “constant pain”, despite taking Voltaren two to three times per week. Dr Minogue noted that Mr White’s back pain was made worse when he played golf; that he could not play tennis, and that he had problems riding his bike, such that he was riding less than 100 kilometres per week, and was avoiding hills.
34 On 4 May 2017, Mr White commenced physiotherapy treatment with Mr Nigel Mitchell. At this first attendance, Mr Mitchell obtained a history that Mr White had suffered ongoing lower back pain since the transport accident. It was noted that he had stopped treatment six months prior and that he was “still sore.” Mr Mitchell noted that Mr White could not play tennis, was sore after golf and could no longer cycle hills or long distances.
35 In a letter to Dr Minogue dated 2 July 2017, Mr Mitchell noted that Mr White felt that “his back symptoms have taken a backward step.”
36 Mr Mitchell provided Mr White with weekly physiotherapy treatment for his lower back pain through to 24 October 2018. At the time of his last consultation, Mr Minogue recorded that Mr White was “fair overall”.
37 In November 2018, Mr White and his family moved to the Gold Coast in Queensland, after he obtained employment with a transport company in Brisbane. Mr White said that he outsourced the majority of the moving, as he was concerned that he may further hurt himself. In cross-examination, Mr White said that this involved engaging professional removalists, who packed and transported two full container loads of household furniture and items. Mr White said that, if not for his back injury, he would have provided greater assistance in packing goods and loading the containers.
38 Mr White said that in moving to Queensland, his wife decided that they should live on the Gold Coast, in part due to the educational opportunities for their children. As a result, Mr White said that he now has to commute for 1 hour and 15 minutes to and from work each day. Mr White said that he undertakes this commute three days per week, and that he works from home the remaining two days per week.
39 Mr White said that he has developed a routine whereby he goes to the gym on the mornings he drives to work, as it enables him to warm up and stretch his back, such that his drive is then more manageable.
40 In addition to going to the gym, Mr White said that he cycles once or twice per week, up to 100 kilometres. Since moving, Mr White said that he has joined a local cycling club, with whom he has gone on some long-distance rides. Mr White said that he used to find the hill rides challenging, but that due to his lower back pain, he now avoids the rides in the nearby hilly areas, and instead rides on flat surfaces.
41 Mr White said that he still plays golf, but not as frequently as he did prior to the transport accident, and that he now takes Voltaren medication when playing to ease his pain. Mr White also said that he suffers lower back pain by the time he reaches the 12th hole, and that he now uses a buggy which he did not previously require.
42 Since moving to Queensland, Mr White has sought osteotherapy treatment from Dr Brad McCarthy. In a report dated 20 February 2019, Dr McCarthy stated that he has provided Mr White with osteopathic manual techniques, dry needling, self-directed exercises, stretches and ergonomics advice. Dr McCarthy noted that Mr White goes through periods of acute lower back pain, during which he finds it difficult to walk with a normal gait or to bend, twist or pick up objects. Dr McCarthy said that he was focused upon maintaining Mr White’s mobility, decreasing muscular tension and increasing the quality and range of pain-free movement.
43 Dr McCarthy’s records indicate that Mr White is attending two to three times per month for this treatment. In addition, Mr White said that he attends for massage treatment a couple of times per month.
44 Mr White said that he has flare-ups of lower back pain that can last a few days each time. On such occasions, Mr White said that he takes Voltaren and Nuromol to get through the pain.
45 Mr White said that he continues to experience difficulty with bending, lifting, twisting and stooping. He said that his biggest problem is lifting, particularly with weight.
Medico-legal evidence
46 Mr White’s solicitors arranged for him to be examined by orthopaedic surgeon, Mr Rodney Simm, in August 2017. In his report dated 8 August 2017, Mr Simm detailed the circumstances in which Mr White suffered his injuries and the treatment he has subsequently received. Mr Simm noted that Mr White had received extensive physiotherapy treatment which, at one stage, was discontinued, but that he had resumed during that same year, as his back pain continued to be intrusive when undertaking activities. At that stage, it was noted that Mr White was seeing a physiotherapist once per week and that he was also undertaking Pilates exercise and attending the gym twice per week. Mr Simm noted that Mr White no longer took regular medication, but that he required Voltaren for exacerbations of symptoms which occurred with activities such as golf.
47 At that time, Mr Simm note that Mr White’s main reported concern was his lumbar back pain. It was noted that he experienced pain every day and that his level of pain seemed to be directly related to his level of physical activity. It was noted that, at that time, Mr White was limited to cycling about 100 kilometres per week, and that whilst he had returned to playing golf, he suffered increased pain after about 12 holes, for which he usually required Voltaren.
48 Mr Simm also noted that Mr White suffered increased pain when he sat for more than one hour, and that he suffered pain when sitting for an extended period in a car or when travelling by plane.
49 Mr Simm noted that there was no past history of back symptoms.
50 Mr Simm diagnosed Mr White as suffering fractures at the left L3-4 transverse processes as well as residual painful lumbar dysfunction, but with no clinical signs of radiculopathy. Mr Simm considered Mr White’s condition to have stabilised, but thought that he had the potential to suffer accelerated degenerative changes in that region of his spine into the future.
51 Mr Simm re-examined Mr White for the purpose of a joint medico-legal opinion in March 2019. At that time, it was noted that Mr White was attending an osteopath once per week, where he was treated with dry needling, strengthening and stretching exercises. At that stage, Mr Simm also noted that Mr White was attending the gym three days per week. Mr Simm noted that Mr White had been unable to resume jogging, and that he took medication when playing golf.
52 It was further noted that Mr White had difficulty riding for extended periods of time and had difficulty negotiating hills.
53 Mr Simm noted that Mr White reported waking each day with stiffness and soreness in his lower back, and that such symptoms improved as he became active during the day. Mr Simm noted that Mr White needed to complete stretching exercises for his back after he has driven to work each day.
54 On examination, Mr Simm considered there to be some slight stiffness in the flexion of Mr White’s thoracolumbar spine, but found no signs of radiculopathy.
55 Mr Simm again diagnosed Mr White as suffering from fractures of the left L3-4 transverse processes, with associated substantial soft tissue trauma to the lumbar spine, which has resulted in a chronic painful lumbar spine dysfunction without radiculopathy.
56 Mr Simm noted that, despite an intensive program of rehabilitation, there had been no significant change in Mr White’s condition since his last examination. Mr Simm anticipated that such symptoms would persist for an indefinite period into the future, and said that there remained the risk of an acceleration of degenerative changes in his lumbar spine in the future.
57 Mr Simm recommended that Mr White continue with regular exercise directed towards maintained mobility and the strengthening of his back. Mr Simm also noted that Mr White will continue to need over-the-counter medication on an as needs basis.
58 The TAC arranged for Mr White to be examined by neurologist, Professor Stephen Davis, in July 2017. In his report dated 17 July 2017, Professor Davis detailed the circumstances of the transport accident, and the injuries Mr White suffered as a result. It was noted that Mr White did not report any cognitive symptoms at that time. Instead, he complained that he woke up each morning feeling stiff and sore in his lower back. Professor Davis noted that his pain receded once Mr White started moving, and that playing sports could precipitate increased symptoms in his lower back.
59 Professor Davis noted that Mr White’s back pain seemed to interfere with his sleep.
60 Professor Davis noted that Mr White had suffered two fractures in his lumbar spine affecting the transverse processes, and that his major problem since the transport accident had been lower back pain, without sciatic radiation. Professor Davis commented that Mr White “seems well-motivated and has resumed most of his usual activities although at a lower level”.
61 The TAC also arranged for Mr White to be examined by orthopaedic surgeon, Mr Gary Speck, in April 2019. In his report dated 10 May 2019, Mr Speck detailed the circumstances of the accident and the injuries Mr White had suffered as a result. Mr Speck then detailed the treatment Mr White had received, noting that he was currently receiving osteotherapy treatment on a weekly basis, as well as undergoing a gym program, which he attended three times per week.
62 At that time, Mr Speck noted that Mr White experienced an ache, rather than significant pain, in his lower back, and that he took Voltaren medication a couple of times per week. It was noted that Mr White had flare-ups every couple of months, where he experiences a “much sharper aggravating pain restricting his movement and requiring medication”. It was noted that Mr White’s symptoms were increased by heavy lifting and prolonged sitting. Mr Speck noted that Mr White found exercise and stretching to help with his symptoms.
63 Mr Speck noted that Mr White was currently cycling a couple of times per week, covering distances of 60 to 100 kilometres.
64 Mr Speck diagnosed Mr White as suffering soft tissue injury in his lumbar spine associated with fractures of the left transverse processes at L3-4. Mr Speck said that he would normally expect soft tissue injuries to predominantly resolve within three months of the transport accident. However, he accepted that Mr White has suffered persistent and “intermittently more troublesome” back pain since the transport accident.
65 In addition to the medico-legal doctors that physically assessed Mr White’s impairment, he was also assessed by medico-legal psychiatrist, Dr David Weissman, in respect of the psychological impact the transport accident and its injuries have had upon him.
66 In his most recent report, Dr Weissman detailed Mr White’s current circumstances, noting that Mr White now rides his bike once or twice per month, up to about 100 kilometres per week. Dr Weissman noted that Mr White described the restrictions on his capacity to cycle as being the “ongoing legacy” of the accident.
Mr White’s reliability
67 The TAC challenged Mr White’s reliability on a multitude of matters, all of which were put to him during a lengthy cross-examination. Whilst Mr White was polite and well-spoken, he often failed to answer questions directly, such that it was frequently necessary for the defendant to repeat and follow up on questions.
68 Whether or not he did so intentionally, I consider Mr White to have overstated his pre-accident level of activity, and understated his post-accident level of activity, on numerous occasions. By way of example, in his first affidavit, Mr White claimed that he played golf three times per month, whereas Ms Porter’s note of 7 May 2015, records that Mr White played golf approximately once per month. As the clinical history was taken closer in time to the transport accident than the affidavit, I consider Ms Porter’s contemporaneous note to be a more reliable record of the frequency with which Mr White played golf at the time of the transport accident.
69 Mr White claimed that he had a handicap between nine and 14. However, records tendered from Golf Link (the body which records a golf member’s playing score and calculates a player’s handicap, based upon competition games), indicates that Mr White’s handicap from June 2004 until the time of the transport accident, was as low as 11.8 and as high as 16.2. In his last competitive golf game prior to his transport accident, Mr White’s handicap was 15.2.
70 Mr White also stated that he was not as flexible after the transport accident as he had been before the accident, such that he did not hit the ball quite as far. I accept the TAC’s submission that, in giving such evidence, Mr White sought to convey the impression that his golf game and handicap had deteriorated since the transport accident. However, the Golf Link records indicate that since the transport accident, Mr White’s handicap has varied between 13.4 and 17.6, and that it was at 15 at the time of his last competitive game.
71 In cross-examination, Mr White indicated that the score that he played to, was a better indication of his playing ability than his handicap. When he was asked about a playing score of 29, at the Royal Melbourne Golf Course on 19 October 2014, Mr White explained that this was the most difficult golf course in Australia and the sixth most difficult course in the world. It was then put to Mr White, however, that he had played at the same golf course on 17 September 2018, and had played to a score of 22. Rather than simply acknowledge that 22 was a better playing score, Mr White sought to explain that he still did not play to his handicap.
72 Overall, I am of the opinion that Mr White failed to offer any satisfactory explanation as to the reason for which there is no apparent difference in his recorded scores or his handicap before and after the transport accident. I considered this aspect of Mr White’s evidence to be disingenuous.
73 I also consider that Mr White sought to overstate the extent of his cycling before the transport accident, and to understate the extent of his cycling after the transport accident. In his first affidavit, Mr White claimed to cycle 300 kilometres per week before the transport accident. In her note taken on 7 May 2015, however, Ms Porter recorded that Mr White cycled between 200 and 300 kilometres per week. Once again, I consider this contemporaneous record a more reliable account as to the frequency with which Mr White cycled prior to the transport accident.
74 Mr White then asserted that it took him approximately eight months to return to cycling following the transport accident and that, at that time, he slowly increased the amount of kilometres he could ride each week. However, when the clinical records of Ms Porter were put to him in cross-examination, Mr White accepted that he had returned to cycling by at least 29 July 2015.
75 Mr White was cross-examined in relation to the record of his Keiser physiotherapist dated 19 July 2016, that he was riding up 70 kilometres per week at that time with no issues. Mr White initially stated that he considered the reference to 70 kilometres to have been the number of kilometres he rode, in a number of rides, over the course of a week, and not to any one single ride. When he was subsequently shown the previous note, dated 8 July 2016, which referred to a plan that he ride 70 kilometres the following day, Mr White accepted that the record of 19 July 2016, demonstrated that he was riding up to 70 kilometres in one ride at that time. I considered this evidence to further demonstrate Mr White’s attempts to maximise the impact of his back injury on his cycling.
76 In addition to his inconsistent evidence in respect of his level of cycling and golfing prior to and following the accident, Mr White also failed to disclose in his affidavits any prior history of lower back pain, for which he had required treatment. It was only in cross-examination, when Ms Porter’s records were put to him, that Mr White acknowledged this past history. It may be that Mr White’s failure to disclose the treatment he received for his lower back, before the transport accident, was a genuine oversight, in circumstances where the pain he now suffers is at a greater intensity and frequency than it was before. However, even if unintentional, this inaccuracy also causes me to have some concern as to Mr White’s overall reliability as a witness.
Aggravation
77 I am satisfied that Mr White suffered some impairment in his spine prior to the transport accident. Notwithstanding Mr White’s failure to recall in any detail the nature and extent of his pre-existing problems, based upon the history provided to Ms Porter immediately after his accident, I am satisfied of the following:
· he suffered occasional lower back pain, which was aggravated by lifting the wrong way;
· he pulled up poorly after playing golf ;
· he had previously received acupuncture treatment for his lower back pain;
· he received osteopathic treatment on a monthly basis.
78 I note, however, that Mr White’s lower back condition was only occasional, that he did not consult his general practitioner in relation to this condition, and that it did not prevent or restrict him from undertaking his leisure activities.
79 In closing submissions, Mr Smith submitted that none of the medico-legal doctors obtained this pre-existing history from Mr White, and that in such circumstances, their opinions were therefore unreliable in respect of the cause of Mr White’s current condition. However, in circumstances where Mr White suffered fractures to the transverse process in his lumbar spine, and where the doctors attribute his pain to associated soft tissue injuries which Mr White claims have existed since the time of the accident, I consider causation to be relatively clear. I do not consider the incomplete, and relatively insignificant, past history of lower back pack pain sufficient to discredit the doctors’ opinions on causation in this case.
80 As this is an aggravation case, it does involve a comparison between Mr White’s pre-existing condition, with the aggravated state. Pursuant to the well-known principles enunciated in Petkovski v Galletti,[1] I must consider only the consequences arising from the aggravation.
[1][1994] 1 VR 436
81 In circumstances where there were no ongoing consequences to Mr White, save for the need to obtain monthly osteotherapy treatment, this comparison is relatively straight forward.
Pain and suffering consequences
82 In the Court of Appeal decision of Haden Engineering Pty Ltd v McKinnon,[2] Maxwell P stated that, in assessing a plaintiff’s pain and suffering consequences, the court should have regard to what the plaintiff says about the pain; what the plaintiff does about the pain; what the doctors say about the extent and intensity of the pain; and what the objective evidence demonstrates about the disabling effects of the pain.
[2]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69
83 Given my concerns as to Mr White’s reliability, I am most assisted by the objective evidence, and what the treating and medico-legal practitioners say about his pain.
84 Mr Simm was of the opinion that Mr White suffers a chronic condition involving painful lumbar dysfunction. Mr Speck also accepted that Mr White suffers persistent lower back pain.
85 I consider Professor Davis to have offered a most poignant comment in this case, in respect of Mr White – that being, that he is a well-motivated man, who has resumed most of his activities, but at a lower level.
86 Mr White has required very regular physiotherapy and osteopathic treatment as a consequence of his ongoing lower back impairment. Prior to the transport accident, he only required such treatment on a monthly basis. I consider this to be a significant increase in his treatment needs.
87 The tendered clinical records from his general practitioner, osteopaths and physiotherapists, depict a man who, since the transport accident, has suffered ongoing back ache and stiffness that fluctuates in its intensity. Based upon the consistency of complaints contained within these medical records, I am satisfied that he suffers constant lower back discomfort, ranging from a low level ache, to an acute flare-up, during which it is difficult for him to walk.
88 Due to the impairment of his spine, I accept that Mr White suffers stiffness and soreness in his lower back on a daily basis. I am satisfied that it is necessary for him to perform regular exercise and stretches to minimise this pain, and to allow him to perform his daily activities, such as working and caring for his children.
89 I accept that, for Mr White, waking up on a daily basis, with, at best, an aching and stiff back, for which regular treatment and stretching exercise are required, is a marked consequence.
90 I also accept that Mr White suffers a flare-up of pain every few months, and that when he does, it takes him a few days to recover.
91 I accept that Mr White requires medication from time to time, and that at present, he takes Voltaren a couple of times per week.
92 Most significantly, Mr White’s enjoyment of sport has been seriously curtailed by his lower back impairment. Notwithstanding my reservations as to the frequency with which he was cycling prior to the accident, in comparison to the frequency with which he now cycles, based upon the contemporaneous medical records, I am ultimately satisfied that Mr White now cycles less frequently than he did before the transport accident; that he cycles shorter distances, and that he avoids hills, from which he previously derived an enjoyment from the challenge. I accept that cycling was Mr White’s main hobby, and in circumstances where he was such an active person prior to the accident, I consider this interference to be a very significant consequence.
93 Although I am not satisfied that Mr White now plays less golf, or that his handicap has been affected, I accept that he suffers increased pain towards the end of the round, for which he requires medication; and that he also now uses a golf buggy. The need for this medication has been noted by Mr Simm and Dr Minogue.
94 Ms Porter’s note of 7 May 2015 made reference to Mr White pulling up poorly after golf before the transport accident, but did not mention him requiring any medication. I also note from Dr Minogue’s records that Mr White had not previously required any prescriptions for any lower back pain. I am satisfied that any previous discomfort Mr White experienced after playing golf, was not significant enough to warrant prescription medication. I therefore accept that there has been some consequence to Mr White’s overall enjoyment of golf, in particular, his present need for medication and a golf buggy.
95 I am satisfied that it is now difficult for Mr White to run as a consequence of his lower back injury.
96 I am satisfied that, to some degree, Mr White’s lower back impairment has restricted him in playing tennis and squash. However, in circumstances where his pre-existing right elbow injury also impacted on this recreational activity, I have given this claimed consequence minimal weight.
97 The test for serious injury is subjective, in that it is the effect on the individual plaintiff that must be considered. However, that determination must be made by me objectively, in considering the seriousness of the impairment.[3] For someone as committed to sport as Mr White, I consider the diminution of his sporting ability to constitute a very considerable consequence.
[3]Philippiadis v Transport Accident Commission [2016] VSCA 1 at [24]
98 In determining this case, I have considered that Mr White suffered his injuries at the age of 44, and that he is now 48 years of age. As was also noted by Ashley JA and Beach AJA in Stijepic v One Force Group Australia Pty Ltd & Anor:
“…when judging the pain and suffering consequences for the appellant by comparison with other cases, we consider that it is relevant to look at the likely period to which those consequences will be experienced. All things being equal, impairment consequences which a man (or woman) will have to put up with for 40 years might well be judged more serious than the same consequences which a man (or woman) may have to put up with for a much shorter period of time.”[4]
[4][2009] VSCA 181 at [43]
99 Given Mr White’s age and high level of activity at the time of the transport accident, he has satisfied me that, when compared to other cases in the range of possible impairments, he suffers sufficient long-term consequences to satisfy me that his spinal impairment is very considerable.
100 I will therefore make the consequent orders.
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