Brown v Transport Accident Commission
[2017] VCC 270
•22 March 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-15-05655
| TERRENCE BROWN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 February 2017 | |
DATE OF JUDGMENT: | 22 March 2017 | |
CASE MAY BE CITED AS: | Brown v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 270 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – road transport accident – injury to the neck – psychiatric injury – prior injury in June 2003 – prior injury in September 2009 – analysis of the Plaintiff’s credit.
Legislation Cited: Transport Accident Act 1986
Cases Cited:Peak Engineering & Anor v McKenzie [2014] VSCA 67; Petkovski v Galletti [1994] 1 VR 436; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Poholke v Goldacres Trading Pty Ltd & Victorian WorkCover Authority [2016] VSCA 232
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Meldrum QC with Mr A Newman | All States Legal Co Pty Ltd (t/a Nowicki Carbone) |
| For the Defendant | Mr G Lewis QC with Mr A Anderson | Solicitor to the Transport Accident Commission |
HIS HONOUR:
The Plaintiff’s claim
1 The plaintiff was injured in a transport accident on 4 December 2009. He alleges that he suffered a neck injury which has impaired the function of his neck and has consequences which meet the statutory test under paragraph (a) of the definition of “serious injury”. In the alternative, he alleges that he has suffered a psychiatric injury which has consequences which meet the statutory test under paragraph (c).
2 At first, the plaintiff’s case was put in breathtakingly simple terms, and I say breathtakingly, because it isolated his neck injury, almost completely ignoring other medical conditions, which are likely to result in the impairment of body functions with consequences. It was as if isolating the neck injury in that way eliminated, or at least diminished, the importance of those other medical conditions.
3 Unfortunately, the manner in which the plaintiff chose to present his case required me to painstakingly go through all of the medical evidence in detail to try to determine what injuries he suffered in three transport accidents; whether those injuries impaired body functions, and if they did, with what consequence, but most importantly, whether the impairment of the body functions resulting from those injuries persisted subsequent to the transport accident of 4 December 2009 at the time of the hearing of the application.
4 After undertaking the task of going through all of the medical evidence and considering that evidence in the context of the onus borne by the plaintiff, I am not satisfied that he has discharged his onus on a number of fronts, addressing the necessary evidentiary approach referred to in PeakEngineering & Anor v McKenzie,[1] Petkovski v Galletti,[2] Meadows v Lichmore[3] and Jayatilake v Toyota Motor Corporation Australia Ltd,[4] and the plaintiff’s credit. I will return to each of these issues after reviewing the plaintiff’s evidence and the medical evidence.[5]
[1][2014] VSCA 67
[2][1994] 1 VR 436 at 443
[3][2013] VSCA 201
[4][2008] VSCA 167
[5]I sent an email through my principal associate to counsel identifying what I considered to be failings on the part of the plaintiff to address relevant legal principles. The plaintiff and the defendant filed supplementary submissions which I have considered and borne in mind before finally determining the outcome of this application.
A brief summary of the Plaintiff’s case
5 In his first affidavit, the plaintiff described suffering injury in a transport accident which occurred on 25 June 2003 when he was a pedestrian. He was struck by a car. He described the injuries he suffered and the treatment he obtained for those injuries as follows:
“12.… I was admitted to the Alfred for a period of around four days. I developed right leg cellulitis. I had bouts of this cellulitis in 2003 and 2005. In 2003, I was admitted to the Western Hospital for surgery on my right leg for this cellutis (sic). I also had an antibiotic drip following the surgery. My cellulitis then resolved, until a further bout in around 2015. I had a further admission to hospital admission for this. Following the 2003 accident, in addition to the right leg cellulitis, I had some ongoing headaches and pain on the right-side of my face with difficulties opening my right eye lid. I also had some neck pain, pain in my right shoulder, arm and elbow and pain in my lower back. I was reviewed at the Alfred in late 2003 and was then discharged from outpatient treatment. I had some occasional problems with extended walking and had pains in my legs and feet. My physical injuries from the 2003 accident were subject to a number of further radiological investigations. I had a CT of my brain on around 7 April 2006. I was told this was normal. I had a right shoulder ultrasound on around 20 February 2007. I was told this was normal, except for a small tear in the surface of one of the tendons. I have an x-ray of my right shoulder on around 25 July 2007. I was told this was also normal. I had x-ray of my sacrum and coccyx on around 5 March 2009. I was told this showed some soft tissue swelling.
13.In addition to my physical condition, I also had a bout of depression in around 2000 to 2001, for which I was prescribed Valium and Prozac. I also suffered from depression and anxiety following the first transport accident in 2003. I saw a psychologist in 2005 on four or five occasions. I consulted a Psychiatrist in 2006 as a result of various other stresses in my life. I was assaulted while driving my taxi and had some deaths in the family and supported a friend who was extremely depressed. After consulting the Psychiatrist in 2006, I was diagnosed with delusions. In 2007, I saw a Psychiatrist on about three occasions. I was prescribed some medication but ceased taking it in around 2008 due to side effects.”[6]
[6]Plaintiff’s Court Book (“PCB”) 6-7
6 The plaintiff was involved in a second transport accident on 16 September 2009 which he described as being “minor” and that he suffered “no ongoing health conditions as a result of this”.[7]
[7]PCB 7
7 The plaintiff described the injuries he suffered in the transport accident of 4 December 2009 as follows:
“19.Since the accident of 4 December 2009, I have continued to suffer from ongoing pain in my neck, left and right shoulders, chest and back. I also continue to have swelling and redness around my neck and suffer from frequent headaches. I also have pain and a pins and needles sensation in my arms, particularly in my left arm and hand. I have troubles breathing, have pain in my chest and have developed sleep apnea since the accident.”[8]
[8]PCB 8
8 The balance of the plaintiff’s first affidavit from paragraphs 20-56,[9] and the whole of the plaintiff’s second affidavit,[10] are devoted to a description of the plaintiff’s medical treatment and the consequences of the impairment of function of his neck.
[9]PCB 8-16
[10]PCB 17A-17F
The Plaintiff’s medical treatment – physical injuries – pre 4 December 2009
9 Following the transport accident of 25 June 2003, the plaintiff was admitted to The Alfred hospital. He had a CT scan of his cervical and thoracic spine;[11] general radiology of his chest, pelvis, cervical spine, thoracic spine, lumbar spine, right shoulder and right elbow;[12] an MRI scan of his cervical, thoracic and lumbar spine;[13] an ultrasound of his right shoulder,[14] and an ultrasound of his right leg[15] to investigate his complaints of injury arising out of that transport accident.[16]
[11]PCB 27
[12]PCB 28-29
[13]PCB 31-32
[14]PCB 33
[15]PCB 34
[16]The plaintiff's treatment at The Alfred hospital is summarised in a report from the hospital at PCB 145‑146.
10 The medical reports of the Western Hospital and Western Health[17] describe the treatment which the plaintiff obtained for those injuries. It would appear that the major injuries suffered by the plaintiff were bilateral haematoma in his lower legs. He was admitted to the Sunshine Hospital and from there he was transferred to the Western Hospital on 18 September 2003 for treatment of his right leg which had become infected. He had minor surgery to drain pus, serous fluid and an old blood clot. He was discharged on 25 September 2003.
[17]The same organisation under a different name.
11 The plaintiff was re-admitted to the Western Hospital on 25 March 2005 for treatment of right leg cellulitis which he appears to have suffered as a result of the transport accident for which he obtained initial treatment at The Alfred hospital.[18]
[18]PCB 98-97. There is a subsequent report of Western Health which recounts much of the same detail.
12 The MRI scan reports disclose that there was a right paracentral disc protrusion and a spondylotic ridge causing right pre-foraminal narrowing and displacement of the right C4 nerve root; moderate right foraminal narrowing at C3-4 with indentation of the right aspect of the thecal sac and cord without cord signal abnormality, and at C4-5, a shallow broad-based disc bulge and spondylotic ridge indenting the anterior aspect of the thecal sac only. Despite these abnormalities being demonstrated on the MRI, it would appear that they were not considered to be significant, and hence why no comment was made by the author of the reports of the Western Hospital and Western Health regarding any complaints by the plaintiff of a neck injury.
13 The plaintiff eventually came under the care of medical practitioners at the Scott Street Medical Centre, one of whom was Dr J Sadhai, general practitioner. His first report is dated 22 April 2007.[19] Of relevance is the following:
“Mr Brown attended this clinic on 18/11/06 with right shoulder and neck pain. He had previously attended this clinic with the same injuries since his motor vehicle accident in 2003.
At this visit, Mr Brown advised his condition had been progressively worse and was now seeking some treatment.
On examination he was found to have neck and right shoulder tenderness with restricted movement.”
[19]PCB 100-101
14 Dr Sadhai referred the plaintiff for physiotherapy and hydrotherapy and for an ultrasound of his right shoulder which was undertaken on 20 February 2007.[20] The ultrasound demonstrated a small focal oblique tear on the bursal surface of the supraspinatus tendon measuring approximately 3.8 millimetres in length. Dr Sadhai concluded that the plaintiff had suffered injury to his right shoulder, left and right leg, right hip, neck, right elbow and fingers on the right side of his scalp in the transport accident of 25 June 2003. His prognosis for the plaintiff’s recovery from those injuries was “indeterminable”.
[20]PCB 40
15 As far as I can tell, the whole of the clinical notes of the Scott Street Medical Centre were tendered in evidence. I propose to summarise entries in those clinical notes which demonstrate what complaints the plaintiff made of medical conditions which he represented were related to that transport accident, and the treatment he was provided prior to the occurrence of the subject transport accident of 4 December 2009.
16 The first entry in the clinical notes relevant to the transport accident of 25 June 2003 is 23 January 2006 when the plaintiff saw Dr Hossain, general practitioner. The plaintiff was suffering from depression. It was noted that he had previously been on an antidepressant. His symptoms were noted as follows:
“Poor sleep, anxieties, increased sense of any stimulus, reflexes, fearing apprehension, Eversince after the Car accident 3years ago, nightmares just after the accident.”[21]
(sic)
[21]DCB 341
17 The plaintiff was referred to Dr Senadipathy, psychiatrist, and to a social worker. He was provided with a care plan for counselling.[22] Under cross-examination, he said he saw Dr Senadipathy a few times. He was prescribed a heavy sedative which interfered with his functioning. He took the heavy sedative for “quite some weeks”.[23]
[22]DCB 341
[23]Transcript (“T”) 48
18 The next occasion of relevance was 25 July 2007 when the plaintiff saw Dr Naidoo, general practitioner, complaining of swelling and pain in his right shoulder “after training”. He was prescribed medication and referred to have an x-ray of his right shoulder. He was reviewed on 30 July 2007. Dr Naidoo considered that an ultrasound of the plaintiff’s right shoulder demonstrated a tear in a muscle, and that the pain had improved by the use of Mobic, which I understand to be an anti-inflammatory.[24]
[24]DCB 336, and the x-ray and the ultrasound are at PCB 39 and 40 respectively.
19 The next occasion of relevance is 26 August 2008 when the plaintiff’s weight was recorded at 135 kilograms.[25] The relevance of the plaintiff’s weight, and subsequent weight gain became relevant to a submission made by the plaintiff that there is a causal connection between the injuries suffered in the transport accident of 4 December 2009 and the development of the plaintiff’s sleep apnoea. I will return to this issue later.
[25]DCB 333
20 The next entry of relevance is also 26 August 2008 when the plaintiff saw Dr Naidoo complaining of sciatic pain and lower backache radiating into his left thigh. He was provided with the care plan for physiotherapy and referral to an occupational therapist.[26]
[26]DCB 333
21 Dr Naidoo completed a care plan to treat “chronic back pain”. It involved three monthly reviews by Dr Naidoo, needs addressed by a physiotherapist for the plaintiff to achieve the goal of being pain free with optimum physical independence, and needs addressed by an occupational therapist specific to the plaintiff’s mobility and activities.[27]
[27]DCB 241-242
22 The next entry of relevance is 15 December 2008 when the plaintiff’s weight was recorded at 136 kilograms.[28]
[28]DCB 332
23 The next entry of relevance is 28 April 2009 when the plaintiff saw Dr J Sadhai, who created a care plan relevant to chronic lower back pain which included the physiotherapist and occupational therapist referred to in the previous care plan.[29] The care plan is dated 21 September 2009 and is in a similar format, with similar referrals to the previous care plan.[30]
[29]DCB 330
[30]DCB 239-240. It would appear that the care plan was formalised after the plaintiff attended the practice nurse on 22 September 2009 – at DCB 326.
24 The next entry of relevance is 19 August 2009 when the plaintiff saw Dr Abdulla, general practitioner, complaining of generalised anxiety and panic attacks which he related to an assault five years previously when he was hit on the head, resulting in mild concussion. Dr Abdulla recorded that the plaintiff also complained of chronic shoulder pain resulting from the transport accident of 25 June 2003.[31]
[31]DCB 328
25 The next entry of relevance is 20 August 2009 when the plaintiff saw Dr Sekhon, general practitioner. Dr Sekhon had a long discussion with the plaintiff about a medical report, but he did not describe who the medical report was from nor its contents. He referred to the x-ray reports of the plaintiff’s right shoulder and lower back, and that the plaintiff was undergoing regular physiotherapy and hydrotherapy, presumably for those medical conditions. He prepared a letter of referral to Mr Hussaini, orthopaedic surgeon.[32] The letter of referral is dated 20 August 2009.[33] The relevant parts of it are as follows:
“This 46 year old has had pain in right shoulder and lower back for a long time.
He was involved in a RTA in 2003 and had a fall on his back 20 years ago.
He has had regular physiotherapy and hydrotherapy for these problems with limited effect.”
[32]DCB 327
[33]DCB 243-244
26 In the letter of referral, Dr Sekhon set out the medication the plaintiff was currently using. One was tramadol hydrochloride which I understand to be a painkiller, but it is unclear to me whether it was prescribed for either of the two medical conditions which were the subject of the referral.
27 Under cross-examination, the plaintiff admitted that he had seen Mr Hussaini. He agreed that he was having “pretty significant problems” with his lower back at the time of the referral, and he also agreed that “those low back problems have continued”.[34] Under re-examination, he said that he has daily lower back pain which he has experienced since 2009 which he now regards as being more severe than it was when he initially suffered it in the transport accident of 25 June 2003.[35]
[34]T27
[35]T74-75
28 The next entry of relevance is 22 September 2009 when the plaintiff saw Dr J Sadhai, who recorded that the plaintiff was suffering from chronic low back pain “as before”.[36]
[36]DCB 326
29 Mr Dickens, orthopaedic surgeon, examined the plaintiff on 16 June 2009[37] and on 20 December 2010.[38] On the first occasion Mr Dickens examined the plaintiff, he told him that as a result of the transport accident of 25 June 2003, he suffered injuries to his right shoulder, right elbow, right leg and left leg. At that time, he was prescribed anti-inflammatory medication and was engaging in water aerobics and hydrotherapy. He told Mr Dickens that he had suffered an injury to his lower back which resulted in sciatic pain into the left buttock and left foot drop which continued to trouble him. Mr Dickens considered that the plaintiff had suffered soft tissue injuries to his right shoulder, right elbow and lower limbs below the knee.
[37]DCB 20-27
[38]DCB 12-19
30 On the second occasion Mr Dickens examined the plaintiff, he described suffering injury resulting from the transport accident of 16 September 2009 to his neck and right shoulder, although describing the consequences of those injuries as being relatively short-lived. The plaintiff told Mr Dickens that he suffered injury resulting from the transport accident of 4 December 2009[39] to his thoracic lumbar spine, with pain going into his left leg, right shoulder, chest and neck. He told him that the pain in his neck radiated into both of his shoulders and was significant, and that he had pain going down his right arm to his right wrist and pins and needles in his left arm.
[39]Wrongly described as “14.12.09”.
31 On this occasion, Mr Dickens was of the opinion that the injuries which the plaintiff suffered in the transport accident of 4 December 2009 were to his cervical spine, thoracolumbar spine and right shoulder, and that the injuries to his cervical spine and thoracolumbar spine were soft tissue injuries and did not demonstrate any evidence of radiculopathy. He considered that the injury to his right shoulder was an aggravation of a previous injury. He considered that it was likely that the pain the plaintiff was experiencing in his cervical spine and thoracolumbar spine (also described by him as lumbosacral spine) were likely to continue.
32 Mr Fogarty, orthopaedic surgeon, examined the plaintiff on 20 October 2009.[40] The plaintiff told Mr Fogarty that as a result of the transport accident of 25 June 2003, he suffered injuries to his legs. He told him that his current complaints were rashes around his right lower leg, especially at the ankle, a feeling of swelling when this occurred, and the retention of fluid in both lower legs in cold weather, and the development of cellulitis. He had pain in his right shoulder which was variable. He did not claim to have suffered an injury to his lower back, but did tell Mr Fogarty that he had suffered an injury to his lower back previously with a neurological deficit of left foot drop from which he had made a recovery, but was left with some persisting weakness.
[40]DCB 227-231
33 The plaintiff also told Mr Fogarty that he was driving a maxi taxi about 40 to 50 hours per week, and was encountering difficulty doing that because of neck and right shoulder pain. He referred to a further “accident” which had affected his shoulder. It may be that the plaintiff was referring to the transport accident of 16 September 2009, but that is unclear.
34 A major issue in this application is an identification of the medical conditions affecting the plaintiff prior to the transport accident of 4 December 2009. The evidence which I have summarised thus far is essentially all of the evidence which is available to demonstrate what those medical conditions were and the extent to which they were affecting the plaintiff. No medical report was obtained from Mr Hussaini.
35 The conclusion I have reached, based upon a review of the foregoing medical evidence, is that it is probable that the plaintiff suffered injuries to his lower back and right shoulder resulting from the transport accident of 25 June 2003. It is also probable that both of those injuries continue to trouble the plaintiff right up until the subject transport accident of 4 December 2009 occurred. Additionally, I note that the plaintiff suffered a number of other injuries relevantly including a neck injury and a psychological/psychiatric condition.
The Plaintiff’s medical treatment post 4 December 2009
36 The report of Western Health refers to the plaintiff’s admission to that hospital on 4 December 2009. The author of the report of Western Health described the investigation of the plaintiff’s neck injury as follows:
“... There was some tenderness in the midline over the 6th and 7th cervical vertebrae. He had left scapular tenderness but nothing abnormal on the right. He had bruising on the left clavicle which was thought was probably from the seat belt and he was tender on the left side of his chest. His abdomen was soft and not tender. There was no guarding. His upper limbs were normal. His lower limbs showed a bruised left upper leg.”[41]
[41]PCB 99
37 The plaintiff was investigated by a CT scan which was undertaken on 4 December 2009 of his brain, neck and chest. There was a finding of spondylotic changes at C3-C4 with posterior osteophytosis, and despite other appearances, were not considered to be of clinical significance by the radiologist.[42]
[42]PCB 41-43
38 Returning to the clinical notes of the Scott Street Medical Centre, the plaintiff attended on 7 December 2009 and saw Dr Sekhon, who recorded that the plaintiff had bruising on his ribs and was tender along the left costal margin. The plaintiff was wearing a neck collar. He prescribed the plaintiff Panadeine Forte, presumably for pain relief for the pain he was experiencing resulting from the transport accident of 4 December 2009.[43]
[43]DCB 325
39 The next entry of relevance is 21 December 2009 when the plaintiff saw Dr Sekhon. He recorded that the plaintiff told him that he had pain and stiffness in his neck, with tingling and numbness in his arms.[44] He made a similar complaint of neck symptoms on 7 January 2010 which Dr Sekhon found to be generalised mild tenderness on palpation. The plaintiff also complained of lower back tenderness and mild left subcostal tenderness.[45]
[44]DCB 324
[45]DCB 324
40 The balance of the clinical notes, of some 60 pages up to where they end on 25 August 2016, contain a record of complaints made by the plaintiff of a number of medical conditions which are relevant. I propose, therefore, to only briefly refer to what they contain:
· Complaints of neck pain: 27 January 2010; 4 January 2011; 10 May 2011; 20 December 2011; 21 December 2011; 22 March 2012; 27 June 2012; 9 February 2013; 31 August 2014; 13 October 2014; 20 February 2015; 16 March 2015; 30 March 2015; 31 March 2015; 4 September 2015; 4 January 2016; 4 March 2016; 18 March 2016; 4 April 2016; 22 April 2016; 16 May 2016 and 11 July 2016.
· Pain behind the right ear: 1 February 2011.[46]
[46]There were many complaints of pain behind the right ear which were referred to as cellulitis.
· Complaints of costal pain: 25 January 2010; 1 February 2010; 24 February 2010; 21 December 2011 and 4 September 2012.
· Complaints of lower back pain/leg pain: 4 June 2011; 12 July 2011; 4 September 2012; 5 January 2013; 9 February 2013; 9 June 2013; 27 March 2014; 13 October 2015; 19 February 2016; 4 March 2016; 18 March 2016; 4 April 2016; 22 April 2016; 16 May 2016 and 11 July 2016.
· Complaints of right shoulder pain: 4 January 2011; 20 December 2011; 21 December 2011; 22 March 2012; 27 June 2012; 4 January 2016 and 4 April 2016
· Left foot and ankle: 27 June 2012; 4 January 2016; 19 January 2016; 4 March 2016; 18 March 2016; 4 April 2016; 22 April 2016; 16 May 2016; 15 August 2016 and 11 July 2016.
· Complaints of a cardiac condition: 10 December 2012; 12 December 2012; 13 December 2012; 14 December 2012; 17 December 2012; 20 December 2012;27 December 2012; 5 January 2013; 7 January 213;17 January 2013; 23 January 2013; 9 February 2013; 8 March 2013; 13 March 2013; 11 April 2013 and 16 April 2013.
· Sleep apnoea: 12 April 2012; 1 May 2012; 27 June 2012; 27 October 2014; 4 January 2016; 18 March 2016; 16 May 2016 and 11 July 2016.
41 Under re-examination, the plaintiff was asked about a number of consequences which he contended resulted from the neck injury. For example he was asked about difficulties he experienced shaving, putting on shoes and socks, putting on pullovers or jumpers over his head; dressing and undressing, performing domestic tasks, and personal toileting. It was my impression that he said that he had experienced difficulties with those consequences for a long time, and when he was pressed to be more precise, it was my impression that he has experienced those difficulties more obviously in the last couple of years or so.[47]
[47]T59-71. These are consequences in addition to the consequences referred to in more detail in his two affidavits.
42 The consequences which the plaintiff contends resulted from the neck injury which he says he suffered in the transport accident of 4 December 2009 are to be contrasted with what he said in a statement which he made on 31 May 2012 in which he concentrated on the consequences of the injuries he suffered in the transport accident of 25 June 2003. It is a very long statement, but the critical parts of it which are very troubling are the plaintiff’s assertion that social activities such as karaoke, dancing, walking his dog and cooking were significantly reduced.[48] They are the very same activities which the plaintiff says have been reduced or lost as a result of the neck injury resulting from the transport accident of 4 December 2009.
[48]DCB 51-52
43 Again under re-examination, he described that he has experienced pain mainly down the back of his neck and across his left arm and shoulder with a little pain in his right arm.[49] He has developed a swelling about the size of a golf ball to the right side of his neck which he demonstrated from the witness box.[50]
[49]T60
[50]T69
44 Certainly from about 4 March 2016, and when Dr Gurusinghe treated the plaintiff, far more extensive clinical notes were made of the complaints made by the plaintiff of the neck injury and its consequences. For example on 4 March 2016, Dr Gurusinghe discussed referring the plaintiff to Mr Hall, neurosurgeon, and he was apparently on a waiting list at The Alfred hospital for an assessment of his neck injury. By that stage, the plaintiff was prescribed Lyrica for pain relief.[51] Dr Gurusinghe made similarly extensive clinical notes when the plaintiff was seen on 4 April 2016, 22 April 2016, 16 May 2016 and 11 July 2016.
[51]DCB 270
45 By 11 July 2016, the plaintiff was complaining of severe to moderate neck pain radiating into his upper and lower limbs and swelling in his neck which may have been cellulitis. Again, there are references to referral to Mr Hall.[52]
[52]DCB 263
46 Just as there are references to the plaintiff’s neck, which clearly became his primary focus in 2016, there are references in the clinical notes of persisting problems with his lower back, right shoulder and left foot and ankle, significant weight and sleep apnoea, and that is evident from the summary of the medical attendances in paragraph 38 above.
47 There are a number of reports from medical practitioners at the Scott Street Medical Centre. They are very brief and sparse on detail, hence the reason why I have concentrated on the clinical notes; however, in the report of Dr Gurusinghe dated 26 August 2016, he answered a number of questions relevant to the plaintiff’s neck injury:
“… Cervical spine injury with neuronal impingements at C3/C4 and at C7 levels. Neck pain with radiculopathy is evident clinically. Prognosis is guarded and uncertain at this stage.”[53]
[53]PCB 113
48 Dr Gurusinghe added that the plaintiff was unfit for his pre-injury employment, but he was otherwise concerned to have a specialist review and assessment to consider the questions of the plaintiff’s incapacity and level of disablement.[54]
[54]PCB 113-114
49 What is absent from the report I have just referred to, and the others which preceded it from the Scott Street Medical Centre, is any informative references to any of the other medical conditions which appear to have been actively symptomatic for a significant period of time, and in particular, the plaintiff’s lower back, right shoulder, left ankle and foot, significant weight and sleep apnoea.
The Plaintiff’s specialist medical treatment post 4 December 2009
50 Dr Sekhon referred the plaintiff to Mr Miller, orthopaedic surgeon, who first saw the plaintiff in March 2010. He recorded the following history:
“… He was involved in a further motor vehicle accident in approximately 2003. He was admitted to the Alfred Hospital and had conservative treatment of what he thinks was neck and shoulder injury. He had some ongoing symptoms, but was able to return to work. He was not having ongoing treatment.
He was involved in a further motor vehicle accident on approximately 04/12/2009 when he had a collision with another car. There was no specific loss of consciousness. He was admitted to Western Hospital overnight and had a soft cervical collar. Since that time he has had increasing problems with neck pain and discomfort and has also more specific pain around the right ear. He has had an increase in his right shoulder pain and discomfort worse with overhead activities and has also noted some ache and discomfort in the left ankle.”[55]
[55]PCB 129
51 Mr Miller referred the plaintiff to have radiological investigations to consider whether his immediate diagnosis of an aggravation of degenerative disease in the cervical spine, aggravation of the right shoulder and soft tissue injury of the right ankle were correct.[56]
[56]PCB 129-133
52 Mr Miller provided an extensive medical report dated 4 January 2012 in which he traced through the treatment he had provided the plaintiff. It is notable that when dealing with the relationship between the injuries for which he was asked to treat the plaintiff and what occurred in the first transport accident of 25 June 2003 and the transport accident of 4 December 2009, he was led to believe that the plaintiff had made “a reasonably good recovery” from the injuries which resulted from the transport accident of 25 June 2003. [57]
[57]PCB 141
53 Mr Miller considered that the plaintiff had “suffered a musculo-ligamentous strain to the cervical spine and aggravation of degenerative disease in the cervical spine”;[58] a soft tissue injury to his right shoulder with slight subluxation of the right acromioclavicular joint unlikely to be of any clinical relevance, and a soft tissue injury to his left ankle. He also considered that the plaintiff had developed a secondary Chronic Pain Syndrome.[59]
[58]PCB 140
[59]PCB 141
54 Mr Miller referred the plaintiff to Spinal Management Clinics of Victoria. He had a multi-disciplinary pain management assessment by a medical practitioner, an occupational physiotherapist and a psychologist. What is clear from the report dated 29 September 2010 is that the plaintiff completed an eight-week multidisciplinary network pain management program. It was noted that he was pain focused and that there were significant inconsistencies in his presentation. The plaintiff reported that he felt he was unable to return to work in any capacity. His assessor disagreed and considered that he had a capacity for work, and that if he did not pursue it, he was at risk of developing a long-term disability.[60]
[60]PCB 123-128
55 The history given by the plaintiff to Mr Miller that he was not having any ongoing treatment and had essentially recovered from the injuries he suffered in the transport accident of 25 June 2006 is clearly wrong. There is no doubt that the plaintiff was still being actively treated for injuries to his lower back and right shoulder which resulted from the transport accident of 25 June 2003.
56 Furthermore, Mr Miller was not told by the plaintiff that he had suffered an injury to his lower back which was actively symptomatic and which was described in the care plans in 2009 as “chronic”. It is not just that evidence which demonstrates that the plaintiff’s lower back was actively symptomatic, but also his own evidence from cross-examination and examination-in-chief which I have summarised above. He was not told that the plaintiff continued to be troubled by an injury to his right shoulder.
57 Mr Miller re-examined the plaintiff on 12 September 2016. On that occasion, the plaintiff told him that the symptoms that were then troubling him were to his neck, shoulders, lower back, left knee/left ankle, right leg, weight gain and a mental state reaction/Chronic Pain Syndrome.[61] On that occasion, Mr Miller recorded that the plaintiff told him that prior to 2009, he did not have any neck, lower back or shoulder problems. Under cross-examination, the plaintiff denied saying that to Mr Miller.[62] Under re-examination, the plaintiff was taken to an earlier report of Mr Miller which discloses that the plaintiff told him that he thought he had a neck and shoulder injury resulting from the transport accident of 25 June 2003;[63] however, whilst that might be so, it would appear that Mr Miller nonetheless asked him again when he re-examined him and was given an answer which is plainly wrong, and contradictory of what the plaintiff previously told Mr Miller.
[61]PCB 364
[62]T76
[63]T75-76 and PCB 129
58 The next three medical practitioners to treat the plaintiff for symptoms arising from his neck were Dr Joubert,[64] consultant neurologist, Mr Smith, general surgeon,[65] and Professor Janus, consultant physician.[66]
[64]PCB 169
[65]PCB 170-172
[66]PCB 173-177
59 The plaintiff was referred to Dr Joubert to treat him for his neck pain, cervicogenic headache and pain going down his upper limbs. He was unable to determine the cause of swelling in the suboccipital region of his neck, so he referred him to Mr Smith. Mr Smith noted that he was to offer an opinion on the plaintiff’s “neck inflammatory problem”. He made a curious observation that “At the time of his accident Terence was thought to have had a neck injury although this was never clearly proven it seems”.[67] It would appear from the manner in which he made that observation that he had obtained that history either from the plaintiff or from some other source.
[67]PCB 170
60 Dr Smith noted that the plaintiff was complaining of pains throughout his body of neuropathic type and paraesthesia in various parts of his body which included “a cape” distribution over his shoulders.[68]
[68]PCB 170
61 Mr Smith continued to treat the plaintiff. In his last report dated 11 November 2015, he considered that the plaintiff’s soft tissue injuries to his neck had resolved with the use of antibiotics. I assume that he was referring to the swelling in his neck. He added that he considered that the plaintiff had ongoing radicular-type pain, with a clicking sensation in his neck, and cervicogenic headaches.[69]
[69]PCB 172
62 Professor Janus appears to have treated the plaintiff for a number of medical conditions including his neck swelling. He noted that the swelling in his neck had been treated successfully with Keflex.
63 Professor Janus, Dr Joubert and Mr Smith clearly had some difficulty diagnosing the neck swelling and determining whether it was related to the neck injury. When the plaintiff saw Mr Hall, neurosurgeon, he referred to the swelling which Mr Hall thought was possibly mastoiditis.[70] Mr Hall noted that the plaintiff had seen and ear, nose and throat surgeon to investigate the neck swelling.[71] Like the other medical practitioners, he was unable to diagnose its cause and say whether it had any relationship to the neck injury.
[70]PCB 181
[71]There is no report from an ear, nose and throat surgeon.
64 Mr Hall was the last of the plaintiff’s treating medical practitioners. The plaintiff saw him in April 2016. He provided two reports. The most informative of the two reports is dated 27 October 2016.[72] Mr Hall recorded a large constellation of symptoms reported by the plaintiff. The plaintiff told him that he had been involved in two transport accidents in 2009, with the second being the major transport accident, resulting in the following symptoms:
“… He was transferred to hospital as an emergency and remained in hospital for several days at the time describing neck pain and pain radiating into the occipital region. The pain also radiated into the shoulder blade and the medial scapula. Since 2009 this has remained an ongoing issue with a constant pain that has worsened over these years initially with intermittent symptoms which have now become constant. This has become highly disruptive on his life and he feels is causing significant changes to his mood. Terence has pain that extends down the arm and into the elbow and the wrist as well as paraesthesia that extends into the middle, ring and little finger. These have also worsened over time. He also describes previously the onset of symptoms in both legs as well as left sided dorsiflexor foot weakness. Terence describes swelling in the post auricular region associated with some redness over this area and showed me a number of photographs at the time of the original consultation that illustrated this.”[73]
[72]PCB 183-185
[73]PCB 183
65 After examining the plaintiff and considering an MRI scan which he organised,[74] he was of the following opinion:
“My diagnosis was that of predominantly somatic referred pain from the neck into the occipital region and into the medial scapula region. Although some of the radicular arm pain could represent C7 radiculopathy the pattern was not entirely consistent with this and the neurological examination included a number of nerve roots which would not be consistent with C7 radiculopathy from a weakness point of view. My feeling was that the symptoms were more likely to represent somatic referred pain than direct neural impingement and advised Terence an activity program that would be consistent with treatment for this.”[75]
[74]PCB 54-55
[75]PCB 184
66 My understanding of the word “somatic” is a symptom disorder involving a significant focus on physical symptoms to the point that it causes major emotional distress and problems functioning. Contextually, that appears to be consistent with Mr Hall’s use of that word, because he recommended that the plaintiff undertake core strengthening and that he be treated by a pain physician to see if his symptomology could be improved.
67 Dr Gurusinghe referred the plaintiff back to Mr Hall, who reviewed him in February 2017.[76] The opinion he expressed about the radicular symptoms complained about by the plaintiff does not appear to be very different from his previously held opinion, although he debated whether the radicular symptoms might be related to a left-sided C6-7 stenosis. He has not been asked to say whether the stenosis has any causal link to the transport accident of 4 December 2009 or whether it is coincidental. I am left in a position where the evidence about the cause of the plaintiff’s present neck symptoms is uncertain. I note in the MRI scan which Mr Hall requested that the radiologist noted that there was “no significant canal stenosis” at the C6-7 level.[77]
[76]PCB 194A
[77]PCB 54-55
68 There are other problems raised by the history given by the plaintiff to Mr Hall.
69 Firstly, he failed to inform Mr Hall of the transport accident of 25 June 2003 and the injuries which he suffered resulting from it, and principally, the injury to his lower back.
70 Secondly, he failed to inform Mr Hall of the nature and degree of his lower back injury and that the symptoms are as serious as those which he described during his evidence in this application.
71 Thirdly, it is highly improbable that the plaintiff’s complaints of symptoms affecting his legs with sciatica and left-sided foot drop are related to the neck injury.
72 Additionally, Mr Hall recorded that the plaintiff has developed “clumsiness” in his feet. It is unclear whether that is a coincidental medical problem or related to the complaints the plaintiff made about his leg symptoms.
73 The plaintiff was referred to Dr Rodrigues, consultant physician, for an assessment of a sleep disorder. He first saw him on 27 May 2011. He diagnosed that the plaintiff was suffering from severe obstructive sleep apnoea.[78]
[78]PCB 147-148 and 151-154
74 Dr Rodrigues refused to continue treating the plaintiff.[79]
[79]DCB 301
75 The plaintiff was then referred to Dr Wong, who commenced treating the plaintiff in May 2012.[80] Dr Wong agreed with the diagnosis made by Dr Rodrigues. The plaintiff was treated with CPAP therapy. In November 2016, the plaintiff told Dr Wong that he was sleeping poorly due to neck pain. Dr Wong assumed that it was due to cervical nerve root impingement.
[80]PCB 155-159
76 Dr Wong did not offer an opinion regarding any causal link between the neck injury resulting from the transport accident of 4 December 2009 and the development of the sleep disorder except that she appears to have accepted that the plaintiff’s poor sleep was due to a neck injury.
77 Dr Rodrigues considered that the plaintiff’s severe obstructive sleep apnoea was closely linked to his excess weight. He considered that the injuries the plaintiff suffered in the transport accidents of 25 June 2003 and 4 December 2009 would have contributed to deconditioning and weight gain, and therefore, there is a causal link between the injury suffered in both transport accidents and the onset of the severe obstructive sleep apnoea.
78 The defendant disputed that the allegation that the plaintiff’s weight gain is due to the transport accident of 4 December 2009. From the clinical notes of the Scott Street Medical Centre the following recordings of his weight were put to him:
·January 2007 - 120 kilograms
·September 2009 - 138 kilograms
·August 2011 - 140 kilograms
·May 2016 - 151 kilograms.
79 The defendant’s analysis of the weight gain in the 20 months leading up to September 2009 is that the plaintiff’s weight gain represented a 15 per cent rise and that his weight gain subsequently was of a lesser rate of 7.8 per cent.
80 When Dr Rodrigues made the observation about deconditioning and weight gain, it was after he first saw the plaintiff on 27 May 2011 when the plaintiff’s weight was about 140 kilograms. It had risen only 2 kilograms between his last measured weight in September 2009 and the measurement of 140 kilograms.
81 On this analysis it is difficult to determine on what basis Dr Rodrigues concluded that there had been such a significant weight gain due to the injury suffered by the plaintiff resulting from the transport accident of 4 December 2009.
The medico-legal assessments – physical injuries
82 Mr Gurry, vascular surgeon, examined the plaintiff on 20 January 2010 relevant to the injuries he suffered in the transport accident of 25 June 2003, although the plaintiff informed him that he was also injured in the transport accident of 4 December 2009.[81]
[81]DCB 232-235
83 The plaintiff told Mr Gurry that he suffered injuries to his lower back, right shoulder and an infection which was likely to be cellulitis. He described his symptoms to Mr Gurry as follows:
“He says that he gets pins and needles and occasional hot sensations in both legs from time to time, and this will sometimes make him get out of bed and walk around. His legs will feel cold below the knee also. He finds it difficult to sleep on his right side because of the shoulder. He says that he has noticed some swelling in his left foot recently, and has had to wear sandals over the last four weeks. He says that he gets an occasional rash on his legs. He also told me that he gets a vibrating feeling over the upper part of the left leg, that this comes on after eating, and that it’s like a rumbling sensation passing down his leg, or like a mobile phone vibrating. He also gets severe pain at the back of both legs, more on the left side than the right, occurring from time to time.”[82]
[82]DCB 232-233
84 Mr Gurry’s examination of the plaintiff was about a month and a half after the occurrence of the transport accident of 4 December 2009. It is clear from the history taken by Mr Gurry that the plaintiff was experiencing extensive and serious symptoms of the injury to his lower back.
85 Mr Gurry considered that the plaintiff had suffered soft tissue injuries to both legs below his knees, to his right shoulder and arm and possibly a closed head injury. He considered that the onset of cellulitis was causally linked to the transport accident of 25 June 2003.[83]
[83]PCB 200-201
86 Dr Elder, occupational physician, examined the plaintiff on 10 August 2010.[84] The plaintiff told him that he had suffered injury in the transport accidents of 25 June 2003 and 4 December 2009. He told him that the transport accident of 16 September 2009 did not result in an “ongoing medical condition”. The plaintiff told Dr Elder that he suffered injury to his left leg and ankle and his right shoulder resulting from the transport accident of 25 June 2003, and that they continued to cause him symptoms. In relation to the transport accident of 4 December 2009, the plaintiff told Dr Elder that he suffered fractured ribs and a fractured neck in two places.
[84]DCB 216-219
87 When Dr Elder examined the plaintiff, he noted that the plaintiff was intensely pain focused, and exhibited abnormal illness behaviour. Dr Elder noted that the plaintiff told him of ongoing pain in his left leg and right shoulder since the transport accident of 25 June 2003. He considered that the transport accident of 4 December 2009 may well have resulted in the plaintiff experiencing continuing right-sided neck pain and some right shoulder dysfunction.
88 Mr Myers, general surgeon, examined the plaintiff on 30 January 2012[85] and 25 July 2016.[86] The plaintiff told Mr Myers that he had been involved in three transport accidents, how they occurred, and the injuries resulting from each of them. Mr Myers recorded the plaintiff’s complaints of pain as follows:
“He complains of pain in the neck, mid back and low back ‘a lot of the time, causing difficulty with walking and limping, particularly since the third accident’. He finds it difficult to bend. He finds it difficult to look backwards driving.
It is difficult for him to carry objects in his right arm because of the pain in the shoulder. This interferes with sleep. He finds it difficult to drive because of pain in the shoulder from the seatbelt.
He states that there is still some inflammation in both legs with a ‘heat rash’ and he complains of swelling of both legs, particularly on the right.”[87]
[85]PCB 219-225
[86]PCB 231-236
[87]PCB 221
89 Mr Myers concluded that the transport accident of 25 June 2003 resulted in an aggravation of pre-existing changes from degenerative disease in the plaintiff’s lumbar spine, as well is leg injuries, and the two transport accidents in 2009 appear to have exacerbated problems from the degenerative intervertebral disc disease in the lumbar spine and cervical spine. He apportioned responsibility for the disability resulting from the injuries to 50 per cent of the transport accident of 25 June 2003 and 50 per cent to the 2009 transport accident. Mr Myers’ prognosis was for the problems the plaintiff was experiencing in his neck and lower back to gradually worsen.
90 When Mr Myers re-examined the plaintiff on 25 July 2016, he was provided with some additional information, and principally, the fact that the plaintiff had been treated by Mr Miller and Mr Hall, and that the plaintiff was complaining that his main problem was with his neck. Mr Myers concluded that the plaintiff had suffered an aggravation of pre-existing degenerative intervertebral disc disease and spondylitis in the cervical spine. He considered that the plaintiff’s level of disability resulted from the transport accident of 4 December 2009, that there was unlikely to be any improvement in his condition, and that he was fit for work as a part-time taxi driver.[88]
[88]PCB 234-235
91 Clearly, the history obtained by Mr Myers, when he first examined the plaintiff, is of quite significant symptoms which were ongoing and which were likely to worsen, inconsistent with the plaintiff’s evidence that he had recovered from the injuries he suffered in the transport accident of 23 June 2003 by the time he was injured in the transport accident of 4 December 2009.
92 The plaintiff was examined by Dr Middleton, occupational physician, on 1 March 2012.[89] Dr Middleton had previously treated the plaintiff on referral by Mr Miller to the Spinal Management Clinics of Victoria.[90] Dr Middleton obtained an extensive history of the injuries which the plaintiff suffered in each of the three transport accidents.
[89]PCB 248-259
[90]PCB 125
93 In relation to the transport accident of 25 June 2003, the plaintiff told Dr Middleton that he suffered facial pain, constant right shoulder aching up to the right side of his neck in the base of his skull, pain radiating down his arm to the back of his hand involving the second, third, fourth and, occasionally, the fifth digits, and persisting pain in his right elbow.
94 In relation to the transport accident of 16 September 2009, the plaintiff told Dr Middleton that he suffered injury to his right elbow, right hand, right hip, right leg, right knee and lower back.
95 In relation to the transport accident of 4 December 2009, the plaintiff told Dr Middleton that he suffered injury to his neck, both shoulders, chest, ribs, thoracolumbar spine and left shin, and later, the development of an infected haematoma on his right lower leg.
96 Dr Middleton set about apportioning responsibility for the injury to the neck to each of the transport accidents. He apportioned 25 per cent to the transport accident of 25 June 2003; 25 per cent to the transport accident of 16 September 2009, and 50 per cent to the transport accident of 4 December 2009.
97 Lastly, it is my impression from the manner in which Dr Middleton gave his final opinion, that the symptoms of injuries suffered by the plaintiff resulting from the transport accident of 25 June 2003 were persisting, and in particular, the injury to his spine and right shoulder.
98 Mr Klug, neurosurgeon, examined the plaintiff on 11 April 2012.[91] Like Dr Middleton, the plaintiff told Dr Klug that he suffered injury in each of the three transport accidents.
[91]PCB 272-280
99 In relation to the transport accident of 25 June 2003, he told Mr Klug that he suffered injury to both lower limbs, right elbow, neck and shoulders.
100 In relation to the transport accident of 16 September 2009, that he suffered injury to his neck, right hip and right lower limb.
101 In relation to the transport accident of 4 December 2009, that he suffered a rib fracture on the left side, injuries to his left chest wall and neck, and he developed a limp favouring his left-hand side. He also told Mr Klug about the swelling on his neck.
102 Mr Klug did not distinguish one transport accident from the other, nor the injuries suffered in each individual transport accident.
103 When he came to express an opinion, Mr Klug considered that the plaintiff had not suffered a significant injury to his spine resulting from the transport accident of 25 June 2003, but he felt likely that the subsequent two transport accidents resulted in the plaintiff suffering a soft tissue injury which accounted for his complaints of neck pain.
104 The defendant referred the plaintiff to part of the history recorded by Mr Klug that after the plaintiff initially suffered an injury to his lower back when he was eighteen years of age, that he experienced very occasional mild twinges of back discomfort of an intermittent nature, which is inconsistent with the plaintiff’s evidence of the severity of the back pain that he presently experiences and has experienced over the years. The plaintiff maintained that what he told Mr Klug in that regard was correct.[92]
[92]T47
105 Mr Goldwasser, orthopaedic surgeon, examined the plaintiff on 6 June 2012.[93] Like Dr Middleton and Mr Klug, the plaintiff told him that he suffered injury in each of the three transport accidents.
[93]PCB 281-295
106 In relation to the transport accident of 25 June 2003, he told Mr Goldwasser that he suffered injury to his face, neck, right shoulder, right arm, right elbow and the fingers of his right hand, pelvis, right groin, right hip, both legs, right calf, both ankles, left foot, lower back, and the later onset of cellulitis.
107 In relation to the transport accident of 16 September 2009, he told Mr Goldwasser that he suffered injury to his neck, right shoulder, left shoulder, left leg, right leg and hip.
108 In relation to the transport accident of 4 December 2009, he told Mr Goldwasser that he suffered injury to his neck, both shoulders, both arms, chest, ribs, mid back and left shin.
109 Mr Goldwasser considered that the plaintiff probably suffered soft tissue injuries to his neck, shoulders, back and lower limbs. He found it difficult to determine the contribution of each of the transport accidents to those injuries, but accepted the plaintiff’s assertion that the transport accident of 4 December 2009 caused the majority of his problems with a moderate contribution from the transport accident of 25 June 2003 and a minor contribution from the transport accident of 16 September 2009.
110 Mr Haw, orthopaedic surgeon, examined the plaintiff on 25 September 2015.[94] Like Dr Middleton, Mr Klug and Mr Goldwasser, the plaintiff told Mr Haw that he suffered injury in each of the three transport accidents.
[94]PCB 311-315
111 In relation to the transport accident of 25 June 2003, the plaintiff told Mr Haw that he suffered injury to his lower back, lower legs, ankles and right shoulder.
112 In relation to the transport accident of 16 September 2009, the plaintiff told Mr Haw that he suffered injury to his neck which continued to cause him symptoms up to the occurrence of the next transport accident.
113 In relation to the transport accident of 4 December 2009, the plaintiff told Mr Haw that he suffered injury to his neck, right shoulder, chest and abdomen. He added that he was experiencing pain radiating into his left shoulder from his neck, and left leg pain associated with some pins and needles.
114 Mr Haw did not distinguish one transport accident from the other, nor the injuries suffered in each individual transport accident. When he came to express an opinion, he considered that the plaintiff had suffered a soft tissue injury to his cervical spine with some referred pain into his left shoulder and possibly some secondary capsulitis in the left shoulder,[95] and a temporary aggravation of some degenerative problems in his lower lumbar region. He also referred to the plaintiff’s interference with social, domestic and recreational activities as being largely due to psychological components.
[95]PCB 314
115 Mr Carey, orthopaedic surgeon, examined the plaintiff on 19 October 2016.[96] The plaintiff told Mr Carey that he suffered injuries resulting from the transport accident of 4 December 2009 to his neck, chest wall and lower back which continue to cause him pain. He told Mr Carey that the neck pain was constant, frequently severe, radiating up over his head, and pain in both shoulders with pain in both arms with the left side worse on the right side. He described the pain as “severely worse” since the transport accident. In relation to the chest wall pain, he told Mr Carey that his sternum and chest wall around the costal margin are very sensitive to touch, and if touched, cause severe pain. In relation to his lower back, the plaintiff told him that he has constant pain which radiates through his suprapubic area, into both hips, and down into both legs to his ankles, with more pain on the left side than the right side. He told him that the pain in his lower back was “getting worse”.
[96]DCB 1-11
116 The plaintiff told Mr Carey that he had no history of neck pain prior to the transport accident of 4 December 2009, and had mild symptoms in his lower back before the transport accident. He told him that the cellulitis which resulted from the transport accident of 25 June 2003 was an ongoing problem and was worsening. He also related a number of other parts of his body which produced pain which I will not summarise here. Mr Carey described the breadth of the plaintiff’s complaints of pain as a “cornucopia of complaint” with the presence of pain all over the plaintiff’s body. He concluded that the plaintiff was suffering a Chronic Pain Disorder or a Chronic Pain Syndrome associated with relatively minor aggravation of injuries to the plaintiff cervical spine and low back.
117 The defendant pointed to other histories given to a number of other medical practitioners which were said to be inconsistent when compared with other histories given to other medical practitioners.[97] At this point, I do not propose to summarise that evidence, because I propose to firstly determine a number of questions which I think are determinative of the plaintiff’s application, and can be properly addressed based upon the evidence which I have summarised in detail above.
[97]Principally the histories given to a number of psychiatrists referred to below.
What injuries did the Plaintiff suffer and when?
118 There are undoubted inconsistencies in the plaintiff’s case regarding which injuries he suffered in which transport accident. In his affidavits, he would have it that he suffered significant injuries in the transport accident of 25 June 2003, none of any moment in the transport accident of 16 September 2003, and significant injuries in the transport accident of 4 December 2012.
119 The following are the conclusions I have reached by synthesising the plaintiff’s evidence and the histories which I have summarised from the medical reports.
120 The plaintiff suffered a significant injury to his lower back which has been symptomatic since his late teens. He conceded as much in his oral evidence. He probably aggravated the injury to his lower back in the transport accident of 25 June 2003.
121 The plaintiff suffered a significant injury to his right shoulder resulting from the transport accident of 25 June 2003. It may well have been aggravated by the two later transport accidents.
122 The plaintiff has carried a significant amount of weight for a very long time. Between January 2007 and September 2009, his weight rose from 120 kilograms to 138 kilograms. Over the next two years, it rose 2 kilograms by August 2011. Between that date and the last measurement of his weight in May 2016, it rose a further 11 kilograms, to 151 kilograms. I do not accept that the transport accident of 4 December 2009 is responsible for the development of the plaintiff’s sleep apnoea for the reasons which I set out above.
123 At the time of hearing this application, the plaintiff was undoubtedly troubled by the injuries to his lower back, right shoulder, left foot and ankle and the significant weight he was carrying, resulting in sleep apnoea. On my analysis of the evidence thus far, I am not satisfied that those injuries and the weight problem were caused/aggravated by the transport accident of 4 December 2009 or materially contributed to by it.
124 As a matter of logic and commonsense, a lower back injury of the significance suffered by the plaintiff would cause pain, interference with mobility, and perhaps interference with sleep, and might well require medical treatment by way of the prescription of painkilling medication. It might also interfere with the plaintiff’s capacity for work, because lower back injuries are notorious for interfering with a capacity to sit for long periods of time, for example as a taxi driver.
125 In the same way, the injury to the plaintiff’s right shoulder might cause pain, interference with the function of his right shoulder and arm, and perhaps interference with sleep, and might also require medical treatment by way of prescription of medication. It might also interfere with the plaintiff’s capacity to work as a taxi driver because of the need to hold onto the steering wheel, and to manually assist customers with luggage.
126 The injury to the plaintiff’s left foot and ankle might well impair his mobility. It might also require medical treatment by way of prescription of medication. It might also interfere with his capacity for work to the extent that he would need to be on his feet.
127 The plaintiff’s very significant weight might also interfere with his mobility and capacity to work.
128 The evidence contained in the plaintiff’s affidavits, his oral evidence and his oral and written submissions barely address the evidentiary and legal onus borne by the plaintiff to satisfy what Maxwell P observed in Peak Engineering:[98]
“… In a case of this kind, where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury. The matters identified in the previous paragraph were all directly relevant to the enquiry in the present case, and needed to be addressed squarely.”[99]
[98](Supra)
[99](Supra) at paragraph [24]. See also Poholke v Goldacres Trading Pty Ltd & Victorian WorkCover Authority [2016] VSCA 232.
129 Furthermore, what is unclear to me is whether those impairments are also causative of the plaintiff’s need for prescription medication. The plaintiff was at pains to emphasise that one of the most powerful pieces of evidence in his favour is the prescription of medication which he contended increased following the transport accident of 4 December 2012. But there is a significant problem with that submission. There is no evidence from the medical practitioners who prescribed that medication to demonstrate whether it was prescribed only for the plaintiff’s neck injury or for the other injuries which resulted in persisting symptoms. My summary of the clinical notes of the Scott Street Medical Centre demonstrate that not only was the plaintiff seeking medical treatment in 2016 for his neck, but also for his lower back and leg pain, right shoulder and left foot and ankle.[100] He may well have been prescribed medication to treat the symptoms of those medical conditions.
[100]Paragraph [41] above.
130 The plaintiff has plainly failed to adduce the evidence called for consistently with what Maxwell P observed in Peak Engineering.
131 There is evidence pointing to the plaintiff having suffered a neck injury and psychiatric injury prior to the transport accident of 4 December 2009. If any of those pre-existing injuries were of significance, then the plaintiff should have addressed the observations of the Full Court in Petkovski v Galletti[101] that where injuries have been sustained on separate occasions, they must generally be assessed separately to determine whether each injury, individually, is a “serious injury”. This means that, where a plaintiff brings proceedings for a serious injury in the form of an aggravation of an earlier injury, the court must examine whether the later aggravation is itself a “serious injury”.
[101][1994] 1 VR 436, 443
132 The next problem facing the plaintiff is based upon the histories recorded by a number of medical practitioners that the plaintiff suffered significant injuries in the transport accident of 16 September 2009.[102]
[102]Mr Hall; Dr Middleton; Mr Klug; Mr Goldwasser, and Mr Haw.
133 It is very clear that the medical practitioners I have referred to in the last footnote apportioned responsibility for the plaintiff’s neck injury to each of the three transport accidents. That surely called upon the plaintiff to address the observations of the Full Court in Petkovski as well.
The alternative claim under paragraph (c)
134 The next problem facing the plaintiff is that, even if I were to accept that none of the foregoing issues of law operated unfavourably to the plaintiff, then there are a number of opinions which point to the plaintiff showing evidence of somatic referred pain[103] or abnormal illness behaviour[104] or a Chronic Pain Disorder or Chronic Pain Syndrome[105] or the presence of psychological components.[106] The medical practitioners who were the authors of the non-organic diagnoses range in specialty from neurosurgery, orthopaedic surgery and occupational medicine. Three of the opinions were provided in 2016 and are amongst the most recent medical opinions from medical practitioners whose specialty is physical medicine.
[103]Mr Hall
[104]Dr Elder
[105]Mr Miller, and Mr Carey.
[106]Mr Haw
135 If there is a physical injury, together with non-organic features or psychological/ psychiatric features, then it is for the plaintiff to address the observations made by Maxwell ACJ in Meadows,[107] that if there is not a substantial organic basis for the pain and suffering consequences relied on, then the plaintiff will need to separate the physical contribution to the pain and suffering from the psychological in order to be able to satisfy me that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.
[107](Supra)
136 The opinion of those medical practitioners is that there was an organic basis for the plaintiff’s complaints, but the presence of non-organic features must mean that the co-existence of the two contributors to the plaintiff’s impairment calls for disentangling one from the other to demonstrate what impairment results from the physical injury and with what consequences. The plaintiff has not undertaken the necessary disentangling.
137 I will briefly turn to the evidence of three psychiatrists and a neuropsychologist to examine whether they were able to undertake the necessary disentangling.
138 Dr Serry, psychiatrist, examined the plaintiff on 15 December 2009.[108] His attention was principally directed to the transport accident of 25 June 2003, although he became aware that the plaintiff had been involved in the transport accident of 4 December 2009. He diagnosed that the plaintiff had suffered a Chronic Adjustment Disorder with Anxious and Depressed Mood with features of traumatisation, which had been exacerbated by the transport accident of 4 December 2009. He then added that from a psychological point of view, the plaintiff had “been stressed, anxious, frustrated, depressed and somewhat traumatised by both the subject accident and again by the more recent accident”.[109] He then undertook an impairment assessment which is of no relevance here.
[108]PCB 388-394
[109]PCB 392-393
139 Clearly, Dr Serry attributed a significant contribution to the psychiatric state he diagnosed to the transport accident of 25 June 2003.
140 The defendant referred the plaintiff to a part of the history he gave Dr Serry of the recent accident; that is, the transport accident of 4 December 2009 that he “was always very cautious on the road and drove slowly”, and “[a]s a passenger, he has tended to brace himself and use the imaginary brakes.”[110] Under cross-examination, the plaintiff was taken to a document prepared by the defendant which was a breakdown of the occasions when his driving came under notice of road traffic authorities mainly for speeding.[111]
[110]PCB 390
[111]The document was derived on a search of the plaintiff's driving record at DCB 53-200, and cross-examination on the document from T54-58.
141 I will not set out what is contained in the document, but at least between 25 March 2004, the plaintiff was docked demerit points for speeding, and between that date and November 2009, he was caught speeding 22 times, and between December 2009 and 22 April 2015, he was caught speeding a further 13 times. It does not represent a record who was someone who was cautious about driving and someone who drove slowly.
142 Dr Ingram, psychiatrist, examined the plaintiff on 11 October 2010.[112] He was aware that the plaintiff had suffered injury in three transport accidents.[113] Noteworthy is his understanding that the plaintiff had suffered chronic pain since the transport accident of 16 September 2009.
[112]DCB 28-32
[113]He incorrectly described the second transport accident as having occurred on 4 December 2009. It occurred on 16 September 2009, and I will assume that was what he was referring to.
143 Dr Ingram concluded that the plaintiff was suffering from significant depression and significant Post-Traumatic Stress Disorder. He considered that the plaintiff’s depression was secondary to his pain and physical limitations. He made no determination of the contribution of the three transport accidents to the depression, but said that the percentage contribution depended upon the allocation by the physical treating medical practitioners of the plaintiff’s physical symptoms to each of the three transport accidents.
144 In relation to the Post-Traumatic Stress Disorder, Dr Ingram related those symptoms to the transport accident of 16 September 2009 and 4 December 2009, but slightly more to the last of those.
145 Dr Epstein, psychiatrist, examined the plaintiff on 22 May 2012.[114] He was aware that the plaintiff had suffered injury in three transport accidents. He took a very extensive history of the occurrence of each of the three transport accidents and the injuries and the consequences of those injuries suffered by the plaintiff.
[114]PCB 260-271
146 The defendant referred me to aspects of the history recorded by Dr Epstein which demonstrate that the plaintiff was plagued by problems with his right shoulder and neck during 2006 and 2007, and they caused him to cease work at a pizza restaurant in early 2007. He recorded that the plaintiff experienced significant symptoms of insomnia, flashbacks and reminders of each of the transport accidents.
147 Dr Epstein was asked to undertake an impairment assessment using the Guide to the Evaluation of Psychiatric Impairments for Clinicians. He considered that the plaintiff psychiatric impairment was 20 per cent. The transport accident of 25 June 2003 contributed 50 per cent to that impairment, and the subsequent transport accident contributed 5 per cent to that impairment.[115]
[115]PCB 269
148 Dr Kaplan, psychiatrist, examined the plaintiff on 22 July 2015.[116] He was aware that the plaintiff’s claim related to injuries suffered by him in the transport accidents of 16 September 2009 and 4 December 2009, although he obtained a history of the occurrence of each of the three transport accidents.
[116]PCB 296-309
149 Dr Kaplan understood the physical injuries suffered by the plaintiff to include the plaintiff’s neck and shoulders, with pain radiating into the left arm, constant lower back pain radiating down the left leg to the ankle and pain in the ankles and lower legs.
150 Dr Kaplan diagnosed the plaintiff as suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He considered that the plaintiff was depressed after the transport accident of 25 June 2003.[117] He considered that the subsequent two transport accidents led to a substantial increase in the severity of the plaintiff depression and anxiety, and among other consequences, led the plaintiff to thoughts of suicide. He considered that his prognosis would be determined by the outcome of his physical condition and that he was likely to remain prone to depression and anxiety as long as his pain persisted and as long as he remained disabled by pain.[118]
[117]He incorrectly understood it to have occurred in 2002.
[118]PCB 307-308
151 Ms Vernieux, clinical neuropsychologist and clinical psychologist, examine the plaintiff on 15 August 2016 and provided a report of some 42 pages.[119] The conclusion she reached is consistent with the conclusions reached by the medical practitioners who consider that the plaintiff’s injuries are more non-organically derived. She considered that he was suffering from a “somatisation disorder”, and that his deteriorating physical state “is largely psychologically based”.[120] She appears to base that opinion on the product of the three transport accidents, and other traumatic events in the plaintiff’s life. She also refers to aspect of the plaintiff’s personality, which she described as the spiritual powers which the plaintiff believes he possesses, and a lack his lack of insight into the relationship between the psychological state and his physical state.[121]
[119]PCB 318-361
[120]PCB 358
[121]PCB 355-58
152 The very same issues arises here which led me to refer to Petkovski earlier. On my understanding of the basis of the opinions of Dr Ingram, Dr Kaplan and Ms Vernieux, they have based their opinions on the aggregate impact upon the plaintiff of injuries suffered in each of the transport accidents, and not just on a psychiatric condition of depression and anxiety secondary to a neck injury, and a primary psychiatric condition of Post-Traumatic Stress Disorder solely resulting from the transport accident of 4 December 2009.
The Plaintiff’s credit
153 It is apparent from my summary of the evidence and my synthesis of it that I have put to one side most of the attack made by the defendant on the plaintiff’s creditworthiness. That is not to say that there is no such issue here. The fact that the plaintiff has given different accounts in his affidavits and in histories recorded by examining medical practitioners immediately raises the question whether he has been untruthful at various times or is simply careless. I do not have much difficulty accepting the proposition that variations in accounts will occur, and it would be surprising if that were not the case; however, I have a sense that the plaintiff has constructed a case by focusing on the neck injury only by, firstly, emphasising the neck injury, and secondly, by barely referring to the other medical conditions as if not referring to them diminishes or eliminates their relevance and importance.
154 There are two essential bases for me having that sense: firstly, on any view, there is a glaring disparity in so many of the histories recorded by examining medical practitioners of what injuries the plaintiff suffered and when; and, secondly, the glaring disparity in which consequences result from which injuries, for example a comparison between the consequences referred to in his affidavits and oral evidence when compared with the statement he made on 31 May 2012.
155 The question which is exercising my mind is, how can it be that there are so many differing accounts of what injuries occurred, and when, and with what consequences unless the plaintiff has endeavoured to enshrine a position at a particular time which suited him or else he is a hopeless historian? I am inclined to think that it is more the first than the second, but the failure to provide basic and consistent histories is very troubling. It has certainly undermined my confidence that I can accept what the plaintiff says, and in particular, whether in fact he is presently suffering the symptoms he ascribes to the neck injury and whether they are responsible in large part for the consequences he contends for.
Conclusion
156 It is for the reasons I have set out in the foregoing paragraphs that I have concluded that the plaintiff has not satisfied the statutory test either under paragraph (a) or (c), and therefore, his Originating Motion will be dismissed with costs.
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