Aydin v Rodgers
[2012] VCC 126
•23 March 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-09-00703
| HALIL AYDIN | Plaintiff |
| v | |
| ANTHONY RODGERS and TRANSPORT ACCIDENT COMMISSION | First-named Defendant Second-named Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25, 26 and 27 May 2011 | |
DATE OF JUDGMENT: | 23 March 2012 | |
CASE MAY BE CITED AS: | Aydin v Rodgers & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 126 | |
REASONS FOR JUDGMENT
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Catchwords: TRANSPORT ACCIDENT – Damages – Serious injury, right shoulder injury – nature and extent of such injury, whether such injury is “serious” – Legislation cited – Transport Accident Act 1986, s.93 – serious injury – paragraph (a).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie SC (up to end of 25 May 2011) with Mr P G A Montgomery | Victorian Compensation Lawyers Pty Ltd |
| For the Defendants | Mr P B Jens with Mr S D Martin | Solicitor for the Transport Accident Commission |
HIS HONOUR:
Introduction
1 By way of Originating Motion issued on 25 February 2009, Halil Aydin (“the plaintiff”), seeks leave pursuant to s.93(4)(d) of the Transport Accident Act 1986, (as amended) (“the Act”), to bring common law proceedings to recover damages for a right shoulder injury (“the injury”)[1] suffered by him arising out of a transport accident on 16 November 2001 (“the transport accident”).
[1]Initially, the application proceeded on the basis that the plaintiff relied on injuries to his low back, right shoulder and psychiatric injuries. However, during the course of the proceeding, counsel for the plaintiff advised the Court that leave was only sought in relation to the right shoulder injury (see T136 L5-T137 L2)
2 The plaintiff, Emine Aydin (the wife of the plaintiff) and Muzeyyen Karasakal (the sister of the plaintiff) all gave evidence and were cross-examined. Both parties tendered various material.[2]
[2]See Annexure A
Relevant Legal Principles
3 The Court must not give leave unless it is satisfied on the balance of probabilities that the injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s.93(17) of the Act.[3]
[3]See s.93(6) of the Act
4 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s.93(17) of the Act which reads:
“In this section –
…
serious injury means –
(a)serious long-term impairment or loss of a body function; or
(b)…
(c)…
(d)…”
5 The part of a body said to be impaired for the purposes of paragraph (a) is the right shoulder.[4]
[4]See T 2, L 17-18
6 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)the injury suffered by him was a result of the transport accident;
(b)the requirements of the test set out in the seminal decision of Humphries v Poljak,[5] wherein a majority of the then Full Court stated:
“Subs(17) intends a division between injuries with physical consequences and those with mental consequences. The former fall under para (a) and the latter under para (c). It would be anomalous to regard the consequences of mental disturbance or disorder to fall under para (a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of para (c). A ‘functional overlay’ will, we consider, rarely amount to a behavioural disturbance or disorder as that term is used in the legislation.
Now, in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, we think that the task of a judge confronted with the requirement to determine an application made pursuant to subs(4)(d) when reliance is placed upon subs(17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. 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’?”[6]
(c)“Serious injury”, as defined in sub-paragraph (a), can have its seriousness measured in part by a mental response to a physical impairment – however the mental disorder cannot itself constitute or be the producer of the impairment of a body function.[7]
[5][1992] 2 VR 129
[6]See Humphries v Poljak at p.140; see also Mobilio v Balliotis [1998] 3 VR 833
[7]See Richards v Wylie (2000) 1 VR 79
7 The plaintiff alleges that he has suffered “pain and suffering consequences” in respect to his right shoulder which satisfy the requisite test.
The Issues
8 Mr Jens, leading counsel for the defendants, informed the Court that issues arose as to whether or not the transport accident resulted in a right shoulder injury and if so, whether such injury was a “serious injury” within the meaning of the requisite test.
The Evidence of the Plaintiff
9 Senior counsel for the plaintiff sought that an interpreter be sworn and that evidence be given through an interpreter as on his instructions, the plaintiff had “limited English”.
10 The plaintiff gave limited viva voce evidence in chief wherein he described that the transport accident involved his vehicle being struck from behind causing him to move “upwards from the seat” and hitting “the ceiling of the car”. Furthermore, the plaintiff went “forwards and backwards like shuffled” in the car. The plaintiff was wearing a seatbelt.[8]
[8]See generally T22, L3 – 22
11 The plaintiff also gave evidence that he understands English “a little bit” notwithstanding that he arrived in Australia in 1970 and has been in this country for over forty years.
12 The plaintiff adopted his affidavits sworn 8 May 2008 (“the first affidavit”)[9] and on 13 April 2011 (“the second affidavit”)[10] as “true and correct”.[11]
[9]See Exhibit 1 at page 4 PCB
[10]See Exhibit 1 at page 11 PCB
[11]See T22, L2
13 By way of the first affidavit, the plaintiff gave the following evidence:
· He is a fifty-four-year-old (born 10 February 1958) man who was born in Turkey and migrated to Australia with his family in 1970.
· His first marriage ended in divorce in about 1999 and from that relationship he has three adult children. He has subsequently remarried and lives with his wife and his elderly parents in Oak Park.
· He completed Form Three at a technical school in Victoria, after which most of his working life was spent “performing labouring type duties and working in a timber yard for some years”.
· When working at Hilton Hosiery in “approximately 1982/3” he had an accident causing injury to his head (with headaches) and to his back. He believes that he received workers’ compensation weekly payments for about four years after which he has been in receipt of a Centrelink Disability Support Pension.
· He was also involved in a motor vehicle accident in 1983 or 1984 which caused injury to his neck, head, back and right ear. In so far as he can “recall” he did not receive any lump sum compensation for the car accident or his work injury.
· On 16 November 2001 he was driving his motor vehicle when he stopped to give way to cars, when another motor vehicle collided with the rear of his car.
· He describes the onset of his injuries in the following terms:
“As a result of the transport accident, I suffer pain, stiffness and limitation of movement in my right shoulder and arm, low back and neck. A few days after the accident I became aware of pain in my right foot and in particular the big toe. Following the accident and on the day of the accident I believe that I initially attended Dr Minas of the Hillcrest Health Centre, Broadmeadows. He treated me with painkilling medication and arranged for me to have an X-ray of my neck. He also recommended that I have physiotherapy and I saw him on a number of occasions in November and December 2001 and he continued to prescribe the painkilling and anti-inflammatory medication. On 26 November 2001 I also attended Dr David Rosner of the Glenroy Family Practice, Pascoe Vale Road, Glenroy. I believe I saw him on one or two occasions.”[12]
[12]See paragraph 3 of the first affidavit contained in Exhibit 1 at pages 5-6 of PCB.
· He subsequently attended Dr Helen Kouzmin who became his main treating medical practitioner. Dr Kouzmin treated him with rest, pain killing medication, anti-inflammatories and instructed him to perform certain exercises at home. Dr Kouzmin also arranged for him to undergo an MRI scan of his spine and right shoulder on 4 May 2002 and a further MRI scan of the spine and right shoulder on 18 August 2006. Dr Kouzmin also arranged for him to have cortisone injections in his right shoulder and lower back and referred him to the rheumatologist Dr Stockman, who he initially saw on 2 September 2002 and thereafter on three or four occasions until July 2005.
· Dr Stockman “monitored” his condition and recommended that he continue with “non-operative treatment”.
· Despite treatment, his condition did not improve and by 2005 he was taking up to sixteen to eighteen tablets of Panadeine Forte a day, 200-300 milligrams of Tramal a day together with Mobic and Amitriptyline.
· After the retirement of Dr Kouzmin, her colleague at the Rathdowne Clinic, Carlton, Dr Robert Peers, continued his treatment and he generally see Dr Peers or his colleague, Dr Radopoulos at least once a month.
· Cortisone injections do not provide him with any long-term benefit and he continues to wear a supporting belt on his back, which he has had for some years and also continues to perform exercises at home as advised by Dr Kouzmin.
· He continues to suffer from pain, stiffness and limitation of movement in his right shoulder, low back and neck. On occasion, the pain in the shoulder extends into the arm and the hand with impaired sensation of the fingers, the pain in the back at times extends into the buttocks and legs and he has difficulty turning his neck.
· He is naturally right-handed and now tends to favour his left hand.
· Because of his “injuries” he is limited with activities such as lifting heavy items, overhead movements, repeated bending, sitting and standing for long periods or walking long distances. Also he finds it difficult to turn his head suddenly when driving and he has difficulty winding up the driver’s side window.
· For some “considerable time prior to the transport accident and indeed during the twelve month period preceding that accident”,[13] his main concern relating to his earlier accident was headaches and his neck and back had “recovered reasonably well and were not causing me very much trouble”.
[13]See paragraph 9 of the first affidavit contained in Exhibit 1 at page 8 PCB
· By reason of the transport accident he is now “very limited with activities which … [he] … had enjoyed prior to the transport accident including attending the gymnasium and swimming pool usually a couple of times per week.” He used to do exercises and swimming for which he now finds he is “very limited”; he enjoyed fishing often on a weekly basis, and he would travel down to Lorne and would fish on the pier, rocks and beach which he is now “unable to do”, he enjoyed swimming at Lorne which is now “limited”; outings at cafes and restaurants such as McDonalds have become “limited” as have social outings with relatives and friends.
· He sleeps very poorly because of the pain and sexual relations have been significantly impaired. Furthermore, he has difficulty with erections. Although he is able to drive a vehicle, his vehicle is equipped with power steering and automatic transmission and he tries to avoid longer trips. He does assist his wife with the shopping.
· Approximately fourteen months or so after the transport accident, he did commence to do some casual part-time taxi driving work on a “very limited basis” but subsequently found he could not “cope”. He has considerable difficulties with English and although he has suffered a “loss of earnings”, he makes no claim for such in this application.
· Because of his injuries he has become “anxious and depressed” and on occasion bad-tempered and withdrawn and has lost confidence and self-esteem. His headaches from his pre-existing injury have contributed to his anxiety and depression.
14 By way of the second affidavit, the plaintiff gave the following evidence:
· He continues to live with his wife (he was married on 17 September 2003) at his parents’ place.
· At the time of the subject transport accident he was not gainfully employed and had been in receipt of a Disability Support Pension which he continues to receive.
· He is naturally right-handed.
· His health prior to the transport accident, when compared to his health after the transport accident, was much better. He was able to “generally participate in the full range of my normal activities of daily living”.[14]
[14]See paragraph 9 of the second affidavit contained in Exhibit 1 at page 12 PCB
· Prior to the transport accident his work injuries had improved and although he still experienced some “discomfort” mainly in the form of “headaches”, it was not substantial when compared to the pain and incapacity he now experiences. He was able to return to household duties and also perform activities which involved bending, squatting, kneeling and carrying. His condition had continued to improve and at the time of the transport accident required minimal treatment and medication.
· Similarly, injuries he received in the transport accident on 24 May 1984 had continued to improve and at the time of the subject transport accident, he required minimal treatment and medication.
· He was examined by the orthopaedic surgeon Mr K Elsner on 23 September 1986 and he was advised that “there was very little organically wrong with me upon review of radiological scans” and that his earlier transport accident had left him with no permanent disability. He has consulted Dr O Barkley, Dr N Rodopoulos, Dr H Kouzmin, Dr R Peers and Dr A Saddik for treatment of his transport accident injuries at regular intervals. He has also consulted Dr Stockman on a variety of occasions and undergone a steroid injection to his right shoulder on 3 September 2002.
· On 24 July 2006 he consulted with a pain specialist, Dr P Courtney on referral from Dr Kouzmin for his transport accident injuries.
· On or about 29 January 2010, he had a period of physiotherapy treatment at the Dianella Community Health on referral from Dr A Saddik, which only provided temporary relief. He is also currently receiving physio treatment from Mr U Oflay, at Glenroy Physiotherapy which also provides only “temporary relief”.
· He currently attends a psychologist Dr S Brown.
· He continues to take medication to relieve some of his pain and this includes Panadeine Forte and Lyrica which afford “minimal transient benefit in relieving my constant, though varied pain”. Furthermore, for his “depression”, he takes Cymbalta, Seroquel and Valium. He occasionally wears a back brace to aid in relieving his pain.
· As a result of the transport accident he continues to experience constant, though varied pain in his neck, back, right shoulder and right great toe. He also experiences referred pain in his legs as a result of the pain in his low back and referred pain in his right arm and hand as a result of the pain in his shoulder.
· Such injuries have caused upset and disruption in his life as previously he was “quite healthy and active”. The relationship with his wife and elderly parents has suffered enormously as a result of each of the transport accident injuries, and his energy levels have been significantly lowered.
· His social life has been significantly impacted and he rarely sees friends. He no longer enjoys being around people.
· His sleep is affected and he is often woken by pain in his back, neck or right shoulder and he has difficulty finding a comfortable position and often tosses and turns in bed.
· He also experiences significant problems with self-care and personal hygiene as his ability to bathe, groom and dress have been limited by pain in his neck, back and right shoulder, right foot and great toe in particular. He experiences increased pain in his back and shoulder when he bends to put on his shoes or socks, or attempts to put on a shirt.
· He has difficulty standing or sitting for prolonged periods, or reclining for too long in one position, walking for prolonged distances or in a repeated fashion reaching, bending as well as repeated and prolonged twisting and leaning.
· His injuries have adversely interfered with his normal sexual function, including causing reduced libido and he engages in infrequent sexual activity.
· He has great difficulties when driving and drives less frequently and is unsure as to whether he could react in an emergency situation.
· He has difficulty helping his wife around the house with household duties and is unable to perform jobs like gardening or moving furniture.
· He experiences difficulties with communications as a result of the transport accident as he is often distracted by pain and this causes frustration.
· In particular, the plaintiff states:
“The very significant diminishment of my physical capabilities and endurance has thus struck at the core of my identity and sense of self-worth. I feel like a liability to those around me and have lost the social contact I used to have as a family man with a normal social and family life. This often leaves me feeling useless, frustrated, and much older than I otherwise feel.”[15]
[15]See paragraph 45 of the second affidavit contained in Exhibit 1 at page 19 PCB
· His “mental state” has also been affected by the transport accident. Prior to the transport accident he was in “good relative mental health” and not suffering from any or any significant impairment in terms of the performance of normal activities of daily living.
· Following the transport accident, he has suffered anxiety and depression and post-traumatic stress disorder that affects many aspects of his daily life and interaction with others including his family.
· He is often anxious when driving. He experiences frustration, anxiety and depression as a consequence of constant though varied pain and incapacity, he experiences losses of concentration, intrusive recollections of the accident, a change in temperament to that of being short with those around him and feeling more lonely and isolated due to his changed circumstances.
15 Under cross-examination the plaintiff gave the following pertinent evidence:
· After his work injury in 1983 he received workers’ compensation to 1988 and thereafter has been continuously on the Disability Pension.
· He had not returned to any gainful employment between the work injury in 1983 and the transport accident as a result of suffering “severe headaches” due to the work injury.
· He has had two convictions for exceeding .05 legislation.
· Before the transport accident he was feeling “better” and was trying “to get back and get a taxi licence, if I could do the work”.[16]
[16]T25, L16 – 18.
· At some stage he was having chest pain as well as his headaches prior to the transport accident.
· Prior to the transport accident he travelled overseas in 1997 or maybe 1996. He took one of his children overseas for medical treatment.
· As at the date of the transport accident he was divorced and he travelled to Turkey in 2003 to be married. He stayed “maybe five months, six months”. He married in July 2003 in Turkey and returned to Australia in February 2004.
· When in Turkey he went to spring waters and had hot baths for personal treatment.
· He drove in Turkey. He believes he had seen Dr Kouzmin prior to the transport accident notwithstanding that one of her reports would suggest that he first saw her on 6 February 2002.
· Prior to the transport accident he was seeing Dr Rosner at the Glenroy Better Health Clinic and being treated for “diabetes” and headaches.
· Since the transport accident he has suffered headaches, back pain, neck pain, sleeping problems and has had difficulty remembering things.
· He was seeing a psychiatrist, Dr Parekh from at least October 1987 up until 1997 once every two to three months for treatment of his “headaches”. Dr Parekh treated him with Valium, Serepax and “things like that” together with anti-depressant tablets.
· It was put to him that he gave a certain history to the psychiatrist, Dr Kornan in October 1987. The evidence was:
“Q. All right. Now, what I suggest to you is that you were concerned - right back at this time, back in the 80s, you were concerned that someone might be following you and taking films of you.
A.No, not really.
Q.Well, I suggest that you used to carry a knife?
A.I didn’t carry a knife.
Q.That you told Dr Kornan, I suggest, if he sees someone taking pictures of you, you’ll cut his throat?
A.No, no, I didn’t say that.
HIS HONOUR:
Just listen carefully to the question because I’ll put it again because I want to make it clear that Dr Kornan has recorded what he says you told him?
A.No. Again I say I didn’t say anything like that to him. I never ever or I didn’t carry a knife with me.
Q.Well, put that aside, is it possible you told Dr Kornan, ‘Now, I carry a knife. If I see someone taking photos, I will cut his throat’?
A.No, I didn’t say that.
Q.Dr Kornan must have had that totally wrong as far as you’re concerned?
A.I don’t know what he’s – why he says ---”[17].
[17]T35, L7-25.
· In July 2007 he was found guilty of a sexual assault involving a knife. Notwithstanding the finding of guilty by a jury, such accusations were not true and he found them “stressful”.[18]
[18]See generally T36, L5-18.
· When he returned from Turkey after his marriage he commenced to look for work as a taxi driver.
· He was looking for work before the transport accident but after his return from Turkey he leased a taxi.
· He drove the taxi full-time from 2005 to 2008 working two to two and a half hours a day.
· He leased a taxi because he could not find part-time casual work as an employee driver.
· He became qualified to drive a taxi in August 2001 but did no work between August and the transport accident in November 2001. During that period of time he was not seeing Dr Rosner although he was attending the Royal Melbourne Hospital for the treatment of his diabetes and “nothing else”.
· He leased the taxi from his sister and brother-in-law who were unable to give him driving work as they had already engaged drivers.
· He paid a monthly rental fee which together with other expenses had to come off the takings each month. On occasion he employed other drivers but they haven’t been “able to cope” and the longest time that a driver drove for him was about three weeks.
· When the Court again enquired about the frequency of his driving activities, the following evidence was given:
“Q. I think I asked you this before lunch: over those three years what do you say as to how often you drove the taxi?
A.Two hours or two and a half hours, and then five, six hours’ break, go home, rest and then go out again, maybe two, three hours, probably five hours a day.
Q.How many days a week, seven?
A.No. Not seven days.
Q.Five?
A.Four days.
Q.Still getting the pension?
A.Yes.
Q.Did you have to be careful about being able to keep your pension while you were driving a taxi?
A.Yes. I notified Social Security about the income.
Q.Did they tell you how much that you are allowed to earn?
A.They did say, you know, you can do, if you work as well as your pension income.
Q.Up to how much?
A.They mentioned something, $150 a week when you’re married, a family.[19]
[19]T42, L7- 22
· His work with the taxi only “lasted about fourteen months. I couldn’t do it …”[20]
[20]T42, L25-26
· He was trying to find someone to take over the taxi and the taxi was transferred prior to the police charges (relating to the sexual assault).
· For the year ending 30 June 2006, he had gross earnings from the taxi of $62,000 and his expenses were about $51,000.
· For the year ending 30 June 2007, his income was $38,375 with expenses of $14,500.
· Although accepting that his tax returns for 30 June 2005, 30 June 2006, 30 June 2007 and 30 June 2008 all showed gross income from driving a taxi, he blames the accountant for getting it wrong.
· He presently receives $580 per fortnight as a result of the Disability Pension.
· He was initially interviewed by police in 2007 in relation to the sexual assault case and was charged eight months later.
· He believes that Dr Helen Kouzmin was his treating doctor through the years that he was driving taxis.
· He went to school in Australia for about five and a half years and has been living here for more than thirty years.
· In 2001 he had to look after his mum and dad.
· His wife receives a carer pension of $800 per fortnight for looking after his parents.
· He agreed with the history he had given to Dr Kouzmin that his taxi driving “failed” because he was “unable to maintain the head and neck posture required by the workloads”.[21]
[21]T60, L9-15
· Dr Minas was the first doctor he saw after the transport accident.
· Any numbness in the hand and pins and needles in the left arm were not occurring before the transport accident and he did not recall any complaints of left arm pain causing him to attend the Royal Melbourne hospital in October 1999.
· He did not remember undergoing nerve conduction studies by Dr S Davis, director of neurology at the Royal Melbourne Hospital in October 1999. He could not recall any complaint in his left arm and the only reason he went to hospital prior to the transport accident was for his “headaches”.
· He drives a car but cannot drive for too long as he feels pain if he sits for too long – that is, more than half an hour or forty-five minutes.
· When put to him that Dr Saddik reported that the skin condition suffered by the plaintiff and his poor diabetic control affected his sex life, the plaintiff asserted “I can’t remember”.
· Before the transport accident he was regularly prescribed Panadeine Forte for “headaches” which he took every day.
· He recalls that some doctors had warned him in the eighties about becoming “hooked” on painkilling medication. He took such medication up to November 2001 because he had “no choice” and he continues to take that medication.
· He accepted that he had been to Griffith, Mildura and Gatton (in Queensland). He denied being involved in any fruit picking that was involved in “buying the fruit”. He also denied picking onions.
· He denied that his right big toe was sore prior to the transport accident and he had only had symptoms since the transport accident.
· After the transport accident he got out of his car and spoke to the other driver although he was “trembling”. The costs of his repairs was in the order of $1400.00.
· He bought a new Ford Territory four wheel drive in 2005, which is now paid off.
· He bought a new Ford Falcon in 2006 for his wife as a “birthday present”.
· He underwent tests for sleep apnoea at the Austin Hospital after which he was given a machine to help him sleep better.
· He uses a puffer for asthma.
· He denies telling a Dr Marcus McMahon that he had long-standing back pain following a work injury and that he had not suffered any motor vehicle accidents.
· When asked when was the last time he had gone fishing, he answered:
“A. …I haven’t been fishing since 2001. It was before that, the last time.
Q.My question is when was the last time?
A.1994, 1998 or something.
Q.94 or 98, I suppose that’s doing the best you can approximately, 94, or 98?---
A.93. I go to Lorne.
Q.In ’93 maybe ---
A.Yes, 93. I could have gone in 96 or 95.
Q.Somewhere around about there? ---
A.Before the accident I had been three times.
Q.94, 95, 96 maybe? ---
A.Yes.
Q.That could have been the last time you went fishing in your life?
A.No. Before I used to go more often.”[22]
[22]T109 L13 - 26
· He cannot go fishing now because he cannot walk or stand in any one position or walk on rocks.
· He uses a walking stick held in his right hand to assist him to keep balance and to stop his left foot becoming “tangled”. He uses it to go outside and shopping and ninety per cent of the time, although sometimes he forgets to take it in the car.
· He goes shopping with his wife and sometimes holds light “stuff” in his left hand and also performs some work on roses involving cutting, pruning and watering them.
16 Under re-examination, the plaintiff gave the following pertinent evidence:
· He continues to take anti-depressants consisting of Seroquel (one at night) and Cymbalta (one in the morning). These tablets were prescribed by Dr Saddik. He commenced taking such tablets in 2009 or 2010 and that was the first time he has taken anti-depressants since the transport accident.
· Over the years that he was taxi driving in 2005, 2006, 2007 and 2008 the most number of hours that he would have worked was “fifteen hours maybe, eighteen hours”.
· Over the period he was driving his taxi there were periods of five or six months when he was unable to drive. He considered this occurred on about two occasions during which time he continued to pay the lease for the taxi out of his pension and with assistance from his father.
· He first got his stick about eighteen months ago and this is his first walking stick.
· He drives his wife to the shopping centre and sometimes he will go shopping for small things like milk or bread.
The Evidence of Mrs Emine Aydin
17 Emine Aydin gave evidence on behalf of her husband, the plaintiff. She adopted her affidavit sworn on 13 April 2011.[23] By way of that affidavit, she gave the following evidence:
[23]See Exhibit 1 at page 21 PCB.
· She is a forty-one-year-old (born 15 May 1970) woman who married the plaintiff on 17 September 2003 in Turkey and then moved to Australia in around February 2004.
· Since her marriage, she has noticed the plaintiff complains of pain and incapacity as a result of his transport accident injuries and in particular, his neck, right shoulder, low back, right foot and great toe.
· From her observation she has noticed that the plaintiff tends to wake up with pain in his back, neck and right shoulder and often does not appear well-rested.
· She has to assist the plaintiff with certain activities such as putting on his clothes or showering.
· She observes the plaintiff to be in constant though varied pain, in particular with his neck, back, right shoulder, right foot and great toe, particularly when he is getting up and sitting down.
· Sometimes she notices the plaintiff is unable to walk for prolonged distances or sit for long periods because of his pain.
· The plaintiff tends to avoid going fishing due to the pain in his neck, back and right shoulder and they rarely go on picnics as he often complains of pain.
· He does try to help when they go grocery shopping but he tends to avoid carrying heavy shopping bags in his right hand on a sustained or repeated basis.
· He has observed the plaintiff having difficulty getting comfortable in a car, particularly if he is in the car on a prolonged or repeated basis.
18 Under cross-examination, Mrs Emine Aydin gave the following pertinent evidence:
· She first met the plaintiff in June 2003 and did not know anything about him prior to that time. When she first met him he complained of back pain every now and then.
· After the wedding in Turkey they remained there until February 2004, during which time they attended picnic places just for daily outings.
· The plaintiff brought her a Ford Falcon in 2006, some three years before she obtained her licence.
· The taxi was still at their place until April 2008.
· She is on a Carer’s Allowance of $800.00 per fortnight which commenced after about two years being in Australia.
· She encourages her husband to go out a bit but he cannot do it “because of his pains”. The last time they went for a picnic was about three or four months ago.
· She receives the Carer’s Pension to look after her mother-in-law.
· She was in Turkey in 2007 attending her father who had an operation. At that time, her husband was first interviewed by the police in relation to the criminal charge.
· He would drive a taxi for one or two hours a day and over the period from 2005 to 2008, he did some taxi driving and then stopped and then restarted later.
The Evidence of Mrs Muzeyyen Karasakal
19 Mrs Muzeyyen Karasakal, the sister of the plaintiff, gave evidence and adopted her affidavit sworn 6 May 2011.[24] She did correct paragraph 11 of that affidavit by asserting that where she says “a work injury”, it should read “the transport injury”.[25]
[24]See Exhibit 1 at p.24 PCB
[25]See Exhibit 1 at p.24 PCB
20 By way of that affidavit, Mrs Karasakal gave the following pertinent evidence:
· She is a fifty-six-year-old (born 23 January 1956) married woman who is the sister of the plaintiff.
· She recalls that the plaintiff prior to the transport accident was an “active and capable man” who used to enjoy “an active social and recreational life including fishing, camping and taking our parents shopping”.
· She does remember that in the 1980s the plaintiff did suffer a fall at work and a transport accident, but immediately prior to the transport accident he was generally healthy and not restricted in terms of his normal activities of daily living.
· In particular, prior to the transport accident she did not recall him having any significant difficulties with his right shoulder, neck, back or great toe but she does recall him occasionally complaining of headaches.
· Prior to the onset of each of the transport accident injuries, she observed him to be “happy and functioning normally in his daily living”.
· Since the transport accident he has complained of pain in his right shoulder, neck, back and great toe and he, to her observation, no longer performs much physical activity and spends much time sitting or lying down trying to alleviate the pain.
· He attends the Mosque less frequently and does not participate in many social activities. He attends her house less frequently and often requests to lie down.
· She recalls the plaintiff “telling” her that he has trouble sleeping especially when he turns over in his sleep onto his right side as this causes him significant pain in his right shoulder which disrupts his sleep.
21 Under cross-examination Mrs Karasakal gave the following pertinent evidence:
· Prior to the transport accident, she was seeing the plaintiff regularly and he was living at their parents’ house.
· In 2001, she and her husband owned a taxi and in 2004 or 2005 she and her husband obtained a second taxi with a government number plate.
· She and her husband leased the first taxi to the plaintiff and such a taxi could be operated twenty four hours a day.
· The plaintiff could not have been employed as a taxi driver by them as he was “sick” and the taxi has to run all the time. In particular, the following evidence was given:
“Q.So that he was sick before the accident in November 2001 and sick after the accident of November 2001?
A.Yes, he was sick, yes.
Q.He was so sick that you had the taxi, you employed casual drivers, but you couldn’t employ him because you needed the car to keep moving, to keep making money?
A.Yes.
Q.Before the accident?
A.Yes.
Q.But then after the accident, you decided that you could give the whole car to him, that’s the 24-hour car, and you could make that available to him for some years?
A.Three years’ contract, yes.
Q.So it had to keep making the money, but you handed over that car to him for a three year contract?
A.Yes I did.
Q.Do you remember what rent you charged him?
A.Yes, 2100.
Q.For what period?
A.Every month.
Q.So it was around about 25,200 a year?
A.Yes, probably.
Q.He paid that?
A.Yes, he did.
HIS HONOUR:
Q.Just so I am clear about this, the three year contract, that was from when to when?
A.The three year contract is from 2006 to 2010 – 2006 to 2009, I think, end of the 09.
QThroughout that period of three years he drove the taxi and paid you every month the 2100?
A.He didn’t have it for three years.
Q.What happened?
A.He didn’t have it for three years, he had it for 14 months. From 22/11/2006 to 2008, he have it.
Q.What happened then?
A.After that, we have to give it to someone else.
Q.Within the three year contract?
A.Yes, and we got it back on the – 2010, January 2010.”[26]
[26]T144 L10- T145 L8
· Evidence was also given by Mrs Karasakal as to the circumstances of him giving up the taxi driving:
“Q.He’s told us that he couldn’t cope with the taxi driving for long hours because he couldn’t hold his neck up and because of his headaches?
A.Yes.
Q.So that his neck and his headaches caused him not to be able to continue in the taxi driving for long hours at a time?
A.Yes.
Q.Is that as you understood it?
A.Yes, I understand that too, but because I want him to be - I wanted to see it.
HIS HONOUR:
Q.I think you are being asked, and I think you’ve answered it in one way, but the court has been told that your brother had to give up the taxi driving because of problems with his neck, holding his neck, driving, and the headaches?
A.Yes.
Q.That’s why the taxi driving came to an end, finished him. Is that your understanding too?
A.I understanding, it but I heard another problem, from the shoulder too, from the other sickness as well after the car accident. It’s not only the – I can see he got headaches, yes. He had (indistinct) headaches.”[27]
· The camping and the fishing which the plaintiff enjoyed with her parents ceased well before 1999.
· When asked about the new car he purchased for his wife, she said “That’s his business, not mine and I don’t ask questions”.
· She came to Australia in 1970 at the same time as the plaintiff. She did not go to school in Australia and started work in 1972 and continued working to 2000 after which she has helped her husband in the business since then.
· She did not know whether the plaintiff and his first wife went fruit picking.
[27]T146 L3-21
Radiological Examinations
22 The plaintiff has undergone the following radiological examinations of the right shoulder:
(a) An MRI scan of the right shoulder on 4 May 2002, which concluded:
“Acromioclavicular joint degeneration, acromial-subdeltoid bursal effusion, with intra-substance degeneration or possible partial thickness bursal tear of the anterior aspect of the supraspinatus tendon. No evidence of a SLAP tear is shown”.[28]
[28]See Exhibit 1 at p.42 PCB
(b) MRI scan of the right shoulder of 18 August 2006 which concluded:
“Minor tendonosis of the supraspinatus tendon. Small sub-acromial – sub-deltoid bursal effusion only”.[29]
(c) MRI scan of the right shoulder on 31 January 2011 which concluded:
“1.Focal supraspinatus tendinopathy/intra-substance partial thickness tearing.
2.Moderate to severe AC joint degeneration and subacromial bursitis.
3.Posterosuperior labral tear and tiny paralabral cyst”.[30]
[29]See Exhibit 1 at p.48 PCB
[30]See Exhibit 1 at p.51 PCB
The Medical Evidence
23 The plaintiff relies on a medical report dated 17 April 2007 from Dr M J Willis of the Hillcrest Medical Centre.[31]
[31]See Exhibit 1 at p.53.1 PCB
24 In that report, Dr Willis advises that the plaintiff attended at the Medical Centre on 16 November 2001 when he consulted Dr Minas complaining that he was a driver of a motor vehicle that was hit from the back by another vehicle. At that time he complained of neck pains. Examination was unremarkable and an X‑ray was requested.
25 The plaintiff again consulted the Centre on 19 November 2001 still complaining of right side of the neck pains and some low back pains, at which time he was prescribed analgesics. He further presented on 22 November 2001, 2 December 2001 and 5 December 2001 with neck pains. On 5 December 2001 he was prescribed Diazepam for muscle spasm and a note that he will require physiotherapy (although it is not clear whether he did attend any physiotherapy).
26 On 29 December 2001, he attended the Centre and he consulted Dr Papagelis and was complaining of pain “everywhere” and requested analgesics. He had two further consultations at the clinic on 29 January 2002 and 1 February 2002 for unrelated medical matters. At that time there was no record of any complaints of back/neck pains.
27 The plaintiff also relies on a medical report from Dr David Rosner dated 13 December 2005.[32] Dr Rosner advises that he examined the plaintiff on 26 November 2001 at which he obtained a history that the plaintiff had suffered a motor car accident “one week prior to this date”. He obtained a history that he had spent the previous week in bed due to muscle pain in his neck and back and was now complaining of paraesthesia in his right hand. Examination at that time revealed a full range of movement of the cervical spine and pain was noted on turning to the right and on extension of the neck.
[32]See Exhibit 1 at p.53 PCB
28 Dr Rosner considered that the plaintiff suffered muscular pain and no treatment was prescribed. He attended the clinic of Dr Rosner on 28 December 2001 and was seen by another doctor for an unrelated problem.
29 The plaintiff also relies on a medical report from Dr Helen Kouzmin dated 19 May 2011.[33] Dr Kouzmin describes herself as the primary treating medical practitioner of the plaintiff between 6 February 2002 and 10 July 2007 (at which time she ceased practice for two years). She re-examined the plaintiff on 13 May 2011 (seemingly for the purpose of this proceeding).
[33]See Exhibit 1 at p.79.1 PCB
30 Dr Kouzmin notes that the plaintiff was referred to her by his mother who she had been treating for some time. Leaving aside the injuries suffered by the plaintiff as a result of the transport accident, Dr Kouzmin realised that from early on that the plaintiff was suffering from a number of potentially serious medical conditions including:
(a)Coronary artery disease with dyspnoea on exertion (and periodic anterior chest pain).
(b)Hypertension – which was difficult to control despite the treatment over the years.
(c)Non-insulin dependent diabetes mellitus. Such condition was managed with multiple oral hypoglycaemic drugs but there had been persistent problems of erectile dysfunction together with a diabetic retinopathy and a mild diabetic neuropathy.
(d)Reflux oesophagitis.
(e)Chronic asthma.
(f)Chronic nasal obstruction.
(g)Obstructive sleep apnoea.
(h)Renal colic, prostatitis and symptoms of lower urinary tract obstruction.
31 Dr Kouzmin also obtained histories that prior to the transport accident, he suffered injuries to his neck and low back when falling at work on 22 September 1983, causing him to be on WorkCover payments for four years. Furthermore, some two to three years after the work accident he suffered a motor car accident causing a lot of back pain, recurrent neck pain and headaches.
32 In relation to the transport accident, Dr Kouzmin obtained a history that the plaintiff suffered pain in his neck, low back and right shoulder. In respect to the right shoulder, Dr Kouzmin considered that it probably was jerked and may have also sustained a direct blow. As at 6 February 2002, right shoulder movements were restricted and painful.
33 Dr Kouzmin also considered the plaintiff to be suffering from major depression contributing to his lower mood and severe insomnia dating from the transport accident in 2001. For this condition she prescribed fluoxetine (Lovan).
34 Dr Kouzmin also obtained a history that prior to the transport accident, the plaintiff had obtained a taxi licence and eventually was given a certificate to run a taxi company. She notes that two attempts to return to taxi driving following the transport accident (2005 and 2007) “failed” because the plaintiff was “unable to maintain the head and neck posture required by the work”.[34]
[34]See Exhibit 1 at p.79.4 PCB
35 Dr Kouzmin continued to prescribe Panadeine Forte and a non-steroidal anti-inflammatory agent, Mobic.
36 Dr Kouzmin reports that the plaintiff stated that his condition deteriorated over the years, with various interventions such as local injection to the right shoulder and low back having no effect. In particular, low-back pain continued to wake him during the night, and neck movements remained restricted, and he suffered right-knee pain and weakness which made it difficult to walk, let alone run.
37 Pain remained constant in the right shoulder, and as he is right-handed he had to be careful what objects he lifted in the right hand. Even holding the steering wheel aggravated his right-shoulder pain, and he had to take painkilling tablets before attempting to drive.
38 As time progressed, the plaintiff was taking about sixteen Panadeine Forte tablets a day, and he was also given tramadol.
39 When examined on 13 May 2011, Dr Kouzmin found markedly reduced neck movements and limitation of low-back movements, with some slight wasting of the right-leg muscles compared with the left. In particular, tenderness was elicited over the right acromioclavicular joint, although inspection of the right-shoulder girdle revealed no obvious supraspinatus wasting. All shoulder movements (both active and passive) were restricted, and right-arm reflexes were absent, with sensation reduced in the right C6 distribution.
40 After such examination, Dr Kouzmin was of the opinion that the plaintiff had suffered a hyper-mobility injury to the cervical spine at the “more serious end” of the clinical spectrum, and an aggravation of his pre-existing low-back injury. In particular, she states in relation to the right-shoulder injury:
“The physical circumstances of the November 2001 MCA were such that a significant traction injury is likely to have been sustained by the right shoulder girdle. The right shoulder has been a focus of your client’s complaints since Nov 2001 where as previously this body part had been asymptomatic. From the imaging studies over the years since 2001 there is evidence of a rotator cuff injury (supraspinatus tear), disruption of the right acromio clavicular joint, subacromial - sub-deltoid effusion and a postero superiorlabral tear. Clinically, your client has a stiff shoulder girdle with significant restriction of passive and active movements caused by protective mechanisms to avoid pain as well as mechanical factors including a degree of capsular fibrosis. The shoulder pathology has led to a secondary weakness of right arm movements which cannot be assessed in terms of paralysis of individual muscles as required by the AMA Guides, but is real none the less. Given that your client is right hand dominant, his shoulder injury generated a profound effect on his ability to perform the tasks of daily living with both voluntary and accessory movement significant likely reduced.”[35]
[35]See Exhibit 1 at p.79.8–79.9 PCB
41 Dr Kouzmin referred the plaintiff to the rheumatologist Dr A Stockman, who examined the plaintiff on 2 September 2002,[36] 14 October 2002,[37] 16 December 2004[38] and on 4 July 2005.[39]
[36]See Exhibit 1 at p.58 PCB
[37]See report in Exhibit 1 at p.61 PCB
[38]See report in Exhibit 1 at p.62 PCB
[39]See report dated 4 July 2005 in Exhibit 1 at p.54–57 PCB – this report seemingly was obtained as a medico-legal report for the solicitors for the plaintiff
42 When first seen, the plaintiff complained of right-shoulder pain (and neck, low-back, right-leg and right-arm pain), and furthermore gave a six‑week history of pain in the left shoulder.
43 Examination of the right shoulder revealed a full range of passive movement, but painful and limited active abduction and internal rotation. Accordingly to Dr Stockman there were features consistent with rotator cuff lesion, although there were no neurological abnormalities in the upper limbs. After obtaining an MRI scan in the right shoulder (and neck and lumbar spine), Dr Stockman arranged for an ultrasound-guided steroid injection to the right subacromial bursa, which according to the plaintiff did not produce any significant improvement.
44 When seen on 16 December 2004 the plaintiff continued to complain of right shoulder pain together with pain in the right arm, neck and low-back pain, in association with pain in the right leg. On examination there was a full range of movement of the right shoulder but internal rotation was painful, and all the resisted movements were painful, together with tenderness over the right acromioclavicular joint, and further tenderness was noted at the back of the neck, right trapezius muscle, and in the right arm. At that time Dr Stockman prescribed Amitriptyline, which according to him is a useful drug for chronic pain, and suggested attending a pain clinic.
45 When seen on 4 July 2005 he reported no improvement, and his neck and right shoulder was worrying him the most. At that time Dr Stockman obtained a history that he was unable to obtain an erection, and this was being investigated at St Vincent’s Hospital in relation to his established diabetes.
46 Examination of the right shoulder on 4 July 2005 revealed no swelling or muscle wasting. Active abduction was limited to 130 degrees, and flexion was also 130 degrees. All other movements were full range, although resisted movements were painful.
47 Dr Stockman considered that the plaintiff was suffering from the effect of cervical and lumbar disc degeneration and rotator cuff lesion in the right shoulder (Dr Stockman had available the MRI scans of the right shoulder on 2 May 2002). Dr Stockman considered that the transport accident aggravated the pre-existing cervical and lumbar-disc degeneration, but makes no comment in relation to the cause of the rotator cuff lesion in the right shoulder. Dr Stockman does note that it is “unusual for the relatively minor car accident to have caused such extensive pain and lack of progress in almost three years of follow-up”.[40]
[40]See Exhibit 1 at p.56 PCB
48 Dr Kouzmin also referred the plaintiff to the pain specialist Dr P Courtney. I refer to the report of Dr Courtney dated 24 July 2006[41] in which he records that the plaintiff gave a history in or about July 2006 that his back and leg pain was the worst pain, and then his neck, and then his shoulder, although he alleged that the shoulder pain was always present and was with movement.
[41]See Exhibit 1 at p.64 PCB
49 At that time he was taking 25 Panadeine Forte per day (and was advised by Dr Courtney that this must stop immediately), Mobic, and diazepam.
50 Although there does not seem to be a formal examination of the right shoulder, Dr Courtney notes that the plaintiff had a “global reduction of sensation of his right upper limb”, although power was symmetrical, and no neurological deficit.
51 Dr Courtney sought permission to perform two sets of lumbar facet blocks as well as sacroiliac joint injections to assess the lower-back pain, and also two sets of cervical facet blocks to assess the cervical pain.
52 The plaintiff also relies on a report from Dr Ashraf Saddik.[42] Dr Saddik initially examined the plaintiff on 13 July 2001 in order for him to obtain a Victorian taxi driving licence. Handwritten notes indicate that his vision and blood pressure were fine, and that as a result he was granted an approval to hold a taxi-driving licence.
[42]See Exhibit 1 at p.78 PCB
53 He next consulted with the plaintiff on 2 July 2007. However, it was not until 23 February 2009 that Dr Saddik obtained any history in relation to the transport accident, as at that time the plaintiff requested a repeated subscription for Panadeine Forte funded by TAC.
54 Dr Saddik comments that he believes that the plaintiff returned to him in 2007 because of his poor diabetic control associated with his frustration with his skin rash that he thought has impacted on his sex life. At that time he was attempting some IVF trials to conceive with his second wife. Dr Saddik notes that most of his visits were around medical problems related to his uncontrolled diabetes mellitus with its co‑morbid complications of peripheral vascular disease, neuropathy, retinopathy, cutaneous skin manifestations, and erectile dysfunction. Further, Dr Saddik notes that the plaintiff was extremely frustrated by his insulin treatment and its consequences on his daily life activities.
55 In particular, Dr Saddik notes:
“It was lately apparent to me by 2009 that Mr Aydin is suffering from chronic pain syndrome associated with fibromyalgia of different parts of his bodies around neck and shoulder girdle, lower back and lower limbs. His symptoms were non-specific and non-diagnostics of specific pathology apart from soft tissues injuries that has worsened over time by the nature of chronic inflammatory and degenerative changes as result of chronic oxidative process accumulated over years.”[43]
[43]See Exhibit 1 at p.78 PCB
56 Dr Saddik considers that the plaintiff was suffering from recurrent major depression and generalised anxiety disorder, and the transport accident could have contributed to such condition. Furthermore, Dr Saddik considered the plaintiff to have a chronic pain disorder associated with fibromyalgia and occasionally restless-leg syndrome.
57 The plaintiff also relies on a physiotherapy initial assessment undertaken on 29 January 2010.[44] That assessment notes a history that the plaintiff was complaining of back and neck pain with pins and needles in hands, and pain in legs, severe for the past two years. The examiner noted that there had been a car accident in 2001 which involved neck, shoulders and headaches, and big toe.
[44]See Exhibit 1 at p.67–70 PCB
58 The plaintiff also relies on a report from the Glenroy Physiotherapy Centre dated 11 April 2011.[45] The physiotherapist, Mr Umit Oflay, first consulted with the plaintiff on 2 March 2011 on referral from Dr Saddik. At that time he obtained a history, in part, that he was jolted heavily and experienced the onset of right shoulder pain, cervical spine pain with headaches, and increased lumbar spine pain with radiation into the right lower limb.
[45]See report contained in Exhibit 1 at p.71 PCB
59 Observation of his shoulder girdle and active movements with dressing/undressing and active excursion of the glenohumeral joint shows poor scapular winging and poor rhythm with an impingement pattern occurring in the right shoulder complex.
60 Mr Oflay was of the opinion that the plaintiff suffered chronic pain and disability from C5-6 spondylosis, multi-level lumbar discogenic bulging and nerve-root impingement predominantly affecting the L5/S1 nerve root, cervicogenic headaches and right rotator cuff tendinopathy and subacromial bursitis. He considered that the “exact aetiology” of his multi-level injuries would be difficult to establish except to comment that the lumbar-cervical spine pain would have been aggravated by the transport accident and “possibly” his shoulder injuries caused by the accident.
61 The plaintiff was also referred by Dr Saddik to the psychologist, Mr Stephen Brown. Mr Brown diagnosed anxiety and depression resulting from the transport accident and his previous workplace injuries.
Medico-Legal Reports
62 The plaintiff relies on the following medico-legal reports:
(a)The reports of the general surgeon, Professor K Myers who examined the plaintiff on 12 January 2011.[46] Professor Myers also supplied follow-up brief reports dated 19 April 2011[47] and 16 May 2011.[48]
(b)The reports of the general surgeon, Mr K Brearley, who examined the plaintiff on 24 March 2011.[49] Mr Brearley also supplied brief reports dated 27 April 2011[50] and 13 May 2011.[51]
(c)The reports of the orthopaedic surgeon, Mr M J Dooley, who examined the plaintiff on behalf of the defendant on 14 July 2008[52] and on 9 August 2010.[53]
[46]See report of same date contained in Exhibit 1 at p.80 PCB
[47]See Exhibit 1 at p.86 PCB
[48]See Exhibit 1 at p.88 PCB
[49]See report of same date contained in Exhibit 1 at p.90 PCB
[50]See Exhibit 1 at p.99 PCB
[51]See Exhibit 1 at p.100 PCB
[52]See report dated 16 September 2008 contained in Exhibit 1 at p.102 PCB
[53]See report dated 12 August 2010 contained in Exhibit 1 at p.109 PCB
63 When examined by Professor Myers on 12 January 2011, Professor Myers noted that there appeared to be “approximately 25 per cent restriction” of the range of movement of the lumbar spine, and “50 per cent restriction” of the range of movement of the cervical spine, both associated with apparent pain. However, there was minimal limitation of movement of each shoulder – for example, about 20 per cent loss of flexion and abduction on each side. Professor Myers considered that the transport accident aggravated pre-existing degenerative intervertebral disc disease in the cervical spine and lumbar spine, and injury to the rotator cuff structures of the right shoulder.
64 In his report dated 19 April 2011 Professor Myers had available the MRI of the right shoulder (and neck and back) dated 1 February 2011. He describes the pathology as shown in the right shoulder in the MRI scan as “significant”.
65 In his last report dated 16 May 2011 Professor Myers reviews the DVD material, which does not cause him to alter any of his opinions.
66 When seen by Mr Brearley on 24 March 2011, the plaintiff gave a history of “constant pain” in the right shoulder and back of the neck, together with constant pain in the low back. Examination of the right shoulder at that time revealed no deformity or wasting, and there was only slight restriction of movement.
67 Mr Brearley was of the opinion that the complaint of ongoing right-shoulder pain and limitation of movement was a result of the development of chronic subacromial bursitis which in turn had been caused by the injury to the supraspinatus portion of the rotator cuff as a result of the transport accident. In his later report dated 30 May 2011, Mr Brearley comments on the surveillance shown to him. Mr Brearley notes, in part, some of the surveillance showed him walking without a walking stick, and he was able to get in and drive a car, and could walk long distances apparently.
68 When initially seen by Mr Dooley on 14 July 2008, the plaintiff presented with his right shoulder taped with an adhesive. Mr Dooley considered at that time that the plaintiff most probably suffered a soft tissue injury to the right shoulder region (and to the neck and back) and that part of the claimed pain in the right shoulder was referred pain from his neck injury. Mr Dooley notes that clinical examination only revealed mild restriction of motion of the shoulder, which may relate to an aggravation of underlying degenerative rotator cuff disease.
69 In his later examination on 9 August 2010, the plaintiff presented with a single-point stick, and he found restriction of movement in the cervical and lumbar spines. Mr Dooley comments:
“His restriction of spinal motion is greater than I would expect to see. There are signs of abnormal illness behaviour on clinical examination. Much of his current presentation relates to his psychological reaction to injury and/or pain rather than to true organic injury. ... As previously noted, I believe that Mr Aydin probably sustained an impact injury to the right shoulder region in the motor vehicle accident. This will have involved some soft tissue bruising. One would not expect such an injury to cause ongoing symptoms nearly nine years after the episode.”[54]
[54]See Exhibit 1 at p.112 PCB
70 The plaintiff also relies on two earlier reports from the orthopaedic surgeon, Mr Keith Elsner, who examined the plaintiff on 23 September 1986[55] and on 30 October 1987.[56] Seemingly, these examinations were on behalf of the defendant in relation to the industrial accident in the early 1980s.
[55]See report of same date contained in Exhibit 1 at p.116 PCB
[56]See report dated 5 November 1987 contained in Exhibit 1 at p.119 PCB
71 In his first report, Mr Elsner describes the plaintiff as “evasive” and “disinterested”. Mr Elsner obtained a history that he was also involved in a motorcar accident (in the 1980s) and had suffered injuries to his left and right ribs, headaches, low-back pain, sore legs, injured right wrist, sore right big toe, sore eyes, sore right shin, sore neck and laceration to left ear.
72 After his first examination, Mr Elsner expressed the view that he considered that there was “very little organically wrong with this man” apart from the fact he does have some minor C4-5 disc degeneration. When later re‑examined, he obtained a history that the plaintiff was suffering back and neck pain, together with headaches, and had been receiving psychiatric treatment for the past three and a half years. Again, after examination, Mr Elsner was of the opinion that the plaintiff’s symptoms were not due to any organic problem.
73 It is convenient to also note that the defendant relies on the medico-legal report from the psychiatrist, Dr P Kornan, who examined the plaintiff on 7 October 1987, again in relation to the earlier industrial accident.[57] Dr Kornan obtained a history that the plaintiff had been going to a psychiatrist (Dr Parekh) some two months after the industrial accident and had continued to see him every couple of months. Dr Kornan made a diagnosis that the plaintiff was either someone who is “helplessly brooding” or he is “pretending”.
[57]See Exhibit A at p.24 DCB
74 The defendant also relies on the following material:
(a)Letter from Professor Stephen Davis, neurologist, to Dr Rosner dated 25 October 2009.[58] Professor Davis, having viewed a CT scan of the cervical spine undertaken on 1 October 1999, was of the opinion that the scan suggested a disc protrusion on the left at C5-C6 which would be compressing the left C6 nerve root and explaining the symptoms in the left arm.
(b)A letter from Dr M McMahon (a respiratory and sleep disorder physician) to Dr Kouzmin dated 17 October 2005[59] wherein there is discussion as to whether the plaintiff may well have sleep apnoea. In the history obtained by Dr McMahon, the plaintiff stated that he had had “chronic back pain following a work injury” and that he had not been involved in any motor vehicle accident.
(c)A letter from Dr G Taggart (a gastroenterologist) to Dr D Rosner dated 27 October 1999[60] who considered the plaintiff to be depressed, and suggested a gastroscopy to exclude ulcer disease.
(d)The tax returns of the plaintiff for the year ending 30 June 2005 recording a business income of $10,918, the tax return for the year ending 30 June 2006 recording a business income of $62,011, the tax return for the year ending 30 June 2007 recording a business income of $38,375, and the tax return of the year ending 30 June 2008 recording an income of $31,513.
[58]See Exhibit C
[59]See Exhibit E
[60]See Exhibit F
75 Exhibit G consists of video-surveillance undertaken on 9 August 2010, 11 August 2010 and 7 March 2011. All such video material had been made available to the solicitors for the plaintiff prior to the trial of the proceeding. Furthermore, as noted earlier in these reasons for judgment, medico-legal specialists retained by the plaintiff also had access to such video material.
76 The court has viewed such video material, and notes that such material displays the plaintiff to be walking normally on occasion, although on some occasions he walked at a slower pace, and again on some occasions he used a walking stick. Furthermore, the plaintiff was seen driving motor vehicles, seemingly with no difficulty.
Analysis of the Evidence
77 The plaintiff alleges that he suffered a right shoulder injury arising out of a transport accident on 16 November 2001. Furthermore, the plaintiff alleges that such injury is a “serious injury” within the meaning of the Act. In particular, the plaintiff alleges that the pain and suffering consequences of such right shoulder injury satisfy the test set out in Humphries v Poljak.[61] Consistent with that decision, the onus lies on the plaintiff to affirmatively satisfy the court that such an injury is a “serious injury”.
[61][1992] 2 VR 129
78 I did not find the plaintiff to be a particularly impressive witness. He gave his evidence in a manner which put great emphasis on the “injuries” said to have occurred in the transport accident and downplayed any injury which caused him to be off work from 1983 or 1984 up to the transport accident.
79 I also gained the impression that, contrary to the plaintiff’s assertion that he had “limited English”, his English language skills were far better than he would have the Court believe. I do note that the plaintiff came to Australia in 1970, at the age of 12, had several years of schooling in Victoria, and thereafter has been in Australia for over 40 years. His alleged difficulties with English should be compared to that of his sister, who arrived at the same time in Australia, and who had no schooling, but was very proficient in the English language.
80 Furthermore, I found the plaintiff to be not a particularly creditable witness as there were inconsistencies in his evidence, denials that he gave certain histories to some doctors and the inherent unlikelihood of some of the events that he described in his evidence. I refer to some of these matters:
(a)Prior to the transport accident, the plaintiff asserted that he experienced only some “discomfort”, mainly in the form of headaches. He did accept that he was attending hospital for treatment of his diabetic condition, but specifically denied any problems with his left arm. Such assertion must be contrasted to Exhibit C, which is a letter from Professor Davis dated 25 October 1999 to Dr Rosner. Apparently, the plaintiff had attended the Royal Melbourne Hospital in October 1999 to undergo nerve conduction studies by Professor Davis. Professor Davis advised Dr Rosner that a CT scan of the cervical spine undertaken on 1 October showed a disc protrusion on the left C5-C6 compressing the left C6 nerve root which would “explain the symptoms in the left arm”.
(b)The plaintiff alleged that he suffered injury to his right foot and, in particular, his big toe as a result of the transport accident and denied that he had suffered any prior injury to the big toe. However, when he was examined by Dr Elsner on 23 September 1986, he produced a list of injuries including a sore, right big toe.
(c)When challenged about income disclosure in his tax returns for the financial years ending 30 June 2005 through to 30 June 2008, he attributed blame to his accountant for getting it wrong. It was during this period that there was evidence that he was a taxi driver for various periods of time, although he asserted that he did not drive a taxi over the whole of those four years.
(d)In the context of being on a Disability Pension for many years, albeit doing some indeterminate amount of taxi driving over the period from 2005 to 2008, the plaintiff bought a new Ford Territory four-wheel drive in 2005, and also a new Ford Falcon in 2006 for his wife, who had no licence to drive at that time and did not obtain a licence until some three years later.
(e)When it was put to him that Dr Saddick, his current treating general practitioner, reported that the skin condition suffered by the plaintiff and his poor diabetic control affected his sex life, the plaintiff asserted, “I can’t remember”. In distinction, the plaintiff asserted that his sex life had been affected by the injuries in the transport accident, notwithstanding the evidence from Dr Kouzmin that there had been ongoing treatment for his non-insulin dependent diabetes mellitus which caused persistent problems of erectile dysfunction.
81 Notwithstanding the foregoing, it is incumbent on the court to look at the objective circumstances surrounding the transport accident to ascertain whether or not a shoulder injury was suffered by the plaintiff, and, if so, the consequences which have resulted from that shoulder injury. Although the plaintiff suffers an array of symptoms involving back pain, neck pain (both of which are said to have been aggravated by the transport accident but not claimed as serious injuries), a skin condition, diabetes, sleep apnoea, and cardiac problems, I do refer to Dressing v Porter,[62] a decision of the Court of Appeal concerning the appropriate approach to determining a serious injury in circumstances where a claimant has a variety of symptoms from other medical problems unrelated to the transport accident. Ashley JA stated:
“What his Honour had to do was to decide what symptoms afflicted the appellant in consequence of his compensable injury, and with what effect. If, by reason of pain and suffering consequences the compensable injury met the serious injury test, it was beside the point that some other condition might also have satisfied the test by reason of its pain and suffering consequences. His Honour’s reasons rather suggest that he approached the matter on the footing that there must only be one condition which could satisfy the test.”[63]
[62][2006] VSCA 215
[63]Op. cit. at page 443
82 After a consideration of all the evidence, I do find that the plaintiff suffered a right shoulder injury arising from the transport accident. Although there is no mention of any intrinsic right shoulder injury to the doctors at the Hillcrest Medical Centre who treated the plaintiff from 16 November 2001 to 29 January 2002, and by Dr Rosner on 26 November 2001 (although there was a complaint of paraesthesia in the right hand), the Transport Accident Commission did accept such injury (by way of letter dated 2 January 2002),[64] in response to the TAC claim form seemingly completed by the plaintiff on 6 December 2001 (in which there is reference to not only a neck and back injury but also a “right shoulder and arm” injury). More particularly, the orthopaedic surgeon Mr Dooley accepts that the plaintiff suffered a right shoulder injury in the transport accident and indeed prepared an impairment assessment report.[65]
[64]See Exhibit 5
[65]See Exhibit 3
83 I also note the radiological studies undertaken of the right shoulder on 4 May 2002, 18 August 2006 and 31 January 2011. Although the initial MRI in May 2002 was consistent with a “possible” partial thickness bursal tear of the anterior aspect of the supraspinatus tendon, the second MRI scan in August 2006 revealed tendinosis of the supraspinatus tendon together with ongoing subdeltoid bursal effusion and the MRI scan undertaken in January 2011 did conclude that the shoulder had a focal supraspinatus partial thickness tearing.
84 Again taking account of all the evidence, I consider it probable that the tear shown in the latest MRI scan was caused or aggravated by the transport accident.
85 However, again after a consideration of all the evidence, I am not satisfied that any organic consequences from the right shoulder injury can be described as at least as “very considerable” or more than “significant” or “marked”. I have reached such a conclusion for the following reasons:
(a)When the plaintiff was examined by Professor Myers (12 January 2011), Mr Brearley (24 March 2011) and Mr M J Dooley (9 August 2010), each doctor found there was minimal limitation of movement of the right shoulder, with no deformity or wasting in the right-shoulder area. Furthermore, when re‑examined by Dr Kouzmin (13 May 2011) she found tenderness over the right acromioclavicular joint, although inspection of the right shoulder girdle revealed no obvious supraspinatus wasting (although there was restriction of movement).
(b)I also note that the plaintiff did drive taxis for at least a number of years over a period from 2004 to 2008 and that he agreed with a history that he had given to Dr Kouzmin that such taxi driving activities “failed” because he was “unable to maintain the head and neck posture required by the workloads”. Although there was reference by his sister to difficulties with shoulder pain while driving, this does not seem to have been borne out by complaints to Dr Kouzmin or indeed the evidence given by the plaintiff.
(c)The plaintiff complained of many symptoms which he attributed to the transport accident. Of course, when the application was first mounted, he was also relying on his low back and psychiatric injuries. Furthermore, he has complained of symptoms in his neck and foot. It is difficult to ascertain what, if any, organic symptoms emanate from the right shoulder. Although appreciating that Mr Dooley last examined the plaintiff prior to the last MRI scan on 31 January 2011, I generally accept his opinion that the plaintiff showed signs of abnormal illness behaviour. In this respect, it is also pertinent to note that Dr Saddick, as at the date of his report (30 April 2011), said it was apparent to him from about 2009 that the plaintiff was suffering from “chronic pain syndrome associated with fibromyalgia of different parts of his body, around neck and shoulder girdle, lower back and low limbs”. In particular, Dr Saddick noted that such symptoms were non-specific and non-diagnostic of a specific pathology, apart from some soft tissue injuries, and that it has worsened over time by the nature of chronic inflammatory and degenerative changes. Although the plaintiff does take a vast amount of medication, he was taking similar amount of medication prior to the transport accident and again it is impossible to relate what medication, if any, is referable to any organic symptoms in the right shoulder.
(d)The plaintiff made a complaint that he is unable to fish because of his “injury”. However, on close examination, fishing, if it be affected by his right shoulder injury, which I doubt, seemingly was only a spasmodic occurrence occurring infrequently prior to the transport accident. Further, the plaintiff makes reference to sexual dysfunction because of his “injuries” suffered in the transport accident. Any sexual dysfunction would seem to be, on the basis of the evidence of Dr Kouzmin and Dr Saddick, a result of his diabetic condition. Further, any inability to sleep seemingly has been viewed as maybe a result of sleep apnoea rather than any organic pain, whether it be from the back, neck or right shoulder.
86 Although I accept the plaintiff may suffer some limited organic restriction in his right shoulder and may suffer some organic symptoms, I am far from satisfied that such consequences meet the test set out in Humphries v Poljak [1992] 2 VR 129.
Conclusions
87 I dismiss the application.
88 I will hear the parties on any issue of costs.
Annexure A
1 The plaintiff tendered the following material:
(a) Exhibit 1
·Affidavits of the plaintiff sworn 8 May 2008 and 13 April 2010 at pages 4-20 of the Plaintiff’s Court Book (“PCB”);
·Affidavit of Emine Aydin (the wife of the plaintiff) sworn 13 April 2011 at pages 21-23 PCB;
·Affidavit of Muzeyyen Karasakal (the sister of the plaintiff) sworn 6 May 2011 at pages 24-27 PCB;
·Transport Accident Commission claim for compensation dated 2 January 2002 at pages 28-40 PCB;
·MRI scan of the whole spine and right shoulder dated 4 May 2002 at pages 41-43 PCB;
·MRI of the cervical spine and the right shoulder dated 18 August 2006 at pages 47-48 PCB;
·MRI of the right shoulder, cervical and lumbar spines dated 1 February 2011 at pages 51-52 PCB;
·Report of Dr David Rosner dated 13 December 2005 at page 53 PCB;
·Letter from Dr Michael Willis dated 17 April 2007 at pages 53.1–53.2 PCB;
·Report of rheumatologist, Dr Alex Stockman, dated 4 July 2005 at pages 50-57 PCB;
·Correspondence between Dr Stockman and Dr Helen Kouzmin dated 2 September 2002, 14 October 2002 and 16 December 2004 at pages 58-62 PCB;
·Letter from the anaesthetist, Dr Peter Courtney, dated 24 July 2006 at page 63 PCB;
·Correspondence between Dr Peter Courtney and Dr Helen Kouzmin dated 24 July 2006 at pages 64-65 PCB;
·Report of Dr Helen Kouzmin dated 25 September 2006 at page 66 PCB;
·Initial physiotherapy assessment dated 29 January 2010 at pages 67‑70 PCB;
·Report from physiotherapist, Mr Umit Oflay, dated 11 April 2011 at pages 71-73 PCB;
·Report from psychologist, Mr Stephen Brown, dated 15 April 2011 at pages 74-77 PCB;
·Report from Dr Ashraf Saddik dated 30 April 2011 at pages 78-79 PCB;
·Report from Dr Helen Kouzmin dated 19 May 2011 at pages 79.1-79.11;
·Reports from Professor Kenneth Myers dated 12 January 2011, 19 April 2011 and 16 May 2011 at pages 80-98 PCB;
·Reports from the general surgeon, Mr Kenneth Brearley, dated 24 March 2011, 27 April 2011 and 13 May 2011 at pages 99-101 PCB;
·Medical reports from the orthopaedic surgeon, Mr Michael Dooley, dated 16 September 2008 and 12 August 2010 at pages 102-115 PCB;
·Medical reports of the orthopaedic surgeon, Mr Keith Elsner, dated 23 September 1986 and 5 November 1987 at pages 116-120 PCB.
(b) Exhibit 2
·Pages 3 and 4 of the progress notes of Dr Minas at the Hillcrest Medical Centre over the period from 1 June 2001 to 5 December 2001.
(c) Exhibit 3
·TAC impairment calculation sheet and further report from Mr Michael Dooley dated 27 August 2008.
(d) Exhibit 4
·Copy letter from Dr Peter Mangos dated 24 January 2011.
(e) Exhibit 5
·Letter from TAC to plaintiff dated 2 January 2002.
2 The defendant tendered the following material:
(a) Exhibit A
·Psychiatric report of Mr Paul Kornan dated 16 October 1987 at pages 24-26 of the Defendant’s Court Book (“DCB”).
(b) Exhibit B
·Extracts of taxation return for the years ending 30 June 2005, 30 June 2006, 30 June 2007 and 30 June 2008.
(c) Exhibit C
·Letter from Professor Stephen Davis, neurologist, to Dr Rosner dated 25 October 2009;
·CT scan of cervical spine of the plaintiff dated 25 October 2009.
(d) Exhibit D
·Letter from Mr P Ebeling to Dr Rosner dated 25 September 2001.
(e) Exhibit E
·Letter from Dr Marcus McMahon to Dr Helen Kouzmin dated 13 October 2005.
(f) Exhibit F
·Letter from Dr Taggart to Dr Rosner dated 27 October 1999.
(g) Exhibit G
·Video surveillance;
·DVDs of surveillance of the plaintiff in March 2010, August 2010 and February 2011.
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