Judgment: Leave granted to commence a common law proceeding
[2]
This is a serious injury application brought by Mr Zed Mrkanovic in respect to a motor vehicle accident which occurred on 8 May 2021. I will say a little bit more about the accident in a moment.
For the purpose of this application he relied separately on a physical injury within the meaning of s93(17)(a) of the Transport Accident Act 1986 ("the Act") by way of injury to the spine and separately a psychiatric condition in respect to sub-section (c) of the definition in s93(17) of the Act.
The proceeding was conducted in the usual manner. The parties tendered documents from court books. The plaintiff presented for oral evidence. His oral evidence was commendably swift and efficient. The reason for that is probably because the issue in dispute in this proceeding is not the happening of the accident, or even whether the plaintiff suffered injury, the issue in this proceeding is whether the plaintiff has either a physical injury or a psychiatric/psychological condition which meets the legal definition of serious.
Turning then to some of the specifics.
The plaintiff is now 36 years of age. He was born in Bosnia, migrated to Australia when he was nine years of age, completed his education in Australia and then commenced work.
His work history includes working for IAG as a claims consultant and then for the Mornington Shire Council, also as an insurance claims consultant.
Perhaps somewhat unique to him for a man born in Bosnia, he embraced a love of cricket and at some point played cricket and then more recently, in addition to his work at the Mornington Shire Council, he had a side hustle, as it were, repairing cricket bats.
That assumed some importance in this proceeding because the plaintiff has gone on to achieve a relatively unique job as a bat maker with Kookaburra.
Staying with the past for a moment, the plaintiff has a history of what might broadly be called psychological problems, including problems with anxiety and the like, for which he has required GP consults and also attendances on Ms Corina Ozturk, a psychologist. He has at times been prescribed the antidepressant medication mirtazapine. According to clinic records and medical reports exchanged, from time to time his pre-existing psychological symptoms affected some aspects of his life and some aspects of his working life.
Nevertheless it would seem by 8 May 2021 broadly the plaintiff was, to put it in lay terms, travelling well. By that stage he was married with two small children.
On 8 May 2021 he was on the main street at Sorrento as part of a family gathering to celebrate his mother-in-law's 60th birthday when a motorist mistook the brake pedal for the accelerator and caused the vehicle, it would seem, to reverse on to the footpath and pin the plaintiff against the wall of a shop. In that excitement he was concerned about the safety of his own children or his nephew and on any view it would have been a terribly unexpected and distressing event for him.
Following that accident the plaintiff had effectively conservative treatment, including assessment at a hospital, GP assessment and follow up.
Because of the limited issues in dispute in this proceeding I don't propose to go trawling through the medical evidence in any great detail. The parties highlighted appropriately aspects of it they seek to rely and much of it speaks for itself.
I say a few broad words about the plaintiff.
First, this is not a credit case. The plaintiff presents in a straightforward manner and the defendant did not seek to impugn his credit. Nevertheless, just because someone presents in a straightforward manner does not mean that they automatically have a serious injury. In fact, as has been said before by me, perhaps on one view someone being an honest person is the bare minimum that a court should expect. But it is relevant in this case in the sense that there has been no real challenge to much of the plaintiff's evidence. The challenge is really broadly whether or not he has met the well-known 'very considerable' test extending as far as back as cases such as Humphries v Poljak.[1]
In respect to the evidence, the plaintiff affirmed four affidavits. He also tendered an affidavit from his wife, Bethany Mrkanovic. He tendered an affidavit from a friend, Damien Bassiner, who was a colleague from the plaintiff's participation in Brazilian ju-jitsu. He also tendered an affidavit from another ju-jitsu colleague, Mr Sam Wall, and, finally, he tendered an affidavit from his supervisor at Kookaburra, Mr Lachlan Dinger, who is also one of the few bat makers in Australia, so it would seem, and the main bat maker for Test cricketers in Melbourne for Kookaburra Sports.
As mentioned, the plaintiff presented for cross-examination. He was challenged appropriately by senior counsel for the defendant about some of the matters in dispute, including his pre-existing or unrelated psychological difficulties. When matters were put to him from medical records, in particular from Ms Ozturk, the plaintiff did not prevaricate or seek in any way to obfuscate from what was in those records, namely that he had had pre-existing or unrelated psychological difficulties.
Next he was cross-examined about the Kookaburra job and it was put to him that it was a job that he would have accepted even if there had been no accident and he was still working at the council. In respect to that proposition the plaintiff said that was, 'Not entirely true'.
He was cross-examined broadly about the work he does at Kookaburra, how he copes with it and, in the words of senior counsel for the defendant, how it was a dream job for him. Despite his earlier answer that it was not entirely true that he would not have accepted that job had the accident never happened, the impression I got from his affidavit evidence and his oral evidence was that this really was a dream job because it combined his past interest in repairing cricket bats and broadly his interest in cricket and, again, as was put to him by senior counsel, was a real stepping stone towards a unique position as a professional cricket bat maker. In respect to treatment, the plaintiff was cross-examined, again appropriately, to highlight the relatively limited nature of his current treatment. That treatment is now a self-managed exercise program and a program of stretching and strengthening exercises over seen by the exercise physiologist, Mr Lowrey.
In respect to the plaintiff's pain levels, he takes Panadol or Nurofen to manage low back pain as needed.
In respect to his psychological difficulties, he is prescribed duloxetine by his general practitioner and has a review with the general practitioner as needed.
More recently he's had input from a psychologist, Mr Vanderputt.
Turning to the plaintiff's affidavit evidence.
Apart from the matters that I outlined a moment ago, he was not seriously challenged as to what he had said in his affidavits. The affidavits sworn by the plaintiff really build on each other and so I think it is convenient and sufficient to simply refer to the fourth affidavit sworn by him very recently on 12 November this year, commencing at Plaintiff Court Book 168.
In that affidavit of the plaintiff he described his current treatment as being with Mr Vanderputt, the psychologist, on a monthly basis, having commenced that earlier this year. He described how those sessions can in fact stir up some of the memories of the accident. He said ultimately, though, he found it of some benefit and was going to continue with it. He said Mr Vanderputt was also helping him accept that he will continue to have limitations to his back injury and won't be able to do all the things that he did before.
In respect to the back injury, he described ongoing treatment with Mr Lowrey, the exercise physiologist, and in that context a more recent referral to an osteopath a clinic called Strong and Stable with a Dr Mitchell Dielemans and he had had treatment for needling, massage and manipulation, which I note he also described during his oral evidence. He said in his affidavit that gave him some relief from back pain.
Otherwise he described continuing to see the current GP, Dr Vogel, and taking the medication as I've already set out.
About his work at Kookaburra, he noted he continued to work there with some flare-ups. He said his employer was supportive of his back pain and limitations. He managed the best he could around his limitations and continued to do the hard, more physical, work in the morning and then used the afternoons for easier administrative tasks.
He also noted the employer had accommodated him by changing some of the work practice around unpacking containers and the like to try and minimise bending and lifting.
In his affidavit he described how he has flare-ups from time to time, including one in late June after a day at work. He had to take two days off to recover. He described how he got a medical certificate from Dr Vogel. He says after a flare-up of pain like that he needed to rest and take it easy. He found it difficult to manage and took extra medication on those occasions. The plaintiff then described how his work was understanding.
He went on to describe consequences from back pain that varied in intensity. He said, in his words, he was in pain from the moment he woke up and he needed to start moving slowly. He described doing his stretches. He said he continued to be limited in physical activities and set out interference on some activity with his family such as bike riding and camping.
He described difficulty driving long distances, difficulty doing work around the house, but noted as his wife had a hip problem, his back problem compounded that.
He described how he hadn't returned to his hobby of ju-jitsu and how that had impacted him and the relationship with his son.
Dealing, firstly, with the medical evidence about the plaintiff's lower back, and I'm going to do this maybe in a bullet point fashion, commencing with treating practitioners. The first general practitioner in time was Dr Jayawardena. There is a very short note from Dr Jayawardena, as part of a referral to Mr Gerald Quan, who I believe is a surgeon.[2] Dr Jayawardena said, 'Thanks for seeing Zed with a fracture on his L5 for your opinion and management'.
That referral seems to in fact cause the plaintiff to attend an orthopaedic surgeon by the Mr Ooi. He provided a note back to Dr Jayawardena confirming the assessment.[3] He noted on examination the plaintiff's right lower paraspinal muscle was mildly tender to palpate. Otherwise range of motion was near normal. Mr Ooi had the benefit of an MRI of the lumbar spine - these are my words - which don't seem to have shown much. Because of that he wrote in his short note that the spine was structurally sound. He thought the pain was likely to be muscular in nature and that pain inhibition had not helped the plaintiff with his recovery. He recommended ongoing analgesia and ongoing strengthening exercises. He said the plaintiff was suitable at that point for any form of exercise with no restriction and discharged him back to the GP.
More recently Dr Vogel has provided opinions, having taken over the GP care of the plaintiff. In a short report of 16 September 2023 she sought approval for a pain management program for ongoing back pain.[4] Her reports otherwise don't add much to the discussion.
Turning then to the medico-legal reports. Relevantly the plaintiff has an opinion from the orthopaedic surgeon, Mr Swan. He reported for the first time to the plaintiff's solicitors on 2 June 2023.[5] He then reported for a second time on 9 September 2024,[6] which really repeated much of his earlier report. Relevantly he opined that the plaintiff had lumbar L5 pars defects and chronic lower back.[7] He noted the plaintiff continued to be most significantly, and I say that in the context of some other injuries that are not persisted with as being serious, most significantly affected by lower back pain symptoms. He noted the plaintiff had managed working full-time as a cricket bat maker, but recommended continued management by a chronic pain specialist principally for low back symptoms.
Dr Swan said the plaintiff's employment capacity was good, however, having said that, and noting that the plaintiff enjoyed his current work, he said it was likely the plaintiff would be limited to light or moderate duty employment roles in the future and he may have further limitations with his employment capacity if his back symptoms were to worsen.[8]
Overall regarding the prognosis, he described the prognosis from the lower back injury as poor.[9] He said the plaintiff continued to experience significant pain in his lower back, despite imaging and MRI scans showing no significant pathology. He said it was likely the plaintiff had developed chronic pain in the low back region, it was likely to be ongoing, and he recommended continued treatment with a chronic pain specialist to optimise his analgesia.
The plaintiff was examined for medico-legal purposes by Dr Eman Awad, a consultant occupational medicine physician. In a report of 18 October 2024 to the plaintiff's solicitors, commencing at Plaintiff Court Book 184, but relevantly at Plaintiff Court Book 188, Dr Awad diagnosed an L5 pars defect and aggravation of lumbar spondylosis. He noted the plaintiff was then employed in a light physical role which he was able to manage and he said he thought the plaintiff, in his opinion, was able to manage that role due to the flexibility that the role afforded him.
He said the plaintiff's capacity for work was adversely effected because he could no longer undertake any physical strenuous manual roles.[10] That was the extent of the relevant evidence from him.
Finally, Dr Terrence Saxby is an orthopaedic surgeon who has examined the plaintiff and reported on two occasions at the request of the defendant.
Similarly I propose simply to deal with his second report dated 11 September 2025, commencing at Plaintiff Court Book 166, because he also builds on and repeats much of his earlier report.
Relevantly, Dr Saxby noted that the plaintiff's other conditions of right shoulder pain, knee and ankle, had resolved.[11] He said the plaintiff's only real ongoing problem was his low back pain. He had discomfort every day. He said the plaintiff had difficulty bending or lifting. The ongoing back pain was fairly constant and had not altered since his earlier report.
In summary he said the lumbar spine condition was a fractured lamina and he said the plaintiff continued to have ongoing pain and restrictions of activities.
He said the only ongoing problems related to the fractured lamina of the lumbar spine and the transport accident had contributed to that.[12]
He noted the plaintiff continued to have pain in the lumbar spine and difficulty bending and lifting.[13] He said the plaintiff had returned to work as a bat maker and he was able to do that, but he did have some modifications of his work and was no longer required to do heavy lifting or unpacking of containers.
In respect to future treatment, he believed the plaintiff could continue with self management, progressing to his own exercise program, and would require simple Panadol or Nurofen medication for pain.
In respect to the low back, he described the prognosis as fair. He said the lower back pain is not likely to improve, not likely to deteriorate, and surgery was not required.
He also opined that from a physical perspective the plaintiff could return to his previous employment as a claims insurance officer.
Pausing here, in my view there is not much really between the opinions from Dr Saxby and Dr Swan. Dr Swan described the prognosis from the low back as poor. Dr Saxby described it as fair. But it seems to me that overall they broadly accepted the same restrictions and impact on the plaintiff and recommended the same ongoing mode of treatment.
The only other evidence I wish to say anything about, having considered all the lay affidavits, is the affidavit from Mr Dinger, the plaintiff's current employer. He confirmed that the plaintiff had disclosed a back problem, that the plaintiff was a valued employee, that the work did involve a lot of standing and working at a bench and he confirmed that the task of moving the boxes from the warehouse was something that they did not require the plaintiff to do any more. He said the employer had found ways to work around the limitations that the plaintiff has and said he was a good worker, punctual, reliable and took pride in his work.
Turning then to analysis of the claim based on the lumbar spine.
Again, as I have said before in several of these types of applications, in the context where I must consider the broad range of impairments and impairment consequences and not just those that come before the courts, there are some injuries that are clearly serious and some that are clearly not. In between is a range of impairments and impairment consequences and it seems to me that this one falls somewhere in the middle. In other words, it is relatively borderline as to whether the low back can be described as having caused very considerable pain and suffering or pecuniary loss consequences, either in isolation, or in combination.
Analysing that, first, at the risk of repetition, there is no argument that the plaintiff suffered a lumbar back injury. There might be some difference of opinion amongst the doctors about the precise diagnosis, but as I mentioned before, the doctors such as Swan and Saxby are really ad idem about a persisting injury. Second, I accept that the plaintiff has ongoing low back pain. I accept that he requires ongoing self-managed exercise currently under the care of the exercise physiologist. I accept that he has flare up of back pain from time to time, including the flare up earlier this year which required several days off work. I accept that he requires the ongoing use of Panadol or Nurofen and that that is likely to continue.
I also accept his evidence, the evidence of his wife and friends, that he has limitation for what I would describe as heavier activity such as domestic activity or his sport of ju-jitsu. I also accept that the plaintiff is a man with a love and passion for cricket and, in particular, the repair and crafting of cricket bats. It really is his dream job. Nevertheless, I accept that he is doing his dream job with interference. As I mentioned, his colleague, Mr Dinger, confirms that. Indeed, the plaintiff confirms it himself in his affidavit evidence.
It seems to me that that is a highly relevant consideration. Here I have a man who was lucky enough to land a very scarce and, for him, a dream job. Fortunately he has been able to hold that job down for several years and, as the evidence disclosed, had recently received a pay rise because of the regard in which the employer holds him. But he is suffering increased back pain by pursuing his passion and his chosen career.
In that context I accept that he is not fit for full and unrestricted manual employment.
It may be that he has not really had any true economic loss or pecuniary loss consequences to date but, equally, it seems to me there is a risk that not only will he have to put up with pain to stick in his dream job, but if he was to lose this job for some reason, then full and unrestricted manual employment would be out for him. In that sense there is a pecuniary loss impact on him because of the pain he is suffering and putting up with, probably because he is a stoic, but also the risk that at some point it might impact on the range of jobs open to him.
It is also a relevant consideration that the plaintiff is only 36 years of age for an accident that now occurred four years ago.
When all of those things are combined, I consider that is enough to tip things in favour of the plaintiff for a conclusion that he has suffered a "very considerable" consequence.
On the life tables he has probably more than 50 years in front of him and he has over 30 years of his working life in front of him. I consider that the impact on his working life and the long period of time for which he will have to put up with the pain from his lumbar spine injury, noting that no one says there is likely to be any further improvement, is enough for a conclusion of a very considerable consequence.
Dealing very briefly with the claim based on the psychiatric injury. As an executive summary, I am not convinced that that meets the legal test in the sense of being severe.
I do not wish to play down what must have been the fairly traumatic and upsetting circumstances of the accident. It seems fairly clear to me that early days the plaintiff really struggled with that and it was triggering for him to continue on in his insurance work, perhaps with a less than sympathetic employer.
The material from the treating practitioners, including Ms Ozturk, in my view charts a path where the plaintiff had by about mid, or perhaps a little bit later, in 2023 made some improvements with treatment and probably also helping his recovery from his psychiatric condition was the fact that he landed his dream job.
True it is that in more recent times he has required further psychological treatment, but the opinions from the medico-legal psychiatrists Dr Lewis and, in particular, Dr Neill, who was armed with a considerable amount of material to analyse, leads to the view that whatever symptoms and whatever diagnosis is put on the plaintiff's current psychiatric/psychological condition, it is simply not severe.
Whilst I accept that the plaintiff continues to have some intrusive thoughts, perhaps some interference with his sleep and at times his employment when he has a flare up of pain that triggers memories, I am not satisfied that the psychiatric condition in isolation is severe.
Having said that, it is relevant because, as I touched on a moment ago, perhaps some of the physical consequences are impacted by the psychiatric response from time to time in the Richards v Wylie[14] sense, but those consequences, if anything, fortify me in my opinion that the physical injury is serious, not the psychiatric.