IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
Serious Injury List		

Case No.  CI-19-05856

SEAN TRAVIS STEPHEN	Plaintiff	
		
v		
		
TRANSPORT ACCIDENT COMMISSION	Defendant	

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JUDGE:	HIS HONOUR JUDGE MISSO	
WHERE HELD:	Melbourne	
DATE OF HEARING:	2 July 2021	
DATE OF JUDGMENT:	21 July 2021	
CASE MAY BE CITED AS:	Stephen v Transport Accident Commission	
MEDIUM NEUTRAL CITATION:	[2021] VCC 963		

REASONS FOR JUDGMENT
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Subject:	Transport accident
Catchwords: 	Lower back injury – whether the impairment of the function has consequences which are “serious”
Legislation Cited:	Transport Accident Act 1986, s93(4)(d)
Judgment:	The plaintiff has leave to bring a proceeding at common law.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr J Valiotis with 
Mr P Haddad	Slater and Gordon Lawyers	
			
For the Defendant	Mr P D Elliott QC with 
Ms V McLeod	Solicitor to the Transport Accident Commission	

HIS HONOUR:

Introduction
1	The plaintiff is a thirty-five-year-old married man who suffered injury to his lower back in a transport accident which occurred on 24 September 2016.  The plaintiff was stationary in his car at an intersection when another car came from behind and crashed into the rear of his car.
2	The plaintiff submitted that he has suffered a serious long-term impairment of the function of his lower back.  The defendant submitted that the impairment consequences contended for by the plaintiff fall short of meeting the statutory test of seriousness.
3	Mr J Valiotis appeared with Mr P Haddad for the plaintiff.  Mr P Elliott QC appeared with Ms V McLeod for the defendant.
The Plaintiff’s medical treatment
4	The plaintiff experienced a sensation of pain in his lower back following the occurrence of the transport accident which persisted overnight.  He saw Dr Sangeetha Ambati, general practitioner, at the Drysdale Bulk Billing Medical Centre on 25 September 2016.  The plaintiff told her that he was suffering from lower back pain.  On examination, he was tender in the L4-L5 region of his lower back.  He was referred to have a plain x-ray, provided with a prescription for analgesics, and he was given a medical certificate.
5	The plaintiff continued to attend the Drysdale Bulk Billing Medical Centre, according to the subpoenaed medical records, until 28 June 2021.  The clinical records disclose that he continued to complain of lower back pain, as well as other non-related medical complaints.  The plaintiff was also treated at a number of other medical clinics, namely, the Curlewis Medical Centre on four occasions between 2017 and 2018, and the Drysdale Village Medical Centre from June 2020 to the present time.  The reason why the plaintiff changed from one medical Centre to the other was because he was seen by a number of general practitioners at the Drysdale Bulk Billing Medical Centre.  It was his preference to see the one medical practitioner.
6	The plaintiff was referred to have a plain x-ray on 26 September 2016.  He was referred to have physiotherapy.  He had some physiotherapy treatment in October 2016.  He then returned to work as a truck driver with Allied Transport Services after being absent from work for a few weeks.  He struggled with his work.  He found sitting for prolonged periods of time worsened the pain he was experiencing.  He also struggled to engage in strenuous physical activity, such as tying down a load with chains, because it resulted in an aggravation of his back pain.
7	The plaintiff then saw Dr Tendayi Sydney Kombora, general practitioner, on 29 August 2017 at the Drysdale Bulk Billing Medical Centre complaining of constant lower back pain over the preceding few days.  He was referred to have a CT scan and he was prescribed Celebrex.  He attended a different general practitioner on 5 September 2017 and was provided with the results of the CT scan. 
8	The plaintiff made the decision to change jobs because of the continuing problems he was having with his lower back.  He resigned from his job as a truck driver on 20 October 2017.  He obtained an alternative job with Geelong Cable Locations on 31 October 2017.  It was a lighter job, allowing him the flexibility of being able to sit, stand and walk, although, it resulted in him suffering a significant drop in his income.
9	The problems the plaintiff was having with his lower back saw him resume physiotherapy in October 2017.  Later in 2017, he was referred to Dr Malcolm Ong, specialist pain physician, at Advance Healthcare.  The plaintiff was assessed at Advance Healthcare in 2017.  He first saw Dr Ong on 9 January 2018.  The plaintiff accepted his recommendation that he engage in a multidisciplinary pain management program.  It commenced in May 2018.  The plaintiff was discharged from the program in July 2018.
10	Dr Ong provided two lengthy reports, dated 3 September 2018 and 27 May 2021. Both reports contain clinical assessments of the plaintiff.  The clinical assessment attached to the second report describes Dr Ong’s clinical impression, diagnosis and what he referred to as “Differentials”:
“My impression is that this man suffers from a TAC accident related injury with Chronic lumbar pain syndrome, with OA degenerative disease and with inflammatory and myofascial conditions, including discogenic component and neuropathic component.
	Sciatica and Intermittent radiculopathy left leg
	Centralization of pain syndrome.
	Secondary depressive and anxiety disorder
	Adjustment disorder traits.
	… .”
11	Dr Ong last saw the plaintiff on 30 April 2021.  He attached his progress notes, which refer to the plaintiff’s medication regime, and cryptic references to treatment and consequences such as problems with sleep, and also references to a shoulder injury which I will deal with later in these reasons.  Furthermore, Dr Ong then provided an opinion in which he considered that the plaintiff’s main issues were persistent pain, psychological issues and limited function and reduced capacity, which I assume is a reference to the plaintiff’s overall presentation.  He made a number of observations relevant to physical limitations on the plaintiff’s capacity to undertake manual work.  Essentially, the limitations relate to lifting, posture, avoidance of various physical activities when engaged in manual work, and a limitation on the hours which the plaintiff can work each day and the number of days he can work.
12	Despite the observations made by Dr Ong relevant to the limitations which he considered were appropriate to impose upon the plaintiff’s work, it would appear that the plaintiff continued working full time as a cable locator with Geelong Cable Locations until February 2020, when he suffered an injury to his right shoulder.  He stepped over a fence on a farm.  The cuff of his pants became caught on barbed wire, with the result that he fell.  He continued working for a week after that incident occurred.  It was when he was attempting to dislodge a vacuum hose, which I assume was part of his work as a cable locator, that the pain in his right shoulder increased.
13	The plaintiff saw Dr Harmanpreet Kaur Brar, general practitioner, at the Curlewis Medical Centre.  He was referred to have an ultrasound of his right shoulder which was performed on 17 February 2020.  It showed a full-thickness partial tear of the supraspinatus, bursal impingement and subacromial bursitis.  
14	The plaintiff was eventually referred to Mr Robert Wood, orthopaedic surgeon, who referred the plaintiff to have an MRI scan.  He performed surgery on 13 October 2020, which revealed significant tendinitis of the biceps which was tenodesed, together with a minor repair of the supraspinatus.  Unfortunately, for the plaintiff, there was some dispute with the relevant insurance agent which wanted the plaintiff to undergo an extended period of rehabilitation before it would approve surgery.
15	Again, unfortunately for the plaintiff, his luck did not improve.  Geelong Cable Locations proved utterly recalcitrant.  His attempts to contact the employer proved unsuccessful.  He said that the employer would simply not contact him nor would it communicate with the relevant insurance agent.  He lodged a claim for compensation.  His medical and like expenses have been paid, and he continues to be paid compensation top up over and above the income he is able to derive from his self-employment as a cable locator.  He eventually resigned from that employment on 14 February 2021.  
16	The plaintiff considered that setting up his own business and being self-employed would suit him better than being an employee.  He established a business known as STS Locating Services, essentially doing the same work he did with Geelong Cable Locations.  It enables him to take on what he described as the easier jobs which do not involve strenuous physical activity.  At present, he uses the family station wagon as his work vehicle.  The equipment he has to undertake cable locating work includes a CCTV drain camera, a transceiver, a transmitter and receiver and various hand tools.  He locates a clamp on cabling which enables him to trace the position of the cable using the equipment I have just referred to.  Once the cable is located, he uses a spray can of paint to identify the position of the cable, so that anyone excavating a site will know where cables are located. 
17	The plaintiff demonstrated from the witness box that he has a full range of motion in his right shoulder.  He said that the only modification to his capacity to undertake manual work is that he has been advised not to lift above head level excessively and repetitively.  Otherwise, I was left with the strong impression that he has little or no difficulty undertaking manual work using his right upper limb.
18	The plaintiff suffered a left wrist injury for which he sought treatment from Dr Leighton Delmenico, general practitioner, at the Drysdale Village Medical Centre on 18 August 2020.  The plaintiff attended that medical centre on subsequent occasions complaining of problems with his left wrist, and also for a problem affecting his right elbow.  The plaintiff is not having any issue with his left wrist, and although he was not asked any further questions about his left elbow, I infer that it is also no longer causing him any problem. 
19	The plaintiff candidly said that he is capable of performing full-time work as a cable locator.  He considered that the only difficulties he presently has with performing that work is if he needs to drive longish distances.  He described driving significant distances to places like Ballarat.  He now prefers to perform work in and around the Bellarine Peninsula.  The difficulty with driving longish distances is that it increases his lower back pain.
The medico-legal assessments
20	Mr Roger Westh, orthopaedic surgeon, examined the plaintiff on 11 December 2018.  He provided a report dated 20 December 2018.  He re-examined the plaintiff on 2 March 2020 and provided a further report dated 5 March 2020.  Mr Westh noted that the plaintiff was being treated by Dr Ong and was using the following medication – gabapentin, meloxicam, escitalopram, tramadol, Endep, Panadol Osteo and baclofen.  
21	Mr Westh noted that when he re-examined the plaintiff that he was no longer using gabapentin and Endep, but was using Deptran to help him sleep.  His opinion did not change.  He considered that the plaintiff was restricted in activities which involved lifting, bending, twisting and stooping and prolonged sitting and standing.  He considered that ongoing treatment should be determined by Dr Ong.  He did not see any indication for any other significant treatment.
22	Dr Clayton Thomas, consultant in rehabilitation and pain medicine, examined the plaintiff on 9 April 2021.  He provided a report dated 12 April 2021. His opinion appears to be consistent with the opinion of Mr Westh.  He considered that the plaintiff was suffering from a Chronic Pain Syndrome, non-specific lower back pain and non-verifiable left leg pain.  He considered that the plaintiff has a capacity for suitable employment with restrictions on lifting, bending and twisting.
23	Mr Gary Speck, orthopaedic surgeon, examined the plaintiff on 21 April 2021.  He considered that the plaintiff had suffered a soft tissue injury to his lower back initially, then with chronic pain and avoidance behaviour.  The avoidance behaviour he referred to was behaviour on the part of the plaintiff to avoid certain activities which he felt would increase his pain.  He considered that the soft tissue injury has resolved.  He considered that the plaintiff had a full capacity for work, and a similar capacity to engage in non-working activities.
24	I accept that the preponderance of the medical evidence demonstrates that the plaintiff has suffered a lower back injury without definable pathology, but that fact does not make it any less an injury with any less likelihood of it causing the plaintiff pain and interference with many aspects of his pre-injury life.  I do not accept the opinion of Mr Speck.  It is clear to me that Dr Ong, Mr Westh and Dr Thomas accept that the plaintiff suffered a lower back injury.  It occurs to me that their consideration to the plaintiff’s history, clinical examination and value judgement cannot be overwhelmed by Mr Speck’s opinion.
25	I should add that I found some difficulty in deciphering some of Dr Ong’s clinical notes.  I note in his very long impression and diagnosis that he referred to weaning the plaintiff off the medication noted by Mr Westh.  I assume that Dr Ong was the medical practitioner who prescribed that medication, and has audited the plaintiff’s use of it and its continued utility in his treatment.
The Plaintiff’s consequences
26	I should firstly turn to the plaintiff’s right shoulder and left wrist and elbow problems.  I accept the plaintiff’s evidence that his right shoulder no longer impacts upon any aspect of the plaintiff’s life save for what appears to be a relatively minor limitation on undertaking manual operations above shoulder height.  His left wrist and elbow problems appear to have resolved completely.
27	The plaintiff swore two affidavits in which he set out the consequences to him of the impairment of function of his lower back:
•	Incapacity for work as a truck driver.
•	Partial incapacity for work as a cable locator when a comparison is made with the work he now does in self-employment when compared with the work he did with Geelong Cable Locations.
•	Difficulty driving longish distances for work, and also in other non-work settings.
•	Constant lower back pain which varies.
•	A non-specific feeling of pins and needles in his left leg.
•	Difficulty performing bending and twisting movements because they aggravate his lower back pain.
•	The need to avoid activities which involved heavy lifting or repetitive strenuous use of his lower back.
•	Interference with being able to sit and stand, with the need to shift around and change position in order to get comfortable.
•	Stiffness in the back resulting from the onset of cold weather.
•	Interference with the ability to mow lawns, engage in heavier domestic chores such as vacuuming, mopping and heavy scrubbing.
•	Preclusion from playing his favoured sport of in-line hockey which he played on a weekly basis.
•	Interference with the ability to look after his two young children, and to play with them.
•	An emotional reaction to the lower back injury and the pain that it causes.
28	The evidence contains references to the plaintiff’s inability to work, and consequent loss of income; however, the plaintiff disavows any impact upon his capacity to work in self-employment by the lower back injury.  The plaintiff submitted that the reason why he is earning less by personal exertion is because the business which he has just established is yet to achieve the full exploitation of his personal exertion to available work; however, what is clear is that the plaintiff is incapacitated for work as a truck driver, and partially incapacitated in doing the heavier work involved that he was exposed to with Geelong Cable Locations.
29	There were two aspects to the defendant’s submission that the impairment consequences contended for by the plaintiff cannot meet the statutory test of seriousness.
30	The first was an emphasis on the diagnosis of the injury.  It is clear that the plaintiff has a lower back injury, but one which might be described as being without a number of more serious factors as are often seen in serious injury applications.  Despite that, Dr Ong, Mr Westh and Dr Thomas are convinced that the plaintiff has suffered an injury, and that it does impact upon his capacity to function.
31	I do not accept that because the injury is consistent with the description I have chosen to give it, that it follows necessarily that the consequences are more likely to be less of an impact.  I am fortified in this case in reaching the conclusion that the injury has resulted in a significant impairment because I accept the plaintiff is a creditworthy and reliable witness who I think gave a good account of himself.
32	The second was the film taken of the plaintiff on 14, 19 and 22 March 2020.  The particular aspects of the films which were of note are as follows:
•	14 March 2020 at about 8.34am, the plaintiff leaned into the passenger side rear door of his car and lifted a young female child from inside the car, placed the child on his left hip and carried the child towards a shop.
•	On the same date at about 9.06am, the plaintiff returned the young female child to the car.
•	The balance of the film of 14 March 2020 and the additional film taken on 19 and 22 March 2020 show the plaintiff standing, walking and moving without any apparent difficulty.
33	I have compared the plaintiff’s evidence contained in his affidavits with the histories obtained by Dr Ong, Mr Westh, Dr Thomas and Mr Speck to determine whether the content of the films contradicts the plaintiff’s evidence in any way.  I have found no such contradiction, and indeed, I was not left with the impression that the films impinge upon any of the evidence given by the plaintiff nor his creditworthiness and reliability.
34	The fact that the plaintiff is confident that he can work in self-employment which requires him to drive to worksites, stand and walk over worksites, and no doubt engage in physical movements which require some flexibility in his lower back, tend to work against the proposition that his impairment consequences can meet the statutory test of seriousness.  However, that is all well and good until it is seen in the context of the fact that the plaintiff is incapacitated for work as a truck driver, and partially so in work as a cable locator in the work he performed with Geelong Cable Locations.  He may be admirably suited to self-employment, but that, of course, is because he is able to choose the work he does and go about it in a way which suits him.
35	I accept the plaintiff’s evidence that he has a constant level of pain which is variable.  I also accept his evidence that it impacts upon a large number of aspects of his non-working life.  I think it is centrally important in the life of a young man that he be able to work in an unrestricted way.  That is partially lost to the plaintiff.  I also think it is centrally important in the life of a young father, husband and homeowner that he be able to undertake general domestic chores and engagement with family in an unrestricted way.  That is also partially lost to the plaintiff.
36	Of some real and material importance is the fact that the plaintiff was a relatively energetic man before he suffered the lower back injury.  He played hockey on inline skates weekly.  I have a reasonable familiarity with hockey and ice hockey from an observer’s point of view, and I think I can use my sound imagination to understand how the game of hockey is played on inline skates.  I think it is likely to be a game requiring physical strength, agility and stamina.  It is now the game lost to the plaintiff, and something which he is unable now to do with his children who have shown some interest in engaging in that sporting pursuit.
37	Additionally, the plaintiff has required conservative treatment only, but conservative treatment comprising physiotherapy, and the prescription of medication which is often seen as a remedial treatment for serious musculoskeletal pain.  I note that he also has been prescribed Deptran to help him with his sleep.  It would appear that the plaintiff continues to see Dr Ong for treatment.
Serious injury
38	After considering all of the evidence, I think the interference with the plaintiff’s pre-injury work capacity, retained work capacity, and the interference with all of the non-working activities which I have summarised, appeal to me as meeting the statutory test of seriousness.  I think when the plaintiff’s impairment consequences are judged in comparison with other cases in the range of possible impairments or losses of a body function, as the case may be, they can fairly be described as being “more than significant or marked”, and as being “at least very considerable”.
39	I will grant the plaintiff leave to bring a proceeding at common law with costs.
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