Bakopoulos v Transport Accident Commission
[2018] VCC 1599
•5 October 2018
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-14-01469
| GREGORY (GREG) BAKOPOULOS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7, 8 and 13 February 2018 | |
DATE OF JUDGMENT: | 5 October 2018 | |
CASE MAY BE CITED AS: | Bakopoulos v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1599 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – injuries to the spine and right foot – disentangling
Legislation Cited: Transport Accident Act 1984, s93
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Altona Bus Lines v Lococo [2002] VSCA 159; Humphries & Anor v Poljak [1992] 2 VR 129; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Dhal v Grice [1981] VR 513; EMI (Australia) Ltd v BES [1972] 2 NSWR 238
Judgment: Leave to the plaintiff to issue proceedings seeking common law damages arising out of a transport accident on or about 2 April 2008.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Nightingdale with Mr E Makowski | Arnold, Thomas & Becker |
| For the Defendant | Mr G Lewis QC with Ms J Frederico | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 This is an application pursuant to s93 of the Transport Accident Act 1986 (“the Act”) seeking leave to proceed at common law for damages arising out of a motor vehicle accident occurring on 2 April 2008 (“the accident”). The plaintiff alleges he suffered injuries to his spine and right foot, which impaired bodily functions of the spine and the right leg respectively.
2 The injury to the right foot is said to be a fracture of the right lateral cuneiform bone in the right foot.
3 The injury to the spine is said to be aggravation of a pre-existing partial paraplegia consequential upon a T3-T4 fracture arising out of a motor vehicle accident in 1981.
4 In this case, apart from the 1981 motor vehicle accident, there was a subsequent motor vehicle accident on 1 September 2015 which, broadly speaking, had the effect of aggravating all the then pre-existing injuries, but, in particular, there were injuries to the plaintiff’s neck, right scapula, right shoulder, right leg and right ankle.
5 Further, insofar as the spinal condition is an aggravation of a pre-existing injury, only the extent of the aggravation can be assessed as a “serious injury” in accordance with the principles laid down in Petkovski v Galletti.[1]
[1] [1994] 1 VR 436
6 Accordingly, it would appear to me that the appropriate analysis is that laid down by the Court of Appeal in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz,[2] in conjunction with Altona Bus Lines & Anor v Lococo,[3] as follows:
(a) The trial judge should identify each injury;
(b)The trial judge should delineate the impairment consequences of each injury;
(c)Thirdly, as the two injuries affect two separate body functions, their consequences cannot be aggregated. Each injury has to satisfy the requirements of a “serious injury” in its own right rather than in combination with the second injury;
(d)Insofar as the plaintiff seeks to rely on pain and suffering consequences that existed after the 2015 injury and as at the date of hearing, being a consequence of the 2008 injury, it would need to be proved that the plaintiff had been rendered vulnerable by the 2008 injury to all of the consequences that became apparent after the 2015 injury, and that those consequences had been materially contributed to by the 2008 injury, and possibly also the 2015 injury;
(e)Alternatively to (d), did the additional effects which became manifest after the 2015 injury, when taken into account in isolation from the 2015 injury, produce a serious impairment to the foot and/or the spine as a consequence of the 2008 injury?[4]
[2](2012) 34 VR 309
[3][2002] VSCA 159
[4]Altona Bus Lines & Anor v Lococo (supra) at paragraphs 11 and 12
Background
7 The relevant context to the three motor vehicle accidents is summarised by the treating general practitioner, Dr Alan McCleary, in his report dated 16 December 2015,[5] to the following effect:
[5]Exhibit D, Plaintiff’s Court Book (“PCB”) 37 and 38
“Mr Bakopoulos has a history of 3 significant Motor Vehicle Accidents.
In 1981 he was involved in a severe accident in which he suffered closed head injury, coma, incomplete T3-T4 paraplegia. He subsequently had Neurogenic Bladder, Diplopia (double vision), multiple soft tissue injuries. He spent 18 months in hospital and 5 years in Rehabilitation.
He was left with left sided weakness, right arm and leg pain and diplopia.
Mr Bakopoulos was forced to quit his job with his family restaurant and obtained work in sales with Retravision. Due to his spinal injury he would use a single point stick for stability.
On 2 April 2008 Mr Bakopoulos was involved in another Motor Vehicle Accident. He was not treated at this practice for that accident but was seen in December 2008 with pain in his right lower leg and ankle with falls due to his ankle ‘giving way’. Subsequently he has described increased symptoms in his low back, right leg and foot pain and worsening of his bladder control. He states that he eventually had an MRI of his foot which demonstrated a fracture of his foot but that result is not available to me. In June 2009 he had a fall getting out of bed and was unable to rise. He was admitted to Northern Hospital where he underwent a Rehabilitation Program. He continued to keep contact with the Austin Health Spinal Unit but I have little correspondence from them.
Following this accident he was unable to manage with a simple single point walking stick and was advised by the Austin team to use a wheelchair at work.
Due to persisting pain in his right foot he was referred to Mr Roger Westh, Orthopaedic Surgeon who requested a Bone Scan which showed a hot spot in his foot consistent with fracture to his lateral cuneiform bone. He was issued with an orthotic for his shoe to assist with that.
In May of 2012 Mr Bakopoulos admitted to long standing depression and agitation. The increase in disability was finally getting to him and his employer was not being helpful about his needs regarding wheelchair use. He declined medication but was referred under [a] Mental Health Treatment plan to a Clinical Psychologist, Effie Chen at Marawarra Psychological Services.
He applied for [a] Disability Pension from Centrelink but was deemed ineligible.
He was laid off by his employer after 15 years in May 2012. However he was offered his position back again in September 2012 and he returned to work with Retravision.
He had a variety of problems with his bladder and kidney including a kidney stone in 2012. This is directly related to his neurological damage to his spine causing bladder dysfunction.
He continued with Urological treatments, Podiatry management and Physiotherapy, Hydrotherapy for his injuries during 2012 and 2013. With the assistance of these therapies he was able to continue his role at Retravision.
On 1 September 2015 he was involved in another Motor Vehicle Accident when he was struck by a truck while turning left. He states that his 4 wheel drive vehicle was irreparably damaged following this.
He was taken by ambulance to [the] Western Hospital and assessed.
He described pain in his neck, right scapula, right shoulder and right leg and ankle. He had a CT of his cervical and thoracic spine and X-ray of his shoulder and right ankle. These were reported as showing acute abnormality.
When reviewed by me on 3 September 2015 Mr Bakopoulos complained of right neck and shoulder pain, right thumb pain, low back pain, right ankle pain, and he was quite shaken and distressed. He was referred for a new assessment by a Physiotherapist to mobilise him as soon as possible.
Following this accident he has experienced more falls. He states that his right ankle just gives way and he falls. He has dizzy spells which also have lead (sic) to falls. He is frightened that he will get another head injury. This is delaying his return to active mobilisation and has increased his fear and frustration.
… .”[6]
[6]Exhibit D, PCB 37 and 38
8 In summary, Dr McCleary stated:
“The repeat accident on 2 April 2008 had further injured his spine and right leg. He went from being able to walk with [a] single stick to being virtually wheelchair bound following this accident. This accident may have also contributed to worsening of his bladder function and lead (sic) to the renal calculus and increasing urinary incontinence in 2012. Mr Bakopoulos had chronic back, neck and leg pain following this accident to the point that he attempted to gain [a] Disability Pension.
The accident on 1 September 2015 has exacerbated all his injuries and taken his confidence away. He is now fearful of walking in case he falls, he has anxiety, insomnia, flash backs of trucks coming at him and is not at all confident of being able to return to work.
… .”[7]
[7]Exhibit D, PCB 39
9 Further, on this occasion, Dr McCleary stated, with respect to the plaintiff’s capacity for employment:
“Mr Bakopoulos has had a workplace assessment and would require certain workplace alterations and assistance with transport to be able to return to work. I believe it is in his best interests to return to work as soon as possible but it would require assistance and positive encouragement from his employer and work colleagues for him to be able to return. I would expect that within 3 months he would be back at work full time if he was supported and encouraged.”[8]
[8]Exhibit D, PCB 39
Relevant legal principles
10 With respect to the spinal injury and or the foot injury, 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 s93(17) of the Act.
11 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s93(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) … .”
12 In order to succeed in his application, the plaintiff must satisfy the Court that the consequences of his injury are “serious”. In order that an injury be considered to be “serious”:
(a)the consequences of the injury must be serious to the particular applicant;
(b)those consequences may relate to pecuniary disadvantage and or pain and suffering;
(c)the question to be asked is whether the injury, “when judged by comparison with other cases in the range of possible impairments or losses, be fairly be described at least as ‘very considerable’ and certainly more than [merely] ‘significant’ or ‘marked’”.[9]
[9] Humphries & Anor v Poljak [1992] 2 VR 129 at paragraph [140]
Issues
13 The defendant contends that:
(a) the plaintiff has not proved he suffered a stress fracture of the right foot in the relevant accident. If there was such a fracture, then it was no longer evident on the CT scan of 10 March 2010;
(b) the development since the accident of symptoms in the foot and lower leg is due to the inevitable progression of the incomplete paraplegia from which the plaintiff has suffered since 1981, and the accident has not materially contributed to the post-accident symptoms;
(c) any spinal symptoms post 2008 are due to the prior spinal condition and or the effects of the 2015 accident;
(d) the presentation of any physical impairments arising since the accident in relation to the spine is significantly governed by a psychological reaction;
(e) in the accident of 1 September 2015, all of the symptoms claimed in this proceeding were significantly aggravated to an extent that makes it impossible to tease out any alleged effects of the 2008 accident;
(f) any impairments attributable to the accident are interwoven with each other and with unrelated impairments to the extent that the required disentangling of any relevant impairments cannot be achieved.
Right foot injury
14 The plaintiff’s claim is that he suffered a frank fracture of the right cuneiform bone in his right foot when he braked heavily in the course of the accident. In his affidavit sworn 7 August 2013,[10] the plaintiff swore:
[10]Exhibit A, PCB 1
“9.On 2 April 2008, I had picked up my three children from school and we were driving home around 3:30 pm. I was driving down the Greensborough bypass when an oncoming vehicle failed to give way and turned right in front of me.
Although I applied the brakes, it all happened too quickly and I was unable to avoid colliding with the car.
10.I felt immediate pain in my back and my legs began to spasm. Fortunately my children were uninjured.
…
12.I took some time off to recover and when I returned to work, I noticed that I could not walk properly anymore with my walking stick. I was also in considerable pain, particularly in my right foot and lower back, however as I was used to experiencing pain, I simply put up with it.
13.However after about 8 months of continuous pain, I decided to investigate this further. On 31 December 2008, I therefore underwent an x-ray of my right foot. This did not reveal any problems. As I knew there was something wrong, I therefore persisted and was referred to Mr Roger Westh. He sent me for a bone scan and then an MRI. I had the MRI in January 2009 and this revealed an unhealed fracture in my right foot.
14.To treat this, I was given a CAM walker for approximately 3 months. This did not help and was awkward and difficult to get around in. I was then given a moulded boot to where, however I kept worrying that I would fall over wearing it so I stopped.”[11]
[11]Exhibit A, PCB 2-3
15 In cross-examination, it was put to the plaintiff that when he signed his Transport Accident Commission Claim Form on 2 February 2009, that he had stated in same that the emergency created had “not given me time to brake”.[12] The plaintiff replied that he had given instructions for the Form over the telephone to a Transport Accident Commission representative, and what he had meant to convey was “the truth is, not giving me time to stop (witness demonstrates), the brakes”.[13] It had earlier been put to the plaintiff:
[12]Transcript (“T”) 44, Line (“L”) 10
[13]T44, L12-14
“You see, I’m suggesting to you that you never had time to apply the brakes on your vehicle before that collision?”
to which the plaintiff replied:
“I suggest to you I did, because I skidded.”[14]
[14]T43, L24-26
16 Having seen the plaintiff in the witnessbox and given that the instructions were typed up by a Transport Accident Commission representative, I accept his explanation that he intended to convey that he did not have time to stop.
Physical foot injury
17 On 10 March 2009, the plaintiff attended his then general practitioner, Dr Colbert (deceased), giving a history of the accident. Examination on that date revealed some tenderness in the right mid foot, and Dr Colbert organised a bone scan.
18 On review on 11 March 2009, the bone scan report showed a stress fracture in the right lateral cuneiform bone. Dr Colbert referred the plaintiff to Mr Roger Westh, orthopaedic surgeon, for further follow up.[15]
[15]Exhibit E, PCB 45 and exhibit Q
19 Mr Roger Westh saw the plaintiff initially on 12 January 2009 with respect to his “painful right foot which had been present for several months”.[16] Mr Westh recorded a significant past history from a motor vehicle accident in 1981 with a T3-T4 cord injury, having spent eighteen months in the Spinal Unit at the Austin Hospital. “He was left with residual weakness particularly in his left leg.”
[16]Exhibit G, PCB 50
20 On examination, the plaintiff was noted to have an awkward scissor-type gait and was using a stick in his right hand. He was tender over the shafts of the second and third metatarsals of the right foot. There was no swelling. He experienced pain with weightbearing. X-rays taken in 2008 were normal.
21 Mr Westh arranged a bone scan on 12 January 2009 and –
“… initial blood phase images demonstrated a focal area of hyperperfusion at the central aspect of the right mid foot. The delayed images demonstrated moderate to intense focal osteoblastic uptake activity at the right mid foot. The conclusion was that the appearance was compatible with a moderate grade stress fracture of the right lateral cuneiform bone.”[17]
[17]Exhibit G, PCB 50
22 When reviewed on 14 January 2009, the plaintiff gave a history he was involved in a motorcar accident in approximately May 2008 in which the car was written off. At that point, the plaintiff was prescribed a CAM walker.
23 When reviewed on 11 February 2009, the plaintiff said his foot was feeling more comfortable and he was using a wheelchair at work:[18]
“On 4 March 2009 he was showing further improvement and was walking using a stick. On examination of his foot there was no swelling and there was only minimal tenderness. At that stage it was felt that further gradual improvement would occur.”[19]
[18]Exhibit G, PCB 50
[19]Exhibit G, PCB 50
24 However, the plaintiff was subsequently seen again on 22 March 2010 with persisting pain in his right mid foot region. He said he was on his feet a lot at work and was having difficulty weightbearing. On examination, he was noted to be tender over the metatarsophalangeal joints 2 and 4 and there was some slight swelling. An x-ray of the right foot on 10 March 2010, and also a CT scan, showed a hallux valgus deformity. No fracture was evident. In particular, no fracture was seen in the region of the base of the second metatarsal.[20]
[20]Exhibit G, PCB 51
25 At that stage, Mr Westh considered the plaintiff had “a localised metatarsalgia” and he recommended he wear a transferrable dome insole to relieve the pressure of the metatarsophalangeal joints.[21]
[21]Exhibit G, PCB 51
26 On 29 July 2009, Dr Steven Hill, rehabilitation consultant from North Eastern Rehabilitation Centre, reported to the Transport Accident Commission.[22] The plaintiff reported an undiagnosed foot fracture present for eight months prior to appropriate treatment. Further, he had returned to work following that time but worked from a wheelchair but had recently lost employment. He had been transferred to the Rehabilitation Centre for the purpose of pain management and to improve function, which included appropriate equipment support, both presently and for the future.
[22]Exhibit H, PCB 52
27 At that point, medication was prescribed for pain management, including OxyContin and Pregabalin.
28 Further, the plaintiff was advised to purchase a wheelie frame for internal mobility, together with an appropriate wheelchair and cushion “for functional efficiency for over long distances in the community setting”.[23]
[23]Exhibit H, PCB 52
29 Relevantly, Dr Hill stated:
“While Mr. Bakopoulos suffers longstanding incomplete paraplegia he reported to be functionally independent with a cane up until the motor vehicle accident in April 2008. Whilst his specific needs for new equipment related to his [pre-existing] spinal cord impairment it is likely that this need has been precipitated prematurely by the consequences of the motor vehicle [accident] in April 2008.
Mr. Bakopoulos reported [a] need for a wheelchair in the workplace since [the] April 2008 accident and that his gait pattern deteriorated substantially due to problems with foot pain on the right.”[24]
[24]Exhibit H, PCB 53
30 Further, in a report dated 10 March 2010 to the general practitioner,[25] Dr Hill repeated the prescription of a wheelchair and wheelie frame after a prolonged rehabilitation admission at the North Eastern Rehabilitation Centre in 2009:
“… He attributes his functional demise as a consequence of a motor vehicle accident where he suffered a right foot fracture. He is very fixed on the notion there is something wrong with his foot that needs to be fixed. An MRI scan was performed and this showed some reactive inflammatory change only. I will forward a copy of the MR report to you. I have suggested he trial nonsteroidal anti-inflammatory drugs and to spend less time weight bearing on his foot.”[26]
[25]Exhibit H, PCB 55
[26]Exhibit H, PCB 55
31 As part of his treatment, Dr Hill stated:
“I will refer him to our Gait Clinic at Royal Talbot Hospital in relation to whether orthotic devices may assist him or give him further foot support. Certainly the shoes he was wearing today were less than ideal.
I have very little else to offer Greg, other than to suggest he see the orthopaedic surgeon who was involved in the care of his foot fracture. Indeed I think that is important, as Greg is not satisfied that there are no further interventions that could be offered to relieve him of pain.
…
I note that TAC has supported the acquisition of equipment, now deemed necessary as a consequence of that motor vehicle accident, in which he suffered a foot fracture. I have said previously to TAC that the implications of that accident has brought forward the need for more significant gait aids for Greg, even though his major gait problem relates to incomplete quadriplegia from a previous motor vehicle accident some 20+ years ago.”[27]
[27]Exhibit H, PCB 55
32 On further review on 22 February 2011, Dr Hill stated:
“It is now 2½ years that he has experienced pain in this foot and this is on the background of incomplete paraplegia of many years’ duration. There is evidence of central sensitization. He is very sensitive to any stimulus, even very light touch, to the foot, both dorsum and plantar regions just below the ankle to, and including the toes. Pressure also precipitates discomfort. He has pain present intermittently but present every day and for much of the day. At night-time, there is some relief, it would seem.
As stated previously, Mr Bakopoulos sees this problem as a result of a foot bone fracture in a motor vehicle accident 2½ years ago. MRI of the foot last year demonstrated changes suggestive of arthritis only. … .”[28]
[28]Exhibit H, PCB 56
33 As part of his treatment he had been prescribed with a shoe insert that the plaintiff said probably helped a little, “although he has a greater tendency to fall, as a result of it”.[29]
[29]Exhibit H, PCB 56
34 With respect to his foot, Dr Hill related:
“He has an orthotic review next week and there may be some purpose in also having some outpatient physical therapy. We will explore the private versus public options in that regard … .”[30]
[30]Exhibit H, PCB 56
35 Finally, Dr Hill related:
“In summary, I have indicated to Mr Bakopoulos that, from my perspective, he has the chronic disability of incomplete paraplegia and now has an additional disability of chronic pain. I see the explanation for his 2½ year history of foot pain as one of central sensitization, in the context of an old injury. I do not see that there can be any specific input which will improve his experience. I will, however, discuss him with my colleagues and if there are other additional suggestions, then we will pursue them.”[31]
[31]Exhibit H, PCB 57
36 On further review on 31 August 2011, Dr Hill repeated the sequence of the then two motor vehicle accidents and their consequences. He stated:
“Mr Bakopoulos reported having suffered right foot injury (he describes this as a fracture in a motor vehicle accident in mid-2008). The Victorian Spinal Cord Service was not involved in the management of this problem. He describes significant functional deterioration as a result of that injury.”[32]
(emphasis in original).
[32]Exhibit H, PCB 58
37 Further, Dr Hill stated:
“Mr Bakopoulos described persistent right foot pain as a result of the second motor vehicle accident. Central sensitization as (sic) evidenced by pain with minimal light touch. Slight pressure over the foot was also painful. MRI of the foot demonstrated some mild arthritic change and trial non-steroidal anti-inflammatory drugs was recommended from that perspective. Mr Bakopoulos was also referred to the Royal Talbot Rehabilitation Centre (Austin Health) gait clinic and a shoe with ‘rocker-bar’ recommended. Mr Bakopoulos found this unhelpful.
In essence Mr Bakopoulos is keen to remain on his feet but he was increasingly clear that wheelchair usage for efficiency of movement and endurance is required. … .”[33]
[33]Exhibit H, PCB 58
38 In a letter to the plaintiff’s solicitors dated 2 May 2013, Dr Hill stated:
“Mr Bakopoulos suffers long term spinal cord impairment and disability. He has made an exceptional adaptive recovery to his original injury such that he was able to be gainfully employed. This … [has] not been easy for him and it has been his determination that has allowed that. He does have the effects of ageing on top of his primary spinal cord disability and has had additional disability consequent to his foot injury outlined in previous letters.”[34]
[34]Exhibit H, PCB 59
39 In a follow-up report dated 27 March 2014, Dr Hill again related:
“Mr Bakopoulos attributes the acquisition of his foot injury to have accelerated his inability to work. This may or may not have been the case. Certainly I have no objective evidence other than what is described in the previous correspondence regarding that additional injury. Central sensitization is a significant contribution to Mr Bakopoulos’s impairment, disability and pain perception. The predominant reason for this is his original spinal cord injury.”[35]
[35]Exhibit H, PCB 60
40 Dr Hill again reported on 8 September 2017 following the third motor vehicle accident in 2015. He was seen on 15 December 2015:
“… He had with him x-ray reports from Western Hospital demonstrating no fractures with a diagnosis of soft tissue injury only. He was complaining of neck and shoulder pain and overall reduced function. Certainly, his gait pattern had further deteriorated and was unsafe. It was further recommended that he moves towards wheelchair mobility for efficiency and safety. … .”[36]
[36]Exhibit H, PCB 63
41 Dr Hill again reported on 2 February 2018 following review of the plaintiff in November 2017. He stated:
“Mr Bakopoulos had concerns that my report did not reflect the changed function experienced by him following the motor vehicle accident in 2008. He provided a bone scan report [of] January 2009 indicating right cuneiform foot fracture. The fracture may have occurred in the context of that motor vehicle accident or may have occurred in the context of overuse. It is certainly relevant to evidence of arthritic change of the mid foot evident on later MRI scan of the foot and evolution of pain and further disability.
Mr Bakopoulos states significant symptoms and functional change from the time of the 2008 motor vehicle accident. As stated in previous reports, my involvement began in the context of an Austin Health admission for back pain months later. If it is accepted that beginning of his foot pain and functional deterioration began at the time of the motor vehicle accident, it is reasonable to conclude that there is a cause and effect relationship.”[37]
[37]Exhibit H, PCB 67a
42 On 5 September 2010, the treating orthotist at the Austin Hospital, Sam Spalding, reported to the Transport Accident Commission as follows:
“Mr Greg Bakopoulos aged 46 years had an incomplete T5 level of paraplegia back in 1981 and preceded [scil proceeded] to walk with a single point stick. The right lower limb has always remained stronger than the left. Regrettably Greg was involved as a driver in another motor vehicle accident in March 2008 where the medial longitudinal arch (MLA) of his right foot went through the brake pedal.
In January 2009 a bone scan showed a lisfranc-type fracture which had not formed a union in the right foot. Further scans completed in January 2010 showed increased T2 signal abnormality in the right lateral cuneiform and cuboid bone with mild loss of joint space. As a result, Greg has increased levels pf pain in the area mentioned particularly when stressing the MLA. He reports that he can only walk limited distance with the pain increasing to such a degree that he stops. He is now dependent on the wheelchair for longer distances. …
On the right side, Greg has developed a mild degree of hallux valgus, excessive pressure under 2nd, 3rd & 4th metatarsal heads, lateral ankle joint compression due to excessive pronation, an extremely tight calf, and medial knee join pain associated with laxity and strain of the medial collateral ligaments. … .”[38]
[38]Exhibit J, PCB 68
43 Mr Simpson further reported:
“In the past Greg[’]s Lisfranc type injury had been managed with the provision of a Camwalker however, Greg was unable to tolerate this form of management.
Consequently extra-depth, extra-width orthopaedic footwear which have been modified would decrease the stresses through the midfoot. … .”[39]
[39]Exhibit J, PCB 68 and 69
44 Defence counsel rely on the opinion of orthopaedic surgeon, Mr Rodney J Simm, in his report dated 17 July 2013.[40] At the time of his consultation, Mr Simm had medical reports from Dr McCleary, Dr Brian Murphy (Dr Colbert) and Mr Roger Westh.
[40]Exhibit 2, Defendant’s Court Book (“DCB”) 12
45 Mr Simm took a history that following the accident, the plaintiff was able to ambulate with a walking stick in his right hand. He was off work for approximately seventeen years. He returned to work with Retravision as a whitegoods salesman. He was able to undertake normal work in the retail section of the store but had to work using his walking stick. He was able to drive in an automatic motor vehicle and he was independent with the personal activities of daily living. He was working as a salesman at the time of the subject accident.[41]
[41]Exhibit 2, DCB 14
46 Further, Mr Simm stated:
“He presented to his General Practitioner in December 2008 complaining of pain in the right leg, ankle and the top of the right foot for several months. The pain was gradually getting worse and it was making it difficult for him to work as a salesman. … He was referred to Mr Roger Westh … on 12 January 2009. … a bone scan on 12 January 2009 … showed changes in the lateral cuneiform bone of increased uptake, consistent with a moderate grade stress fracture.”[42]
[42]Exhibit 2, DCB 15
47 Mr Simm then recorded:
“… From about that time he started using a wheelchair. It was easier for him to use the wheelchair at work and he could also use it when he was on outings, such as visiting shopping centres.
…
From that time onwards Mr Bakopoulos adopted the use of the wheelchair on a regular basis. He used the wheelchair at work and if he anticipated being on his feet for any length of time such as when he was on outings. The TAC provided the wheelchair and then provided an electric motor device to enable him to use the wheelchair as a self-propelled aid. Mr Bakopoulos said that his treating specialist was concerned that he may fall and that he should no longer walk up his drive with his walking stick. … .”[43]
[43]Exhibit 2, DCB 15
48 Mr Simm repeated the history from the Austin Hospital of 9 March 2010 that the plaintiff was –
“… very fixed on the notion he has something wrong with his foot. An MRI scan was said to show some reactive changes only and a CT scan showed no evidence of fracture.”[44]
[44]Exhibit 3, DCB 15
49 As to current medical complaints, Mr Simm recorded:
“… He has weakness of the left lower limb which had remained largely unchanged since the accident in 1981. His right lower limb, which used to be his good leg, is now tending to give way and this has caused him to fall. For this reason he has been strongly encouraged to use the wheelchair by his managing therapist and doctor. … .”[45]
[45]Exhibit 3, DCB 16
50 Further, Mr Simm recorded:
“… He now uses his wheelchair at work and if he is anticipating being on his feet for any length of time, such as when he leaves the house and goes to a shopping centre. … .”[46]
[46]Exhibit 3, DCB 16
51 On examination:
“He walked with a very unsteady gate, leaning heavily on the walking stick in his right hand. It was evident that he had upper motor neurone weakness of his left lower extremity, but there also seemed to be some impairment of function of the right lower extremity. He relied on his right leg for support. … .”[47]
[47]Exhibit 3, DCB 17
52 On further examination:
“… there was no swelling or deformity. He was extremely sensitive around the bases of the toes on the dorsum of the foot, with sensitivity extending proximally along the medial side of the foot. There was no particular sensitivity over the lateral cuneiform and no deformity in this region of the foot.”[48]
[48]Exhibit 3, DCB 17
53 Investigations included a bone scan dated 12 January 2009 of which:
“… The appearance is compatible with a moderate grade stress fracture of the right lateral cuneiform bone.”[49]
[49]Exhibit 3, DCB 17
54 Further, an MRI scan dated 12 January 2010 from the Austin Health recorded that:
“… this investigation showed increased T2 signal abnormality in the right lateral cuneiform and cuboid bone with mild loss of joint space.”[50]
[50]Exhibit 3, DCB 17
55 An x-ray of the right foot dated 10 March 2010 and a CT scan of the right foot dated 16 March 2010 did not show any such finding.
56 As to his clinical progress, Mr Simm noted:
“… He was able to manage quite well with the residual neurological deficit until the latter months of 2008, when he developed pain in the right leg, ankle and foot.”[51]
[51]Exhibit 3, DCB 18
57 It was Mr Simm’s opinion that the stress fracture of the lateral cuneiform of the right foot diagnosed in 2009 had nothing to do with the accident. This opinion was based on a finding that –
“… There was no history of trauma to the foot in the accident and the symptoms from the stress fracture had come on several months later.”[52]
[52]Exhibit 3, DCB 18
58 Further, he considered –
“… the ongoing pain in his right foot is no longer in the region of the lateral cuneiform but is rather diffuse pain in the region of the metatarsal heads, more in the region of the 1st metatarsophalangeal joint where he has an early bunion.” [53]
[53]Exhibit 3, DCB 18
59 It was his belief that the plaintiff:
“… has developed a chronic pain condition in association with the right foot. … .”[54]
[54]Exhibit 3, DCB 18
60 Further, Mr Simm considered that if the plaintiff had suffered a painful stress fracture of the lateral cuneiform of the right foot, it could be caused by a spontaneous stress fracture in the tarsal bones which –
“… although uncommon in general orthopaedic practice, are seen from time to time. Frequently no particular precipitating factor may be recorded. Occasionally these stress fractures will occur in patients who have taken up regular running or long distance walking on the pavement.”[55]
[55]Exhibit 3, DCB 19
61 Finally, Mr Simm considered that a –
“… [s]tress fracture by definition is a fracture that occurs as a result of repetitive trauma, not isolated trauma. … .”[56]
[56]Exhibit 3, DCB 19
62 As to the contemporaneity of symptoms in the right foot with the occurrence of the accident, the plaintiff, in cross-examination, was asked why it took him so long to fill out a Claim Form, being 2 February 2009. With respect to the right foot, he said:
“… I remember when I left the hospital, I came back to the house to see my wife and kids, and I had to get my walking cane to walk into the house, because I just could not walk properly. And I’m thinking to myself, ‘Come on Greg, it’s just shock. It’s just shock. Just take it easy, it’s just shock. And by the way, you’re all – you’re taking your medications, your Oxycontin or whatever they were giving me then,’ and I’m thinking to myself ‘Greg, it’s just – it’s just, um, shock to your body, this and that’. Because I’m – I’m a great believer that pain is all in the brain.
…
… ‘Don’t think… about it and you won’t have it.’ And I walked into the house and I thought to myself, ‘Come on Greg, just keep on going, keep on going, keep on going slowly, slowly,’ and that’s what I – that’s what I did. I just thought I’d try and move on, move on, move on, move on, slowly, slowly. Slowly, slowly, slowly, slowly with a walking stick inside the house. I never used to – I hardly ever used to use the walking stick in the house, but ever since then I had the walking stick and so on. Then on – it was December 31 where I’ve said to the wife, ‘I can’t take this no longer, this is really hurting me, I’m going to go for an X-ray’. She – and she said, ‘Greg, it’s New Year’s Eve’. I go, ‘I can’t take it no longer, I’m going to go for an X-ray’. I went for an X-ray at Greensborough Hospital.”[57]
[57]T40, L31 – T41, L25
63 Having seen the plaintiff in the witnessbox, I accept that he suffered the contemporaneous onset of pain in the right foot, but due to his stoicism with respect to the earlier injury, he delayed reporting same to Dr Colbert.
64 I consider that Dr Steven Hill is probably in the best position to make an overall assessment of the aetiology of the three relevant motor vehicle accidents, as he has been involved in the treatment of all three. His opinion on 2 February 2018 was to the effect:
“The fracture may have occurred in the context of that motor vehicle accident or may have occurred in the context of overuse.”[58]
[58]Exhibit H, PCB 67a
65 The latter alternative is obviously consistent with the opinion of Mr Simm.
66 Dr Hill goes on to say:
“It is certainly relevant to evidence of arthritic change of the mid foot evident on later MRI scan of the foot and evolution of pain and further disability.”[59]
[59]Exhibit H, PCB 67a
67 In the context that the plaintiff has complained of significant symptoms and functional change from the time of the accident:
“… If it is accepted that beginning of his foot pain and functional deterioration began at the time of the motor vehicle accident, it is reasonable to conclude that there is a cause and effect relationship.”[60]
[60]Exhibit H, PCB 67a
68 Whether the specific pain causing physical injury is the fracture or the arthritic change in the mid foot may never be finally determined, but I accept that the pain emanating from the mid foot has remained consistent, certainly up until the time of the third accident and beyond. I also accept that the pain has a predominant physical basis relating to the future and or the arthritis being rendered symptomatic.
69 Insofar as it may be argued that Dr Hill’s evidence in total really amounts to a possible causal relationship between the accident and the foot symptoms with respect to an underlying arthritic condition and or stress fracture, I would further rely on the Full Court decision of Dhal v Grice,[61] where his Honour Gobbo J stated:
“At the trial there had been a considerable body of expert medical opinion. Of the five experts that gave evidence, two were prepared to find a possible causal relationship between the accident and the haemorrhage. Neither of these two doctors spoke in terms of probability rather than possibility.”
[61][1981] VR 513 at 515
70 Further, his Honour cited with approval the decision of EMI (Australia) Ltd v BES,[62] where Asprey JA said, at 243:
“Where scientific knowledge properly adduced in evidence as expert opinion deposes to more than one event as a possible cause of a medical condition and where it appears from the evidence accepted by the tribunal of fact that of those possible causes of that condition one of them, on the balance of probabilities, is more likely than the others to be the cause of the medical condition in question, in this case the syncopal episode, then the tribunal may properly draw the inference of fact that such was the operating cause of that condition in the particular circumstances. Reliance for the purpose of drawing that inference may be placed by the tribunal on the evidence as a whole and is not confined to the medical evidence only (see St. George Club Ltd. v Hines), except where all the medical evidence agrees that the matters sought to be relied upon must be excluded from consideration as lacking justification for the drawing of the inference. That is not the case here.”[63]
[62][1972] 2 NSWR 238
[63]Dahl v Grice (ibid) at 520-521
Consequences of the right foot injury
71 As a result of the 1981 accident, the plaintiff was able to work full time as a salesperson with Retravision in Hoppers Crossing and “was able to walk around with only the aid of a walking stick”.[64]
[64]Exhibit A, affidavit of the plaintiff, sworn 7 August 2013, paragraph 8
72 On returning to work after the accident, the plaintiff said he was finding work “extremely difficult”.[65] He swore:
“… in June 2009, my right leg gave way due to pain and I fell to the ground. I was unable to get up and was taken to the Austin Hospital by ambulance. I ended up staying in hospital for approximately one week and was treated with physical therapy and powerful analgesics. I was then moved to the North Eastern Rehabilitation Centre in Fairfield for approximately 5 weeks, where I underwent physical therapy including physiotherapy, hydrotherapy and pain management. After I was discharged, various modifications were made to my house (such as bars in the bathroom, toilet and front walkway) and I was given a new lightweight wheelchair.”[66]
[65]Exhibit A, affidavit of the plaintiff, sworn 7 August 2013, paragraph 15
[66]Exhibit A, affidavit of the plaintiff, sworn 7 August 2013, paragraph 15, PCB 4
73 The plaintiff further swore:
“At this point, the Retravision in Roxborough (sic) Park called and asked would I like to work in their branch. I agreed, however found on my return to work that I required use of my wheelchair to get around. I had also been told by Steven Hill that I should use it more as any further falls would put me at risk of further injury. It was difficult to manoeuvre my wheelchair around the store; however I tried as best I could for the next 2.5 years until I was let go.”[67]
[67]Exhibit A, affidavit of the plaintiff, sworn 7 August 2013, paragraph 16, PCB 4
74 After a period of unemployment, the plaintiff obtained a position with Stan Cash, an electrical store, where he was working for approximately 20 hours per week over three days. He now required the use of his wheelchair at work–
“… nearly all of the time. I can and do get out of it if necessary, however rely upon it for the majority of the shift. Although I struggle with aspects of this role, I feel lucky to have a job.”[68]
[68]Exhibit A, affidavit of the plaintiff, sworn 7 August 2013, paragraph 18, PCB 4
75 Further, he swore:
“As a result of the accident in 2008, I now experience constant pain in my right foot. The pain varies – sometimes it is dull and sometimes it is sharp. I find it difficult to explain the type of pain I feel. Sometimes I will be sitting quietly when I experience an excruciating jolt of pain in my foot. This takes me by surprise and is extremely unpleasant.
…
Whilst I was significantly restricted prior to this accident, this accident has had a profound impact on my life. Before the accident, I did require the use of my walking stick for various activities; however I never needed it when I was at home. Now I need to use my wheelchair everyday and my walking stick at all times. This is because I find walking more difficult than I did previously[.] [M]y leg[’]s, much less stable. My right leg used to be ‘my rock’ as my left leg was weakened after the first accident. As my right leg is now injured, this leaves me in a much more vulnerable position. I believe this is what caused my fall and this is the reason; I now need to use my wheelchair at work at all times.
Before the accident, I could enjoy walks to the milk bar, go on walks with my wife and stand up at work, however I no longer enjoy any of these things and I find it extremely distressing being confined to a wheelchair for so long. I find that being cramped up in the chair contributes to increased back pain.
It is particularly difficult to get around Greensborough in my chair as there are a lot of hills which are hard to navigate. I did try to attach an electric contraption to my chair, however getting this in and out of the car and up and down my driveway was so difficult that I have stopped using it.
…
I am experiencing a loss of income as I am now only able to work part time and am earning less than half of the salary that I used to earn. I no longer receive commission in my role and this used to constitute a decent part of my income. Accordingly, I believe I have suffered a very considerable loss of earnings and this loss is ongoing.”[69]
(sic)
[69]Exhibit A, affidavit of the plaintiff, sworn 7 August 2013, paragraphs 20, 22, 23, 24 and 29, PCB 5 and 6
76 In cross-examination, it was put to the plaintiff that he had told an occupational therapist, Mr Stephen Woolley, that prior to the relevant accident, he had driven an automatic car and used a manual wheelchair when mobilising in the community. The plaintiff denied that he told Mr Woolley such a fact, and stated “I didn’t use my wheelchair prior to 2008”.[70]
[70]T37, L19 – T38, L14
77 It was further suggested to the plaintiff that he had told psychiatrist, Dr Nathan Serry, in 2010, that he had worked in a wheelchair prior to the accident, and he emphatically denied same.[71]
[71]T39, L13
78 I accept these denials, as they are consistent with my impression of the plaintiff under cross-examination, but also with the medical reports of Dr Hill and Dr McCleary referred to above.
79 As to the reduction in working hours, the plaintiff was cross-examined as follows:
Q: “So you didn't go back to full hours?‑‑‑
A: No. Unfortunately not.
Q:Once you were out of the moon boot did you go back to full hours?‑‑‑
A:No, because I still had the pain there.”[72]
[72]T46, L13-15
80 The plaintiff was further cross-examined on this topic, to the following effect:
Q: “08. You started to keep a wheelchair at work?‑‑‑
A: After 08?
Q: Yes?‑‑‑
A:I didn't - I didn't use the wheelchair 'til I found out there was a fracture in my foot which was, ah, 2009.
Q:That's correct. Then after that, you would drive to work and get out of your car and then use the wheelchair which you had kept at work. Was that the pattern of events?‑‑‑
A:I may have kept the wheelchair at work for about a week, but then I've decided to, no, it's going to come with me, 'cause my - they kept on deflating my tyres.”[73]
Q:I suggested the wheelchair remained at work for the time you worked at Retravision?‑‑‑
A:I suggest it didn't.”
[73]T51, L19-28
81 Later, the plaintiff was asked:
Q:“… immediately before the third accident, how many hours a week were you working?‑‑‑
…
A:Ah, they were decreased, 20 hours.
…
Q:How many days?‑‑‑
A:I was there for, ah, three days.”[74]
[74]T56, L31 – T57, L4
82 In re-examination, the plaintiff said that, prior to the accident, he had been working 38 hours, plus an average of 6 to 8 hours overtime, at Hoppers Crossing, and was working 40 to 45 hours at Epping.[75] Further, he was asked:
[75]T59
Q:“… Why was it that you were only working 20 hours a week at Stan Cash prior to the car accident of 15 September 2015?‑‑‑
…
Q: Were you coping with the work?‑‑‑
A: I was trying to do my best.
Q: Were you coping?‑‑‑
A: Not as much as I would have liked to.
Q: What problems were you having?‑‑‑
A: Ah, my – my leg and ‑ ‑ ‑
Q: Which leg?‑‑‑
A: My right.
Q: What part of your right leg?‑‑‑
A: My foot. … .”[76]
[76]T60, L3-10
83 Further, the plaintiff stated he was having problems driving 45 minutes to work with respect to the right foot. He was asked:
Q: “And what was the problem with the right foot?‑‑‑
A:I was getting pain every time I pressed the accelerator, every time I pressed the brake, I can feel pain underneath my foot. It used to start spasming. I never used to get spasm in my right leg.”[77]
[77]T60, L25-29
Findings
84 On the basis of the above evidence, I am satisfied as follows:
(a) The plaintiff suffered a physical traumatic injury to his right foot in the course of the accident which produced consequences of having to use a wheelchair at work and socially because of pain in the foot and, further, caused an inability to work full time as he had prior to the accident;
(b) This situation pertained up until the time of the third motor vehicle accident in 2015, such that by that time, those consequences were long term and were not likely to abate in the foreseeable future.
85 Further, those consequences in themselves, described in the context of a plaintiff suffering, could be described as:
(a) serious for this particular plaintiff;
(b) relating to pecuniary disadvantage as described, and pain and suffering as described; and
(c) 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.”[78]
[78]Humphries & Anor v Poljak (supra) at 140
86 I consider that the physical injury and the consequences outlined above are in line with the template set down by the Court of Appeal in Meadows v Lichmore,[79] wherein a two-stage analytical approach was endorsed as follows:
“… The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the Court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”[80]
[79][2013] VSCA 201
[80]Meadows v Lichmore (ibid) at paragraphs [21] and [22]
Spinal injury
87 It is clear enough that the plaintiff complained contemporaneously of increased pain in his lumbar spine following the accident; however, there is no x-ray or similar evidence showing any incremental damage suffered as a result thereof.
88 Further, I accept there is evidence of back symptoms before the accident.[81]
[81]Exhibit C, PCB 17
89 Further, on the initial presentation to Dr McCleary, being eight months post accident, there was no reference to spinal issues and no mention of the accident.[82]
[82]Exhibit D, PCB 19
90 Further, I accept defence counsel’s submission that there was no reference to spinal issues in:
(a) the referral note to Dr Hill;[83]
[83]PCB 20
(b) the letter to Centrelink dated 21 June 2012;[84] or
(c) the clinical records of Dr McCleary until 6 June 2012, despite this being the eighth consultation since the accident.[85]
[84]PCB 33
[85]DCB 66
91 In short, the state of the evidence does not enable me to discern whether any back injury suffered in the accident is still playing any, and if what, part in the plaintiff’s current presentation.
Conclusion
92 The plaintiff will be granted leave to commence proceedings for common law damages in respect of a right foot injury suffered on or about 2 April 2008.
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