Abaas v Transport Accident Commission
[2013] VCC 69
•15 February 2013
| IN THE COUNTY COURT OF VICTORIA AT WODONGA CIVIL DIVISION | Not Restricted |
SERIOUS INJURY
Case No. CI-11-04287
| AMED ABAAS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 22-24 October 2012 | |
DATE OF JUDGMENT: | 15 February 2013 | |
CASE MAY BE CITED AS: | Abaas v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 69 | |
REASONS FOR JUDGMENT
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Catchwords – TRANSPORT ACCIDENT – application for leave to commence proceedings – serious injury – two grounds – second ground - severe long-term mental or behavioural disturbance or disorder – second ground established: Transport Accident Act 1986 s.93 (4),(17)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Waugh | Harris Lieberman |
| For the Defendant | Mr W R Middleton SC and Ms R Kaye | Solicitor for the Transport Accident Commission |
HIS HONOUR:
1 The plaintiff, Amed Abaas, seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to issue proceedings for the recovery of damages for injuries sustained in a transport accident occurring near Yackandandah on 2 January 2009.
2 Mr Abaas was aged forty-two years. He was a passenger in the front seat in a car driven by a friend, which ran off the road and hit a tree. His account was that he was bending down picking up a bottle of water at the time of the accident and struck his head on the dashboard.[1] He states that he was momentarily knocked unconscious and felt pain in his neck and lower back almost immediately. That pain has continued since, although varying in severity.
[1]Transcript (“T”) 21
3 Mr Abaas seeks leave to bring proceedings in respect of a physical impairment of the cervical spine and lumbar spine. Secondly, leave is sought in respect of a psychological injury.
4 Mr Abaas made two affidavits in support of his application and gave oral evidence. No other person gave evidence.
5 The admission notes of the Emergency Department at Wodonga Hospital recorded the accident as a collision with a tree at low speed with very minimal damage caused to the car. They record that Mr Abaas was leaning forward at the time of impact and suffered a whiplash type movement. The notes described ─
“No LOL – no other obvious injuries. Right lateral neck pain. Denies sensory deficit.”[2]
[2]Court Book (“CB”) 190
6 At the time, Mr Abaas owned and operated a kebab shop in Albury, where he worked up to 60 to 70 hours a week.
7 He was discharged from hospital with a neck brace. He says that his pain did not go away. He tried to return to work but was unable to cope with the pain. His work at the kebab shop required him to be on his feet most of the time, serving customers and preparing food. When he returned after the accident, he was only able to work for about half an hour. He continued to attend the shop from time to time to help out, but found that after about 10 minutes he had to sit down because of the pain.
8 Mr Abaas’ evidence was that over the next few months, the pain persisted and made him feel very bad-tempered. He could not think and he found noise intolerable. He has become increasingly depressed about the pain, which intrudes into every aspect of his life and takes all the joy away.
9 In his second affidavit, made a few weeks before the hearing of the application, Mr Abaas said that he has neck pain all the time and it has got worse, especially in winter. When his neck pain is bad, he also experiences headaches. On an average day, he has neck pain and a headache in the morning. He takes tablets and the neck pain decreases but does not disappear. His headache goes away on some days, but not on others but returns in the afternoon. When his neck pain is bad, he also experiences pain in his right shoulder and down his right arm. He experiences back pain all the time, but it is not as bad as the neck pain. It gets worse if he sits too long or stands in one place too long and it is better if he can move about. When the back pain flares, it extends down his right buttock and leg. The pain disturbs his sleep every night and he is tired all the time. His sexual life has stopped.
10 He takes a range of medication. It includes: Tramadol twice a day, and 6 to 12 tablets of Panamax and Nurofen per day, depending on how much pain he is having. He takes Sertraline, which is an anti-depressant medication, twice per day. He takes Zantac for heartburn at a higher dose than he did before the accident. He thinks that his increased heartburn is due to all the medication that he is taking.[3] He takes oxazepam as required. He was cross-examined about the medication that he takes and in re-examination produced a number of the tablets that he said he was taking. The medical evidence confirms that he is taking substantial quantities of pain killers.
[3]The evidence regarding medication is contained in the plaintiff’s second affidavit paragraph 24 (CB 21) and at T 69-71,101-104 and 121-123.
11 Mr Abaas stated that the medication helps him a little, but the pain remains. He finds that the medication slows him down and affects his memory. He does not think as clearly as he used to finds it hard to concentrate. [4]
[4]T 85
12 In his TAC claim form, Mr Abaas crossed the “Yes box” to the question:
“ Before the accident had you ever suffered from any of the following conditions or problems?
Migraine or similar episodic headaches.[5]”
He said that this statement was incorrect and that before the accident he had a headache sometimes, but not daily headaches like he does now. The claim form was completed by his accountant who must have misunderstood him.
[5]CB 219
13 I accept Mr Abaas’ evidence on this matter. The history that he provided to the doctors he consulted supports the conclusion that the headaches are substantially greater than those he experienced before the accident.
14 Mr Abaas states that since the accident he has been diagnosed as having high blood pressure and he attributes it to the stress caused by the pain and his inability to work.
Mr Abaas life prior to the accident
15 Mr Abaas was born in Lebanon in 1966 and is now aged 47. In 1975, when he was aged nine, civil war broke out and the schools were closed. As a result, he has not completed primary school education. He cannot speak or read English well. When he was about twelve or thirteen, he started work as a panel beater. When he was nineteen, he met a Lebanese girl and they married. They came to Australia in 1985. They had one son. They were divorced in 1988. He married his second wife in 1992 and they have eight children.
16 After working in Sydney as a panel beater and a car detailer, he moved to Victoria because his older brother had come to Australia and purchased a 140 acre farming property in Eurobin, near Myrtleford. Mr Abaas contributed to the purchase price. Mr Abaas’ family had been farmers in Lebanon for many generations.
17 Mr Abaas moved with his family to the farm at the end of 1999 and shared the one house with his brother, who was not married. The main crop was tobacco until 2006, when that industry collapsed.
18 Mr Abaas then purchased the kebab shop in Albury for $240,000. His brother kept the farm and planted other crops, including olive trees and fruit trees, but the farm could no longer support them all.
19 In 2006, Mrs Abaas decided that she would take the children back to Sydney because the oldest boys were very bright and needed to go to university. Mr Abaas decided to stay and run the kebab shop, which was a good business and made a lot of money, although it required very long hours to operate. He travelled to Sydney most weeks to see his wife and children and stayed there from Sunday to Tuesday or Wednesday. His brother helped him in the shop and he also employed some casual staff.
20 During holiday times, his family would come to the farm at Eurobin.
21 Mr Abaas stated that although he was working very long hours and doing a lot of travelling, life was working out well. He and his wife had money and the children were getting a good education and Australia was a safe place to live. They were happy.
Mr Abaas’ overseas travel after the accident
22 A feature of Mr Abaas’ history was his overseas travel after the accident. The doctors whose reports are before the Court, appear to have been unaware of accurate details of all of the travel. Mr Abaas has spent between 7 and 9 months overseas since the accident, including in Lebanon, Malaysia, Indonesia and the Philippines. The purposes of trips to Lebanon included to see his sick father, to attend events associated with the engagement of one of his daughters and to attend her marriage.[6]
[6]T 96-97
23 He travelled to Lebanon in April 2009 because his father was ill and he was away for two to three months. He saw a specialist in Lebanon who prescribed pain-relieving medication and referred him for more physiotherapy. He found that the physiotherapy increased his pain levels.
24 He also travelled to Indonesia as he had been told by a friend that they had very good massage therapy. He tried it and further physiotherapy, but they did not relieve his pain.
25 He visited Indonesia with a friend. He purchased and shipped to Australia one container of Jabun, which is a medicine leaf, at a cost of $5000, but he was unable to sell most of it.[7]
[7]T 44
26 He gave evidence that he commenced having difficulties in his relationship with wife soon after the accident.[8]
[8]T34
27 He developed a relationship with an Indonesian woman and married her in accordance with local custom. The relationship lasted a year and a half.[9] He visited her three or four times.[10] He said that that marriage ended in divorce, which on his evidence was an informal process of making appropriate statements in the presence of witnesses and a religious man.[11]
[9]T 64, 95-96
[10]T 96
[11]T 57-58
28 He also visited the Philippines, but he did not explain why that occurred.[12]
[12]T 97
29 Mr Abaas explained his considerable travel since the accident by stating that he was better when he was away.[13]
[13]T 99
Mr Abaas’ present living arrangements
30 Mr Abaas states that while he and his second wife are still married, they cannot live together. They separated in about June 2009. After the accident he spent more time at home with his family in Sydney, than he had before. However, he stated that he was not managing his pain very well and he was frustrated that he could not go to work. In his culture, it is very important that a man works hard to support his family and he had always done so. The pain makes him bad-tempered and he cannot tolerate the noise of family life. He would get angry with the children and his wife and his family did not cope well with his bad temper. Eventually he decided that it would be better for everyone if he left the Sydney house. He lives with his brother in Eurobin. His brother continues to work the farm, but Mr Abaas does very little on it.
31 His ability to drive motor cars has been affected.[14] He can no longer drive the full distance to Sydney. It is best if he shares the driving with a friend.[15]
[14]T 100
[15]T100
32 He stated that prior to the accident, he was working long hours in the kebab business and earning a good income and supporting his wife and family. As a result of the injuries sustained in the accident, he is no longer able to work, his marriage has broken down and he has very limited contact with his children.
33 Before the accident, Mr Abaas used to go hunting and fishing and take his children to the snow. He would also do general labouring on the farm and household maintenance. He can still cut the grass a bit at a time using a ride-on mower, but that is “about it”.
34 One doctor noted that he attended a consultation, with mud all over his boots. Mr Abaas explained the mud on the boots by saying that there was mud around the house.[16]
[16]CB 115.4, T 83
Mr Abaas’ business
35 Mr Abaas’ kebab shop continued to trade with a friend running it, who took all the business profits.[17] His friend did not continue the long opening hours and the turnover dropped dramatically.
[17]T 79, 110-112
36 He sold the kebab shop at the start of 2012 for $100,000 to the friend, having purchased it for $240,000.
37 Mr Abaas said that he invested $40,000 in his brother’s tobacco business farm. His 2009 tax return disclosed $20,000 from the farm business. His 2008 return claimed as a deduction, salaries of $29,469.50. A document that purported to be a return that covered the first 6 months of 2009 showed a trading profit of $11,321.10. There were no deductions claimed for salaries. He said that the salaries paid to casuals did not attract tax.[18] He said that he did not receive any income from the business in 2009 and that he didn’t work that year.[19]
[18]T 81-82
[19]T 82
38 He received payments for three years from the Transport Accident Commission. He relies on payments that he receives from an AMP income protection policy of about $3,500 gross per month for five years commencing in 2012. He has a number of debts to repay which attract high interest rates.
Evidence of Mr Abaas’ family and friends
39 Affidavits were filed and admitted into evidence by Mr Abaas’ wife and two of his sons and by friends. They emphasise the changes that they saw in Mr Abaas after the accident. None of the deponents was required by the defendant to attend for cross-examination. The main evidence given in those affidavits is as follows.
40 Ms Z Abaas, who is married to Mr Abaas, stated that prior to the car accident she and her husband had a very good life. Mr Abaas was a hard worker and provided a good life for her and their eight children. He did not have any problems before the accident. He was working in the kebab shop but would regularly come to Sydney to see her and the children. After the accident, Mr Abaas changed. He has a lot of pain in his back and neck. He cannot work and he finds that very frustrating. He is always angry. Before the accident he always dressed nicely and was always happy, while now he is miserable and always looks sad.
41 Ms Abaas stated that she was very sorry for her husband, but that she could not look after him and the children and keep the house running. When he visits Sydney now, if he stays for more than a day or two, they end up fighting, which is not good for the children. It is better for everyone if he only comes to see them for a short time every two or three weeks. Before the accident, Mr Abaas had a good relationship with his children, but he now fights with the older boys.
42 Two of Mr Abaas’ sons made affidavits about the changes in their father after the accident. The first son[20]said that the accident had a significant impact on their father and his life and also on their lives and the lives of the family. He was hardworking, but happy, before the accident both on the farm and in the shop. He enjoyed taking his family to places and doing things together on the farm. After the accident he could no longer work and seemed to be in constant pain, his personality changed and he became angry and irritable. He became quick tempered and depressed. He would complain of headaches, neck and back pain and seemed intolerant of noise and normal family life. He visited them less often and when he did, he appeared restricted physically and would have to have massages to try and relive the pain. This affected his relationships with the family. He was no longer able to give the sons money.
[20]CB 34
43 A second son[21] stated that prior to the accident his father was physically fit, healthy and active, hardworking and proud. On the farm, he was able to drive and fix the tractor, monitor and fix the irrigation systems and do the other jobs necessary to keep the farm going.
[21]CB 44.1
44 After the accident, he could see that his father was in physical pain by the way that he walked and moved. He would complain of the pain that he was in and about his inability to do things. The children had to run around for him and he became very depressed. His son saw him taking medication, which made him drowsy and he often fell asleep during the day, something that he would not have done prior to the accident. He most frequently complained of neck pain and headaches and he became quite stressed by his situation, his pain and his inability to work. The son stated that this caused significant conflict between his parents and resulted in his father having an emotional breakdown of sorts. Before the accident, his father had been calm and confident. After the accident he became stressed and easily angered, would lose his temper quickly and was irritable with pain. This affected his relationship with his family and he visited them in Sydney less often. He was less tolerant of them and any noise and became moody and difficult to talk to.
45 Mr N Salloum, a friend of Mr Abaas, made an affidavit. About five years ago, Mr Salloum accepted Mr Abaas’ offer of a job in the kebab shop. He said that they worked very long hours and Mr Abaas did the ordering of stock, hiring of staff and serving customers, while he worked in the kitchen. Due to Mr Abaas’ hard work, the business was very profitable.
46 Mr Salloum saw Mr Abaas the day after the accident in the shop. He was in a lot of pain, lying on the floor and unable to move his neck. He could not work. He arranged for someone else to run the shop, but they did not put in the same effort and the business started to go down hill. After a time, Mr Salloum left the kebab shop and moved to Eurobin with Mr Abaas to help look after him.
47 Mr Salloum stated that before the accident, Mr Abaas was a hard worker putting in long hours at the kebab shop and on his farm. He had planted a large olive grove and many other fruit trees. They are now dying because of neglect. The farm needs a lot of work because of recent storms and floods, but Mr Abaas is unable to do it.
48 Before the accident, Mr Abaas was very good company and never seemed to get upset about things, he was always busy and active. Since the accident, Mr Abaas has lost his business and source of income, he seems to have no energy and is taking a lot of pills. Mr Salloum does most of the cooking, cleaning, washing and shopping because Mr Abaas cannot manage it. He also drives Mr Abaas into town for appointments.
49 Another friend of Mr Abaas, Mr K Ajaje also made an affidavit. He is a relative of Mr Abaas and got to know him after he migrated to Australia in 1999. He said that prior to the accident, Mr Abaas was a good family man, who worked hard and treated his wife and children well. He visited Mr Abaas at work in his kebab shop and said that he worked day and night in it.
50 In 2009 after the accident, Mr Ajaje moved to Albury to live. He described Mr Abaas as having “already changed a lot.” He had always been a hard worker, very fit and active and friendly and happy, but now seemed to be totally inactive, sleeping a lot and constantly in pain. He was unable to work and seemed to be taking a lot of medication. He appeared very unhappy and depressed. He had been previously easygoing, but had become irritable and angry.
51 Mr Ajaje stated that there were three people in the kebab shop doing the work that Mr Abaas used to do. He said that he knew that Mr Abaas had tried a few different jobs in Sydney after the accident without success. He referred to taxi driving and panel beating as examples of jobs that Mr Abaas was unable to perform. Mr Abaas denied that he had tried other jobs.[22]
[22]T 172
Medical treatment by general practitioners
52 Mr Abaas attended a general practitioner in Myrtleford a couple of days after the accident. That doctor, who was not his usual practitioner, prescribed diazepam, which is a muscle relaxant.
53 He attended his usual general practitioner, Dr S Shute, on 4 January 2009 and on approximately seven further occasions before March 2009. In a report written in December 2009, Dr Shute stated that Mr Abaas explained that he had not had any prior neck or low back problems prior to the accident. He recorded that Mr Abaas described hitting his head with brief concussion, but there were no lacerations or grazes. He was diagnosed with soft tissue injuries to the neck and lumbar region, was prescribed anti-inflammatory tablets and a painkiller, and it was recommended he commence physiotherapy in a fortnight. One week later, he had improved but still had an ache and some dizziness. He was certified as partially unfit, i.e., not able to do all his usual duties. On 2 February 2009, he had attempted a return to work in the kebab shop, but had to stop and sit after 20 minutes. He was driving again, but felt neck pain when looking around, and lumbar ache after sitting. [23]
[23]CB 50
54 He attended a physiotherapist in Myrtleford and elsewhere, but it did not help his symptoms.
55 Mr Abaas was reviewed by Dr Shute on 3 March 2009 and certified fit for modified duties for the next month. He was also referred to Mr T Hillier, an orthopaedic surgeon, for an opinion regarding the neck because of the ongoing nature of his pain.[24]
[24]CB 50
56 After returning to Australia, Mr Abaas consulted Dr Shute on 12 November 2009, stating that he still had some ongoing back pain. He explained that he had separated from his wife in June. Dr Shute recorded that he showed symptoms of depression.[25]
[25]CB 50
57 In December 2009, Dr Shute recorded that it was difficult to comment on Mr Abaas’ work capacity given the limited recent contact with him. It would be expected that he would be able to work, but he was not able to saywhether his neck would still prevent his pre-injury duties and hours.[26]
[26]CB 50
58 In May 2010, Mr Abaas commenced attending a medical practice in Albury,[27] where he usually saw Dr Mia about every four to eight weeks.[28]
[27]CB 51
[28]CB 53
59 In a report on 11 October 2012, Dr Mia stated that Mr Abaas had been prescribed analgesic anti-depressant medication as he had chronic pain syndrome, involving constant headache, neck pain and back pain. He had developed a major depressive disorder.[29]
[29]CB 53
60 Dr Mia stated that Mr Abaas was incapacitated for pre-injury duties. Partial incapacity was not assessed. He was not physically and mentally fit to work as a tobacco farmer and panel beater. His condition had not stabilised, although he was on medication. Dr Mia was unable to give a time frame regarding stabilisation of his physical and psychological condition. He stated that Mr Abaas’ condition may improve gradually, but that was uncertain. He may need integrated support from family and friends, and he needed a psychiatrist’s review and may need a long-term psychologist’s review again.[30]
[30]CB 53-54
61 On 3 May 2010, Dr Mia reported to the AMP:
“ I consulted him first on 24/11/09. He presented with chronic neck pain, back pain, headache and with history of depression.
My diagnosis was chronic pain which started after MVA and now has depression which could be multifactorial.
I think chronic pain, depression and lack of motivation preventing the insured from returning to work as kebab shop owner/operator. He told me that he returned to work after MVA but could not tolerate pain. Now he has depression which is exacerbating the condition.
…
Considering his current physical and mental issue, I think he is not fit for job either in part time or full time.”[31]
[31]CB 51
Radiology Evidence
62 Mr Abaas underwent a CT in 2009 and an MRI in 2010 and 2011 of his spine.[32]
[32]CB 45-48
63 The CT revealed that there was no fracture or subluxation evident. There was no central or foraminal stenosis or overt disc protrusion. There was an incidental development anomaly involving the right posterior elements of C3 for dysmorphic right C2/3 facet joint. No fracture or active bone lesion was evident.[33]
[33]CB 45
64 The 2010 MRI of the cervical spine showed no high grade spinal canal stenosis or nerve root compromise. There was no evidence of a traumatic injury within the limits of the study.[34]
[34]CB 46
65 The 2010 MRI of the lumbosacral spine showed minor Grade 1 spondylolisthesis of L5 on S1, probably degenerative. There was no focal disc protrusion. There was no high grade spinal canal stenosis or nerve root compromise. There was no convincing evidence for traumatic injury within the limits of the study.[35]
[35]CB 47
66 The 2011 MRI of the lumbosacral spine showed Grade 1 anterolisthesis at L5/S1 due to bilateral L5 pars interarticularis defects. There was also mild right L5 exit foraminal sentosis.[36]
[36]CB 48
67 A consultant radiologist, Mr A Kam, stated that based on the available CT images and MRI of the cervical spine, that there was no evidence to suggest any significant acute traumatic injury to the cervical spine, which appeared structurally sound.[37]
[37]CB 110
Treating orthopaedic surgeon
68 In January 2010, Dr Mia referred Mr Abaas to Mr T Hillier, an orthopaedic surgeon.[38] Mr Hillier stated that, on referral, Mr Abaas was complaining of constant neck pain and headaches. He also detailed some lumbosacral discomfort, but this was less intense and was much less frequent in occurrence. He also said that, in regard to his neck injury, Mr Abaas was aware of pain radiating down the outer aspect of his right upper arm and forearm. Clinical examination noted that he had symmetrically reduced rotation and lateral flexion to each side. He is a right hand dominant man. He did not show any impairment of grip strength in either hand, nor any impairment of shoulder, shoulder girdle or upper limb function. Mr Abaas brought with him a CT scan of his cervical spine which showed some loss of lordosis at the C5−C6 level, and there was also a suggestion of minor C5−C6 disc narrowing and spurring, suggesting internal disc degeneration.[39]
[38]CB 51
[39]CB 55-56
69 Mr Hillier referred him for an MRI and assessed those with him on 19 April 2010. Both the cervical and lumbar spine appeared structurally sound. There was a slight suggestion of an L5 Grade 1 spondylolisthesis, as reported, but he noted that the disc signal at that level was healthy, suggesting that the disc was morphalogically normal.[40]
[40]CB 56
70 Mr Hillier felt that Mr Abaas had the potential to settle with ongoing conservative treatment and arranged for him to be referred to a cervical spine physiotherapist.[41]
[41]CB 56
71 Mr Abaas did not return to Mr Hillier until 12 July 2010 and he reported that he was struggling to cope. He was seeking definitive surgical treatment, but Mr Hillier emphasised that that could only be considered if there was a definite focus for his pain, and that had not been identified.[42]
[42]CB 56
72 Mr Hillier suggested that a right-sided C6 nerve root block might assist in identifying whether there was neural irritation from the C5−C6 disc. Approval was sought for that to be performed from the TAC, but that was not successful.[43]
[43]CB 56
73 Mr Hillier’s diagnosis was that Mr Abaas had sustained a soft tissue injury to his cervical and lumbar spine. Both areas appeared generally structurally sound, but there was evidence of loss of lordosis at the C5−C6 level and it was therefore possible that he had sustained some internal disc injury at the C5−C6 level, and that could explain his intermittent discomfort in the C6 distribution of the right arm.[44]
[44]CB 56-57
74 Mr Hillier considered that Mr Abaas had the capacity to cope with his work as a kebab shop owner on at least a part-time basis, given that he showed no weakness of upper limb strength, and adequate neck control. He would have assumed that he was able to carry out his duties, albeit with neck discomfort from the time that he assessed him in January 2010. Mr Hillier stated that he felt the prognosis was good for Mr Abaas to recover from the motor vehicle accident effects on his neck and lumbar spine and he would have no long-term disability.[45]
[45]CB 57
75 In a further report of 31 March 2011, Mr Hillier, referring to the CT scan of 7 October 2010, stated that there was a slight loss of the normal cervical lordosis across the C5−C6 segment. As the radiologist commented, there was a subtle reversal of the cervical lordosis on the sagittal series. He did note that there was a slight narrowing of the C5−C6 disc and some indication of spur formation, fitting with a specific injury at the C5−C6 level. A subsequent MRI confirmed the straightening of the upper cervical lordosis, but did not find any signs of disc protrusion or disc signal abnormality of the C5−C6 disc.[46]
[46]CB 58
76 Mr Hillier saw the plaintiff again on 20 June 2012 and, in his report of 5 October 2012, stated:
“I note that you did recently obtain a copy of my clinical notes and you would see that, from those notes, that I record that Mr Abaas was complaining of mid line posterior neck pain in September 2011 and he informed me that he had been overseas and that lead to him having an MRI done in Tripoli, Lebanon and that report suggested some osteophytic bone spur formation at the C3-C4 and C4-C5 discs. The radiologists in Tripoli did not note any signs of spinal cord signal changes nor any spinal canal compromise.
I reviewed the MRI of the cervical spine on the disc that Mr Abaas had and noted that there was slight bulging of the C3-C4 and C4-C5 discs, not indicating any specific disc problems and agreed with the radiologist that there was no sign of spinal cord compromise and in particular that cerebro spinal fluid was seen to surround the spinal cord at all levels of the cervical spine.
…
As I previously stated, I have not seen any indication of remaining injury arising out of the original motor vehicle accident. I appreciate that Mr Abaas has continued to complain of cervical neck discomfort, but MRIs done quite some time after his original injury have not demonstrated any sign of remaining injury.
I have recommended a short program of physiotherapy might be helpful for him but I would not envisage treatment being required beyond that.
I consider that the effects of the motor vehicle accident to his cervical spine have now gone beyond the point of soft tissue sprain which occurred and which would be expected to have healed quite quickly with appropriate physiotherapy treatment, and any ongoing treatment for neck discomfort I believe relates to normal degenerative minor changes in his cervical spine.
I would not expect his injuries from the motor vehicle accident to be limiting him in regard to his ability to perform his pre-injury employment.”[47]
[47]CB 58.2
77 Mr Abaas stated that in June 2012, Mr Hillier administered some injections into his back, but that they did not help. He thought that they would have been in his neck where his worst pain was.
78 In a further report of 19 October 2012, Mr Hillier referred back to the second last report and stated:
“As I stated in the report I do not see his motor vehicle accident as having produced any structural damage to his cervical or lumbar spine, but I believe that the sprain of his neck that he sustained in the motor vehicle accident appears to have rendered pre-existing minor disc degenerative changes symptomatic.
I continue to see him as having the potential to respond effectively to simple physiotherapy measures and would not envisage surgical treatment required ever.”[48]
[48]CB 58.3
Medico-Legal Evidence
79 The defendant provided medico-legal evidence from two doctors.
80 Mr J Rowe is a specialist occupational physician, who saw Mr Abaas twice in 2010. He stated in his report of 13 July 2010, that:
“It seems that this man has improved since I saw him six months ago, and I would suggest that his symptoms are now more related to his psychiatric state if anything, rather than there being any underlying organic basis.
…
He has seen Mr Hillier and you could obtain a report from him and there has been a suggestion of him having injections into the neck, presumably nerve blocks, but I see no indication for those. On a physical basis I can find no indication for nerve root blocks, his symptoms are more functional in the right arm and hand. I think his ongoing symptoms might be related to his psychiatric state, they are not related to an underlying physical disorder or disease, that is, they do not have an organic basis.
…
Treatment and Rehabilitation
…
It is my view that Mr Abaas does not require any further treatment, apart from that directed towards his psychiatric state. He takes huge doses of analgesics for his headaches, but I don’t think they have an organic basis. There may be psychosocial issues contributing to his condition, and I understand you are having him examined by a psychiatrist soon.
…
Work Capacity
…
In my view, this man will be able to go back to pre-accident employment managing a kebab shop say within three months.
…
He might have to avoid extremely heavy lifting but I would suggest he is fit for most of the duties required in a kebab shop, at least 90 per cent.
…
He will not be disabled long-term. He is fit for suitable employment, all he needs to do is to avoid heavy lifting. He is able to drive a car and obviously attends his place of business but I’m not sure what he does there.”[49]
[49]CB 92-93
81 Mr John O’Brien, an orthopaedic surgeon, provided a number of reports, the most recent of which was 6 July 2012. He stated:
“Current signs remain extremely subjective and confined to variable restriction of movement both in the cervical and lumbar spine. There is no evidence whatsoever of nerve root radiculopathy. It is noted the recent MRI of the lumbar spine demonstrates the presence of a Grade 1 spondylolisthesis but this clearly pre-dated the accident and I do not consider this problem underlies the patient’s chronic back and right leg pain.
I would again regard this patient as presenting with a chronic pain syndrome. I would suggest there is no clinical or radiological definition of pathology that underlies pain generation. Indeed from a clinical perspective one could not define this pain as discogenic or indeed of facet origin. In fact there clearly remains a significant psycho-social influence on this patient’s overall chronic pain.
…
Prognosis
The prognosis remains poor. I do not see any indication for further investigations or indeed any form of invasive treatment.
Mr Abaas again presents describing significant disability. Indeed he reports a very inactive lifestyle, indicating he has now sold his kebab shop and has no ongoing involvement. Specifically from a physical perspective I would suggest this patient is not totally incapacitated and would be capable of some form of light type employment. However, from a practical perspective I would suggest there is complex clinical presentation that will preclude this patient from returning to any form of gainful employment. In fact I am sure Mr Abaas will continue to pursue a very much restricted general, domestic and recreational lifestyle. Nevertheless, I am sure he will remain capable of the normal activities of daily living and the tasks necessary for independent living.”[50]
[50]CB 106-107
Treatment by psychologist
82 Mr Abaas was referred to the psychologist, Ms C Kembrey, by the defendant. He attended Ms Kembrey on at least eight occasions.
83 Ms Kembrey’s written report of 21 June 2012 states that on 15 December 2009, she diagnosed Mr Abaas with a severe Adjustment Disorder with Mixed Anxiety and Depressed Mood, as described in DSM-IV-TR, with the physical injuries suffered in the motor vehicle accident being the major significant contributing cause of the injury. She stated that Mr Abaas’ treatment consisted of medication prescribed by his doctor, cognitive behavioural therapy, relaxation, pain management techniques and supportive counselling. Mr Abaas was referred to the Wodonga Hospital Pain Management Program. However, his disorder remained severe and persistent as at the beginning of 2011, despite ongoing treatment. She stated that it would be appropriate for him to continue with psychological treatment with a psychologist or counsellor who shared a similar cultural background with him. [51]
[51]CB 60
84 As at 2011, her prognosis for future improvement was very guarded. She considered that the nature of the ongoing physical injury and the pain that involved, suggested that the psychological injury would continue. The main issue was the cultural importance placed on the ability of Mr Abaas to support his family and thus maintain his standing as a man in his culture. The physical injury had resulted in him losing all self-esteem and effectively viewing himself as useless and worthless as the ability to support the family is a very important tenet in his culture. She stated:
“Mr Abaas’ inability to continue his business life has meant that he feels emasculated and impotent. He is bewildered by this and scared of the future. This has also led to a reduced ability to make wise decisions as he no longer feels a worthwhile part of society and seeks to regain his standing as a man in his culture. There appears to be little chance of this improving and, until there is an improvement, there is little chance of the psychological injury remitting. Any attempt at work would need to address both the physical and psychological injury needs.”[52]
[52]CB 61
Medico-Legal Psychiatric Evidence
85 Mr Abaas relied on a report from Professor L Dennerstein, who is a specialist psychiatrist and who in 1995 was awarded a Personal Chair by the University of Melbourne. She has been engaged in a consulting psychiatric practice since 1980.[53] She consulted with Mr Abaas in June 2012 for about an hour and a half. Her first report contained the following statement:
[53]CB 62-63
“He was not able to continue at work because of pain. He was frustrated with his limitations. The pain affected him as did his inability to work and support his family. He developed an Adjustment Disorder with Mixed Anxiety and Depressed Mood and this has become chronic. Symptoms of the Adjustment Disorder include lowered mood and tearfulness, irritability, anger and difficulty controlling this and psychic and somatic anxiety. He apparently did have suicidal ideation before commencing the anti-depressant medication Zoloft. There has been some improvement in his symptoms with counselling and treatment with Zoloft. He continues to have symptoms of the Adjustment Disorder at a clinical level of severity. The Adjustment Disorder is secondary to his pain and his frustration with his limitations.
…
As noted above, the psychological disorder has occurred secondarily to the motor vehicle accident and the physical injuries he sustained which have caused chronic pain and limitations which have prevented him being able to continue at work. Depression and anxiety no doubt exacerbate his Pain Disorder.
…
The psychological symptoms of Adjustment Disorder have been described above. They would limit your client’s ability to deal with loud noises and many people and these would be restrictions if he was to contemplate any return to work.
…
The symptoms of the psychological disorder would impact on his capacity for work or cause partial incapacity. As these symptoms are secondary to the Pain Disorder, if the Pain Disorder should improve then it would be expected that the psychological disorder would also improve.
…
The psychological injury appears to have stabilised although there may be some improvement if the Pain Disorder improves.”[54]
[54]CB 71-73
86 Mr Abaas’ solicitors wrote to Professor Dennerstein stating:
“We confirm that in your report you have indicated that our client’s psychiatric impairment has occurred secondary to his physical injuries and chronic pain disorder.
We confirm our request for clarification of your diagnosis in the event that whilst accepting that Mr Abaas is genuine, there is no longer a physical basis or explanation for his chronic and debilitating pain.”[55]
[55]Exhibit 4
87 In response to that letter, Professor Dennerstein prepared a further report stating:
“I have reviewed his history. The report given by Mr Abaas was consistent with him having developed an Anxiety and Depressive Disorder following the motor accident which he attributed to pain and frustration with his limitations as well as anxiety related to being in cars.
It is likely that Mr Abaas did suffer pain as a result of the accident. The pain may have been then perpetuated with the information Mr Abaas was subsequently given which led him to believe that he had fractured his neck in the accident.
…
Anxiety and depression worsen pain. Thus Mr Abaas’ anxiety about having a fractured neck and the effects that this would have on his ability to work and support his family would have exacerbated pain and been perpetuating factors in his chronicity. This has likely then set up a vicious cycle in which the pain and its limitation also cause further anxiety and depression which further exacerbate his pain. He describes not being able to work because of pain and that this has affected his mood as he has been unable to support the family as he had done before the accident. He did report some improvement in his symptoms with counselling and treatment with Zoloft but that he continues to have significant symptoms of anxiety and depression and pain which are all now chronic.”[56]
[56]CB 74.1-74.2
88 The defendant relied on a report from Dr J Swift, psychiatrist dated 27 July 2010. He diagnosed Mr Abaas as having an ongoing Chronic Pain Syndrome, which was currently stable, and a number of musculoskeletal disabilities. He also had a moderately severe major Depressive Disorder. He considered that, as at 27 July 2010, Mr Abaas was totally unfit for any duties.[57]
[57]CB 79
89 Dr Swift stated that the major Depressive Disorder was contributed to by a number of factors including:
“1. Loss of health.
2. Cultural factors relating to loss of face owing to not working.
3. Loss of financial security.
4. Loss of business future.
5. Loss of health.
6. Loss of family life and family support.”[58]
[58]CB 78
90 Dr Swift stated that Mr Abaas’s treatment had been complicated by his limited understanding and persistence and compliance with medication. It was important that future treatment occurred in a culturally informed setting where appropriate, using an interpreter.[59]
[59]CB 78
91 Dr Swift prepared a second report in September 2010 in which he expressed the following conclusions:
“It cannot be concluded that three months on any old anti-depressant will automatically cure a depression. The depression and psychology treatment has provided some benefit but this is a man who is not taking medication reliably because of cultural difficulties and has high expectations. His treatment needs to be optimised and there is a degree of grief because he has suffered a number of losses that need to be worked through. It is unrealistic to expect a dramatic response to his depression within three months.
On the basis of his current mood he is still unfit for work.
It seems fallacious to conclude that if a patient shows:
‘Conversion symptom, and all the other symptoms can be written off as conversion symptoms as well because it is well known that patient with organic disorders frequently also show conversion disorder. I bow to Dr Hillier’s expertise in the area of orthopaedic surgeon in the vertebral column which he specialises in, and I feel that exploratory facet joint blocks in the neck together with some suitable muscle relaxant would be worthwhile. Nor can the presence of depressive illness be taken to rule out organic pathology.’
Mr Abaas is an extremely proud man who describes himself as a business man and is extremely keen to return to some form of work. He could not become a Taxi driver given that he can’t turn his neck, he would be likely to have an accident.”[60]
[60]CB 83
92 Dr T Entwisle, a consultant psychiatrist, reported on Mr Abaas following a consultation on 26 September 2012. His diagnosis was that Mr Abaas presented with a chronic Adjustment Disorder with Depressed Mood. There were no traumatising features.[61] He expressed the following conclusions:
“1.Mr Abaas’ prognosis is guarded. It has now been some time since the original accident. He has not responded to treatment. There are, as Mr O’Brien indicated, significant and enduring psychosocial contributions to this man’s experience of pain and his physical symptoms.
2.His depressive illness and the combination of chronic pain do impact on his ability to work.
3.His depressive illness and the combination of chronic pain do impact on his domestic and leisure activities also.
4.Mr Abaas does not describe symptoms in relation to the experiences of the transport accident. His various issues relate to the experience of pain, his inability to return to work and the breakdown of his relationship with his family in those circumstances.”[62]
[61]CB 115.4
[62]CB 115.5
The parties’ submissions
93 The plaintiff relied on both paragraph (a) and (c) of s93(17) of the Act. He submitted that it was sufficient that compensable injury was a cause of the injury[63] A serious impairment included a dramatic change in a person’s life.[64] The motor vehicle collision was significant. A soft tissue injury can be a serious injury.
[63]Petkovski v Galletti [1994] 1 VR 436
[64]Cropp v Transport Accident Commission [1998] 3 VR 357
94 The plaintiff submitted that TAC action in making payments was a significant admission.
95 The effect of lost earning capacity was significant. Mr Abaas had received considerable medical, psychological and physiotherapy treatment.
96 Mr Hillier’s reports established that the plaintiff had a disc problem and lordosis. He had received injections in his back and other conventional treatment. The medical evidence suggested that he was only capable of light work at best. He suffers considerable pain.
97 So far as paragraph (c) of the definition of “serious injury” was concerned, Ms Kembrey’s reports established that Mr Abaas had extremely severe depression and anxiety. He was taking medication. His physical injury had merged into the psychological response. His condition was affected by the cultural expectation that he would work and provide for his family. He would not have improved if he had received more psychiatric treatment. He was not feigning, but was ill. The doctors’ reports accepted that. All the psychiatrists had a common view. He had a high motivation for work. The before and after evidence from his family and friends supported his case.
98 The defendant submitted that the medical evidence established that the accident caused Mr Abaas only a low level injury.
99 The defendant attacked the credit of the plaintiff. It relied on the fact that he had reported pre-injury headaches. He had travelled extensively since the accident and this explained in part his lack of work. His travel showed that he was not as incapacitated physically as he suggested.
100 He received and, it should be assumed, needed little treatment in 2009.
101 While an injury said to satisfy paragraph (a) of the definition of “serious injury” can have its seriousness measured in part by a mental response to a physical impairment, a mental disorder cannot itself constitute or be the producer of the impairment to the body function.[65] The consequences of mental disturbances or disorders cannot govern or intrude into a finding of impairment or loss of body function.
[65]Richards v Wylie [2001] 1 VR 79
102 The defendant relied on Mr Hillier’s conclusion of March 2011 that there was no sign of remaining injury and that the plaintiff could perform his pre-injury duties.
103 So far as paragraph (c) of the definition of “serious injury” was concerned to establish that an injury was severe would, in the usual case, require evidence that psychiatric treatment would be required for the foreseeable future: See Turner v Love.[66] Mr Abaas was not under psychiatric or psychological treatment. He had never been treated by a psychiatrist. He took low level medication. There was no evidence how his psychological condition was progressing Ms Kembrey’s and Professor Dennerstein’s opinions were based on him having suffered a physical injury. Professor Dennerstein’s second report was prepared without having seen Mr Abaas a second time.
[66](1995) 21 MVR 314
104 His depression was caused by a number of factors not just the effects of the accident. These included the strains in his family relationships. He was capable of forming relationships as his marriage in Indonesia showed. The evidence suggested that his sexual life had not ended. Dr Entwistle’s and Dr Swift’s reports refer to the plaintiff’s relationship with a woman in the Philippines, but no details had been provided about that.
Consideration of evidence and submissions
105 The Court has to consider all the evidence to determine whether the plaintiff has established that he suffered:
(a)serious long-term impairment or loss of a body function; or
(c)severe long-term mental or severe long-term behavioural disturbance or disorder.
106 In Richards v Wylie[67], Winneke P stated that:
“Thus the ‘serious injury’ defined by paragraph (a) of sub-s.(17) can, I think, have its seriousness measured in part by mental responses to a physical impairment. What it will not recognise is that the mental disorder can itself constitute or be the producer of the impairment of a body function.”
[67][2001] 1 VR 79 at [87]−[88] – see also Mobilio v Balliotis [1998] 3 VR 833
107 I am required to decide, firstly, whether the plaintiff has established that he has suffered a serious long-term impairment or loss of a body function.
108 In Petkovski v Galletti,[68] it was decided that “an analysis must be made of the extent of impairment of a body function before and after the relevant injury.” A minor aggravation could not attract a grant of leave. The injury has to satisfy the requirements of a serious injury.
[68][1994] 1 VR 436, 444 and AG Staff Pty Ltd v Filipowicz [2012] VSCA 60 at [31]-[35]
109 I find that the plaintiff did strike his head against the dashboard as he described in a motor vehicle accident that occurred on 2 January 2009.
110 I accept that the plaintiff attempted to tell the truth in his evidence. While there were some discrepancies and inconsistencies between his evidence and the history’s taken by some of the doctors, I do not consider those differences to be material. They may have been caused by the fact that English is not the plaintiff’s first language.
111 I do not consider that the fact that the TAC made payments to the plaintiff is decisive in this case. The Court has to determine the application on all of the evidence before it and that includes considerable evidence, oral and written, that was not available to the TAC.
112 However, I am not satisfied that the plaintiff has proved that he has suffered a serious long-term impairment or loss of a body function. On the medical evidence that there is no pathology explaining the neck pain and headaches that the plaintiff experiences. The CT scans and MRIs provide no basis for a conclusion that the requirements of paragraph (a) have been established.
113 Dr Mia, the plaintiff’s treating general practitioner, states that he has chronic pain syndrome consisting of constant headache, neck pain and back pain. However, I consider the more significant evidence on the question of whether the plaintiff has established the matters in sub-paragraph (a), are the final reports of Mr Hillier. They do not support a conclusion that the plaintiff suffers any remaining injury arising from the motor vehicle accident. Mr Hillier found that there was no indication of a remaining injury arising out of the original motor vehicle accident and that any ongoing treatment for neck discomfort related to normal degenerative minor changes in his cervical spine. These changes had become symptomatic.
114 The evidence does establish that the plaintiff suffers considerable pain and that this may be described as a chronic pain syndrome. In appropriate circumstances such a syndrome could satisfy paragraph (a) of the definition of “serious injury’.[69] However, on the psychiatric evidence especially that of Professor Dennerstein and Dr Swift that is more associated with his depressive condition rather than any injury to his back and neck.
[69]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
115 I find that the plaintiff has not established that he has suffered a long term impairment or loss of body function within sub paragraph (a).
116 I do, however, find that the plaintiff has proved that he suffers from a severe long-term mental or severe long term behavioural disturbance or disorder within the meaning of paragraph (c) of the definition of “serious injury”.[70] This injury is severe depression.
[70]Humphries v Poljak [1992] 2 VR 129
117 The word “severe” in sub-paragraph (c) is used as a stronger word than “serious” in sub-paragraphs (a) and (b).[71]
[71]Mobilio v Balliotis (supra) at 846,857,858
118 The following matters support the conclusion. First, is the psychiatric and psychological evidence. Dr Swift described an ongoing chronic pain syndrome and a severe major Depressive Disorder. Ms Kembrey described extremely severe depression. Professor Dennerstein described an Adjustment Disorder with Mixed Anxiety and Depressed Mood which had become chronic. Dr Entwhistle described it as a Chronic Adjustment Disorder with Depressed Mood.
119 Secondly, there is the significant change in the plaintiff’s behaviour from a happy hard-working family man prior to the accident, to an irritable, morose individual who was unable to work in the kebab business in which he had invested substantial sums of money. I accept the evidence about the change in the plaintiff’s behaviour given by his wife, sons and friends. They see him as a different man.
120 His change in mood and depressed behaviour weakened his relationship with his wife. It affected his marriage in the months after his motor vehicle accident.
121 While both his problems with his family and his inability to work appear to contribute to his depression, I am satisfied that both these matters resulted from depression caused by the accident. It appears that an inability to provide for his family weighs particularly heavily on him because of the expectations of his culture.
122 Thirdly is the fact that the plaintiff now takes considerable medication.
123 Fourthly, I find that the plaintiff has not worked to any significant degree since January 2009 and that he was not in a position to work even if he had looked for work. He is restricted in his ability to work and in his enjoyment of life. The pain that he experiences has contributed to an inability to return to work and the breakdown of his family life. His work pattern before the accident suggests that he would work if he could. His business declined and the farm in which he has an interest lies in need of maintenance. The evidence suggest that before the accident Mr Abaas would not have allowed either of these events to occur. The fact that he has received payments from the TAC and the AMP does not explain his failure to work. The evidence suggests that he does not work because he experiences pain and a depressive condition.
124 I consider that on the balance of the evidence the condition of depression from which the plaintiff suffers is a significant matter that has changed his life and has had a very considerable effect on him.
125 It is true that those who made statements and affidavits did not mention and may not have known of his extensive overseas travel. I do not consider that the travel he undertook alters the conclusions to be drawn in respect of his behavioural disturbance or disorder. Part of the travel had to do with his family obligations. It is true that the travel to the Philippines lacked a clear explanation and the relationship with the Indonesian woman is not entirely supportive of some parts of the plaintiff’s case. However the weight of the affidavits of family and friends and the conclusions of the medical reports all establish the disabling effects on the plaintiff of his depressive condition from which the plaintiff suffers.
126 I find that the plaintiff has established on the balance of probabilities that the consequence of his depression is severe.
127 For the above reasons I find that the plaintiff’s mental or behavioural disturbance is severe. The evidence suggests that it is long-term. The plaintiff has suffered from it since 2009 and there is no suggestion of a solution to it.
Conclusion
128 I grant leave to the plaintiff to bring proceedings for the recovery of damages in respect of the mental or behavioural disturbance or disorder suffered by him in the accident occurring on 2 January 2009.
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