Al-Shabib v Transport Accident Commission
[2023] VCC 6
•19 January 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-19-03212
| RAAFAT AL-SHABIB | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CLARK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21, 26, 27, 28 and 29 September 2022 | |
DATE OF JUDGMENT: | 19 January 2023 | |
CASE MAY BE CITED AS: | Al-Shabib v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 6 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Psychiatric injury – lower back injury – left arm injury – credit issues – pre‑existing injury – disentanglement – film – serious injury
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries and Anor v Poljak (1992) 2 VR 129; Mobilio v Balliotis (1998) 3 VR 833; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person | - |
| For the Defendant | Mr J Valiotis | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1At about 8.00pm on 29 December 2015, the plaintiff, Mr Raafat Al-Shabib, was riding his bicycle in Delphinius Crescent, Roxburgh Park when he was struck by the side mirror of an unidentified car which passed him from behind (“the accident”).
2As a result of the impact, Mr Al‑Shabib said he was knocked from his bicycle, and he alleges he sustained injury. He said these injuries included:
· a lower back injury
· an abdominal hernia
· a fractured left arm/elbow
· lacerations to his mouth
· psychological distress.
3At the time of the accident, Mr Al‑Shabib was aged thirty-five years. He had arrived in Australia as a refugee in 2010. Mr Al‑Shabib’s work in Iraq had included time as a security contractor working with the Australian Army and Iraqi government. This was dangerous and stressful work. He said he had been shot on three occasions. Due to his experiences in the Iraqi wars and immigration detention, he said he had developed Post-Traumatic Stress Disorder (“PTSD”).
4Mr Al-Shabib said that at the time of the accident he was not working.[1] He said he had recently undertaken a Certificate IV in Aged Care at TAFE. He said he was looking for a job.
[1]Mr Al-Shabib maintained on numerous occasions in the course of his oral evidence that he was not working at the time of the accident. This can be contrasted to his affidavit evidence and the history which he provided to some of the doctors, that he was in fact undertaking a work trial as a tyre fitter/mechanic.
5While a number of his injuries settled, he said he continued to suffer ongoing consequences resulting from his:
(a) lower back injury;
(b) left arm injury;
(c) psychological injury.
6Mr Al‑Shabib said that each of these injuries, in their own right, were serious injuries.
7The Transport Accident Commission (“the TAC”) disputed the nature and extent of the injuries which Mr Al‑Shabib said he suffered. The TAC said that if Mr Al‑Shabib did have any ongoing consequences from the injuries he suffered in the accident they were not serious.
The application
8Mr Al‑Shabib seeks serious injury certification pursuant to s93(17) of the Transport Accident Act 1986 (as amended) (“TAA”).
9For Mr Al-Shabib’s physical injuries to be serious, they must satisfy the narrative test laid down by the Full Court of the Supreme Court of Victoria in Humphries and Anor v Poljak:[2]
“… to be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”[3]
[2](1992) 2 VR 129 (“Poljak”)
[3]Poljak (ibid) at 140 per Crockett and Southwell JJ
10In Poljak, Crockett and Southwell JJ identified that many disturbances may be considerable in the sense that they are “important or substantial” without being “very considerable”.
11For Mr Al-Shabib’s psychiatric injury to satisfy the serious injury test, it must be “severe”, with the consequences being very considerable.[4]
[4]Mobilio v Balliotis (1998) 3 VR 833 (“Mobilio”)
The issues
12The issues to be determined include:
(a) as to Mr Al-Shabib’s credit and whether I accept his evidence;
(b) which of the medical opinions should be accepted and the assistance they provide;
(c) what are the consequences which flow from Mr Al-Shabib’s injuries and what use I can make of his assertions given my findings of credit;
(d) does Mr Al-Shabib suffer a psychiatric injury consequential to the accident and, if so, does that injury satisfy the serious injury test?;
(e) does Mr Al-Shabib’s left elbow injury satisfy the test of serious injury?;
(f) should Mr Al-Shabib suffer a back injury consequential to the accident, does that injury satisfy the serious injury test?
Mr Al-Shabib’s credit
13As in many cases of this type, Mr Al‑Shabib’s credit is of importance. Indeed, the TAC said matters of credit were “front and square” in this application.[5]
[5] Transcript (“T”) 49, Lines (“L”) 9-14
14The TAC said that Mr Al‑Shabib was not a credible witness. They said I could not accept either his evidence or the medical opinions upon which he relied.
15In support of their position, the TAC said:
(a) The medical records established that, what Mr Al‑Shabib had told various doctors, and his evidence on a number of important points, was not true. In particular:
(i)the state of his psychiatric condition at the time of the accident;
(ii)the existence of a pre-existing back problem.
(b) The film which was shown in the course of the application established that Mr Al‑Shabib’s left arm injury was not restricting him, and established that he was deliberately exaggerating.
(c) That the manner in which Mr Al‑Shabib gave his evidence, his demeanour, and that he would not accept any proposition which he thought may be detrimental to his case, tended against him being a witness who could be accepted. They said much of his evidence was implausible.
(d) That Mr Al‑Shabib’s level of activity and the work which he was undertaking was at odds with the complaints of pain and restriction which he made.
16Put bluntly, the TAC said that Mr Al‑Shabib was not a witness of truth.
Mr Al-Shabib’s pre‑existing medical conditions
Psychiatric injury
17Mr Al‑Shabib, in respect to his PTSD condition said, in his first affidavit dated 9 October 2018:
“I suffer from the symptoms of post-traumatic stress arising from my experiences during the Iraq wars. … .”[6]
[6]Joint Court Book (“JCB”) 14, paragraph 4
18Mr Al‑Shabib said that detention was difficult for him, and he suffered further psychiatric injury as a consequence.
19After his release from detention, and after coming to live in Melbourne, Mr Al‑Shabib was referred to Dr Justin Kuay, psychiatrist, for assessment and treatment of his psychiatric illness. Mr Al-Shabib commenced treatment with Dr Kuay on 8 December 2011. Dr Kuay diagnosed him as suffering from PTSD and Major Depression.
20In his oral evidence, Mr Al‑Shabib said, of his ongoing consultations with Dr Kuay:
Q: “And he continued to see you for many years?---
A: Yep, it’s correct.
Q: Even after your car accident?---
A:No. (Through Interpreter) No, I haven’t seen him after the accident. I stopped seeing him way before the accident because I got better, I started going back to studies and I was looking for work, I haven’t seen him after.”[7]
[7]T56, L23-29
(My emphasis.)
Indeed, Mr Al-Shabib said on numerous occasions that he suffered no psychiatric condition at the time of the accident.[8]
[8]See for example T153, L6-9; T36, L1-19; T98, L8-29
21The TAC took issue with this evidence for three reasons:
(a) that Mr Al-Shabib was, in fact, still consulting Dr Kuay at the time of the accident and for some period of time afterwards;
(b) if Dr Kuay’s opinion is accepted, Mr Al‑Shabib had not recovered from his PTSD and Major Depression at the time of the accident;
(c) Mr Al-Shabib had said, in his affidavit evidence 9 October 2018, that he still suffered symptoms of PTSD.
22When challenged on these matters, Mr Al-Shabib said that he did not accept Dr Kuay’s report, and he said Dr Kuay was wrong.[9]
[9]See for example T95, L29– T99, L28; T99, L7-11; T105, 22 – T107, L14
23Based on Dr Kuay’s evidence, Mr Al‑Shabib had suffered, and was continuing to suffer a significant psychiatric illness prior to and at the time of the accident. Indeed, Dr Kuay had undertaken an assessment of Mr Al‑Shabib’s cognitive function on 8 December 2015. That is, just three weeks before the accident. Dr Kuay, on that occasion, reported a very significant ongoing impairment to Mr Al-Shabib’s cognitive function consequential to his ongoing psychiatric illness.[10]
[10]JCB 157, paragraph (g)
24Dr Kuay did continue to consult Mr Al-Shabib after the accident. That is clear. When Dr Kuay undertook further assessment of Mr Al-Shabib’s cognitive function on 14 February 2017, he said that the findings of that testing were “suggestive of ongoing cognitive impairment that is not worse than prior to the accident.”[11]
[11]JCB 157
25When asked about the impact of the accident upon his pre-existing psychiatric condition, Dr Kuay said:
“Given Mr Al‑Shabib’s pre‑existing PTSD and low mood prior to this traffic accident, it is not possible to say that the physical injuries from his transport accident have directly caused his current psychiatric symptoms. However, they have exacerbated his pre‑existing symptoms which were already very disabling.”[12]
(My emphasis.)
[12]JCB 156
26The conclusion which I reach from reviewing Dr Kuay’s evidence is that either:
(a) Mr Al‑Shabib was suffering significant psychiatric illness immediately prior to and at the time of the accident; or
(b) his presentation to Dr Kuay, and the results of the testing undertaken prior to the accident, were not genuine.
27Mr Al‑Shabib’s oral evidence that, at the time of the accident, he was “better”, is at odds with other aspects of his evidence.
28I consider Mr Al-Shabib’s oral evidence as to the state of his psychiatric illness at the time of the accident to be contradictory and unreliable.
Existence of a pre-existing back problem
29On three occasions before Mr Al‑Shabib was cross-examined, I asked him if he had suffered any back problems prior to the accident. In response to my questions, it was his evidence:
Q: “Had you had any problems with your back before the accident?---
A: No.”[13]
[13]T21, L28-29
…
Q: “Had you had any problems with your back before the accident?---
A: No, never, never---.”[14]
…
Q:In the 12 months, one, two years?---
A: No, no. No. Always in the gym, in the gym, and the swim, riding the horse, always there.”[15]
[14] T50, L12-13
[15] T50, L14-16
30Under cross-examination, Mr Al‑Shabib initially maintained his position that he had no pre‑existing back injury. He said:
Q:“Thank you. I’m going to move to your back now. You’ve told His Honour, and you’ve told some of the doctors, that you had no problems with your back before the accident, correct?---
A:Yes, correct, I don’t have any problems.”[16]
[16]T109, L6-9
31After that line of questioning, Mr Al‑Shabib’s evidence became equivocal. However, he went on to say, in response to Mr Valiotis:
Q:“I’m going to ask again. You told His Honour on direct questioning, His Honour asked you three times whether you had any previous back pain or back problems and you answered, no, all three times. Is that the truth?---
A: Before or after the accident?
Q: Before the accident?---
A:No, I don’t have anything before the accident, maybe I been to the doctor once or something for like a strain on my back when I went to the gym or something, but I don’t have any problems.”[17]
[17]T109, L24 ꟷ T110, L1
32Turning now to the medical records. It is clear that Mr Al‑Shabib did have a long history of previous back problems. I note:
(a) On 12 September 2013, Mr Al‑Shabib consulted Dr Vivian Kedher, his long-time general practitioner, complaining of “lower back pain for two months”.[18]
(b) On 18 October 2013, Mr Al‑Shabib consulted Dr Kedher complaining of “lower back pain”.[19] On that same day, it was noted that Mr Al‑Shabib was receiving physiotherapy treatment.
(c) On 10 March 2015, Dr Kuay provided a certificate that Mr Al‑Shabib’s lower back pain impacted upon his capacity to work or study.[20]
(d) In a medical certificate, dated 11 March 2015, Dr Kedher certified that Mr Al‑Shabib suffered “chronic lower back pain”.[21]
(e) On 22 October 2015, Mr Al‑Shabib met with Ms Natalie Poynter (qualification unknown) at the Coolaroo Medical Clinic. A history of “chronic back pain” was recorded and Mr Al-Shabib was referred for five visits of physiotherapy treatment.[22]
(f) On 26 October 2015, Mr Al‑Shabib attended for physiotherapy with Physio First. The notes record:
“chronic back pain Physiotherapy EPC session 1 of 3
S/ Had an MVA 5 years ago and had episodes of back and neck pain. … .”[23]
[18]JCB 244
[19]JCB 243-244
[20]JCB 253
[21]JCB 260
[22]JCB 239
[23]JCB 239
(g) On 27 October 2015, Mr Al‑Shabib again met with Dr Kedher and discussed his ongoing lower back pain.[24]
[24]JCB 239
33Mr Al-Shabib had a history of lower back problems which were recorded by his treating general practitioner, treating psychiatrist and physiotherapist. Mr Al‑Shabib had received a good deal of treatment.
34Indeed, Mr Al-Shabib, just two months prior to the accident, had been complaining of, and receiving, treatment for “chronic back pain”.
35I find Mr Al-Shabib’s evidence that he did not have a pre-existing back injury and ongoing back problems prior to the accident to be inaccurate and unreliable.
The film
36In Mr Al-Shabib’s affidavit evidence, his left elbow injury was the focus of his complaint.[25] One of the alleged consequences which Mr Al-Shabib relied upon was the alleged difficulties he had with lifting and handling his children. In his first affidavit, he said:
(a) “I struggle to lift my children and I experience an increase in left elbow pain when I try to carry them”;[26]
(b) In his second affidavit, he said:
“I continue to suffer from significant pain and restrictions in my left elbow and arm as a result of the injuries I sustained in the transport accident. I continue to experience a sharp jolt of pain when I move my left arm … .”[27]
[25]See paragraphs 15-22 of Mr Al-Shabib’s first affidavit, 9 October 2018, JCB 16-18
[26]See paragraph 21 of Mr Al-Shabib’s first affidavit, 9 October 2018, JCB 18
[27]See paragraph 4 of Mr Al-Shabib’s second affidavit, 11 December 2019, JCB 22
(c) “I have difficulty caring for my 8 month old son.”[28]
[28]See paragraph 8 of Mr Al-Shabib’s second affidavit, 11 December 2019, JCB 23
37When giving his oral evidence, Mr Al-Shabib confirmed these assertions to be correct.[29]
[29]See for example T152, L10-20
38In the course of the application, Mr Al-Shabib was shown film which had been obtained in October 2019 and December 2019.[30]
[30]Exhibits 2, 3, 4, 5 and 6 of the defendant’s exhibits
39The film showed Mr Al-Shabib:
(a) carrying shopping bags;
(b) placing shopping bags into the boot of a car;
(c) carrying and lifting his young son;
(d) taking a car battery out of a four-wheel drive and carrying it with his left arm;
(e) using his left arm to apply jumper leads to a car;
(f) picking up a car battery from ground level with his left hand, carrying it and placing it into a car.
40As a general observation, I accept the film shows Mr Al-Shabib using his left arm in a free and unrestricted manner.
41In addition to these general observations, I make two specific comments about the film:
(a) Mr Al-Shabib manoeuvred his son with his left arm and held him in various positions. He did this over quite some time. There was no sign of any impairment or adverse consequence. There was, on one particular occasion, a manoeuvre where Mr Al-Shabib transferred his son from being held near his torso up onto his shoulder. He did this with his left hand and arm. While his son may have only weighed in the vicinity of 8-10 kilograms, it was still quite a feat of both strength and dexterity.
(b) The lifting of the car battery and the use of jumper leads was quite a process. Mr Al-Shabib showed no restrictions. Again, he displayed a deal of strength and dexterity.
42I accept that the activities which Mr Al-Shabib was shown to be undertaking in the film are at odds with his affidavit and oral evidence. The film showed Mr Al-Shabib undertaking activities with his left arm to a far greater capacity than he was prepared to admit in his affidavit or oral evidence, and to what he told the doctors.
43I accept that the film does impinge Mr Al-Shabib’s credit.
Mr Al-Shabib’s demeanour and his evidence generally
44I appreciate that Mr Al-Shabib appeared as a self-represented litigant. I also appreciate the difficulty created in circumstances where English is not his first language. I have taken this into account.
45The TAC said that Mr Al-Shabib would not make appropriate concessions, was argumentative, would not answer questions directly and that aspects of his evidence were implausible. They said that this went to his credit.
46I will make further comment on Mr Al-Shabib’s evidence later in this judgment. I do, however, at this stage, for the avoidance of doubt, accept there is a proper basis for these criticisms made by the TAC. I make reference to just a few examples:
(a) The TAC put to Mr Al-Shabib that he had applied for a disability pension. Mr Al-Shabib denied that he had. This denial is contrary to what Dr Kuay said in his report, and to the Centrelink Disability Pension medical certificates which were tendered into evidence.[31]
(b) When giving evidence about his current business operation, initially, Mr Al-Shabib said he paid his worker $250 a day. Then he said he paid $250 on ABN. He then said he paid him “normal pay”. Then he said he had not paid him at all.[32]
(c) Mr Al-Shabib told Dr Kuay, in May 2015, that he was so physically impaired, that he needed his wife’s assistance in the shower to wash his hair and body.[33] In both his affidavit, and oral evidence, Mr Al-Shabib said that he, prior to the accident, had been able to go to the gym and work out[34] and, indeed, was able to lift 140 kilograms.[35]
[31]See the Centrelink Medical Certificates at JCB 253-263
[32]See T209, L7-13
[33]JCB 156
[34]See paragraph 26 of the plaintiff’s first affidavit, dated 9 October 2018, JCB 19
[35]See T157 and T159
47These are just a few examples where Mr Al-Shabib’s evidence was implausible, changed in running, or was inconsistent.
48I also accept that, when challenged on such matters, Mr Al-Shabib at times became aggressive and argumentative and that he consistently failed to directly answer questions.
Mr Al-Shabib’s capacity for work
49Mr Al-Shabib, in his affidavit sworn 11 December 2019, said:
“The ongoing pain and restrictions that I continue to experience in my left elbow and arm continue to prevent me from being able to return to any form of employment.”[36]
(My emphasis.)
[36]See paragraph 9 of the plaintiff’s second affidavit, dated 11 December 2019, JCB 23
50Mr Al-Shabib said, in his oral evidence, that between 2011 and 2021, when he commenced his excavator/tip-truck business, he had not worked. He said:
Q:“I’m going to ask it again. Between 2011 and 2021 when you started the excavator business, did you do any form of employment?---
A:(Through Interpreter) Not in a formal way, I did not work in a formal way.
Q:Okay. So should His Honour take that as a no?---
A:Yeah, no, no, I didn't work.
Q:So the answer is no?---
A:No, yes.”[37]
[37]T65, L3-9
51On further probing, it became clear that over the years Mr Al-Shabib had been operating an enterprise buying and selling electrical goods such as iPhone, iPads, laptops and televisions.[38]
[38]See for example Mr Al-Shabib’s evidence at T64-68, T81-82 and T90-93
52It was ultimately conceded by Mr Al-Shabib:
(a) He was purchasing electrical goods from places such as Cash Converters.
(b) He would then organise to have those goods transported to Iraq, where they would be sold.
(c) That if he sent four iPhones he could make $400 profit.[39]
(d) That the profit per item varied. Sometimes he would make $100, sometimes $50, sometimes $10, and sometimes they would not sell.
(e) That he had ten TVs in his garage. However, the shipping costs were proving to be too expensive to justify sending them to Iraq.
[39]T66, L19-23
53Mr Al-Shabib was operating this enterprise while in receipt of Centrelink. The income which he generated was not declared to Centrelink. Mr Al-Shabib did not disclose the work he was doing in this enterprise in his affidavit evidence, or to any of the doctors.
54In 2021, Mr Al-Shabib purchased a Mercedes-Benz tip truck and an excavator. He holds a heavy vehicle licence and has held this licence for many years. Mr Al‑Shabib registered the company, Dema Excavator Transport Pty Ltd, on 8 September 2021. He said he commenced working the excavator/tip truck business sometime after this date.[40]
[40]T206, L21-25
55For the period subsequent to 8 September 2021 through to 30 June 2022, Mr Al‑Shabib’s taxation returns revealed:
(a) that Dema Excavator Transport Pty Ltd had a declared income of $35,995;[41]
(b) that the company paid wages to Mr Al-Shabib of $19,500;[42]
(c) the company did not pay wages to anybody else, nor did it disclose any liability to any other employee.[43]
[41]JCB 309
[42]JCB 302 and JCB 312
[43]See the company taxation return, JCB 306-312
56Mr Al-Shabib, sought to attribute the majority of the work undertaken within the business to his employee. However, he did say there were some jobs where he would go and do the work himself. He said these were short jobs. He did concede that he drove both the excavator and the tip truck. He said he had done this work since the business commenced.[44]
[44]T208, L28 – T209, L3
57As noted earlier in this judgment, Mr Al-Shabib’s evidence about the payments made to his employee varied. What the true state of affairs may be, whether the employee was paid $250 per day or was not paid anything and is owed, as alleged, $13,000, does not appear in any of the financial records.
58Mr Al-Shabib did, however, pay himself. As noted in the financial records, for that nine-month period, he was paid $19,500. In his oral evidence, Mr Al-Shabib said that he did pay himself, and he withdrew, variously, $400, $500 or $600, and he would buy whatever he wanted to buy.[45]
[45]T210, L19-27
59I found it difficult to establish just what work Mr Al-Shabib was doing in his business. However, at the very least, he is driving his excavator and/or tip truck for two hours per day when he has work. I accept that this would be, at least in part, physically demanding work. I accept that such work is beyond what Mr Al-Shabib asserted he was capable of in his affidavit evidence and to many doctors.
Conclusion on matters of credit
60I accept the TAC’s submissions that I should make unfavourable credit findings in this matter. I accept the film is very damaging to Mr Al-Shabib’s case. I also accept there were many aspects of Mr Al-Shabib’s evidence which were implausible, contradictory, changed in running, and on numerous matters was simply incorrect.
61My conclusion in respect to Mr Al-Shabib’s credit impacts on both his evidence and the medical opinions.[46]
[46] See Mobilio (supra); Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108
The medical evidence
62Mr Al-Shabib primarily sought to rely upon the evidence of Dr Talib Tahir, rheumatologist. There were thirteen letters from Dr Tahir to Dr Kedher, his general practitioner. These are dated between 15 April 2016 and 25 August 2022.
63Mr Al-Shabib also sought to rely upon medico-legal reports from:
· Dr Nicholas Ingram, psychiatrist, dated 23 November 2017
· Dr John Anstee, plastic surgeon, dated 28 November 2017
· Dr Jennifer Flynn, orthopaedic surgeon, dated 8 February 2018
· Mr Charles Flanc, general and vascular surgeon, dated 5 June 2018.
64The TAC relied upon reports from:
· Dr Joseph Slesenger, specialist occupational physician, dated 29 December 2016
· Dr Peter Blombery, vascular physician, dated 2 December 2019
· Dr Brendan Hayman, psychiatrist, dated 28 November 2019
· Dr Robert Lefkovits, consultant physician, dated 2 December 2019
· Mr Gary Speck, orthopaedic surgeon, dated 16 May 2022 and 14 July 2022
· Associate Professor Peter Doherty, psychiatrist, dated 13 June 2022 and 23 June 2022
· Dr Justin Kuay, psychiatrist, dated 28 January 2015, 25 August 2015, 18 October 2016 and 15 February 2017
· Dr Vivian Kedher, general practitioner, dated 12 April 2016.
65I will review medical evidence from Mr Al-Shabib’s treating medical practitioners. I will then review the medico-legal opinions in date sequence.
Dr Vivian Kedher
66I had Dr Kedher’s medical records to 23 September 2019.[47] Apart from the Centrelink Disability Pension medical certificate, 11 March 2015,[48] the only other material from Dr Kedher was a letter dated 12 April 2016. This was the referral to Dr Tahir, rheumatologist. Dr Kedher said:
“Thank you for seeing Raafat, 35 years old, with history of left radius fracture January 2016 after a fall from bike after hit by car, still complaining of elbow pain for review please. Please bulk bill
[47]The records are said to be complete to 16 October 2019. The last consultation being 23 September 2019.
[48]JCB 254-261
Previous history includes:
Current problems
post traumatic stress disorder
HypercholesterolaemiaChronic Back Pain.”[49]
[49]JCB 158
67The only reference to injuries flowing from the accident was Mr Al-Shabib’s left elbow. Dr Kedher identified Mr Al-Shabib’s back problem under the heading “Previous History”.
68That Dr Kedher did not attribute Mr Al-Shabib’s back problems to the accident is consistent with her clinical notes.
69In her first consultation after the accident, being 11 January 2016, the only injury attributable to the accident was the left elbow.[50] Indeed, there was no reference to Mr Al-Shabib’s lower back until 14 July 2016. On that occasion, Mr Al-Shabib’s back problems were referenced in the notes in the context of “chronic back pain”.[51] This is consistent with the record of Mr Al-Shabib’s back problems in the notes prior to the accident.
[50]JCB 237
[51]JCB 235
70Finally, while not part of this application, Mr Al-Shabib attributed the need for his hernia repair, which was undertaken in late 2016 at the Royal Melbourne Hospital, to the accident. Dr Kedher, on 12 April 2016, recorded in her notes, “peri umb[i]lical pain for five day[s] after lifting heavy think at home”[52] (sic).
[52]JCB 237
Dr Talib Tahir
71Mr Al-Shabib consulted Dr Tahir on referral from Dr Kedher. At the time of the initial consultation on 15 April 2016, Mr Al‑Shabib was complaining of his left elbow injury. Dr Tahir referred Mr Al‑Shabib for an MRI scan.
72After a review of Mr Al‑Shabib on 21 July 2016, Dr Tahir, in his letter to Dr Kedher, described the left elbow problem as a “soft tissue injury”.[53]
[53]JCB 163
73It was not until 5 December 2017 that Dr Tahir makes reference to Mr Al-Shabib having lower back pain.[54] At that time he referred Mr Al-Shabib for an MRI scan of his lumbar spine. On 6 March 2018, Dr Tahir said the MRI scan showed minimal degenerative disc disease.[55]
[54]JCB 168
[55]JCB 169
74Subsequent to Mr Al-Shabib’s 6 March 2018 consultation with Dr Tahir, there are no further references to any ongoing consultation until 10 November 2021. At this time, Dr Tahir, in his reporting letter to Dr Kedher (consistent with her original letter of referral), referenced Mr Al‑Shabib’s lower back pain as commencing in 2015 (that is, he did not refer to the lower back pain as commencing on 30 December 2015 as he did with the left elbow injury and abdominal pain).
75In his 10 November 2021 letter, Dr Tahir said that Mr Al‑Shabib was suffering from lower back pain in the context of moderate to severe degenerative disease and left L4 radiculopathy pain with left nerve impingement. Dr Tahir also said that Mr Al‑Shabib was suffering left elbow pain since he had the accident in 2015, causing limitation in extension, and noted that Mr Al Shabib was tender to touch on both the medial and lateral epicondylar.
76The final letter from Dr Tahir to Dr Kedher is dated 25 August 2022. In respect to Mr Al‑Shabib’s left elbow, he noted swelling and recorded that Mr Al‑Shabib complained that the elbow felt numb, especially when sleeping on the left side.[56] Dr Tahir also said Mr Al‑Shabib was suffering ongoing lower back pain which, he said, had significant impact on his function and quality of life and day-to-day activities.[57]
[56]JCB 172
[57]JCB 172
77Dr Tahir said the MRI of Mr Al‑Shabib’s left elbow showed:
“The radial head and neck do not show any bone oedema. No residual fracture identified. The chondral surfaces of the radius and capitellum are within normal limits. Radial collateral ligament, lateral ulnar collateral ligament and common extensor origin are normal.
The ulnar trochlear groove is normal. Chondral surfaces are normal. Ulnar collateral ligament and common flexor origin are normal.
Distal biceps tendon and triceps tendon are intact. The neurovascular bundles are within normal limits.
Comment: No evidence of any residual radial head fracture or bone oedema. Chondral surfaces are within normal limits. No joint effusion or loose body. The ligaments are intact.”[58]
[58]JCB 173
Dr Justin Kuay
78Dr Kuay, who is a consultant psychiatrist at the Victorian Foundation for Survivors of Torture, commenced seeing Mr Al‑Shabib on 8 December 2011. Dr Kuay provided a detailed medical report dated 15 February 2017.[59]
[59]JCB 154
79As noted earlier in this judgment, it is clear that Mr Al‑Shabib was still consulting Dr Kuay at the time of the accident. Indeed, Mr Al‑Shabib first told Dr Kuay of the accident on 2 February 2016.[60] Dr Kuay said:
“It should be noted that Mr Al‑Shabib’s transport accident has not been a focus of his treatment with me as we have focussed on treatment of his PTSD related to his traumas in Iraq and detention in Australia. Mr Al‑Shabib did not seek specific psychiatric treatment for his accident and any reference to this accident he has mentioned has been incidental. Any psychiatric treatment provided has been a continuation of existing treatment and no new psychiatric interventions were provided following his transport accident.”[61]
(My emphasis.)
[60]JCB 155
[61]JCB 155
80Dr Kuay, in his report, explained the nature and extent of Mr Al‑Shabib’s pre‑existing PTSD and psychiatric illness. Dr Kuay said the severe nature of his condition impacted upon Mr Al‑Shabib’s quality of life and functional capacity. Of any exacerbation caused by the accident, he said:
“Mr Al-Shabib already had an impaired quality of life prior to the transport accident as detailed previously. His psychiatric symptoms for post-traumatic stress disorder and low mood are unlikely to significantly improve in the next two years. This observation is based on his response to the treatments since 2011 identified in the earlier questions. He has received prolonged pharmacotherapy and has also prolonged psychotherapy prior to the transport accident. His treatment has stabilized his symptoms but not significantly improved them. Therefore the transport accident has exacerbated what was already a poor prognosis in terms of his quality of life.”[62]
(My emphasis.)
[62]JCB 157 at paragraph (f)
The medico-legal reports
81I shall deal with the medico-legal reports in chronological sequence.
Dr Joseph Slesenger
82In December 2016, Mr Al‑Shabib told Dr Slesenger that at the time of the accident, he was working in a trial role as a tyre fitter/mechanic. Mr Al‑Shabib told Dr Slesenger that he suffered an injury to his left elbow and his abdomen/hernia as a result of the accident. There is no reference in Dr Slesenger’s report to any complaint of low back injury.
83Mr Al‑Shabib told Dr Slesenger that he had ongoing pain in the left elbow which was moderate to severe. He told Dr Slesenger that he tended to avoid using his left side and was reliant upon his right, non-dominant side. Mr Al‑Shabib told Dr Slesenger he was unable to perform domestic tasks including shopping, cooking, cleaning and laundry duties. He told Dr Slesenger he was unable to drive.
84While Dr Slesenger was prepared to accept Mr Al‑Shabib had injured his left elbow in the accident, of the abdominal/hernia injury, he said:
“With regard to the hernia, this is more difficult to assess as the contemporaneous evidence shows that the symptoms may have developed after the incident under consideration.”[63]
[63] JCB 32
85Dr Slesenger noted that Mr Al‑Shabib had a well-preserved range of left elbow movements and he was optimistic about the prognosis.
Dr Nicholas Ingram
86When Mr Al‑Shabib was assessed by Dr Ingram in November 2017, he told him that he had suffered an injury to his left elbow and abdomen/hernia. Mr Al‑Shabib made no reference to a lower back injury.
87Mr Al‑Shabib told Dr Ingram that he was unable to return to work because of his left elbow injury. Dr Ingram postulated that Mr Al‑Shabib may be suffering a chronic pain disorder if there was no explanation for his ongoing pain in the left arm/elbow. Dr Ingram noted that Mr Al‑Shabib told him that his left arm pain was slowly getting better.
Dr John Anstee,
88Dr Anstee assessed Mr Al‑Shabib’s scar resulting from the hernia surgery. This injury did not form part of this application.
Dr Jennifer Flynn
89At the time of Dr Flynn’s assessment in February 2018, she said that Mr Al‑Shabib had told her he could not continue work as a tyre fitter because of his right shoulder and right wrist injuries which he had suffered in Iraq.
90Dr Flynn said Mr Al-Shabib told her he was not undertaking any paid, unpaid, or voluntary work.
91Mr Al‑Shabib told Dr Flynn that he had suffered a left elbow injury and abdomen/hernia injury as a result of the accident.
92Dr Flynn did not obtain any history of a lower back injury.
93Mr Al‑Shabib told Dr Flynn that he suffered pain, stiffness and swelling in the left elbow. Having examined Mr Al‑Shabib and reviewed the medical records, Dr Flynn recorded under “Prognosis”:
“The prognosis for Mr Al‑Shabib’s left elbow injury is good. An MRI was reported to demonstrate that the fracture was healing with no degenerative changes present. He describes some pain but only mild functional deficit in relation to the left elbow injury. The condition is unlikely to deteriorate to any significant degree in the future.”[64]
[64]JCB 55
94Dr Flynn considered Mr Al‑Shabib had a capacity for employment though heavy lifting may exacerbate his symptoms.
Mr Charles Flanc
95When Mr Flanc met with Mr Al‑Shabib in May 2018, he found it difficult to obtain a history from him. On examination, Mr Flanc noted there was no wasting to the left upper arm, forearm or hand. He found some limitation in movement in extension and flexion, but pronation and supination were not restricted.
96Mr Flanc said the left elbow injuries were entirely related to the accident. He said the prognosis was good as it was an undisplaced fracture which had healed adequately. He said there may be some soft tissue stiffness. He also said there may be a chronic pain syndrome amplifying the symptoms. Mr Flanc said that Mr Al‑Shabib’s prognosis was for “a mild residual disability”.[65]
[65]JCB 77
97Mr Flanc considered the chronic low back pain, which Mr Al‑Shabib complained of, to be unrelated to the accident.[66]
[66]JCB 74‑75
Dr Brendan Hayman
98Dr Hayman met with Mr Al‑Shabib on 28 November 2019. He said at that time, Mr Al‑Shabib “gave a somewhat changeable account with regards to his past psychiatric history”.[67]
[67]JCB 83
99Seemingly, Mr Al‑Shabib did not advise Dr Hayman of the treatment he had been receiving from Dr Kuay over the years. When challenged about this, Mr Al‑Shabib told Dr Hayman he “forgot”.[68]
[68]JCB 83
100Dr Hayman said Mr Al‑Shabib had told him “the bike destroyed my life”.[69]
[69]JCB 83
101At the time of this assessment, Mr Al‑Shabib attributed both his left elbow injury and his back problems to the accident.
102Dr Hayman, in respect to Mr Al‑Shabib’s pre-existing Post-Traumatic Stress Disorder said:
“It was notable at the assessment that his account regarding this was quite different to that detailed in the corroborative history from his treating psychiatrists.”[70]
[70]JCB 87
103In respect to ongoing psychological issues at that time, Dr Hayman said:
“… he does not believe he has any clear psychological issues nor requires any psychological treatment.”[71]
[71]JCB 88
104Under the heading “Prognosis”, Dr Hayman went on to say:
“He does not have significant issues arising out of the motor vehicle accident that currently require psychiatric attention.”[72]
(My emphasis.)
[72]JCB 88
Dr Peter Blombery
105At the time of Dr Blombery’s assessment on 14 November 2019, Mr Al‑Shabib told him that he had suffered injury to his left elbow and abdomen/hernia injury as a result of the accident. He also told Dr Blombery that he had difficulties with his right index finger, which he attributed to the accident.
106Mr Al‑Shabib told Dr Blombery that he had not really been depressed, but sometimes got angry. Mr Al‑Shabib made no reference to any lower back injury. Mr Al‑Shabib told Dr Blombery that he had ongoing pain in his left elbow which was there all of the time.
107Dr Blombery said that he thought Mr Al‑Shabib might be suffering a non-specific pain syndrome, which he explained may be “central sensitisation”.[73] Dr Blombery did not consider there was any actual mechanical factor limiting the movement of Mr Al‑Shabib’s left arm.[74] Dr Blombery accepted that Mr Al‑Shabib’s ongoing pain prevented him using his left arm in an effective way.
[73] JCB 38
[74]JCB 38
Dr Robert Lefkovits
108Mr Al‑Shabib was assessed by Dr Lefkovits on 2 December 2019. Dr Lefkovits reported:
“All movements of the left upper limb caused him unacceptable pain, particularly over the radial aspect of the left elbow, radiating down into the forearm and up into the lower upper arm. He avoided pushing, pulling and twisting activities …”[75]
[75]JCB 93
109On examination, Dr Lefkovits noted:
“Inspection of the left elbow revealed no soft tissue swelling, no deformity, no temperature gradient and no discolouration. There was no hyperesthesia noted. He was tender over the head of the radius. He was also tender over the medial epicondyle. He had full extension of the elbow, but slightly reduced flexion as well as reduced pronation and supination. Power was of collapsing nature and difficult to assess.”[76]
[76]JCB 93‑94
110Dr Lefkovits went on to say of Mr Al‑Shabib’s complaints of pain and disability:
“… but the symptoms are predominantly non-organic with no evidence of ongoing significant injury to the elbow joint, nor is there any clinical evidence of a complex regional pain syndrome. However, taking into consideration the plaintiff’s psychological issues and background, I suspect that there is a significant ongoing pain syndrome due to non-organic factors.”[77]
[77]JCB 94
Mr Gary Speck
111Mr Al‑Shabib was assessed by Mr Speck on 12 April 2022. At the time of this assessment, Mr Al‑Shabib did not acknowledge any back problems prior to the accident despite repeated questioning.[78] He told Mr Speck he had never had back problems before the accident.
[78]JCB 102
112Mr Al‑Shabib told Mr Speck that his left elbow pain was 6/10. He said the best the left elbow pain got was 4/10, and at its worst, it was 10/10.
113Having undertaken examination of Mr Al‑Shabib and considered the background medical records/reports, under the heading “Diagnosis”, Mr Speck said:
“… Mr Al‑Shabib has sustained an undisplaced intra-articular fracture of the head of the left radius which has healed anatomically without evidence of any joint incongruity or articular loss, minimal restriction of movement and ongoing complaints of pain around the left elbow region consistent with a somatic symptom disorder.”[79]
[79]JCB 112
114Under the heading “Injuries”, Mr Speck went on to say:
“Answer: The prognosis for the undisplaced fracture of the left head of radius is excellent. He has had a good functional recovery of the left elbow. His ongoing complaints of pain are consistent with a somatic symptom disorder rather than ongoing symptoms attributable to the anatomically healed fracture.”[80]
[80] JCB 112
115In respect to work capacity, Mr Speck said:
“I expect the physical restriction of the undisplaced fractured left head of radius would be a restriction for physical work, but not with administrative tasks for three to maximum six months from the time of the fall attributed to the transport accident. I expect he would be able to return to administrative tasks within six weeks of the transport accident. The prolonged restriction in activities due to pain are not a consequence of the ongoing skeletal injury which would have healed within 12 weeks of the transport accident.”[81]
[81]JCB 114
116Mr Speck went on to say in respect to any restrictions which Mr Al‑Shabib may have for domestic or leisure activities:
“I don’t expect any significant ongoing restriction related to the use of the left upper extremity.[82]
…
[82]JCB 114
The restrictions he currently describes are in the body of the report above. They are not related to the physical consequences of the healed undisplaced fracture of the left head of radius.”[83]
[83] JCB 114
117Subsequent to the provision of his report, Mr Speck was shown the film. Having viewed the film, Mr Speck said:
“The provided surveillance material confirms active use of the dominant left upper extremity without any evidence of restriction and including the carrying of a battery on 2 occasions. There was ready and fluid movement of the back through a full range of movement. There was no evidence of restriction of left upper extremity use with opening and closing of car bonnets, driving, applying seatbelt and carrying of a child on a number of occasions.”[84]
[84]JCB 120
Associate Professor Doherty
118Associate Professor Doherty met with Mr Al‑Shabib on 6 June 2022. Mr Al‑Shabib told Associate Professor Doherty that prior to the accident, he had no pre-existing or unrelated medical conditions. His health was “great”. Specifically he told Associate Professor Doherty that his mental health had never been a problem.[85]
[85]JCB 125
119Having undertaken his examination of Mr Al‑Shabib and considered the materials with which he had been provided, under “Diagnosis”, Associate Professor Doherty said:
“The plaintiff is not a good historian. There are inconsistencies, and in this interview, especially about his activities before leaving Iraq and the relationship with his father. He was very vague about his current business activities and the reasons for residing in a caravan in Kilmore. Other examiners have noted a changeable history.
He minimised the pre-transport accident treatment at Foundation House.”[86]
[86] JCB 129
120Associate Professor Doherty said that there “is no diagnosable psychiatric condition at present”.[87] He said that he considered whether or not there was an adjustment disorder, PTSD condition, or pain-related psychiatric condition present and able to be diagnosed, and he said that in his opinion they cannot be.[88] He considered Mr Al‑Shabib’s overall prognosis from a psychiatric point of view to be favourable.
[87]JCB 130
[88]JCB 130
121In respect to work capacity, Associate Professor Doherty said:
“There is no interference due to any psychiatric reason in the plaintiff’s capacity to undertake work.”[89]
[89]JCB 133
122Under the heading “Any other comments you consider relevant”, Associate Professor Doherty said:
“The plaintiff reports continuing pain and some functional limitations relevant to the left elbow, left wrist and low back. There is no diagnosable pain-related psychiatric condition.”[90]
[90]JCB 134
123Associate Professor Doherty, subsequent to the provision of his first report, was provided copies of the film and asked to provide a supplementary report. When asked whether the film altered his opinion, Associate Professor Doherty said:
“The additional supplied material makes no change to my viewpoint.
I came to the viewpoint there was no diagnosable psychiatric condition.
The additional supplied material reinforces that viewpoint.”[91]
[91]JCB 140
Does Mr Al-Shabib suffer a psychiatric injury consequential to the accident and, if so, does it satisfy the serious injury test?
124I accept, on the basis of Dr Kuay’s report, that Mr Al-Shabib did suffer an exacerbation of his pre-existing and significant PTSD/major depressive illness by reason of the accident or the consequences flowing from it. The issues which I need to grapple with are therefore:
(a) Does Mr Al-Shabib continue to suffer any psychiatric injury consequential to the accident?
(b) If so, are the consequences “serious”?
125Mr Al-Shabib said, on a number of occasions in the course of his oral evidence, that at the time of the accident he was “better” and had in fact ceased treatment with Dr Kuay.
126That Mr Al-Shabib was having ongoing psychiatric treatment at the time of the accident is clear. Just how long after the accident that treatment continued is uncertain. At the time of his report 15 February 2017, Dr Kuay said he continued to be Mr Al-Shabib’s treating psychiatrist. Certainly, Dr Kuay continued to consult with Mr Al-Shabib throughout 2016 and was seeing him until at least 14 February 2017. It is, however, apparent that at some time subsequent to February 2017, Mr Al-Shabib ceased consulting Dr Kuay. He said so in the course of his oral evidence. He told Associate Professor Doherty on 6 June 2022 that he had not consulted Dr Kuay for three years.
127Mr Al-Shabib said that currently he was not being prescribed any medication for his psychiatric condition, nor was he receiving any other psychological treatment.
128That Mr Al-Shabib is currently receiving no medical treatment for any psychiatric condition tends against him suffering from a serious psychiatric injury consequential to the accident.
129Moving now to his oral evidence in respect to the state of his psychological condition. Mr Al-Shabib’s evidence in this regard, like much of his evidence generally, was variable. On the final day of giving evidence, Mr Al-Shabib said that his psychiatric injury was his worst injury.[92] This can be contrasted to what he told me earlier in the case. When I asked him about his psychological condition, he said:
Q:“Tell me about your psychological distress. What is it that’s your problem now?---
A:(Direct) I feel good now.
Q:You feel good now?---
A:Yep.”[93]
[92]T239, L13-17
[93]T36, L27-29
130This evidence tends against Mr Al-Shabib currently suffering a serious psychiatric injury consequential to the accident.
131Moving now to the more recent medico-legal psychiatric assessments.
132In November 2019, when Dr Hayman assessed Mr Al-Shabib, he concluded that Mr Al-Shabib did not have any significant issues arising out of the motor vehicle accident which required psychiatric attention. Certainly, Dr Hayman did not provide any support to the contention that Mr Al-Shabib at that time was suffering a serious psychiatric injury consequential to the accident.
133The most recent psychiatric assessment was undertaken by Associate Professor Doherty. Associate Professor Doherty concluded that Mr Al-Shabib suffered no recognisable psychiatric condition. This conclusion was consistent with Mr Al‑Shabib’s evidence that he feels good now and is not receiving any treatment. Associate Professor Doherty had been provided with various reports from Dr Kuay and, in particular, his 15 February 2017 report together with various clinical notes. I accept the analysis and the conclusions reached by Associate Professor Doherty.
134I pause here to note that Mr Al-Shabib:
(a) In 2021 purchased a Mercedes-Benz tip truck and excavator. He commenced operating an excavation/trucking business in September 2021. He has operated that business ever since. He rents space at a property in Campbellfield. He commutes from his home in Kilmore.
(b) Undertakes the administrative tasks associated with this business. He said he did the advertising, got the jobs, did the onsite assessments and did the quotes.[94]
(c) Has operated an enterprise buying, transporting, and selling electrical goods.
(d) Has, since the accident, bought and sold various properties.
[94]T30, L1-6
135To undertake these various tasks requires a level of business acumen, and tends against Mr Al-Shabib suffering a serious psychiatric injury. Indeed, it is consistent with Associate Professor Doherty’s opinion.
136Given Mr Al-Shabib:
(a) has, since September 2021, been operating his own business;
(b) is not currently receiving any medical treatment and has not for some time;
(c) in the opinion of Associate Professor Doherty has no recognisable psychiatric condition;
(d) based on his own evidence “feels good now”;
I do not accept that Mr Al-Shabib suffers from a serious psychiatric condition which is consequential to the accident. This part of Mr Al-Shabib’s application fails.
Does Mr Al-Shabib’s left elbow injury satisfy the serious injury test?
137That Mr Al-Shabib suffered a left elbow injury as a result of the accident was accepted by the TAC.
138Mr Al-Shabib said, both in his affidavit and oral evidence, that he continues to suffer ongoing pain, swelling, and restriction in his left elbow and arm. He outlined a range of activities for which he is either restricted or, indeed, precluded.
139That Mr Al-Shabib may suffer some minor restriction in the movement of his left elbow is accepted by me. That is consistent with the findings on examination by a number of the doctors. However, it is his complaints of pain and functional restriction which are much more problematic.
140I will start firstly with the MRI scan results. Dr Tahir, on whom Mr Al-Shabib relies, noted the findings in his letters to Dr Kedher, but did not make any further comment.
141Mr Al-Shabib, in his oral evidence, maintained that Dr Tahir had advised him of the need to have his left arm rebroken and reset. Mr Al-Shabib said this established just how severe this injury is. Dr Tahir did not, in any of the letters he sent to Dr Kedher, suggest such course of action.
142I note that none of the medico-legal assessors considered the MRI revealed any abnormality which would explain Mr Al-Shabib’s complaints. Nor did any of the medico-legal assessors suggest there was any need for any further surgery.
143Referring back to Dr Tahir. Having carefully analysed Dr Tahir’s letters, I find them of limited assistance in assessing this matter. Dr Tahir, did not, unlike the medico-legal assessors, provide any detailed analysis of the left elbow injury or the consequences flowing from it.
144Of the various medico-legal assessors, I was provided with the greatest assistance by the recent reports of Mr Speck, orthopaedic surgeon. He provided a very detailed analysis. Mr Speck also had the benefit of viewing the film.
145Prior to being provided the film, Mr Speck said that he did not accept Mr Al-Shabib had any significant ongoing restrictions. He based this opinion on the nature of the injury which Mr Al-Shabib had suffered, and the MRI scan results. He said the restrictions which Mr Al-Shabib complained of were not consequential of a healed undisplaced fracture of the head of the left radius. He did not consider Mr Al‑Shabib’s complaints and presentation to be genuine.
146Mr Speck, having been provided with the film, observed there was no evidence of restriction in the use of Mr Al-Shabib’s left arm. Mr Speck’s conclusions from viewing the film are consistent with mine.
147I accept the opinion of Mr Speck.
148To establish serious injury, the threshold is high. While the evidence may disclose some pain and suffering consequences which are both marked and significant, for Mr Al-Shabib to be successful, I have to be persuaded that the consequences due to his left arm injury can fairly be described as “more than significant or marked” and as being “at least very considerable”.
149I do not accept that Mr Al-Shabib has discharged the onus of proof which rests with him. While Mr Al‑Shabib may have some minor limitation of movement in the left elbow and suffer some level of pain, I do not accept his evidence in respect to the nature and extent of the consequences which he alleges. I do not accept that Mr Al-Shabib’s left elbow injury/left arm injury is serious. This part of Mr Al-Shabib’s application fails.
Does Mr Al-Shabib suffer a back injury consequential to the accident and, if so, does that injury satisfy the serious injury test?
150I accept that Mr Al-Shabib did have back problems prior to the accident. Indeed, I accept that these were “chronic back problems”.
151I also accept that, at the time of the accident and for a significant period afterwards, there was no contemporaneous complaint by Mr Al-Shabib that he had injured his back in the accident. Dr Kedher did not make reference to back problems until 14 July 2016. Even then, she did not attribute the lower back problems to the accident.
152Mr Al-Shabib did not tell Dr Slesenger of any back injury sustained in the accident, nor did he tell Dr Blombery or Dr Flynn. Mr Flanc was not prepared to accept any back problems were related to the accident. Mr Speck, whose opinion I have accepted, said:
(a) that Mr Al-Shabib had a long-term pre-existing back condition which was not identified as being injured or aggravated at the time of the accident;
(b) that his continuing mild symptoms were consistent with degenerative change and were not attributable to the accident;[95]
(c) after seeing the film, there was no evidence of injury in the low back.[96]
[95]JCB 112
[96]JCB 120
153Having considered all of the evidence, I do not accept that there is any objective evidence upon which I could reasonably rely which provides support to Mr Al-Shabib’s contention that he injured his back in the accident. While I accept that Mr Al-Shabib does suffer from some low back problems which do, from time to time, impact upon him, I do not accept that Mr Al‑Shabib has sustained an injury to his lower back in, or as a consequence of, the accident. This part of Mr Al-Shabib’s application also fails.
Conclusion
154Taking into account all of the evidence, I am not satisfied:
(a) that any psychiatric injury suffered by Mr Al-Shabib, which is consequential to the accident, is a serious injury;
(b) that Mr Al-Shabib’s left elbow/arm injury is a serious injury;
(c) that Mr Al-Shabib has suffered a back injury as a consequence to the accident.
155Mr Al-Shabib’s application is dismissed.
156I will hear the parties in respect to the question of costs.
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