Australia, Sept. 19 -- County Court of Australia issued text of the following judgement on Sept. 18:

1. Mr Mallios applies under section 93(4)(d) of the Transport Accident Act 1986 for leave to commence common law proceedings for pain and suffering damages in respect of an injury to the spine sustained in a transport accident on 23 May 2019, when his car was struck by another vehicle that did not stop. After the transport accident, Mr Mallios went home, and subsequently visited his GP, Dr Ng. He underwent scans on his back. He was referred to specialists but has not had surgery.

2. The injury relied upon is an aggravation of a pre-existing degenerative spinal condition. Mr Mallios, who is 53 years old, says that he had suffered from knee, back and ankle pain for many years prior to the transport accident, and took medication (including Tramadol and anti-inflammatories) for his pain. He had suffered a left ankle and right knee injury in November 2009 but was still able to work in the family property maintenance business. He decided to take up lighter employment in traffic management and was able to cope with the standing involved by taking breaks. He enjoyed that work. He was able to be active with his three young children who were born in 2004, 2009 and 2013. He did not work in 2018 because of his mother's illness and he spent some time with his children. He does not recall taking any painkillers in the months prior to the transport accident.

3. Since the transport accident, Mr Mallios says that he has been unable to return to the traffic management job. He has constant pain in in his lumbar spine. He has difficulty walking and standing for long periods of time, bending and lifting items. His injury affects his sleep and prevents him from doing home maintenance, riding his bike, jogging and playing with his two younger children (aged 15 and 11 years). He takes Panadeine Forte (once per day) and Tramadol (1-3 tablets per day) to manage the pain and attends hydrotherapy once to twice per week. Mr Mallios says the pain and suffering consequences of the transport-accident related permanent impairment of his spine meet the narrative test for serious injury.

4. The defendant says that in the transport accident, Mr Mallios suffered only temporary exacerbation of pre-existing symptoms in the lumbar spine by way of soft tissue injuries to the neck and back, which resolved within months, and that his ongoing symptoms relate to underlying degenerative changes along with his obesity. Alternatively, the defendant says that the extent of the aggravation of his pre-existing degenerative lumbar and cervical spine does not meet the narrative test for serious injury.

The plaintiff

5. Mr Mallios is 53 years old. He completed high school and commenced a TAFE course in computer programming, but he did not finish it. He then commenced an Architectural Drafting Diploma but left the course at the end of the first year in order to work in the family's fish and chip shop. He worked there for about eight years and also worked occasionally in a nursing home also owned by his family. He then operated his own carpet cleaning business but it was not successful. He then worked as a contractor with labour hire companies.

6. He suffered an injury to his left ankle and right knee in November 2009 while working as a labourer.[1] He was treated conservatively but his left ankle remained too painful for him to return to labouring work. He went back to the family business doing lighter work around the nursing home. As at 2014,[2] he suffered constant left ankle pain, which restricted him standing for long periods, keeping up with his children, walking on uneven ground and up steps, riding a bike, playing soccer, football or tennis or jogging around the park. He was taking up to four Panadol tablets per day, sometimes interchanging with Nurofen, and was wearing an ankle brace. His left ankle pain disturbed his sleep. His right knee pain was only intermittent. He had put on weight and was swimming for exercise.

7. He decided to do less physical work and trained to work in traffic management. He underwent a medical examination prior to securing casual work in traffic management for two companies. He had no difficulties doing the traffic management work.[3]

8. As at the date of the transport accident, Mr Mallios stated[4] that despite issues he experienced with his back, right knee and left ankle, prior to the transport accident he was capable of performing his duties in traffic management and he also enjoyed the work. He was not taking pain killing medication. His left ankle pain had resolved to some extent. He said he would also work at the family owned nursing home if required, and would spend time doing activities with his children on the weekends. He was unable to run, but could bend and lift without difficulty. Since the transport accident, he has suffered back pain, which was worse than his neck pain, and he also had ongoing right knee pain. He was no longer able to stand all day and load and unload signs and stopped traffic management work due to his painful neck and back. He considered his back pain was the worst of his pain, but while the intensity of his back pain varied, it was always present. The neck and back pain had impacted his sleep as he found it difficult to get comfortable in bed. He was unable to stand for long periods of time or bend and lift without pain. He was no longer able to manage mowing and had hired someone to do this for him.

9. As at 23 May 2024,[5] Mr Mallios stated he had recently lost around 20 kilograms and continued with exercises, physiotherapy and hydrotherapy, but still had constant back pain and neck pain which affected his sleep. His right knee pain had returned to its pre-transport accident level and was manageable and his ankle issue had been alleviated by his weight loss. He had not returned to traffic management work or to doing any maintenance work in the nursing homes. He was able to drive, shop and see his friends.

10.In his oral evidence, he stated that he has good days where the pain is bearable, but he still has difficulties doing things for long periods of time.[6]

11. Mr Mallios was cross-examined in some detail about the histories given by him to various treating doctors and medico-legal specialists and about the impact of his pre-existing back, knee and ankle problems on his enjoyment of life and capacity to undertake his traffic management duties prior to the transport accident. He agreed that he had a sore back and ankle at times and took medication, including Tramadol and anti-inflammatories, for those problems, but insisted that these issues did not prevent him from performing his work duties or restrict him at home doing every day activities. He said that some doctors did not specifically ask questions about these matters and that he just answered the questions asked of him. He did not recall ever denying prior back, knee or ankle pain when asked directly about these matters by doctors. He said that his weight loss helped his knee and ankle problems but not his back problem, which worsened after the transport accident and has not resolved. He insisted that his current limp was due to his back problem and not his right knee problem and denied trying to assist his case by putting all the emphasis on his sore back. He insisted that he was able to work in traffic management prior to the transport accident in spite of his ankle, knee and back problems but that his main problem is now his back pain which affects his sleep, his daily activities, his work capacity and his enjoyment of life.

*Rest of the document and Footnotes can be viewed at: (http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCC/2024/1445.html)

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