Anand v TAC
[2023] VCC 1756
•3 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-22-04003
| Dinesh Anand | Plaintiff |
| v | |
| Transport Accident Commission | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 May 2023 | |
DATE OF JUDGMENT: | 3 October 2023 | |
CASE MAY BE CITED AS: | Anand v TAC | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1756 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious Injury Application – Motor vehicle accident – cervical spine – pain and suffering – range – credibility
Legislation Cited: Transport Accident Act 1986
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181.
Judgment: Application refused
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Valiotis | Tasiopoulos Lambros & Co |
| For the Defendant | Mr S. Pinkstone | Russell Kennedy |
HIS HONOUR:
Introduction
1The plaintiff seeks leave of the Court to enable him to commence a proceeding at common law to recover damages for injuries he suffered in a transport accident on 26 October 2016. Application is made pursuant to the provisions of the Transport Accident Act 1986 (“the Act”) and the plaintiff relies upon paragraph (a) of the definition of “serious injury” contained in s93(17) of the Act. The application proceeded seeking a certificate for pain and suffering only. The plaintiff remains employed.
2The plaintiff was represented by Mr Valiotis of counsel. The defendant was represented by Mr Pinkstone of counsel.
3Pursuant to paragraph (a) of the definition of serious injury, the injury relied on is to the plaintiff’s cervical spine with referred symptoms into the right upper limb. However, as Mr Valiotis described it, in lay terms, the application concerns the plaintiff’s neck.[1]
[1] Transcript (‘T’) 2, Line (‘L’) 8 -9.
4The meaning of “serious” expressed in s97(17) of the Act has been addressed in Humphries & 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.
[3] Ibid 140.
The documentary evidence
5The plaintiff tendered the following evidence in support of his application:
· Affidavit of Dinesh Anand dated 29 April 2022,[4] and Further Affidavit of Dinesh Anand dated 27 April 2023;[5]
· Radiology including:[6]
§MRI - Cervical Spine dated 26 October 2016;
§CT - Cervical Spine and Right Shoulder CT dated 26 October 2016;
§CT - Cervical Spine dated 8 December 2016;
§CT – Cervical Spine dated 12 December 2016; and
§MRI - Cervical Spine dated 11 September 2017;
[4] Exhibit P1, Plaintiff Court Book (‘PCB’) 3-8.
[5] Exhibit P1, PCB 9-13.
[6]Exhibit P2, PCB 16-10.
· Letter from Mr Chris Xenos to Dr Asim Saghir dated 1 February 2019;[7]
[7]Exhibit P3, PCB 25-26.
· Letter from Mr Anju Das to Dr Asim Saghir dated 10 February 2017;[8]
[8]Exhibit P4, PCB 27.
· Letters from Professor Richard Bittar to Dr Asim Saghir dated 11 September 2017[9] and 24 May 2018;[10]
· Letter from Complete Care Physiotherapy to Dr Asim Saghir dated 5 October 2017;[11]
· Operation records dated 21 October 2017,[12] and 10 February 2018;[13]
· Letters from Dr Gavin Weekes to Dr Asim Saghir dated 24 October 2017,[14] 9 November 2017,[15] 30 January 2018,[16] 15 February 2018,[17] 1 March 2018,[18] and 4 June 2018;[19]
· Reports of Dr Asim Saghir dated 27 April 2020,[20] and 11 April 2023;[21]
· Reports of Mr Ales Aliashkevich dated 21 August 2020,[22] and 9 March 2023;[23]
· Report of Dr Albert Kaplan dated 21 August 2020;[24]
· Report of Associate Professor Bruce Love dated 17 November 2020;[25]
· Report of Dr M.P. Anand dated 2 September 2022;[26]
· Summary of the plaintiff's taxation returns dated 23 May 2023.[27]
[9]Exhibit P5, PCB 28-29.
[10]Exhibit P14, PCB 39-40.
[11]Exhibit P6, PCB 30-31.
[12]Exhibit P7, PCB 32.
[13]Exhibit P11, PCB 36.
[14]Exhibit P8, PCB 33.
[15]Exhibit P9, PCB 34.
[16]Exhibit P10, PCB 35.
[17]Exhibit P12, PCB 37.
[18]Exhibit P13, PCB 38.
[19]Exhibit P15, PCB 41.
[20]Exhibit P16, PCB 42-45.
[21]Exhibit P21, PCB 96-100.
[22]Exhibit P17, PCB 46-73.
[23]Exhibit P22, PCB 101-117.
[24]Exhibit P18, PCB 74-86.
[25]Exhibit P19, PCB 87-94.
[26]Exhibit P20, PCB 95.
[27]Exhibit P23, PCB 118-119.
6The defendant tendered the following evidence in opposition of the application:
· Two reports of Mr Michael Dooley dated 8 February 2023,[28] and 9 May 2023;[29]
· Photocopies of the plaintiff’s passports;[30]
· Extract of the plaintiff’s prescription history;[31]
· Bundle of four invoices dated 26 July 2021, 13 October 2020, 17 September 2020, 27 December 2020 from “Anand Handyman” business;[32] and
· Video surveillance of the plaintiff on 16 December 2022 of 20 minutes duration.[33]
[28]Exhibit D1, Defendant Court Book (‘DCB’) 23-26.
[29]Exhibit D1, DCB 27-28.
[30]Exhibit D2, DCB 30-39.
[31]Exhibit D3.
[32]Exhibit D4.
[33]Exhibit D5.
7In reaching my conclusions I have had regard to the medical reports and clinician notes, and correspondences referred to and relied on by the parties, surveillance of the plaintiff, the cross-examination and re-examination of the plaintiff and the addresses of counsel. I have, however, referred only to such of the medical evidence that has proved necessary for me to arrive at my findings and in order to explain my reasons. Much of the tendered material received in evidence ultimately proved to have little probative bearing on the issues to be determined. Dr Kaplan’s report, for example, tendered by the plaintiff was not referred to or relied upon in addresses.
The transport accident[34]
[34] The plaintiff deposed to a transport accident in 2011 to his knee but from which he recovered.
8On 26 October 2016, the plaintiff was driving to work when he was involved in a motor vehicle accident in South Yarra. He deposed that:
I was rear ended by another vehicle on Alexander Avenue in South Yarra. We exchanged details and my car was drivable and I went to work. I started feeling pain later that morning and called ambulance whilst at work and was taken to hospital complaining of increasing neck and right shoulder pain.[35]
[35] Exhibit P1, PCB 6, paragraph 13.
The plaintiff
9The plaintiff was born in India in 1973. He completed secondary school before undertaking a Bachelor of Commerce degree followed by a Diploma of Pharmacy. He was employed in Business Marketing as a medical sales representative. He migrated to Australia on a student visa in 1998. He undertook a Diploma of Business Marketing with the Sydney Institute of Management for two years. He attained permanent residency. He is separated with two children.
10In Australia, and early on, he worked in different jobs including in marketing for six months, and as a taxi driver for a few months before obtaining employment with Crown Casino, initially as a Croupier, and subsequently as a Host before being promoted to Gaming Supervisor. When Crown relocated to Crown Towers, he was appointed Parking Manager, and then Bell Captain, which he described as “basically… a parking supervisor overseeing parking, valet service and baggage between 2014/2015.” [36]
[36]Exhibit P1, PCB 4.
Post transport accident health
11Following the transport accident, the plaintiff was away from work for about 6 months. He had a painful and stiff neck, and he described struggling with increasing disability. His father and his brother-in-law live in India. He said they are doctors. Before returning to work the plaintiff travelled there in February 2017 for around three weeks. He said he underwent Ayurvedic medicine.[37]
[37] A form of traditional medicine native to India.
12The plaintiff said he was prescribed Lyrica, but experienced side effects and stopped taking it.
13On the plaintiff’s return to Australia, despite feeling rested and slightly better, his pain continued.
14He was referred to Professor Bittar who in turn referred him to Dr Weekes. The plaintiff had a nerve block injection and underwent radiofrequency neurotomies under Dr Weekes. There was some improvement in his symptoms, however, he deposed that the pain gradually returned together with neck stiffness.
15The plaintiff had physiotherapy treatment for about 2 years, and found that he was able to move his neck a little better, but he remained in pain. He said that when TAC ceased funding his physiotherapy, he paid for his own physiotherapy, but only had a few sessions because it provided only temporary and not lasting relief.
16When the plaintiff returned to work with Crown, he said that initially it was on modified duties, although he said that he was still performing most of his preinjury tasks, but he was not required to move luggage. Subsequently, he was offered a position as a Responsible Gaming Advisor, a position he described as administrative and more suitable given his physical limitations. It came with increased remuneration.
Pre transport accident pursuits and interests
17Prior to the motor vehicle accident, the plaintiff said he enjoyed a number of sporting pursuits, but especially, cricket. He had played club cricket for many years, and said it was a “passion”.[38] He said that he played on a regular basis socially with friends and family, and he described himself as an all-rounder.
[38] Exhibit P1, PCB 4, paragraph 8.
18He said that he was also a very keen badminton player, participating in a social game every fortnight and, if the availability presented itself, more frequently. He also involved himself deeply in his children's activities and encouraged them to participate in sport. He said that on occasional weekends he and his family would go camping and hiking to Wilson's Promontory.
19The plaintiff deposed that his hours at work were long, and because of the various shifts he performed, he experienced some difficulty sleeping, especially when he had been performing night shift work.
GP attendances
20The plaintiff’s general practitioner has been Dr Saghir. However, he deposed that he only attends Dr Saghir if he requires a prescription. He deposed that his father sends him medicine from India by post.[39] The provision of medicines to the plaintiff would prove controversial.
[39] Exhibit P1, PCB 7, paragraph 21.
21The plaintiff deposed that he takes Codeine, Brufen and Diclofenac most days.
Pain and limitation consequences of injury
22The plaintiff deposed that working behind a desk all day increases his neck pain and stiffness. He described constant neck pain the intensity of which fluctuates depending upon what he has been doing, although it tends to worsen as the day progresses.
23The plaintiff said that his roster is 4 days working 12 hour shifts, followed by 4 days off. He explained that he looks forward to his 4 rostered days off, and that he needs this amount of time away from his work in order to recover from the continuing effects of his injury.[40]
[40] Exhibit P1, PCB 10, paragraph 4.
24The plaintiff deposed that his sleep is adversely impacted by pain. He finds that he is very tired at the end of a shift and that sometimes falling asleep is not easy. As well, if he sleeps in an awkward position, he finds he can wake up with pain or stiffness.
25The plaintiff deposed that he suffers from nerve pain with pins and needles extending down his right arm.
26He said that he has given up playing cricket and badminton, which he described as enormous losses Not only from the physical enjoyment he derived from them but also because of the loss of the social interaction they provided.
27The plaintiff said that he can drive, shop, and care for himself without too much difficulty and he is able to perform housework at his own pace and he is able to cook for his children when he has them and can keep his residence tidy.
28The plaintiff is a vegetarian. He previously grew his own vegetables. He surrendered his vegetable patch when he moved to Clyde in 2020. He said that looking after his backyard became problematic, whereas his present garden requires no maintenance.
29The plaintiff has travelled to India on several occasions since his transport accident. Although he said that there are difficulties associated with travelling in an aeroplane seat for many hours, he explained that he gets up and walks up and down the aisle or stands for periods of time, but nonetheless, his neck stiffness is terrible after the long flight.
30The plaintiff said that because Covid-19 lockdowns prevented those who had left Australia from returning, he was stranded in India with his family between February and May 2020 and it was with them with whom he stayed during this period of time. He said that while he was in India he was able to obtain any treatments he required through his father, although the extent of the evidence of treatment the plaintiff received in India was limited to chiropractic and physiotherapy and hydrotherapy.
Prescription History
31The plaintiff’s prescription history reveals that since the transport accident he has been prescribed Panadol Forte, Tramadol, Stemitil, Mobic, Panamax and Celebrex, but without repeats.[41]
[41]Exhibit D3.
32The plaintiff’s prescribed medications relevant to injury have been Lyrica prescribed on 14 February 2018 and 5 repeats.
33The plaintiff deposed that he is taking the following medications throughout the day including Brufen/Diclofenac 2-4 per day, 1-2 Panadeine Forte 2 or 3 times per week, Lyrica once or twice per week and 2-4 Panadol per day.[42] This suite of medications the plaintiff deposed to currently taking is not corroborated by the prescription record of his GP.
[42] Exhibit P1, PCB 10, paragraph 8.
Income
34The plaintiff’s disclosed taxable income has been as follows:
· 2014: $53,782
· 2015: $55,544
· 2016: $56,888
· 2017: $86,716
· 2018: $63,343
· 2019: $65,747.[43]
[43]Exhibit P1, PCB 7-8.
Further Affidavit
35In a second affidavit, the plaintiff confirmed that he remains employed on a full-time basis with Crown as a Responsible Gaming Adviser and that his working roster has not altered. He explained that he is able to take breaks, and to get up and to go for a walk or rest when his neck pain or stiffness increases.
36He deposed that his neck pain remains constant and its intensity fluctuates during the course of a working day.
37The plaintiff said he does not believe that he could return to his pre-injury employment duties with Crown.
38He deposed that he has numbness and tingling extending down his right arm with it being worse on entering his right hand and fingers and is accompanied by pins and needles.
39The plaintiff said he suffers headaches during the working day, although not sufficiently bad that they require him to leave work and they can be managed by him having a break in order to take a couple of Panadol. The plaintiff said if his condition requires it, he will take days off but he prefers to work. There was no evidence of the plaintiff’s sick leave record.
40The plaintiff said that he still encounters difficulty sleeping and he will occasionally have the need to take Diazepam, but again there is no record of that drug being currently prescribed for him.[44]
[44]In his report dated 9 March 2023 (Exhibit P22), Dr Aliashkevich referred to the plaintiff’s current medications and this included Diazepam that he had taken for 2 to 3 days in the last month, but this as with other recorded medications, are not reconcilable with the prescription history (Exhibit D3).
41The plaintiff explained that his mood has been adversely affected as a result of the accident with the accompanying loss of his hobbies along with the shared interests with his sons impacting him psychologically. He experiences stress at the thought of losing his job or needing to find another job.
42The plaintiff said that a side effect of him taking Lyrica was dizziness, and so he is unable to take it on a working day or the day prior to a working day.
43The plaintiff has not returned to playing badminton or cricket.
44The plaintiff emphasised the loss of his vegetable garden. He thinks that he would struggle to maintain a garden and vegetable patch as a result of neck pain and restriction.
45The plaintiff said he remains able to undertake his housework that he performs at his own pace. He still cooks for his children when they are with him and he manages to keep the home tidy and his children keep their own rooms clean as they are at an age where they can care for themselves.
46The plaintiff said that he also travelled to India and stayed with his family in June 2022, and again in September 2022.
The separate business
47The plaintiff deposed that during Covid-19 lockdowns, and in around July 2020, he reactivated an Australian Business Number he registered in 2001. He explained that under this ABN he performed odd jobs such as bookkeeping in order to make extra money. He explained that over time, he undertook various odd jobs for friends including fixing computers and laptops, purchasing software, upgrading computer hardware, and installing doorbells and surveillance cameras. He deposed that most of the work he performed was “pretty easy”[45] and between July 2020 and July 2022, it seems he earned only about $6,000 gross from these jobs.
[45]Exhibit P1, PCB 11.
The plaintiff’s medical reporting
GP Report
48Dr Asim Saghir in a report dated 27 April 2020,[46] wrote that the plaintiff was continuing to suffer from his injuries and, in particular, “Rt shoulder and neck pain which is on and off. He does take analgesia when needed. He has changed his department and the conditions of the job are different. He is working full time as per pre-injury duties.”[47]
[46]Exhibit P16, PCB 42-45.
[47]Exhibit P16, PCB 43.
49In a report dated 11 April 2023,[48] Dr Saghir said that following the transport accident the plaintiff’s “CT scan of cervical spine showed degenerative changes to the cervical spine with predominant abnormality at C5/6 where there is right foraminal narrowing and probable right-sided neural impingement. No traumatic injury to the cervical spine.”[49] Dr Saghir recorded the plaintiff complaining of:
Neck stiffness bilaterally with right sided pain
Right shoulder pain.
Radiated pain in right arm with numbness.
Right thumb numbness
Stress and depression arose due to his unsettled injuries.[50]
[48]Exhibit P21, PCB 96-100.
[49]Exhibit P21, PCB 96.
[50]Exhibit PCB 97.
50Dr Saghir said that radiology had revealed:
Right C6 radicular pain.
(neck pain with Brachialgia)
C5/6 where there is right foraminal narrowing and probable right -sided neural impingement.[51]
[51]Exhibit 21, PCB 98.
51Dr Saghir said that the plaintiff has:
been to orthopaedic surgeon, spinal surgeon, pain management specialist, physiotherapist and physiotherapist [sic]. He had multiple treatments as mentioned above. He has been, currently, on pain killers to help with his injuries. He is also engaged in regular exercises as advised by physiotherapist. He feels improvement in pain since his initial injury but not settling. The pain symptoms have plateaued after all the treatments he was offered up till now. Mr. Dinesh Anand has been feeling depressed because of the injury and its impact socially and financially. He has been seeing psychologist for therapy.[52]
[52]Exhibit P21, PCB 98.
52Dr Saghir considered the plaintiff’s prognosis as uncertain and that he has “ongoing Right shoulder and Right arm pain. He is unable to go for long drives. He tries to avoid heavy and repetitive work with his Right arm. Mr. Dinesh Anand continues with analgesia and physiotherapist advised exercises along with psychotherapy. He might need further assessment with neurosurgeon if needed.”[53]
[53]Exhibit P21, PCB 98.
53With regard to the plaintiff’s employment capacity, Dr Saghir wrote that the plaintiff:
has been working well but since his injuries in MVA, he is not able to do physical work the way he used to do. He is passionate about working. He was offered a new role as a Responsible Gaming Advisor at Crown Casino which he is doing as a full time worker. He will be able to work in other fields as well if he is skilled in that particular domain with involving less physical work because of his unsettled MVA related injuries.[54]
[54]Exhibit P21, PCB 99.
54Addressing the impact that the transport accident injuries have had on the plaintiff’s daily living Dr Saghir wrote that he:
is handicapped physically and psychologically. He is unable to do quite a few physical activities but he also have lack of interest, thinking he will not be able to overcome his physical issues and it might stay permanently.
He has to take breaks, when needed, at work.
He can't drive for long distances and unable to lift heavy items and to do repetitive movements
He is unable to continue his sports activities like playing cricket and badminton. He used to go for camping which he can't do any more.
He is unable to play with his kids and one of the child being autistic, is more challenging and demanding
He is unable to grow his own vegie patch which he always loved to do so.
He has been having difficulties in travelling for flying overseas.
His physical issues have been effecting his sleep with lack of motivation and poor socialising.[55]
[55]Exhibit P21, PCB 99.
Associate Professor Bruce Love
55Associate Professor Bruce Love is an Orthopaedic Surgeon who provided a joint report dated 17 November 2020,[56] which outlined the plaintiff’s history, made findings on examination and addressed a number of specific questions regarding the plaintiff and his impairment. He wrote that the plaintiff:
must be considered to have suffered a musculoligamentous soft tissue injury of the cervical spine with possible aggravation of age related changes at the CS/6 level.
There is no clinical, radiology or nerve conduction study that supports a significant nerve root lesion.
His response to an injection suggests that if a nerve root lesion existed, it has largely resolved.[57]
[56]Exhibit P19, PCB 87-94.
[57]Exhibit P19, PCB 89.
56Associate Professor Love wrote that the plaintiff’s “prognosis is such that sufficient time has passed for natural resolution to reach maximum medical improvement and I do not expect any significant improvement from this point. He appears to manage his employment at the present time.”[58]
[58]Exhibit P19, PCB 90.
57Addressing a future capacity for work, Associate Professor Love did “not anticipate the injury to have a significant impact on future capacity for work. He is working in pre-injury work.”[59] He did note that “Further treatment is not likely to make any meaningful difference in that he has trialled a variety of treatments over the period of time that has passed since the accident of October 2016.”[60]
[59]Exhibit P19, PCB 90.
[60]Exhibit P19, PCB 93.
58Associate Professor Love assessed the injuries to have had, “minimal impact on his activities of daily living at this time. He lives alone and manages household tasks.”[61]
[61]Exhibit P19, PCB 94.
Dr Ales Aliashkevich
59Dr Aliashkevich provided two medico-legal reports at the request of the plaintiff’s solicitors dated 21 August 2020,[62] and 9 March 2023.[63] He considered that the character and intensity of the plaintiff’s chronic neck, right shoulder and arm problems had remained largely unchanged over the course of attendances. Physiotherapy and medications had afforded him some relief, but with pain flaring up on some days.
[62]Exhibit P17, PCB 46-73.
[63]Exhibit P22, PCB 101-117
60Dr Aliashkevich observed that the plaintiff used long service leave and was in India from June to August 2022, and whilst there underwent physiotherapy and hydrotherapy. He returned to work in September 2022 but went to India again in October 2022.
61Dr Aliashkevich said that the plaintiff had not come to surgery, had not received injections, and had not consulted a neurologist, neurosurgeon or spinal surgeon, nor had he been involved with a pain management programme. He had consulted Dr Robert Gassin, a musculoskeletal and interventional pain specialist who provided a scan referral, but at the date of Dr Aliashkevich’s first report the plaintiff had been unable to obtain an appointment. He was continuing to attend his GP and had utilised a number of Medicare funded physiotherapy sessions.
62Dr Aliashkevich diagnosed the plaintiff as suffering from chronic neck, right shoulder and arm pain, chronic pain syndrome, protracted whip lash-associated disorder, C5/6 right foraminal narrowing with C6 nerve root irritation and suspected post-traumatic stress disorder.
63In his second report, Dr Aliashkevich said he agreed with the assessment and diagnosis made by Associate Professor Love (recited at paragraph 52 above).
64Dr Aliashkevich went on to say, that although he is not a qualified pain specialist, but based on the character of the plaintiff’s chronic pain, he thought that the transport accident had contributed to the evolution of chronic pain syndrome, typical for central sensitisation on a background of maladaptive nociceptive response. He said that the plaintiff’s presentation was further complicated by chronic right shoulder problems, that warranted investigation and treatment with an orthopaedic shoulder specialist.
65Dr Aliashkevich’s recommendations remained essentially as he had outlined in his first report, namely:
-an up-to-date standard and weight-bearing cervical spine MRI to visualise the anatomy of the nerve roots, intervertebral discs and facet joints,
-a cervical spine SPECT/CT to rule out abnormal uptake in the facet joints and costovertebral joints.
-a cervical spine flexion/extension x-rays to rule out instability,
-a right shoulder ultrasound,
-consultation with a neurosurgeon/spinal surgeon to analyse the results of the suggested investigations,
-depending on the results of the above investigations, consideration of further diagnostic/therapeutic interventional pain strategies (e.g. steroid injections) or surgery,
-ongoing treatment with a pain specialist,
-assessment by an orthopaedic shoulder specialist,
-assessment by a neuropsychologist,
-treatment with a psychologist or psychiatrist.
-clinical pilates, physiotherapy, hydrotherapy,
-exercise physiology,
-occupational therapy,
-myotherapy,
-cognitive behavioural therapy.[64]
[64]Exhibit P22, PCB 110.
66Dr Aliashkevich thought that the plaintiff’s prognosis was very guarded with several red flags and predictors of an unfavourable long-term outcome. These were, that the plaintiff had a failed response to previous conservative treatment, had obtained only incomplete relief after C6 nerve root injections and radio frequency denervation, had a post-traumatic stress disorder, and was involved in litigation. He expressed uncertainty if the plaintiff would achieve full functional recovery in the foreseeable future.
67Dr Aliashkevich wrote that from the neurosurgical perspective the plaintiff’s condition has remained largely unchanged. He considered it was plausible to assume that the plaintiff was continuing to suffer chronic pain from the transport accident.
68Dr Aliashkevich wrote that the plaintiff had related to him the following consequences:
ongoing limitations in domestic, social and recreational activities due to chronic pain. He lives on his own. His children (17 and 12 years old) visit once or twice weekly to help with household duties. Dinesh can cook, His children clean, mop and vacuum. Dinesh can take care of the light laundry. His workplace provides clean clothing. He can look after his hygiene. He goes shopping with his children. Dinesh has a lifting limit of 15 kg in his left hand. He has not tried carrying weight in his right hand. He is right-handed. He has no paid or funded domestic services.
Dinesh’s walking capacity is unrestricted. He can sit for 1 hour and he can stand for 30-40 minutes. He can drive for 30-40 minutes and then takes a break.[65]
[65]Exhibit P22, PCB 107.
69Dr Aliashkevich said the plaintiff told him that he had not returned to playing badminton, cricket or football.
70Dr Aliashkevich thought that the plaintiff had a current capacity for his employment as a responsible gaming advisor, but that the injuries sustained during the motor vehicle accident had reduced his capacity for strenuous or repetitive physical work or jobs requiring multitasking and high levels of concentration and responsibility.
Defendant’s medical reporting
Mr Michael Dooley, Orthopaedic Surgeon
71Mr Dooley provided two reports dated 8 February 2023 and 9 May 2023.[66] In the first of them, Mr Dooley reported that that the plaintiff gave an account of suffering from constant ongoing pain that affects his occiput, neck, right shoulder area and right upper limb. He recorded that the plaintiff takes Panadol, Codeine, Brufen, Endep and Diclofenac for his pain. He said that he ceased taking Lyrica because of its side-effects. He felt that he has lost confidence in general. He was undertaking yoga and meditating. He had been depressed. He was living by himself. He was walking regularly to stay active. He was no longer playing cricket and badminton. He used to play football with his children. At home he paced himself in domestic duties.
[66]Exhibit D1, DCB 23-26 and 27-28.
72Mr Dooley recorded that the plaintiff had suffered from headaches, and anxiety and depression prior to the motor vehicle accident.
73Mr Dooley reported tenderness along the dorsum of the plaintiff’s cervical spine. Flexion was to 40 degrees and extension to 30 degrees. Lateral flexion to the left and to the right was to 25 degrees. Rotation to the left and to the right was to 60 degrees. There was a mild reduction in power throughout the right upper limb. Reflexes and sensation were intact. There was a full range of motion of both shoulders, with some pain felt in the neck towards the extremes of movement.
74Radiological images had not been made available for viewing by Mr Dooley, but in documentation he had been supplied, he noted that CT scanning of the cervical spine from 8 December 2016 showed a small right paracentral disc bulge at the C4/5 level and a broad-based posterior annular disc bulge and posterior osteophytes, as well as uncovertebral osteophytes, noted at the C5/6 level with moderate right foraminal narrowing. MRI scanning of the cervical spine on 11 September 2017, reported degeneration at the C5/6 level with moderate foraminal narrowing on the right side.
75After noting the account of the transport accident, Mr Dooley considered that the plaintiff had sustained a soft tissue injury to the cervical spine region that had most likely involved some musculoligamentous strain, and some aggravation of underlying and naturally occurring degeneration at the C5/6 level.
76The plaintiff having described pain involving his right shoulder, right upper limb and right hand, Mr Dooley thought that it was likely that in the motor vehicle accident, with seatbelt activation, some subcutaneous and muscular bruising had occurred to the shoulder and chest wall region. He recounted that the natural history of a subcutaneous and muscular bruising type injury is one of steady improvement over time, with substantial recovery after a period of three months or thereabouts.
77Mr Dooley wrote that the plaintiff described constant ongoing neck pain and symptoms involving his right upper limb together with significant disability. Mr Dooley said that although the plaintiff had undergone standard conservative measures and had various nerve root injections, according to the plaintiff, none of them had provided him with lasting improvement. Mr Dooley’s clinical examination revealed moderate restriction of active range of motion of the plaintiff’s cervical spine.
78Mr Dooley found no evidence of objective neurological deficit affecting the right upper limb. Radiologically there was evidence of naturally occurring and age-related degeneration involving the disc and facet joint region. There was evidence of foraminal narrowing.
79Mr Dooley said that although he accepted that the plaintiff had suffered a soft tissue injury, in his opinion, the constancy and intensity of the plaintiff’s ongoing pain and his described disability were greater than one would expect for his organic condition. He believed that the plaintiff had experienced a psychological reaction to his situation, and that this reaction influenced his ongoing symptoms.
80Mr Dooley considered that from an orthopaedic point of view, the plaintiff should remain generally active, undertake regular low impact exercise and remain in stable employment. He saw no utility in further injections, and pain management treatment would not be of help. Surgical intervention was not warranted.
81Mr Dooley expected the plaintiff to note some intermittent neck pain and intermittent right upper limb pain, but he did not anticipate the plaintiff’s orthopaedic condition to deteriorate with time.
82In Mr Dooley’s opinion, the accident on 26 October 2016 materially contributed to the plaintiff’s condition and remained a materially contributing factor to his current condition. From a physical perspective, however, he regarded the plaintiff as capable of continuing in his current role.
83In Mr Dooley’s second report dated 27 May 2023,[67] he adopted his earlier opinion that the plaintiff had sustained a soft tissue injury to his cervical spine, but that the constancy and intensity of his ongoing pain as well as his described disability were greater than one would expect for his organic condition, and that the reason for his disproportionate pain was likely attributable to his psychological condition.
[67]Exhibit D1, DCB 27-28.
84Mr Dooley said that he had seen surveillance footage of the plaintiff and in his opinion, he thought that it recorded the plaintiff as capable of functioning well in a range of activities during his daily life, and capable of continuing in his current employment.
The plaintiff cross-examined
85The plaintiff said that prior to the transport accident and when he was working as Bell Captain with Crown, he oversaw a total of 100 staff whose jobs involved pushing trolleys of luggage. He said he would occasionally help out with pushing trolleys, but that following his injury, and after his return to work, he was no longer able to do so.[68] He said he had tried to lift a piece of baggage on one occasion but it was painful, and thereafter he stopped.[69]
[68]T9, L28-29.
[69]T10, L20-26.
86The plaintiff said he took up his current role as Responsible Gaming Advisor because it was a challenge, and that fact that it was accompanied by a pay rise was a bonus.[70]
[70]T11, L27-30.
87The plaintiff agreed with Mr Pinkstone that if it was required of him, he could park a car or lift baggage that weighed between 5 to 10 kg,[71] but he could not lift luggage weighing 20 kg.[72] In support of this he relied on his effort in lifting a piece of luggage about 3 to 4 months after returning to work and its consequences.[73]
[71]T14, L7-9, 18-21.
[72]T14, L22-24.
[73]T17, L5-8, 17-21.
88He said that on his travels to India, he carried a bag the weight of which he estimated to be only about 5 to 6 kgs.[74] He said he has a wardrobe of clothing available to him in India that reduces his need to pack anything of significance.
[74]T15, L4-6.
89The plaintiff was adamant that he travelled overseas for the purpose of seeing his parents, and not for recreation. However, he agreed that since the transport accident, he has travelled more frequently to India than before, having visited there two or three times a year since the accident as opposed to travelling on average once a year before the injury.[75]
[75]T18 L15-23.
90In November 2016, the plaintiff travelled to India for a period of two weeks. He said the purposes of the trip was to obtain free treatment, including physiotherapy, and hydrotherapy, which he said had he undertaken the same in Australia, would have required him to pay.[76]
[76]T19, L30 - T20 L8.
91Mr Pinkstone questioned the plaintiff about the extent of his recreational pursuits and hobbies. The plaintiff said it had proved necessary for him to give up his vegetable patch because of the consequences of his injury.[77]
[77]T21, L14-17.
92Mr Pinkstone questioned the plaintiff about his attendance on Dr Aliashkevich in August 2020. Mr Pinkstone asked the plaintiff whether Dr Aliashkevich’s account of pain and restriction that the plaintiff had related to him were true. The plaintiff expressed some initial hesitation in recalling the transaction with Dr Aliashkevich, but he agreed he must have said as much if it had been recorded by Dr Aliashkevich. Among a number of matters mentioned by Dr Aliashkevich was that the plaintiff’s pain was 5/10 on a good day, and that pain restricted the use of his right hand and shoulder and caused him difficulty elevating his right arm above his head.
93Mr Pinkstone next directed the plaintiff to that part of Mr Aliashkevich’s report where he recorded the plaintiff’s account of limitations in his domestic, social, and recreational activities. The plaintiff agreed that he told Dr Aliashkevich he was restricted in performing domestic activities because of pain, but he said that that he was referring to vacuuming and mopping, because his children came and assisted him with cooking and cleaning.
94Dr Aliashkevich recorded the plaintiff having said that he had a lifting limit of 5 to 10 kilograms in his left hand, and that he avoided using his right hand in which he could lift only about one to two kilograms.[78] On this, the plaintiff told Mr Pinkstone that his left hand is now very strong “because I try to write as much as I can write.”[79] Although, he said that the account attributed to him by Dr Aliashkevich was probably true at the date of the report.
[78] Exhibit P17, PCB 57.
[79]T24, L19-20.
95The plaintiff said that he does not believe that his condition has improved since he saw Dr Aliashkevich in August 2020, and that his neck pain is “always there, and shoulder pain”.[80]
[80]T24, L25-26.
96Mr Pinkstone questioned the plaintiff about matters Dr Aliashkevich attributed to him and stemming from his second attendance in March 2023. Included among the matters referred to by Dr Aliashkevich, was that the plaintiff said he suffered daily pain with an intensity of 5 or 6 out of 10. The plaintiff told Mr Pinkstone that this was probably the level of pain he was feeling on the day of the examination, but that he had told Dr Alieshvekich that he was in a significant amount of pain on a daily basis.
97Mr Pinkstone further questioned the plaintiff about his examination with Dr Aliashkevich, and that included the following exchange:
It makes my life very miserable if I do vacuum. Pain is so severe and then I have to two, three tablets of codeine which is not good for own body.
And then Mr Aliashkevich has recorded you told him – again this is March this year, you had not tried carrying weight in your right hand. Was that true? ---I avoid it. I avoid it as much as I can.
He got you to undress and you had some difficulty? ---With shirt, yes.
Some difficulty with your shirt and then he's recorded you telling him or displaying that you could not lift your right arm above your heard and your right elbow above your shoulder and again he took photographs?...
If you see the two photographs at the top there, they show you grimacing in pain, don't they? ---Yes.[81]
[81]T25, L 21 - T26, L11.
Video surveillance of the plaintiff taken 16 December 2022 of 20 minutes duration
98Surveillance was played by the defendant. The record of surveillance played was taken on 16 December 2022 and is 20 minutes in duration. The surveillance footage recorded the plaintiff throughout that day. Relevant to Mr Pinkstone’s cross-examination, the plaintiff was observed carrying two shopping bags in each hand and placing the same in his car and also attending at what appeared to be a factory where he consulted with at least one man. He was then captured using an extension ladder.
99The plaintiff was asked by Mr Pinkstone if he could recall the contents of two plastic shopping bags he is observed holding in surveillance footage, which Mr Pinkstone suggested appeared to be heavy. The plaintiff disputed that the contents were heavy, but instead that they contained his fruit and vegetable shopping for the week. He estimated the contents of each bag to weigh about 5 or 6 kilos.
100In the course of the surveillance, the plaintiff is observed walking to his vehicle and placing one of the shopping bags in his car with the use of his right hand and arm, and then placing the second bag in the vehicle with his left. Although understandably the plaintiff could not recall the specific day he is filmed, he said that he always tries to use his left hand for heavier lifting and to limit lifting with his right to 4, 5 or 6 kgs.
101The plaintiff agreed with Mr Pinkstone that the surveillance depicts him demonstrating a full use of his neck, and of looking up and looking down as well as sideways and without any outward display of pain. The plaintiff said that he has always been able to “extend in front full but in the sideways, yes, I had an issue”.[82]
[82]T30, L3-4.
102The plaintiff agreed with Mr Pinkstone that he is also observed in the course of surveillance performing movements with his right arm, and unaccompanied by evident signs of pain or restriction.
103Later in the surveillance footage, the plaintiff is observed lifting an extension ladder with both hands, placing it on to his right shoulder and carrying it. To Mr Pinkstone’s suggestion, that the ladder’s weight would likely be in the order of 10 to 15 kgs, the plaintiff disagreed, and he estimated it at between about 5 to 10 kgs, but he accepted that he did not appear to have exhibited any pain or discomfort in the course of lifting it onto his right shoulder.
104The plaintiff identified the surveillance was of him in the course of attending a factory to install CCTV cameras.
105The plaintiff explained that he would use one of his 4 rostered days off from Crown to perform installation work, such as that depicted in the surveillance. He was challenged by Mr Pinkstone about his prior evidence that he required all 4 of his rostered days off to recover from the demands that his work placed on him. The plaintiff then volunteered that rather than 4 rostered days off, “Some times we got five days off”.[83]
[83]T32, L21.
106Mr Pinkstone put to the plaintiff that the installation of CCTV cameras required that he regularly pull out, and extend, and climb up ladders to install equipment. The plaintiff said that “It depends on the height. I do it.”[84] The plaintiff agreed that he uses “ladders quite regularly in this business”.[85]
[84]T32, L27 - 28.
[85]T32, L29 - 30.
107The plaintiff accepted that installation work he carried out requires the use of tools, including drills in order to affix cameras to structures.
108More generally of the nature of the business the plaintiff conducts, he said:
I do a lot of different business. I do computer stuff, I do bookkeeping for someone, I pay the BAS statement for some guys, if they have - if someone has got a computer issue, I do those ones, too.[86]
[86]T33, L13 - 6.
109The plaintiff denied Mr Pinkstone’s suggestion that he had deliberately misled Mr Aliashkevich, by exaggerating the extent of his pain and limitations and his level of disability.
110The plaintiff maintained that despite the surveillance, and his evidence of the ordinary activities and exertion required in the installation work performed by him, it would be very difficult to maintain a vegetable patch because he did not think he could till the soil and remove weeds by hand.
111Mr Pinkstone questioned the plaintiff about cricket. The plaintiff’s evidence was confusing. Initially in answer to Mr Pinkstone, he said that he had tried to play cricket since the accident, but that it was painful. Thereafter, his evidence was that he had not tried to play cricket at all since the accident. He said he took medical advice about playing, but it became apparent that the medical advice was from his father who apparently told him to avoid cricket.[87] As to badminton, the plaintiff said that he has avoided attempting to play a game since the accident because “I’m worried about my pain,” by which he explained he was concerned he might experience pain such as he said he suffered when he had once tried to move luggage at work after his injury that required three days from which to recover.[88]
[87] T38, L1 - 16.
[88] T38, L24 - T39, L30.
112The plaintiff said he had not taken up one of Mr Aliashkevich’s recommendations and consulted an orthopaedic surgeon because he could not afford to do so. Mr Pinkstone challenged the plaintiff’s explanation given his ability to fund repeated trips to India. The plaintiff said the costs of the tickets varied depending on the season of travel.[89]
[89] T41, L9 – 21.
113The plaintiff further sought to meet the criticism for not having adopted Mr Aliashkevich’s recommendation when he said:
…when I go to India I got everything free. My medical is free. My physio is free. My hydrotherapy is free. You name it, everything is free over there. Because my father is a doctor, he's got links everywhere. I go to the hospital next door and they do the physio within five minutes, I don't have to wait anymore… And the weather. Weather is much better.[90]
[90] T41, L25 – T42, L3.
114Despite Mr Aliashkevich’s recommendation that he consult an orthopaedic surgeon and the plaintiff’s evidence that his father has links everywhere but that he had not seen an orthopaedic surgeon, he then added, “No, I go this time probably I do it”.[91]
[91]T42, L3 – 8.
115Mr Pinkstone challenged the plaintiff’s veracity regarding the suite of medications he deposed to taking by reference to the prescription history, as well as by reference to the plaintiff’s affidavit. Mr Pinkstone contended that, based on the prescription history from the plaintiff’s GP, the plaintiff’s affidavit evidence could not be reconciled otherwise than by adopting as true, his oral evidence that he returns from his trips to India with a bag full of medicine and:
I bring painkillers, I bring Panadeine, I bring Panadeine Forte, I bring Brufen, paracetamol, diclofenac potassium…[92]
[92]T57, L9 – 11.
116The plaintiff also testified that among the medications he brings back into Australia is Lyrica.[93] When asked if the medicines he brings back from India are pursuant to a prescription, the plaintiff said, “My father used to write on a piece of paper… Yes, his own letterhead”.[94] There was no evidence to support this claim. The plaintiff said of the quantities of medicines he will bring back into Australia, it is enough for “at least six month to eight month.”[95]
[93] T57, L23-24.
[94] T57, L12-16.
[95] T58, L6-7.
Defendant’s submissions
117The defendant accepts that the plaintiff suffered an organic injury as a result of the transport accident, with Mr Pinkstone submitting that it is best described by Mr Dooley as a soft tissue neck injury, with there being no radiological evidence that accounts for the extent of pain relied on by the plaintiff. Furthermore, the defendant does not dispute the existence of some ongoing pain and stiffness symptoms experienced by the plaintiff from time-to-time based on Mr Dooley’s opinion, but it submitted that the effects of the injury if not fully resolved has very substantially done so.[96]
[96]T75, L6-14.
118Mr Pinkstone contended that the plaintiff was an evasive and unreliable historian.[97]
[97] T75, L1-5.
119In relation to the recreational pursuits and interests on which the plaintiff placed emphasis, the defendant submitted that there is no reason why the plaintiff would not have endeavoured to reacquaint himself in any manner or form with them,[98] and, moreover, the plaintiff’s evidence that he could not keep a vegetable patch should be rejected.[99]
[98] T76, L14-T76, L23.
[99] T88, L5-12.
120Mr Pinkstone submitted that relevant to a consideration of the seriousness of injury is the lack of any pecuniary disadvantage, and he emphasised the plaintiff’s concession that his earnings have increased.[100]
[100] T79, L20-T80, L10.
121Mr Pinkstone referred to the opinion provided by Mr Xenos dated 1 February 2019, on referral from Dr Saghir. Mr Xenos early on suggested the plaintiff’s problem was muscular in nature and he excluded any radiological explanation for the neurological presentation.[101] Mr Xenos wrote:
…His biggest complaint is one of right anterior chest wall pain of an intermittent nature which sounds muscular. Analgesics do help. He also has associated right-sided neck and shoulder pain.
Importantly from my perspective though he has no shooting pain down the right arm. I don't think he's ever had that. Rather, he recalls from very early on he's had numbness down the medial aspect of the arm and forearm to his medial two digits. He's had some difficulty typing. He doesn't feel that this numbness has improved. Also importantly he has no symptoms in his left arm nor any problems with his legs or mobility.
On assessment he is an anxious fellow, he has a good range of movement of his neck, with some non-specific tenderness in the muscle area of the right anterior chest wall and neck area. However upper limb examination demonstrated no true proximal or distal weakness, his reflexes were all present, with the only abnormality being reduced light touch to the medial aspect of the two digits of his right hand and medial forearm, consistent with a C8 dermatome distribution.
[101] T90, L15-19.
The only imaging I have is your most recent CT from December 2016. Interestingly enough that shows degenerative changes at C5-6 with a minor bulge and some overspill on the righthand side. This is a pre-existing long standing problem since it is more than three months of age, but there is no cord compression and no huge disc prolapse at any level. Importantly at the C7/Tl level, there does not seem to be any compressive lesion that I can see to account for his C8 dermatome problem. Thus you can see why The Alfred MRI scan would be important as to whether it showed any problem at the C7/Tl level to correlate with his dermatome distribution of numbness.
From my perspective, I don't think there is any danger, there is nothing to operate on, and he's fortunate that he doesn't have gross weakness or radicular pain down his right arm.
With regards to his neck and chest wall pain, a lot of it is going to be muscular and that needs to be managed conservatively, with therapies including heat, massage and acupuncture, physio, hydro and pilates. A regular walking program is important, and sooner or later he probably should consider making an effort to get back to work.
From a prognosis point of view, the radiology I’ve detailed for you above does not explain his neurological presentation. However his presentation is more sensory than anything else, and there is still a possibility of further improvement over the next few months if this is a neuropraxia alone to explain his upper limb sensory disturbance. However the neck and anterior chest wall discomfort may purely be muscular in nature. I'm assuming that his plain x-rays of his clavicle and shoulder have not demonstrated any abnormality.
As a last resort in the coming months if you feel that these symptoms are not improving, a repeat MRI scan would be indicated just to make sure we're not missing any new pathology at the lower cervical spine.[102]
[102] Exhibit P3, PCB 25-26.
122Mr Pinkstone also referred to the reporting by Dr Weekes, pain specialist to Dr Saghir.
123Mr Pinkstone referred to the plaintiff having undergone a right C6 nerve block injection in October 2017 and to Professor Bittar, who saw no surgical necessity and noted the absence of any radiological evidence accounting for the plaintiff’s expressed pain and restriction.[103]
[103] T80, L20-31.
124Mr Pinkstone referred to Associate Professor Love, Orthopaedic Surgeon, who in a joint report said that:
Mr Anand must be considered to have suffered a musculoligamentous soft tissue injury of the cervical spine with possible aggravation of age related changes at the C5/6 level.
There is no clinical, radiology or nerve conduction study that supports a significant nerve root lesion.
His response to an injection suggests that if a nerve root lesion existed, it has largely resolved.[104]
[104]Exhibit P19, PCB 89.
125Mr Pinkstone pointed out that Associate Professor Love's examination took place two and a half years after the plaintiff had last seen Dr Weekes.
126Mr Pinkstone submitted that in summary and putting to one side the matter of the surveillance, the plaintiff has received no treatment for five years, is working full time hours over four 12-hour shifts, is capable of driving an hour or thereabouts each way to work of a day and when he chooses not to drive he takes the train for approximately the same amount of travel time. He presents with a full range of motion to the right shoulder and neck. He is conducting a business as an adjunct to his employment with Crown in order to earn additional income and which business involves the performance of certain physical activities that are relevant to an assessment of the plaintiff’s retained capacity.
127Mr Pinkstone referred to Sumbul v Melbourne All Toya Wreckers Pty Ltd[105] and which, at paragraph 24 the Court of Appeal said:
…If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are “at least very considerable.” …
[105] [2006] VSCA 292 (‘Sumbul’).
Plaintiff’s Submissions
128Mr Valiotis submitted that the plaintiff was a witness of credit and is a stoic who, after a period of months off work following injury, returned to work and has continued to work since, and that he should not be adjudged harshly for his grit and determination.[106] Mr Valiotis pointed out that for a period of 2 years following the transport accident, the TAC funded the plaintiff’s physiotherapy. When TAC funding for it stopped, the plaintiff paid for it himself although only for a limited number of sessions, because it provided him with temporary and not long lasting relief. His medical interventions, however, have included a CT guided nerve block injection and a radio-frequency denervation. He has also undertaken significant conservative treatment for years.[107]
[106] T92, L29-T94, L20.
[107] T94, L21-T95, L3.
129Mr Valiotis submitted that the surveillance footage was of such limited duration and revealing of so little activity being undertaken by the plaintiff, that it has scant probative worth.
130Mr Valiotis relied on the very limited revealed receipt of income from the plaintiff’s business, such as would indicate that he is undertaking this supplementary work only infrequently. In support of this submission, Mr Valiotis identified only four invoices along with the plaintiff’s taxation returns for 2021 and 2022, that revealed in the order of $6,000 gross income over 2 years. Mr Valiotis also pointed out that the plaintiff had not disguised the business but had deposed to it in his affidavit evidence.[108]
[108] T96, L11-T97, L27,
131Mr Valiotis addressed the defendant’s submission that the plaintiff had not attempted to return to his previous sporting and recreational pursuits. Mr Valiotis relied on the plaintiff having a dysfunctional cervical spine, and on the plaintiff’s evidence that on one occasion post-injury, he lifted a bag out of a car that caused him that much difficulty that he went home and was away from work for three days. Mr Valiotis argued that given this, it would be ludicrous to suggest that he should have tried his hand at a return to badminton or to bowling a cricket ball.[109]
[109] T98, L22-T99, L13.
132Mr Valiotis addressed the extent of the plaintiff’s prescribed medication. He referred to a summary tendered by the defendant[110]. He submitted that although Lyrica is identified as having been prescribed, there is no means of knowing when it was last prescribed. Mr Valiotis submitted that it appeared that five repeats had been given initially and for a quantity of 56 tablets per script, and this equated to 280 tablets of Lyrica from 2018 with no final known date of prescribing.[111]
[110] Exhibit D3.
[111] T100, L7-15.
133Mr Valiotis, however, accepted that Lyrica is not identified as prescribed by Dr Saghir in his most recent report, but Dr Saghir identified medications such as Celebrex, Panadeine Forte, Tramadol, Mobic, Lyrica past prescribed and with the plaintiff’s present medications consisting of Panamax, Circadin and Tramadol.[112]
[112] T100, L16-29.
134Mr Valiotis submitted that the plaintiff’s evidence was that he brought back a bag of medication from India and Mr Valiotis submitted, “That's not unusual”,[113] and that the plaintiff said that he declares these drugs on return to Australia with the contents of his bag sometimes examined by customs, and sometimes not.[114]
[113]T101, L7. See also Exhibit D3, which records the last prescription of tramadol was on 22 November 2022 with no repeats.
[114] T101, L9-13.
135Mr Valiotis sought to meet the criticism levelled by the defendant that the plaintiff has not sought specialist consultations, by reason that the medical opinions are to the effect that there is nothing more to be done for the plaintiff by way of intervention or treatment. Mr Valiotis referred in particular to the opinion of Associate Professor Love, who performed an impairment assessment in 2020 and reported the plaintiff’s symptoms and recourse to medication in these terms:
His current symptoms are principally those of pain in the right shoulder and from the right side of the neck with diminished sensation in the right hand. These symptoms deteriorate in the colder months.
He states that he is infrequently using medicines and stated that at today’s consultation he has not taken any medicine, but one day ago used Brufen. In the past he has used Diclofenac, Palexia, Lyrica, Panadol and Panadeine Forte.[115]
[115]Exhibit P19, PCB 88.
136Mr Valiotis also highlighted Associate Professor Love’s opinion that, “further treatment is not likely to make any meaningful difference in that he has trialled a variety of treatments over the period of time that has passed since the accident of October 2016,” and “his prognosis is such that the current situation is likely to continue indefinitely.”[116]
[116]Exhibit P19, PCB 93.
137In short, Mr Valiotis submitted that the plaintiff’s condition has stabilised.
138Finally, in the course of his final address, Mr Valiotis read a good deal from the many reports tendered in the proceeding, but their recitation are not required in order to explain my reasoning to findings.
Analysis and Findings
139I make the following findings.
140The plaintiff suffered injury in a transport accident on 26 October 2016. I am satisfied the injury is best described as musculoligamentous soft tissue injury of the cervical spine with some minor aggravation of age related degeneration.
141The plaintiff was absent from his employment, due to the injury sustained in the transport accident for about 6 months.
142The plaintiff retuned to light duties with his employer, and then ultimately transitioned into a new role with his employer, and it is a role in which he continues to be employed.
143The plaintiff has a proved capacity to work. He works with Crown doing 12 hour shifts over the course of a 4 day roster. For a time, and before moving into the position he now occupies, the plaintiff described the work he did as light duties. However, that is something of a misnomer because, as far as the evidence disclosed, the only duty the plaintiff was not performing as Bell Captain but that he had performed on occasions before the transport accident was in assisting other bell boys and valets whom he supervised to take luggage from a car and place it on a trolley and push the luggage trolley. The plaintiff said he could no longer do this, and his evidence was that he tried once, and he was required to go home because of an aggravation of pain.
144The plaintiff took up his new position with Crown as a Responsible Gaming Advisor in about June 2018.
145The plaintiff has not been financially disadvantaged as a result of the transport accident. Moreover, the plaintiff sought out the present position he occupies of Responsible Gaming Advisor. It is a position that has come with an appreciable increase in income, and it is a role which he is able to perform. Furthermore, and despite the transport injury, the plaintiff operates a second business of his own from which he earns a supplementary income.
146The plaintiff said that he could not return to his previous job of Bell Captain at Crown. Although he could park a guest’s car if required, and he could manage taking out luggage that weighed 5 to 10 kgs from a vehicle and place it on a trolley, he could not risk attempting to lift luggage out of a boot that weighed 20 kgs.[117] However, the plaintiff worked on as a Bell Captain for a further 8 months or so following on from the single incident of lifting a piece of luggage that he described had aggravated his pain. The plaintiff worked in this position and allocated the valets and bell boys to attend to customer luggage.[118] The contention therefore, that as a consequence of the transport accident, the plaintiff would have an inability if required, to return to this position is unsustainable.
[117] T14, L12-31.
[118] T16, L15-T17, L22.
147The plaintiff gave evidence that his working conditions as a Responsible Gaming Advisor includes four days off between shifts, and he said that he needs the four days off in order to rest and recover. But this is not invariably the case, because the evidence from the surveillance footage is of the plaintiff working on a rostered day off and engaging in physical activities in the performance of his separate business. I do not accept the plaintiff’s explanation that sometimes he was provided five rostered days off as opposed to four. In my view, this was an attempt by the plaintiff to give convenient evidence, and he only offered up the account of a fifth rostered day off after the surveillance was played and he was cross-examined on the point.
148Having regard to the surveillance footage, I have considered of course that it is of short duration and taken in the course of a single day. Fairness militates against the making of a comprehensive finding about all of the plaintiff’s claimed pain and suffering effects of the transport accident or of his credibility based on a single piece of footage. That, however, is a different proposition than whether the surveillance, if considered as a part of the whole of the evidence, may shed either a corroborative or contrary light on a particular state of affairs.
149I have also considered what if any effect the income derived by the plaintiff from his business in the two years, for which figures were produced, has on his account of the extent of ongoing consequences of the transport accident. The income he derived from the business over the period identified is not substantial. However, logically there is a limit on what income the plaintiff would be able to earn from his business, because after all, he has employment with Crown as a Responsible Gaming Advisor in which he is engaged in significant hours over the course of a roster. I have also considered the extent to which the activities in which the plaintiff is observed in the surveillance footage is representative of the type of work in which he is engaged in his business, together with its physicality. There was no attempt in the evidence to apportion the type of work performed in his business, although the plaintiff’s evidence that I set out earlier in these reasons was that:
I do a lot of different business. I do computer stuff, I do bookkeeping for someone, I pay the BAS statement for some guys, if they have - if someone has got a computer issue, I do those ones, too.[119]
[119]T33, L13-16.
150Added to this description of other business activities, the plaintiff, however, agreed with Mr Pinkstone, that the installation work he performs require the use of his hands to work with drills, and as well as the use of ladders to climb and to reach.
151I am satisfied the surveillance provides some corroborative evidence consistent with my overall findings of the level of the plaintiff’s pain and suffering.
152It is by no means a novel occurrence that in the course of the hearing of a serious injury application, diametrically opposed addresses are made regarding a plaintiff’s credibility. This is another such case. Mr Pinkstone submitted that the plaintiff has been proved to lack credibility, whereas Mr Valiotis would have me regard the plaintiff’s credibility as impeccable and the plaintiff, a stoical man. The reality is that the plaintiff’s credibility was challenged by Mr Pinkstone in a number of important respects and, contrary to Mr Valotis’s submission that the plaintiff’s credit should be looked upon favourably, in my opinion, on some matters, I am satisfied that the plaintiff did not give frank answers. I am satisfied that the plaintiff dissembled on occasion, of which the following are examples.
153First, I am not satisfied that the plaintiff’s accounts of pain and restriction he provided to Dr Aliashkevich were accurate or that his account of the pain medications he takes and their frequency of use is corroborated by objective evidence. On the first examination, the plaintiff said that his pain intensity was 5 out of 10 on a good day; that he had “pain relating to restriction in his right hand and shoulder movements with difficulty elevating his right arm above his head”. When the plaintiff was examined by Dr Aliashkevich in March 2023, he recorded the plaintiff’s daily pain intensity was 6 out of 10, and the plaintiff could not lift his right arm above his head and his right elbow above his shoulder. He took photographs that depict the plaintiff grimacing with pain, and this was despite Dr Aliashkevich recording that the plaintiff said he had taken two tablets of Brufen and one of paracetamol before his attendance. The display and account of restriction is inconsistent with the depictions in surveillance, and the plaintiff’s capacity for work, and earning supplemental income.
154Second, I do not accept the plaintiff’s attempt to correlate the day of surveillance with a possible fifth rostered day off.
155I do not accept the plaintiff’s evidence of bringing drugs home with him from India and that he said involved him either bringing a suitcase[120] or a bag[121] of medication from India to Australia. This evidence was only offered up by the plaintiff in the course of cross-examination, as opposed to having deposed to it in either affidavit. I do not accept as a valid response the submission made by Mr Valiotis that one should not demand perfection in a serious injury application. It is not a question of a demand for perfection, as opposed to it constituting an unexplained omission to mention in either affidavit a matter of considerable importance, which is the extent of the plaintiff’s need for, and use of, medications in light of the limited and confused record of ongoing prescribed medicines by his treating general practitioner. The plaintiff testified that he brings back painkillers, “I bring Panadeine, I bring Panadeine Forte, I bring Brufen, paracetamol, diclofenac potassium,”[122] as well as Lyrica.[123] Despite, having testified that he stopped taking Lyrica because of its adverse effects on him, the plaintiff’s evidence was that he brings back enough medicine for at least six months to eight months.[124] I find his account that he stopped taking Lyrica, but his further evidence that he will still sometimes take it for nerve pain, to be unconvincing. There is for Lyrica a historical prescribing of it by Dr Saghir and of 5 repeats each of 56 tablets, but it is not a medicine that Dr Saghir deposed to the plaintiff currently taking. I do not accept the plaintiff’s evidence that Lyrica is a medicine that is either sent to him by post from his father, or that he brings back from India. The letter from his father dated 2 September 2022 does not refer to it.
[120] T54, L24- 28.
[121] T56, L4-18.
[122] T57, L9-11.
[123] T57, L23-24.
[124] T58, L5-9.
156The plaintiff’s evidence at paragraph 21 of his first affidavit was that he only attends his GP when he needs a script.[125] The plaintiff said that “Sometimes when the medication lower or finished then I go to my local GP and then he write it out. Most of time I got enough medication that last long time.”[126] However, there was a period of approximately 2 years during which Covid 19 restricted the plaintiff from travelling to India, and yet his GP prescribed only 3 scripts for Panamax during this period.
[125] Exhibit P1, PCB 6.
[126] T59, L16-18.
157I do not accept the plaintiff’s explanation that he “brought down plenty of medication after – when the Covid started my father gave me a lot because he told me that it may – who knows how long it's going to be stuck because I was evacuated by Department of Foreign Affairs. It was not a normal flight at that time so he gave me enough medication to last a long period of time.”[127] I reject the plaintiff’s evidence because the entire transaction of flying into Australia with bags of medicines is unnecessary, in light of the plaintiff’s other evidence that his father mailed him medicine. I also reject the plaintiff’s evidence that the medicines mailed to him by his father were not in great quantities, thereby necessitating the plaintiff’s own transporting of medicines from India.
[127] T60, L17-23.
158The plaintiff’s recourse to financial constraints, and that medicines and treatments can be obtained at no cost to him in India because of contacts his father has, also rings hollow. As far as treatment the plaintiff seems to have had in India is concerned, it did not extend beyond physiotherapy, chiropractic and hydrotherapy, and therefore is no different from what he had obtained in Australia.
159I regard the use the plaintiff endeavoured to make of a handwritten report under the hand of Dr M.P. Anand dated 2 September 2022, as unsatisfactory.[128] The letter does not recite if Dr Anand has been treating the plaintiff or arranging any of the therapeutic treatments which the plaintiff testified he obtained in India through his father’s connections, but in particular, it is silent that he posted drugs to his son in Australia. The letter or report is also not accurate in asserting that prior to the transport accident, the plaintiff had no need to take any medication.
[128] Exhibit P20, PCB 95.
160I am satisfied that the plaintiff’s evidence of medicines being mailed from India, and of him flying into Australia with a bag or bags or medications was an attempt to explain away the limited prescribed medications for pain relief, that is disclosed by his prescription history from Dr Saghir.
161I do, however, accept Mr Valiotis’s submission that the plaintiff’s lack of recourse to specialist treatment for a number of years is because he has reached optimum improvement, and that his condition has stabilised, with surgical intervention being unwarranted, and there being nothing further that can be done for the plaintiff. However, I reject that this state of affairs equates to seriousness. The lack of recourse to specialist treatment and reliance instead on chiropractic, physiotherapy, or hydrotherapy whether in Australia or in India, and the limited or reliably discernible record of pain relieving medications prescribed or that was otherwise testified to, satisfies me that pain and restriction is not of the constancy, or intensity that the plaintiff would have the Court accept, and is in fact, much less.
162On the balance of probabilities, I accept that the plaintiff continues to experience modest pain, that I am satisfied is caused by the ongoing effects of the transport accident.
163There is no evidence that the plaintiff’s pain requires him to take sick leave or to leave work early of a day because of it, save for the one occasion some years ago.
164It is of course necessary to assess both the experience of pain, and the disabling consequences. I have of course given consideration in my deliberations to a recognition that the pain consequences of an injury can affect a broad range of activities guidance for which has been provided in Haden Engineering Pty Ltd v McKinnon[129] as that as well in considering whether the narrative test has been met, the authorities require a comparison of what the plaintiff has retained, as shedding light on what has been lost.
[129] (2010) 31 VR1, [16].
165While the plaintiff said the pain affects his sleep, he also correlated the same difficulty often enough with the mix of day and night shift work he undertakes. The interference with sleep was not a matter that was elevated to particular importance.
166I have considered the effect of the reliance on the loss of the ability to play cricket, or badminton, or keep a vegetable patch. I do not accept that the plaintiff could not tend to and maintain a vegetable patch. I do not know the extent to which the plaintiff’s ongoing avoidance of attempting cricket, or badminton, are organically based, as opposed to rooted in some apprehension by him of pain. However, overall, I accept that there is a reasonable basis to conclude that the avoidance of bowling, or batting as part of an organised game of cricket and or, participating in a sustained and vigorous game of badminton, would be contradictory to his cervical pain.
167I am not satisfied that, for example, the plaintiff can be said to “suffer a continuous substantial level of pain.”[130] Certainly, my assessment is that pain cannot be said to dominate the plaintiff’s life, and the fact is, that he has been able to continue in full time employment not in a modified, or alternative position, but at a job he pursued and secured with Crown. The previous modified job at Crown was one that he was able to very substantially perform the suite of duties required of it.
[130] Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, [48].
168I have considered that the authority of Sumbul,[131] and later cases, do not exclude that in the event of a return to full-time alternative employment, that impairment consequences cannot in a proper case be characterised as “at least very considerable.”
[131] [2006] VSCA 292.
169The plaintiff has retained the ability to continue in full time employment. He has been able to establish and operate a separate business. He is self-reliant and able to attend to all aspect of his personal care. His performance of household duties is manageable. He can drive and travel on public transport and he can shop for himself. Medication for pain relief is warranted from time to time. There is no reason to think that hiking, which he said he used to enjoy, has been lost as opposed to being reduced in character.
170Considered overall, even if there are impairment consequences and pain consequences for the plaintiff that could be described as marked or significant, I am unable to accept that the pain and suffering consequences could be said to dominate his life or be at a level where his experience of pain and the impairment consequences of his condition, within the range of possible impairments, can be fairly described as very considerable.
171For the above reasons, and having considered all the evidence and the submissions, the plaintiff’s application for a certificate is refused.
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