Rodda v Transport Accident Commission [2008] VSCA 276

Rodda v Transport Accident Commission [2008] VSCA 276 - VSCA 2008 case summary — Zoe

[33]

The injury has affected me in a number of other ways. I notice that I suffered a substantial loss of appetite, particularly in late June 2000 and throughout 2001 when I had the very bad psychological reaction to my injuries. I lost about 11 kgs. I'm 181 cm tall and only weigh in the low 60 kgs.
Before the accident I enjoyed a very active life. One of my main recreations was going camping, when I would enjoy hunting and fishing. I'd go regularly with friends to Deniliquin and Wakool. On average I'd say I would go once every three months for a weekend or sometimes longer. In addition I went fishing regularly in rivers, in Port Phillip Bay and in the sea. Now I do the occasional bit of fishing and I've only been camping once or twice since the accident. Those sorts of activities just cause my injuries to flare up. It's just too painful to be fun anymore.
In the past I enjoyed going to a lot of motor sports as a spectator. I enjoyed going to the Grand Prix, the super bikes and the Nascar drag racing. I've hardly been since the accident. Driving to and from these events, standing for long periods during the events, and camping out over the weekend of the events all cause substantial increase to my back pain. When I do drive I have to stop every 30 minutes or so to stretch and move around. I feel sometimes that I am a burden on my family.
In the past I played squash about once a fortnight and tennis socially about once a month. My back and leg pain has prevented me returning to those sports. I still attempt fishing close to home but do not enjoy it much anymore especially in cold weather because of my back pain.
In the past I went to the gym pretty regularly for fitness. As I say I still go regularly, but now lift very light weights and there are limits to what I can do. In the past I enjoyed socialising going out for dinner and to night clubs and that sort of thing. I find those activities much less enjoyable these days. It is difficult sitting around the dinner table for long periods of time. Standing up at night clubs just causes an increase in back pain. As a consequence I go out socially far less than I used to and spend a lot of time on my own at home.
I now suffer constant pain in my lower back. The level of the pain fluctuates depending on activity. There is stiffness in my lower back. Regularly I feel muscle spasms tightening up my back. I continue to have pain into my right leg down the back of the leg as far as my foot. There is some associated numbness. Often I feel as if I am dragging my right leg, as if it doesn't want to work properly. I tend to walk with a limp sometimes since it seems to relieve pressure on my back. I also suffer from time to time with sciatic pain in my left leg down to my knee.
I continue to feel depressed, particularly about the ongoing pain and the way that injury restricts me and when I compare what I can do now to what I used to be able to engage in socially and occupationally, I become very despondent and withdrawn.
I am very worried about the future and how my back will be. After the accident I endeavoured to limit my activities to ensure that I could continue working but the security guard duties where I was working back on the floor were just too much for me and I do not believe I will ever be able to undertake such work again. The handyman painting type business which I engaged in for a short period of time in 2006 was lighter work but the business nevertheless failed. I have sought different types of work as a forklift driver and jobs in the general maintenance area but without success and I am currently in receipt of a disability support pension. I believe that I will have difficulty in ever getting back into the workforce.

[98]

It is likely that in many cases the injuries caused by a transport accident will have physical as well as mental consequences for the plaintiff, with the result that it may appear that either definition could be appropriately applied in determining whether the relevant injury is a 'erious' one. In such circumstances, which test is appropriate will fall to be determined by the consideration of what is the dominant cause of the plaintiff's condition. Is it predominantly the result of the physical injuries arising from the accident, or is the dominant cause of the condition the mental and psychological factors flowing from the accident? But whichever test is to be applied, in determining if its requirements have been satisfied, all the relevant consequences for the plaintiff arising from the accident are to be considered. Thus, if it is decided that, in a given case, the test in para.(a) is appropriate because the plaintiff's relevant condition has been brought about predominantly by the relevant physical injuries, in deciding whether the relevant impairment is serious and long term, regard is to be had not only to the physical cause of the impairment, but also to any mental or behavioural disturbances flowing from the physical injury, such as 'functional overlay' to which the President refers in his judgment. The same applies where the dominant cause of the plaintiff's condition consists of mental or psychological factors. In such a case, any accompanying physical incapacity may be taken into account in determining whether the plaintiff's mental or behavioural disabilities are serious and long term. But the first task is to decide whether the dominant cause of the plaintiff's condition falls to be determined by reference to the criteria in para.(a) or (c). Such an approach is likely to prevent the tail wagging the dog or creating the 'anomaly' to which their Honours referred in Humphries v. Poljak which might otherwise take place as it did in this case. The medical evidence summarised by the President seems to establish that, although the plaintiff suffered a soft tissue injury of the cervical spine, it was the operation of mental and psychological factors that were the dominant cause of his condition. In those circumstances, it was inappropriate to determine the relevant issue by applying the criteria in para.(a) of the definition section. As the President has pointed out, in the circumstances of this case, the question whether the plaintiff suffered a 'serious injury' fell to be determined by the provisions of para.(c) and not para.(a).[9]

[135]

Although Dr Weismman [sic] diagnosed a major depressive disorder and mild Post Traumatic Stress Disorder in December 2006, he only examined the plaintiff on one occasion. I prefer the evidence of the plaintiff's former treating psychiatrist, Dr Blandthorn, who has seen him at least 10 times since 2000, the last time in late 2006. His opinion that the plaintiff suffers from a depression which is in partial remission and does not prevent him from working is shared by Dr Ingram, who also examined the plaintiff in late 2006. The weight of the psychiatric evidence is that the plaintiff's pain disorder and [sic] interferes somewhat with his enjoyment of life, but that part of his concern relates to his inability to find work.
This conclusion was echoed by the plaintiff, who dissolved into tears when giving evidence about his repeated failure to obtain work, which he attributed to having made a WorkCover claim. He repeatedly said he would undertake certain jobs, such as those in the real estate or loss supervision areas, if they were available to him. Even assuming that he meant he was able only to work within the restrictions imposed by Dr McKenzie, 30 hours per week, with no prolonged sitting, standing, lifting, bending or twisting, it is clear that the plaintiff (and some of the experts who examined him) regards himself as psychologically fit for employment. He ceased anti-depressant medication in 2002, and has not sought treatment for any psychological problems since late 2001. His affidavit describes no psychological symptoms other than depression (in paragraph 32) about the physical restrictions flowing from his pain, and concern (in paragraph 33) about the future and how his back will be.
I am satisfied on all the evidence therefore that the plaintiff has suffered a pain disorder or chronic adjustment disorder resulting from the injuries sustained in the transport accident which have had some impact on his enjoyment of life, particularly his leisure activities, and some impact on his capacity to work fulltime in his pre-injury duties. I am also satisfied that the depression suffered by him is in partial remission and may impact on his quality of life but does not prevent him working. In all the circumstances, however, having regard to the consequences of the mental disturbance or disorder in terms of pain and suffering and pecuniary disadvantage, I am not satisfied that the plaintiff's injury, when compared with other cases in the range of mental disorders or disturbances, is more than serious, to the extent of being severe.[21]

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