Young v Transport Accident Commission
[2015] VCC 1761
•16 December 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-04017
| GARY YOUNG | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 and 10 November 2015 | |
DATE OF JUDGMENT: | 16 December 2015 | |
CASE MAY BE CITED AS: | Young v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1761 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – spine – causation – nature and extent of injury
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Spence v Gomez [2006] VSCA 48; Petkovski v Galletti [1994] 1 VR 436; Humphries & Anor v Poljak [1992] 2 VR 129; Ninkovic v Pajvancek [1991] 2 VR 427; Pisano v Precision Solid Plasterers Pty Ltd [2012] VSCA 226
Judgment: Leave granted to the plaintiff to issue proceedings at common law with respect to injury suffered in a transport accident on 26 March 2010.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Forbes QC with Mr A Newman | Zaparas Lawyers |
| For the Defendant | Mr G Lewis QC with Mr P Gates | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 This is an application by the plaintiff for leave under s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to commence proceedings seeking damages at common law for injury suffered as a result of a transport accident which took place on 23 March 2010. On that occasion, the plaintiff was sitting in the rear seat of a Nissan 12‑seater bus. He had travelled to various homes in the Oakleigh, Moorabbin and Cheltenham areas for a total duration of approximately 1.5 hours. During that time, he swore that the driver drove over bumps at an excessive speed, such that he found himself “bouncing up and down” so that his “back was jarred many times and [he] felt pain in [his] back”.[1]
[1]Exhibit B, Plaintiff’s Court Book (“PCB”) 4 and 5
2 The injuries relied on in this application are essentially impairment to the whole spine, with emphasis on L5‑S1, L4‑5 of the lumbar spine, and the thoracic spine from T5 to T10.[2] The plaintiff accepts that he had pre-existing degenerative changes in the thoracic and lumbar spine, and asserts that such changes were rendered increasingly symptomatic by the accident, such that the additional impairment caused thereby significantly interfered with his capacity for work and enjoyment of life.
[2]Exhibit J, CT scan of 6 April 2010, MRI scan of 1 July 2010 and MRI scan of 18 October 2010
3 Relevantly, the plaintiff had had an earlier back injury in the course of employment on or about 24 January 2003 when he injured his back attempting to prevent a client from falling. He was off work for about three to four months, and saw a Dr Fremantle at Knox City Health and underwent some physiotherapy. He swore that his symptoms “largely resolved during the period [he] was off work. [He] had occasional back pain thereafter but nothing which ever required [him] to take more time off work.”[3] It was contended that certainly he was not suffering any symptoms as at the date of his transport accident on 23 March 2010.
[3]Exhibit B, PCB 9 and 10
4 Further, the plaintiff suffered another injury at work on or about 14 September 2010 when “a client tripped and knocked [him] against a table. [He] had increased back pain for several weeks.”[4] He further asserts that after a period of some weeks, he returned to work on the light duties he had been performing since the accident of 23 March 2010 and that approximately the same level of symptoms pertained thereafter.
[4]Exhibit B, PCB 6
5 Also, potentially relevant to his application, the plaintiff swore:
“I injured my back as a result of heavy and forceful movements and operations in the course of my employment with the employer and as a result of my back being jarred when riding as a backseat passenger in the course of my employment with the employer on 23 March 2010.”[5]
However, neither counsel sought to make an issue of any general aggravation other than that represented by pre-existing degenerative change.
[5]Exhibit B, PCB 10
The Legislative scheme
6 Under s93(4)(d) of the Act, a person whose impairment is assessed at less than 30 per cent can seek leave to bring proceedings for recovery of common-law damages. Under s93(6), a court must not give such leave unless it is satisfied that the injury is a “serious injury”. “Serious injury” is defined by s93(17) as meaning:
“(a) a serious long‑term impairment or loss of a body function … .”
The plaintiff relies on paragraph (a) of the definition.
Guiding principles
7 The principles governing an application of s93 were summarised in Spence v Gomez,[6] as follows:
“(a)Standard of proof: an applicant for leave to bring proceedings must establish on the balance of probabilities that he/she suffered a serious injury (as defined) as a result of the transport accident;[7]
(b)Meaning of ‘serious injury’: it is the Judge’s opinion as to the seriousness of the impairment or loss, determined by comparison with other cases in the range of possible impairments or losses, which is decisive.[8] To be ‘serious’, the injury must be capable of being fairly described at least as at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.[9]
(c)Pre-existing conditions: where there is aggravation of a pre-existing condition, the applicant must establish what injury was caused by the accident. An analysis must be made of the extent of impairment of the relevant body function before and after the relevant injury, and the additional impairment must itself constitute serious long-term impairment of a body function.”
[6][2006] VSCA 48 per Maxwell P at paragraph [8]
[7] See Petkovski v Galletti [1994] 1 VR 436 at 436 per Brooking JA
[8]See Humphries & Anor v Poljak [1992] 2 VR 129 at 140 per Crockett and Southwell JJ
[9]See Humphries & Anor v Poljak (supra) at 140
8 The defendant in this action has taken five basic defences:
(i) The bus trip did not cause injury.
(ii) If any injury was so caused in the bus trip, then it was by way of aggravation of a longstanding spinal degeneration, and the extent of that aggravation does not meet the test of “serious injury”.
(iii) The plaintiff suffered spinal injury in September 2010.
(iv) The extent of any impairment by way of aggravation of prior spinal degeneration relating to the bus trip cannot be adequately disentangled from:
(a) the ongoing effects of the prior condition;
(b) the effects of the injury occurring in September 2010;
(c) an emotional overlay to the plaintiff’s physical presentation.
(v) In any event, any degree of aggravation attributable to the bus trip is minor and fails to satisfy the serious injury test.
Did the bus trip cause injury?
9 The plaintiff described the circumstances of his injury in paragraphs 10 and 11 of his first affidavit as follows:
“10. I rode the bus on the 23rd March, 2010 from Oakleigh to various homes in the Moorabbin and Cheltenham area to drop clients. From the moment I started to travel in the bus the bus driver seemed to be in a hurry. He accelerated and braked heavily and turned sharply. He was hitting curbs. He was not driving in a usual manner. We had to drive through a number of residential streets and over a lot of speed humps in that area. Because the driver would drive over such humps so quickly the van was bouncing up and down. I was sitting in the backseat. I only had a lap seatbelt on which was all that was provided in the backseat. ... As we drove my back was jarred many times and I felt pain in my back. I yelled out to the driver to slow down as my back had become painful. He slowed somewhat but after a short time picked up speed again. By the time I got back to the centre where I worked I had pain in my upper and lower back and it was painful to straighten up. I reported my injury to the assistant manager at the centre Lexi Clarke. She said that the driver was like that. Tarm, another instructor who was on the bus in the morning put in a report about the driver that morning.
11. I thought my back pain would resolve. I worked on until the end of the week. My back pain did not improve and in fact got worse. I saw Dr Brian Dunn on the 1st April, 2010 and he put me off work. He also referred me for a CT scan of my back which took place on the 6th April, 2010.”[10]
[10]Exhibit B, PCB 12
10 The plaintiff was examined by occupational physician, Dr Philip Mutton, on 16 June 2010 on behalf of the WorkCover insurer. He took a history that the bus journey ensued for about 90 minutes at the end of the working day:
“He indicated the usual driver was driving in an erratic manner and approaching speed bumps too fast and heavily braking. Following this particular journey in the bus he was well. However that night he slept poorly and the next morning he awoke with quite severe pain at the thoracolumbar junction in a band around the back through to the chest. He had no lower limb symptoms.”[11]
[11]Exhibit 1, Defendant’s Court Book (“DCB”) 3
11 In cross-examination, the plaintiff denied he told Dr Mutton he was “well” following the journey, but that he had been well prior to the journey.[12]
[12]Transcript (“T”) 31
12 Defence counsel contrasts this history with that recorded by the treating general practitioner in his report dated 16 August 2010 to the effect that when the plaintiff presented on 14 April 2010, the history recorded is:
“The pain commenced on 23 March 2010 when he was chaperoning a work bus trip and the driver drove erratically over a speed bump.”
13 Apart from the fact that the plaintiff denied telling Dr Tim Dunne there was only one speed hump, his Incident Report Form completed on 26 March 2010 clearly refers to a number of speed humps.[13]
[13]Exhibit A
14 The assistant manager, Alexia Clarke, provided a statement to the WorkCover insurer on 25 June 2014.[14] She stated:
“13. Gary did not report any injury on his return. The first I heard about the injury was by the written injury report form I received either the following day or the day after that.
...
16. I later spoke with Gary, and he explained he had sustained a back injury from the jolting of the bus travelling over speed humps too fast. He stated he had been wearing his seat belt.
17. I recall Gary saw a doctor and I’m not sure what happened after that. Gary did not return to work.”
[14]Exhibit 7, DCB 44
15 A contemporaneous statement by Ms Clarke is contained on page 2 of Exhibit A and dated 30 March 2010 and signed by her. It is recorded as follows:
“Lexi asked Gary if he had seen a doctor and recommended he see a doctor ASAP. He said he couldn’t get in straight away. Lexi still recommended he see someone and also asked him to fill out the appropriate forms.”
16 Further, immediately above her signature is a statement by the plaintiff to the following effect:
“His braking is not gradual so it is jolting. From this unfortunate experience I have become aware of lower back problems. Aggravating a previous back injury.”
17 In my view, Ms Clarke’s statement about medical treatment is consistent with the plaintiff’s sworn evidence about the approximate seven-day delay in receiving medical treatment.
18 On balance, I accept the plaintiff’s evidence that he experienced pain in his spine following 1.5 hours’ riding in the rear of the bus in the course of his employment on 23 March 2010 wherein, at the very least, the driver drove over a series of bumps which produced symptoms in the plaintiff’s spine.
19 Defence counsel rely on the following excerpt from Dr Mutton’s report:
“Mr Young provides a history of onset of low back pain following a bus journey. The opportunity for injury is quite remote in my opinion. A jolting in the bus is unlikely to result in significant pain and discomfort. There is a prior history of back injury in 2003 from which he made a full recovery and returned to normal duties.
Investigations reveal disc prolapses at L4/5 and L5/S1. It is most unlikely in my opinion that these are the result of any particular work related bus journey as part of this claim.
Mr Young still presents with some mid-back pain. This is likely to be the result of musculoligamentous strain. His symptoms are relatively minor in my viewpoint.”[15]
[15]Exhibit 1, DCB 4
20 Although Dr Mutton provides the opinion that the disc prolapses are unlikely the result of the bus journey, he does not turn his mind to whether pre-existing degenerative change in those areas could have been aggravated by the journey. In any event, he considered that an injury had occurred by way of musculoligamentous strain, and that the current treatment of chiropractic and acupuncture was not unreasonable. Further in his report he states:
“I do not believe he suffered acute disc prolapses as I think these were pre-existing. His symptom complex is not consistent with development of such serious conditions.”[16]
[16]Exhibit 1, DCB 5
21 Despite having a history that the pain came on the following day, it did not disqualify the worker, in his view, from compensability. He considered:
“I would therefore conclude that the worker’s employment was a cause and still remains a cause to the musculoligamentous strain only.”[17]
[17]Exhibit 1, DCB 5
22 Interestingly, further in his report, Dr Mutton was asked:
“Has the worker aggravated a pre-existing back condition as a result of the incident on 23/3/2010, when is the condition likely to resolve?”
23 Dr Mutton replied as follows:
“I think there is an element of aggravation of a pre-existing back condition. I think the CT identifies pre-existing changes. His condition now is more at the thoracolumbar junction rather than the lower back. This would tend to suggest that his condition is predominantly a new musculoligamentous strain.”
24 Finally, in his conclusions column, Dr Mutton stated:
“There may be an element of aggravation of pre-existing lumbar disc disease although his current presentation is at higher level.”[18]
[18]DCB 7
25 The plaintiff’s treating general practitioner, Dr Brian Dunn, has raised the spectre that the plaintiff’s work generally could be contributing to his back condition.[19] However, his opinion with respect to the incident on 23 March 2010 is as follows:
“It would appear the pain profile and complex occurred with work injury of 23/03/2010. Gary developed low back pain in the past, with client work. He worked with same employer for 23 years, therefore this injury could be described as acute on chronic disease. The worker’s occupation aggravated his pre-existing low back pain.”[20]
[19]Exhibit H, PCB 51, 52 and 53
[20]Exhibit H, PCB 53
26 The plaintiff was also referred to consultant orthopaedic surgeon, Mr Justin Hunt, by his general practitioner. Mr Hunt first saw the plaintiff on 23 June 2010. He took the following history:
“The driver of the bus was driving erratically, going over speed humps quickly and this aggravated Gary’s lower back and caused him ongoing trouble with mechanical lower back pain symptoms. He described lower back pain in the lumbosacral junction radiating up into the thoracic area in the mid-line.”[21]
[21]Exhibit D, PCB 27
27 Mr Hunt recorded that, at that time, he provided the plaintiff with a WorkCover Certificate to reduce his hours back to four hours per day from five hours per day on restricted duties. At that time, he was having chiropractic treatment from Mr Tim Dunne twice a week. He was also taking Panadol to help manage his pain symptoms. His assessment of the plaintiff at that time was:
“Mechanical lower back pain due to lumbar spondylosis.”[22]
[22]Exhibit D, PCB 28
28 Thereafter, an MRI scan requested by Mr Hunt as at 1 July 2010 reported:
“Left paracentral disc protrusion L5‑S1.
Mild posterior disc protrusion L4‑5 with foraminal stenoses more so on the left than the right.”[23]
[23]PCB 29
29 Mr Hunt was of the view:
“The MRI confirms the presence of degenerative disc disease and protrusion and facet joint osteoarthritis at the L4‑5 and L5‑S1 motion segments.”[24]
[24]PCB 29
30 Mr Hunt’s diagnosis was one of:
“Symptomatic lumbar spondylosis with evidence of internal disc disruption and broad based disc bulges at the L4‑5 and L5‑S1 level with a superimposed left paracentral disc protrusion at the L5‑S1 level there is also evidence of facet joint arthritis at the L5‑S1 level. Mr Young’s clinical presentation matches his radiological findings.”[25]
[25]PCB 30
31 Mr Hunt’s opinion as at 5 August 2010 was:
“Mr Young’s lower back injury clearly arose after his employment. On the 23rd March 2010 whilst sitting in a bus the driver drove erratically over speed humps jarring Mr Young’s back causing an aggravation of lumbar spondylosis which continues to be symptomatic, resulting in mechanical lower back pain and leg symptoms.”[26]
[26]PCB 30
32 With respect to his employability, Mr Hunt stated:
“Mr Young is not able to work his usual hours nor has he been able to perform his pre-injury duties and therefore his ability to earn an income has been reduced. It is likely that he will continue to have trouble with ongoing symptoms of lower back pain in the foreseeable future and therefore will continue to be restricted in terms of his opportunities for employment.”[27]
[27]PCB 32
33 On balance, the plaintiff’s history of injury, the radiological evidence of pre-existing degeneration and the continuation of symptoms thereafter leading to a significantly reduced capacity for work, all lead to the conclusion that he suffered an aggravation of pre-existing discal injury, at least at the levels of L4‑5 and L5‑S1 in the subject incident.
Pre-existing impairment
34 It is clear enough the plaintiff’s radiological changes pre-existed the injury of 23 March 2010. It is also clear that he suffered a prior work injury on or about 24 January 2003. He swore in his first affidavit that on that occasion, a physically aggressive client had pushed another client over, and when the plaintiff went to stop the latter from falling, he reached forward and took some weight on his spine and hurt his back.[28] He further swore he was off work for about three to four months, saw Dr Fremantle at Knox City Health, and had some physiotherapy. He swore:
“The symptoms largely resolved during the period I was off work. I had occasional back pain thereafter but nothing whichever [sic] required me to take more time off work.”[29]
[28]Exhibit B, affidavit sworn 25 October 2013, paragraph 4, PCB 9
[29]Exhibit B, affidavit sworn 25 October 2013, paragraph 4, PCB 9
35 The defendant submits that this evidence and other medical evidence discloses that the plaintiff had a “long-running spinal condition from which he never fully recovered”.[30]
[30]See reports Dr Thomas, 11 October 2010, Exhibit E; Dr Barton, 5 October 2011, Exhibit 3 and Mr Robert Dickens, 28 April 2015, Exhibit 5
36 The plaintiff’s submission is that the plaintiff admitted to a “niggling pain” but with no suggestion that such pain was constant. Further, there was an absence of medical intervention in the years leading up to the relevant injury. For example there was a prescription for Panadeine Forte in 2006 with respect to a foot spur.[31] Further, there had been no specialist intervention or other treatment from an allied health professional in the relevant time. The plaintiff also relies on the fact that there was no time lost from work between 2003 and the subject accident in March 2010.[32]
[31]T45
[32]Exhibit B, affidavit sworn 25 October 2013, PCB 9
37 Accordingly, the impairment relevant to the pre-existing state of the spine, it is submitted, was negligible. I accept this submission.
Impairment following aggravation injury
38 It is now trite law that the compensable injury, being the aggravation injury, must itself involve a serious long-term impairment of a body function.[33] Here, as in the case of Petkovski v Galletti,[34] the evidence establishes that before the accident, the plaintiff was able to work full-time and effectively, albeit interrupted for a short time in 2003 by reason of back problems. It is clear that up until September 2010, the plaintiff’s capacity for work had been reduced from approximately eight hours per day to four hours per day, and the prognosis, according to his treating orthopaedic surgeon, was:
“It is likely that he will continue to have trouble with ongoing symptoms of lower back pain in the foreseeable future and therefore will continue to be restricted in terms of his opportunities for employment.”[35]
[33]Petkovski v Galletti (supra) at 444
[34]Supra
[35]Exhibit D, PCB 32
39 The plaintiff’s case is that that situation has remained in place until the date of hearing, and that in accordance with the principles laid down in Petkovski v Galletti, the plaintiff is entitled to the relief sought, because of the severe reduction in earning capacity, together with the resulting pain and suffering and loss of enjoyment of life.
40 Defence counsel submits that in this case, there is no view expressed by any medical practitioner as to the probable course of the plaintiff’s condition had the transport accident not occurred. This was the situation that pertained in Petkovski v Galletti. It was submitted in that case, for the plaintiff, that equally, there was no evidence that the pre-existing arthritis of the spine would inevitably have led to a significant increase in symptoms, and that, accordingly, the plaintiff’s evidence of the effect that the accident had upon his working capacity stood unchallenged, and that, whereas before the accident he could carry on full-time employment with no more than intermittent problems, he was now permanently incapable of working full-time.[36] Further, it was submitted that a reduction in working capacity of approximately 50 per cent would satisfy the test laid down in Ninkovic v Pajvancek,[37] in that such a reduction in working hours was indeed a serious consequence for the applicant.[38] The Court of Appeal accordingly found that a comparison of the impairment immediately before the accident with that pertaining thereafter was a legitimate way to assess the extent of the aggravation injury, and given that:
“The unassailed evidence established that before the accident the applicant was able to work full-time and effectively, albeit interrupted on occasions by back problems ... such an interference with working capacity may fairly be regarded as a ‘serious consequence’ for the applicant.”[39]
[36]Petkovski v Galletti (supra) at 441
[37][1991] 2 VR 427
[38]Petkovski v Galletti (supra) at 442
[39]Petkovski v Galletti (supra) at 444
Aggravation injury of 14 September 2010
41 The plaintiff swore that on 14 September 2010, a client tripped and knocked him against a table. He stated he had increased back pain for several weeks.[40]
[40]Exhibit D, affidavit dated 25 October 2013, paragraph 12
42 The treating chiropractor, Dr Tim Dunne, reported on 2 May 2012 as follows:
“On 14 September 2010 Gary was fallen on by a client at work resulting in a re‑aggravation of his thoracolumbar pain. He presented to hospital for 4 hours and was prescribed pain killers and NSAID’s. Following this incident he had 2 weeks off work and returned to work on modified duties 20 hours per week on 27th September 2011. In December 2011 Gary was dismissed from his work as he was unable to fulfil the duties of his job. He currently suffers from chronic low-back and mid-thoracic pain.”[41]
[41]Exhibit F, PCB 39
43 Dr Tim Dunne considered that the ensuing spinal condition:
“... was triggered by the impact of the erratic bus ride that he was chaperoning for his employer on 23 March 2010. This injury was further aggravated on 14 September 2011 when a client fell on Gary at work.”[42]
(It seems that the year 2011 is a misprint for the year 2010.)
[42]PCB 40
44 Defence counsel submit that the plaintiff has failed to disentangle the effects of this injury from the compensable injury. In particular, neurosurgeon, Mr David Brownbill, took a history from the plaintiff on 31 October 2012 to the following effect:
“On the 14th September 2010, he was assisting clients with their lunch when one behind him tripped into Mr Young’s back pushing him against a table (but he did not fall to the floor). He immediately noted an increase of the mid thoracic and low back pains. He left the shift early and attended the William Angliss Hospital.
He was off work for two weeks with ongoing pain. ‘I can’t remember whether that increase in pain gradually went back to the way it was before September 2010 or whether it stayed increased’.
He returned to light duties on reduced hours which he continued until December 2010 when his job was suspended.”[43]
[43]Exhibit K, PCB 64
45 In cross-examination, the plaintiff said this was probably still the situation.
46 However, Mr Brownbill noted in his report:
“On the information provided, the described incident with the roughly driven bus in March 2010 resulting in aggravation of the degenerative changes of the spine with the onset of increased pain in the lumbar region and also pain in the thoracic spine which continued since that time in a fluctuating manner and in the incident of September 2010 there was a further increase in those pains (although he was not sure whether that increase was maintained – the history provided to the Medical Panel indicated that the increase of pain in September 2010 resolved, the pain returning back to the level it was before that time.”[44]
[44]PCB 67
47 In re‑examination, the plaintiff was taken again to the statement recorded as saying that he could not remember whether the increase in pain gradually went back to the way it was before September 2010 or whether it stayed increased. He stated that as at today, he has a recollection that the pain gradually went away, but he was unable to say over what period of time.[45]
[45]T43, L11–22
48 In any event, the plaintiff’s counsel submits that the September 2010 incident is not significant in respect of the plaintiff’s present symptoms and functional limitations, and that any necessary “disentangling” can be undertaken. In particular, it is submitted that the radiology and specialist opinion which pre‑dates September 2010 confirms the nature of the injury and the likelihood of the ongoing symptoms for the foreseeable future with restrictions.[46] Secondly, Mr Brownbill, himself, observes about the uncertainty as to whether an increase was maintained by reference to the Medical Panel. Further, it is submitted there is objective evidence in resuming work at the same level as had been undertaken prior to September 2010 which is itself indicative of a return of symptoms to a similar level to that prior to September 2010. Further, it is submitted that no ongoing WorkCover claim was prosecuted with respect to the September 2010 incident and the plaintiff has no intention of doing so.[47]
[46]See treating orthopaedic surgeon, Mr Justin Hunt, Exhibit D; and CT scan of lumbosacral spine of 6 April 2010, Exhibit J
[47]T34, L22–25
49 In those circumstances, it is submitted that the evidence of the nature of the injury and its consequences that were extant prior to September 2010 were admissible and persuasive in assessing the impairment consequences with respect to the subject injury following the aggravation injury of September 2010. In particular, counsel relies on the Court of Appeal decision of Pisano v Precision Solid Plasterers Pty Ltd.[48]
[48] [2012] VSCA 226 at paragraph [40]
The Plaintiff’s credit
50 Defence counsel submit that the plaintiff is unreliable with respect to the consequences of his injury. For example the plaintiff has sworn that he had not played golf since shortly before his injury. This is to be contrasted with a history recorded by Dr Clayton Thomas on 7 October 2010 to the effect that he had to stop playing golf following his earlier work injury. It is recorded:
“He told me he got back to full time normal duties however but he had to stop playing his golf. He told me that he made about an 80 per cent recovery.”[49]
[49]DCB 8
51 The plaintiff was cross-examined about his golf as follows:
Q: “So you think Dr Thomas got that bit wrong, do you?---
A: I stopped playing golf for a little while.
Q:Mr Young, if you’d just stopped playing golf for a little while, that’s what you would have told Dr Thomas, I suggest to you?---
A:I only know I went back and I played again.
Q:You see Dr Thomas has seen you in October 2010, taken from you a history about what happened to your lower back years before in 2001, and you told him that because of that earlier condition you had to stop playing golf and you never told him that you resumed did you?---
A:Possibly not.
Q:No because you did not resume I suggest to you, did you?---
A:I played a few times and I played monthly beforehand.”[50]
[50]T39, L10–24
52 Further, the plaintiff swore that he had not been boat fishing since March 2010, which, it is submitted, is to be contrasted to the history recorded by Dr Mutton in June 2010. The latter had recorded:
“He enjoys some boat fishing from a friend’s boat.”[51]
[51]DCB 2
53 When questioned about it, he stated:
A: “---I would have told him that I’d done it prior to the injury.
Q:But Dr Mutton has got it down in the present tense, that you ‘enjoy’, not, ‘did enjoy’. That’s his note of your conversation with him. If that’s what he has noted are you prepared to accept you might have said such to him?---
A:No.”[52]
[52]T38, L1–9
54 Neither Dr Thomas nor Dr Mutton were cross-examined on their histories. The plaintiff has given an explanation with respect to the golf, and has made a denial with respect to the fishing. It is difficult to ascertain the truth with any certainty. Suffice to say that the plaintiff impressed me overall as doing the best to tell the truth under cross-examination, and it may be that he is mistaken with respect to either or both histories. In any event, neither element is determinative of the issue in the case, given that the medical evidence is strong with respect to the reduction in work capacity.
55 Insofar as Dr Barton[53] and Dr Mutton[54] cast doubt on the reduction in work capacity on account of the compensable injury, I prefer the evidence of the treating orthopaedic surgeon, Mr Hunt, whose assessment of the plaintiff in June 2010 was such that he reduced his hours of work from five hours per day to four hours per day on restricted duties.[55] There is no reliable medical evidence that the plaintiff recovered back function superior to this since that time. Further, it appears that the WorkCover insurer accepted the assessment of Mr Hunt at that time and although such an acceptance is not an admission on the part of the Transport Accident Commission, it is still a matter which lends some weight to Mr Hunt’s opinion.
[53]DCB 18
[54]DCB 4
[55]See paragraph [27] ibid
56 During the hearing, Senior Counsel for the defendant indicated he wished to cross-examine the general practitioner, Dr Brian Dunn. It transpired that Dr Brian Dunn was in the United States and would not be available. Both counsel agreed that the matter would proceed on the basis of Dr Brian Dunn answering a number of questions by email and both parties would then make further submissions within seven days. The evidence to be adduced concerned clinical notes of Dr Brian Dunn dated 11 July 2012 which gave rise to the following cross-examination:
Q:“All right. On 11 July 2012, I suggest that you had a conversation with Brian Dunn that involved a job designing range hoods. Does that jog your memory?---
A: Designing what?
Q: Range hoods.
A: No. Never heard of it.
Q:Did you have a conversation with your doctor on 11 July, discussing possible Asberger’s (sic) Syndrome?---
A: No.
Q:Did you have a discussion involving – well, you say not designing range hood[s] - were you to see a psychiatrist at about that time?---
A:No.
…
Q:Have you been on a medication called Fluoxetine?---
A:No.”[56]
[56]T36, L13 – 24
57 Senior Counsel for the defendant then read into the transcript the relevant entry as follows:
“… 11 July 2012, discussion re possible Asberger’s (sic) Syndrome, withdrawal, job is designing range hoods. Troubled with small talk. Is seeking psychiatrist next week for diagnosis. He’s already on Fluoxetine with some effect. Does not want time off work. Review seven days. … .”[57]
[57]T36, L30 – T37, L3
58 The plaintiff was then further cross-examined as follows:
Q: “Do you say that’s nothing to do with you?---
A: Nothing to do with me.
Q: All right, thank you.”[58]
[58]T37, L4 – 6
59 Both Senior Counsel made brief submissions with respect to the clinical notes of 11 July 2012 and Dr Dunn’s response from USA. It would appear that both accept:
(a) Dr Brian Dunn has no recollection of the consultation on 11 July 2012;
(b) There is a possibility that the entry belongs to another patient as “records can be mistakenly superimposed on computer files”;
(c) In relation to whether Dr Brian Dunn prescribed Fluoxetine, he has stated:
“Not that I am aware of.”
60 It would appear to me that the thrust of the defendant’s attack is that the plaintiff had a capacity in July 2012 to be engaged in employment designing range hoods. On balance, I accept the plaintiff’s assurance on oath that the entries have “nothing to do with [him]”.[59]
[59]T37, L4
Conclusion
61 In all the circumstances, I consider the plaintiff has discharged the onus of proof that the aggravation impairment caused by the motor vehicle accident on 26 March 2010 has produced serious consequences by way of aggravation of a pre-existing degenerative condition in his lumbar and thoracic spine. Those consequences relate to pecuniary disadvantage, consisting of at least 50 per cent loss of earning potential, together with accompanying pain and suffering.[60]
[60]See Humphries & Anor v Poljak (supra)
62 Accordingly, leave will be granted for the plaintiff to issue proceedings at common law with respect to injury suffered in a transport accident on 26 March 2010.
63 I will hear the parties as to any consequential orders.
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