Ahmed v TAC

[2019] VCC 25

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
 Restricted
Suitable for Publication

SERIOUS INJURY

Case No. CI-18-02281

AHMED SHIRE AHMED	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	His Honour Judge Jordan
WHERE HELD:	Melbourne
DATE OF HEARING:	22,23,24,25 January 2019
DATE OF JUDGMENT:	25 January 2019
CASE MAY BE CITED AS:	Ahmed v TAC
MEDIUM NEUTRAL CITATION:	[2019] VCC 25

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION
Catchwords:            Serious injury – spine and psychiatric injuries
Legislation Cited: Transport Accident Act 1986
Cases Cited:            
Judgment:                Leave granted to bring proceedings for the recovery of damages

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Nightingale with Mr E Makowski	Arnold Thomas Becker
For the Defendant	Dr I Freckleton QC with Ms Alden	Solicitor to TAC

HIS HONOUR:

1       The plaintiff seeks leave for a paragraph (a) impairment of the spine involving  the neck and lower back as well as a paragraph (c) mental or behavioural injury being post traumatic stress disorder (PTSD) with depression and anxiety. It arises out of a transport accident on 10 April 2015 when his car was struck in the rear while stopped at traffic lights.[1]

[1]Plaintiff’s Court Book(PCB)2

2       Mr Ahmed came to Australia when he was about 21 years of age as a refugee from Somalia and is now aged 45 years. In time there has been the  clear development of a psychological or mental reaction to his spinal impairment but the first task is to determine if there is an organic basis for his present spinal symptoms and impairment before any disentangling exercise is required.

3       I accept his evidence that he enjoyed good health prior to the accident and did not attend doctors often.[2] This is confirmed by his Medicare records.[3] I also accept his capacity to work driving shifts sometimes as long as fourteen hours as a taxi driver before his injuries.[4] 

[2]Transcript(T)221

[3]PCB145-151

[4]PCB137-144

4       The plaintiff’s case is that there is a clear organic cause for his spinal pain which commenced immediately after the accident. It is pain in the neck and low back and is still constant.[5]  Pain and stiffness into the leg also come from the low back condition. That spinal pain and its effects, including preclusion from work, satisfy the test of “serious injury”. The plaintiff went on further to say that if it is necessary to assess the paragraph (c ) mental or behavioural disorder, then on its own it is sufficient to meet the test of “severe” and long term under the Act.

[5]PCB8,12,T213-215

5       The defendant indicated the real issue in this case was credit. In particular the absence of any medical materials prior to the accident was relevant to the question of credit. Also the plaintiff’s conduct at some medical examinations affected the accuracy of and weight to be given to medical opinions. As well  other topics were said to show exaggeration and to bear on his reliability .

6       It needs to be said at the outset that there is a considerable weight of medical opinion both from treaters and from medico-legal practitioners that supports his claim for ongoing spinal impairment and in particular spinal pain. There is also credible radiological evidence of significant pathology in his neck and low back. Notwithstanding, his credit has to be looked at carefully as it is important.

7       In applications such as this particularly when credit is said to be in issue, it is of great importance to have the advantage of both hearing and of observing the demeanour of a plaintiff giving evidence. The plaintiff has an imperfect command of English which of course is not his first language. This has to be taken into account. His skills are quite poor and that is both orally and reading.  This was apparent virtually from the start of his evidence and it is quite understandable doctors wrongly recorded things.  At times they have reported words that could not possibly be the more basic words he uses.  

8       In addition to language problems he was a man who was rather vague at times as recorded in hospital notes.[6] He clearly did not fully understand even straightforward questions on occasions. Doctors have recorded his problems with memory. Transcript indicates his difficulties with comprehending a question or a document but not his obvious hesitation before reaching some understanding and then answering.  At times the court had to intervene as it was clear he was not following counsel.[7]  On the second hearing day the parties agreed an interpreter by way of back up would assist the plaintiff and one was arranged and attended. There were still some communication problems.  

[6]PCB90A

[7]T55,61-62,66,67

9       He was asked about matters over a wide range of topics during three days of cross examination. He has a poor memory for dates even mixing up years at times. Topics included experiences in war torn Somalia, what he had said to various doctors, his taxi driving employment , his attempts at study at RMIT, his tax records, when he obtained a truck licence, when he first went to Dr Hewa,  how often he attended his current general practitioners, his health prior to the transport accident amongst other things.

10      The plaintiff’s credit was attacked in regard to his version of the accident and he was shown three photographs said to show the damage to his and the other vehicle. These should have been exchanged months earlier in accordance with  TAC protocols well as the general rules. But after argument I ruled the defendant could use them. His credit was not impugned but some comment is required.

11      The defendant used them in an attempt to show inconsistency between the plaintiff’s account of the accident and his injuries in a context of him exaggerating when the vehicle damage is considered.  These were said to be taken at the time but Mr Ahmed could not say if photo three was the other car or not. As I raised with counsel the height and nature of the damage on the cars shown in the photos do not seem to really match up. The Toyota appears to have  penetrating impact damage rather than from a plastic bumper bar but there has been no expert evidence on the topic.

12       Perhaps more to the point the defendant has not sent these photos to any of its doctors to see if they would comment on the damage being somehow inconsistent with the claimed injury to the spine. This might be something more likely to be canvassed with doctors at a common law damages trial than in this threshold application but that is a matter for the parties. Similarly little assistance is gained from the very brief police collision report. [8]

[8]Exhibit 2

13      Mr Ahmed was taken at length to what he was supposed to have said to doctors about how long he was off the road after the collision. There could be no better example of both communication and language problems as well as of his poor memory than this topic. Jumbled evidence included confusion with what was recorded about not driving taxis, not driving any cars, driving his brother’s car at times and him having no car of his own at times. It was well-nigh impossible to determine what had been said, to what doctor, about what type of vehicle, what actual driving and the month or even year being referred to. I will just footnote a few transcript references showing the nature of the problem. [9]

[9]T166-179,186

14      He was taken to number of traffic infringement notices he has had and driving fines in the Magistrate’s Court both before and after the accident. It was obvious he has a poor driving record although most offences are of a minor nature. The relevance of this was questionable but Senior counsel wished to rely on these matters as going to credit and so I allowed them to be pursued. That connection to credit was marginal at best but in the end did not detract from the reliability I had more than ample time to assess in this long application.

15      In a similar vein he was challenged persistently about when and for whom he had driven a truck. Again the witness was confused and doctors may well have been also. Mr Ahmed on occasions was not clear whether it was driving a taxi or truck as an employee or it was just driving generally that he was being asked about. I accept his evidence that he has not worked as a paid truck driver at any relevant stage but has driven and moved vehicles for friends who have trucks from time to time. None of this impacted on his credit or on any other issue relating to the injuries flowing from the subject accident where he was stationary at lights and was rear ended.  

16      Sitting in this jurisdiction constantly where people are daily challenged about their past medical and general history, hearing a plaintiff provides the benefit of being able to appraise reliability and credit.  Bearing in mind his limitations, I found both were preserved. He was a witness who made admissions against interest. At all times he was attempting to tell the truth to the best of his comprehension and memory. He was a witness who was very vague at times as to dates and even years. Nevertheless I found him accurate and reliable regarding the accident and his injuries.

17      Clearly doctors have recorded matters that on the probabilities could not have been in words he could use. Just to take a couple of examples, usage of “minimal amounts”’ of alcohol was written in a medical report when it was obvious from his body language and hesitation he had no idea what those words meant.[10] His RMIT study was recorded as “progressing well” by a doctor  when again he did not even understand that language.[11] His academic record showed there were a number of subjects in which he had not submitted the work required but in any event his affidavit had recorded he “didn’t pass some of the tests so I needed to do those again.”[12]

[10]T65

[11]T89

[12]PCB133-136,7

18      It is worth noting in a case where credit was said to be the central issue according to the defendant, that its Court Book index described video surveillance of Mr Ahmed. None was shown to the court and it was admitted that there has been about  twenty one hours of surveillance over three separate days.

19      At the end of the day I found the plaintiff to be both  accurate and reliable regarding his spinal injuries and constant pain, about them  being caused by the rear end collision and about their ongoing consequences. Those consequences can be fairly judged as being very considerable when judged by comparison with other cases in the range of possible spinal impairments.

20      Since the accident there has been a great deal of treatment undertaken by Mr Ahmed. It has followed really two streams. Firstly there has been a course of radiological investigation, medications and pain management as well as specialist referrals for his physically based spinal symptoms.[13] Secondly and commencing later in time there has also been a course of treatment including with specialists and hospitalisation  in regard to his mental health. I will deal with the treaters and then the medico-legal opinions. As the assessment has to be made now it is the more up-to-date opinions that assist rather than what people said in the past about an accident that is almost four years old.

[13]PCB8-12

21      The plaintiff initially attended Dr N Hewa at the practice in Flemington. His clinical records were tendered.[14] While there was some debate about the first attendance on Dr Hewa by the plaintiff, and it seems he was probably wrong in saying it was the very next day, the accident and injuries to the neck and back were clearly recorded. The notes record how he came in on Monday 13 April 2015, and reported a “TAC injury” and a car accident when he was stopped at a red light and hit from behind. The injuries were recorded as sore neck and sore back and he was sent off for radiological imaging.

[14]Defendant’s court book(DCB)209-222

22      Dr Hewa’s reports describe clear physical injury in the neck and low back. He ordered x-ray, CT scanning and provided analgesics for pain, muscle relaxant and anti-inflammatory medications. He also referred the patient for physiotherapy and for specialist neurosurgical attention from Professor R Bittar.[15]

[15]PCB25-27

23      This local doctor has not seen the patient now for some years so there is no up-to-date opinion from him. While it is not necessary to describe all of the steps he took as the treater in detail, it is sufficient  to say they were clearly directed to dealing with an organic problem and the imaging by way of x-ray and CT scanning showed discal damage in the neck and low back.[16]

[16]PCB28,29

24      In November 2015 Mr Ahmed saw Professor R Bittar . He has seen the patient over three years. This neurosurgeon last saw Mr Ahmed as recently as November 2018 and he recoded the objective examination sign of low back muscle spasm. [17] He diagnosed lumbar spondylosis with lower back pain and left leg pain as well as aggravation of cervical spondylosis with the pain.[18] These diagnoses followed extensive radiological investigation by way of x-ray, CT and MRI scanning. These speak for themselves as showing significant pathology in both the neck and lower back including some nerve root compression.[19]

[17]PCB41

[18]PCB41

[19]PCB16,17,18,20-21,22

25      This expert in spinal surgery has had the benefit of seeing Mr Ahmed on a number of occasions over the years. He is the best placed of all the specialists to comment. I accept his opinion that the prognosis is poor for this spinal condition which  is now stable and that he suffers significant pain, restriction and disability following the physical damage done to his spine in the accident. I accept that this is an organic problem which leaving aside any consequential mental health issues has resulted in Mr Ahmed being “totally incapacitated for work.”[20]

[20]PCB42

26      Based on this very experienced treating specialist spinal surgeon alone, I accept on the probabilities that the physically based symptoms do not require any disentangling exercise to be undertaken and the spinal impairment amounts to a “serious injury”.

27      However my conclusions are supported by other treaters. Mr Ahmed was referred to a pain specialist, Dr G Weekes, in January 2016 for further treatment. Again it was physical pain that was being treated by this doctor from the outset. He also had the distinct advantage of seeing his  patient on a number of occasions. In his last report in 2017 he diagnosed lumbar spondylosis with a compromised left L5 nerve root caused by the transport accident. The prognosis was unfavourable. Given the longevity and refractory nature of his symptoms there was no capacity for employment and his future capacity for employment was “extremely poor”.[21]

[21]PCB51-52

28      Then in March 2016 Mr Ahmed then came under a Dr D Eaton, specialist occupational and environmental physician, for his organic spinal pain. Apart from pain management interventions for constant back pain this doctor does not take the matter much further but he did diagnose a protrusion of the L5/S1 intervertebral disc with left leg symptoms. This is a physical condition and at that stage the patient was not capable of any suitable employment “on a consistent basis”.[22]

[22]PCB59

29      The plaintiff tried a number of conservative measures including physiotherapy and medications that are set out in the material involving analgesics and anti-inflammatories but to no avail. This led to him seeking treatment in 2016 from another general practitioner,  Dr Wu in Collingwood.

30      He diagnosed cervical disc and lumbar disc injury. While there was also obvious  mental health problems nevertheless there was an “enduring chronic pain and reduced mobility ability for an indefinite period” from the physical spinal disability. He could not have been clearer when he stated that the patient was “suffering from severe medical and psychiatric disabilities as a direct result of the MCA and would be unemployable for an indefinite period.”[23]

[23]PCB69

31      Again he has had the benefit of seeing the patient on a number of occasions and his last report in November 2018 referred to “chronic back and neck pain ” requiring different medications that are directed to organic problems. He felt that the patient was “still unfit for any work because of the physical” as well as the mental health impairment resulting from the accident.[24]

[24]PCB70

32      While dealing with general practitioner attendances, the fact that there have not been as many visits to local doctors as the plaintiff said is no more than what lay plaintiffs make mistakes about very often in these cases. This did not damage credit in any relevant way.

33      Dr Wu referred him off for treatment for his spinal condition to another neurosurgeon, Mr C Timms, at the Epworth. Mr Timms was so convinced of the organic damage in the neck that he advised surgery by way of  anterior cervical discectomy and fusion at C5-6. This is major surgery that the plaintiff has elected not to proceed with. There is no suggestion that this is an unreasonable decision. No other doctor has so advised. Nevertheless causation could not be clearer as Mr Timms was to seek TAC payment for  such surgery if it went ahead.[25] To advise surgery to the spine is to see major physical damage.

[25]PCB93

34      I accept this very strong body of treating medical opinions as supporting my finding of a long-term organic spinal impairment suffered in the transport accident. Without even dealing with the medico-legal opinions I am satisfied Mr Ahmad has a paragraph (a) “serious injury”.

35      By way of a final comment on treatment, the two Operation Reports tendered  which did not involve surgery but were nevertheless invasive procedures to the low back by way of CT guided nerve block and joint injection, support the organic basis of the spinal pain all these various doctors were trying to treat.[26] The radiology also confirms physical damage to the spine at the upper and lower levels.[27]

[26]PCB19,72

[27]PCB16-22

36      It is not necessary to deal with the treaters who dealt with his mental health issues nor medico legal doctors at any length in view of my acceptance of the persuasive body of treating doctors’ opinions that support a serious physical injury to the spine. Nevertheless Dr J Slesenger  was engaged on a medico-legal basis in August 2018 and reported as a specialist occupational physician. His lengthy and comprehensive report diagnosed mechanical injury to both the cervical and lumbar spines leading to chronic pain at both levels with some radiating leg symptoms.

37      He thought there was also a psychological element but he was clear about the organic nature of the cervical and lumbar spine problems.[28] He said “the organic component is unlikely to alter in the foreseeable future” and went on to say further that the organic component alone meant that he was in effect incapacitated for work.[29]

[28]PCB118

[29]PCB119

38      Dr P Blombery, pain specialist, also reported in August 2018 and had a very comprehensive list of medical reports that he considered.[30] He also supported the treating doctors that previously asymptomatic degenerative changes in the cervical and lumbar spines had been made symptomatic by the motor car accident and it was “the ongoing cause of his injuries”.[31] Also it was his view that the severity of the ongoing pain underneath the medications meant he had no current or future capacity for employment.

[30]PCB121-122

[31]PCB125

39      These two very recent medico-legal opinions  support my finding that the spinal pain is constant and long term and it is productive of consequences that include incapacity for employment. “Serious injury” has been proved under paragraph (a) and it is not necessary to deal with the evidence tendered by either party with respect to what I consider is a secondary psychological or mental response to his organic spinal impairment.

40      The defendant tendered reports from three doctors, one being a psychiatrist and two focusing on the claim for a physical spinal condition. These doctors are all under the significant disadvantage of only seeing the plaintiff on one occasion. I will start with the report from Dr C Thomas, consultant in rehabilitation and pain medicine. He is really on his own in having such difficulty with communication and what he called compliance on the part of Mr Ahmed that no real medical opinion could really be given.

41      This doctor saw the plaintiff without an interpreter and he refers to  multiple communication difficulties.[32] He only saw Mr Ahmed once so there is no evidence of any attempt to have a follow up appointment over the last four  months with an interpreter or to take other steps to better appraise the situation. Dr Thomas thought the presentation was more psychological than physical. In the end this doctor does not assist in assessing the spinal impairment as for his own reasons he basically said he was unable to give any opinion about it.[33]

[32]DCB20-23

[33]DCB23

42      The plaintiff was not cross-examined about this suggested non-compliance with Dr Thomas so no opportunity was given to him to comment. The plaintiff over three days in the witness box did not demonstrate or say anything that supports a view of him as non-compliant or exaggerating his injuries. 

43      The neurologist, Dr R Stark, also saw the plaintiff on the one occasion only and that was October 2018. He described difficulties also in regard to providing any definite opinion about organic spinal injury. But not surprisingly he described that in a context often seen years after a physical complaint that has been unsuccessfully treated and where a mental or psychological reaction comes into the clinical mix.

44      I have not heard from this doctor nor any other doctor but he seemed to concede the spinal pain the plaintiff  complained of was from “a jolting injury to the neck and back in the accident described.”[34] Dr Stark just cannot really say how much of that is organically based and how much is from a mental reaction. He did record the objective sign of loss of bulk in the left leg.[35] He also saw mental health issues impacting on presentation when he examined Mr Ahmed on the one occasion in late 2018.

[34]DCB38

[35]DCB28

45      On all the evidence in this case I am satisfied that the spinal impairment the plaintiff presently suffers is organically caused and he has suffered a mental reaction that has come somewhat later and on top of that physical injury to the neck and back.

46      There is no need to discuss at length the psychiatric report of Associate Professor Doherty the defendant tendered nor those from the psychiatrists the plaintiff relied on as I am satisfied on the balance of probabilities that the paragraph (a) spinal impairment is a “serious injury”. But it is worth noting as to compliance and co-operation that his thirteen page report was far more comprehensive and lengthy than Dr Thomas (four pages) and Dr Stark (three pages). Professor Doherty found Mr Ahmed “relaxed, smiling, subdued and attentive” and said he “related well’.[36]

[36]DCB14,15

47      Dr A Firestone was a psychiatrist who was engaged by TAC and saw the plaintiff in 2015 and 2016. His reports were tendered by the plaintiff. They do not need elaboration beyond one brief comment. He said in 2016 that for “physical reasons alone he is unable to return to any employment at present”.[37]

[37]PCB175

48      Mr Ahmed’s organic spinal injury still causes constant pain that on its own  satisfies the test but it also has the very considerable consequence of loss of earning capacity. There are also a number of  very considerable consequences  in terms of loss of enjoyment of life which have been set out in his affidavit and the medical reports. These have not been seriously challenged. Suffice to say the impact on sleep is but one. The limiting impact of spinal pain on every day activities such as walking, largely taken for granted in a man only forty five years old, leads to very considerable consequence on its own.

49      While it is not necessary to articulate reasons in view of the organic spinal impairment being proved I should also say that the later in time paragraph (c) severe long term mental or behavioural disturbance or disorder injury has also been established.

50      I grant leave to bring proceedings for the recovery of damages.