Chaabani v Transport Accident Commission
[2018] VCC 478
•18 April 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-04151
| MOHAMED CHAABANI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 and 25 July 2017 | |
DATE OF JUDGMENT: | 18 April 2018 | |
CASE MAY BE CITED AS: | Chaabani v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 478 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – injury to the lumbar spine – impairment of the spine – nature and extent of damage – severe mental disorder
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Petkovski v Galletti [1994] 1 VR 436; Richards & Anor v Wylie (2000) 1 VR 79; Dordev v Cowan & Ors [2006] VSCA 254
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D C Dealehr | L M Christie & Co |
| For the Defendant | Mr P Jens QC with Mr A D Newman | Lander & Rogers |
HIS HONOUR:
1 This is an application by the plaintiff for leave under s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to commence proceedings seeking damages at common law for injuries suffered as a result of a transport accident which took place on 21 May 2007. On that occasion, the plaintiff was a pedestrian alighting the curb when a motor vehicle reversed into him as it was attempting to park.
2 The serious injury relied upon is essentially an impairment to the lumbar spine as a result of an injury to the L5-S1 disc, and/or aggravation of a pre-existing injury to his lower back, with a Chronic Pain Syndrome. The plaintiff also alleges he has suffered a permanent severe mental or permanent severe behavioural disturbance or disorder by way of a Major/Severe Depression and/or significant exacerbation of a pre-existing Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood relevant to the claimed injuries.
Legal principles
3 The test for determining whether an applicant has suffered a “serious injury” within the meaning of s93(17)(a) of the Act was prescribed in Humphries & Anor v Poljak,[1] which was subsequently approved by the Court of Appeal in Mobilio v Balliotis.[2]
[1][1992] 2 VR 129
[2][1998] 3 VR 833
4 In Humphries & Anor v Poljak,[3] Crockett and Southwell JJ, stated as follows:
“… the task of a judge confronted with the requirement to determine an application made pursuant to subs(4)(d) when reliance is placed upon subs(17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’? Beyond such guidance it is, we think, not possible to go. … .”
[3](Supra) at 140
5 In cases involving an aggravation of a pre-existing injury or condition, the plaintiff must establish what injury was caused in the relevant accident and then there must be an analysis of the extent of the impairment of the relevant body function before and after the injury caused in the relevant accident.[4] In other words, in order to satisfy the Court of a “serious injury”, the aggravation of the pre-existing injury must, itself, amount to a “serious long-term impairment or loss of a body function”.
[4] Petkovski v Galletti [1994] 1 VR 436
6 A plaintiff who has suffered a physical injury may develop a mental or psychiatric response to the pain associated with the physical injury. In a case where a plaintiff claims that she has suffered a “serious injury” within subparagraph (a) of the definition, in assessing the seriousness of the impairment of the relevant body function, it is permissible and appropriate for the Court to take into account the development of any psychiatric condition in response to the physical injury when deciding whether the consequences of the impairment of the relevant body function, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as “serious”.[5]
[5]Richards & Anor v Wylie (2000) 1 VR 79
7 In my view, the first task for the Court is to determine what injury the plaintiff suffered to his lumbar spine; alternatively, a mental disorder, as a result of the transport accident on 21 May 2007. The Court is to then conduct a before and after analysis as to the extent of the impairment of the relevant body function caused in the transport accident. The body function relied upon is impairment to the function of the lumbar spine; alternatively, a mental disorder.
The issues
8 The defendant accepts that the plaintiff may have suffered an injury to the lumbar spine as a result of the motor vehicle accident, perhaps consisting of some aggravation or exacerbation of the underlying degenerative change at L4‑5, and/or alternatively contributing to injury at L5-S1, but contends the plaintiff has not established permanent serious impairment for three reasons:
(a) Firstly, the plaintiff, it is submitted, is not a witness of credit and cannot be relied upon to provide the factual histories upon which medical opinions are ultimately based;
(b) Secondly, the plaintiff has not proved the extent of any change to the impairment of the lumbar spine, either physically or clinically, which would satisfy the test laid down in Petkovski v Galletti;[6]
(c) Thirdly, insofar as the plaintiff may have demonstrated a relevant change in his clinical position, such a change does not amount to a “serious injury” according to the statutory threshold, with respect to paragraph (a) or paragraph (c) claims. The same submissions relate to a mental disorder.
[6][1994] 1 VR 436
Context
9 The plaintiff suffered a back injury in 1995 in the course of his then employment and has essentially not worked since that time. He is also said to have suffered a reactive psychological injury in response. The plaintiff suffered a further injury to his back in April 1999 following a fall at Crown Casino. He also suffered a reactive psychiatric injury to this trauma. The plaintiff suffered his third injury, the subject of this application, on 23 May 2007, and suffered further aggravation to his back injury as well as a reactive psychological injury.
The Plaintiff’s evidence
10 The plaintiff has sworn three affidavits dated 12 November 2013, 19 November 2014 and 21 May 2017.[7]
[7]Exhibit “C”
11 In his first affidavit, the plaintiff relates that on 21 May 2007, he was standing on a kerbside on a one-way street in Reservoir, facing oncoming traffic, when a utility truck reversed and struck him from behind. He attended his general practitioner, Dr Lit Ho, on 24 May 2007 and was prescribed analgesia for back pain, and saw him again on or about 15 June 2007.
12 The plaintiff did not re-attend for medical attention with Dr Ho until 12 June 2008. He was then referred to Mr Peter Kudelka, orthopaedic surgeon, who ordered an MRI scan of his back. Mr Kudelka referred the plaintiff, then, to neurosurgeon, Associate Professor Graeme Brazenor, who apparently recommended conservative treatment.
13 Thereafter, the plaintiff sought a further opinion from neurosurgeon, Dr Nicholas Maartens, who recommended an anterior lumbar inter-body fusion, but the Transport Accident Commission would not accept a liability for same, and he was placed on a waiting list for surgery in the public system. The plaintiff also stated he was referred to Dr Parekh, psychiatrist, and thereafter, Dr Robert Arulanantham, psychiatrist.
14 The plaintiff also stated he had a previous back injury in 1995 while moving a couch in the course of his employment. This resulted in him not being able to work and he was placed on the Disability Support Pension. He has not been able to work since that time. The plaintiff further claimed that although he had not been able to work since his back injury in 1995, he:
“… was comfortable and happy knowing that prior to the motor vehicle accident on the 21st of May 2007 my injuries were as good as they were going to be. The motor vehicle accident has aggravated and/or exacerbated the pre-existing injury to my back quite significantly.”[8]
[8]Exhibit “C”, the plaintiff’s first affidavit sworn 12 November 2013, PCB 8
15 The plaintiff did not refer to a second injury at Crown Casino in 1999.
16 The plaintiff further claimed that the relevant accident had significantly affected his enjoyment of life, including his sexual relationship with his wife.[9]
[9]Exhibit “C”, the plaintiff’s first affidavit sworn 12 November 2013, PCB 9
17 In his second affidavit, sworn 19 November 2014, the plaintiff related that prior to his first accident in 1995, he was an active sportsman, playing football, cricket and basketball. However he, “stopped playing all sport when [he] injured [his] back at work in or around 1995”.[10]
[10]Exhibit “C”, the plaintiff’s second affidavit sworn 9 November 2014 at paragraph [9], PCB 12
18 The plaintiff further related that in or around April 1999 he had a fall at Crown Casino and further aggravated his back injury. He was treated by his general practitioner, Dr Alpay, who referred him for a CT scan of his back and wrist. He stated:
“I was told that the CT scan showed the previous injury but not further deterioration. Regardless of the radiology, I continued to feel back pain.”[11]
[11]Exhibit “C”, the plaintiff’s second affidavit sworn 9 November 2014 at paragraph [12], PCB 12
19 The plaintiff further stated he became quite depressed and was referred to psychiatrist, Dr Parekh. He stated:
“This was the second time in my life that I had become severely depressed. The first was following my back injury in 1995, however as my physical symptoms improved after my first injury, so did my depression.”[12]
[12]Exhibit “C”, the plaintiff’s second affidavit sworn 9 November 2014 at paragraph [14], PCB 12
20 Thereafter, the plaintiff stated he returned to his general practitioner “… sporadically complaining of back pain over the course of the next couple of years, and also attended [his] specialist, Mr Kudelka.”[13]
[13]Exhibit “C”, the plaintiff’s second affidavit sworn 9 November 2014 at paragraph [15], PCB 12
21 The plaintiff further related that by the end of 2002, his back had improved significantly; however, he was still quite depressed in the aftermath of his injuries.[14]
[14]Exhibit “C”, the plaintiff’s second affidavit sworn 9 November 2014 at paragraph [17], PCB 13
22 The plaintiff additionally stated that in about 2003, he started to go back to the gym again. He started off lifting very light weights and avoiding any weights that exercised his back. He stated he gradually increased the weights and included exercises that involved the use of his back.[15]
[15]Exhibit “C”, the plaintiff’s second affidavit sworn 9 November 2014 at paragraph [18], PCB 13
23 The plaintiff thereafter stated that between 2003 and 2007, he usually trained between four and five times a week,[16] but that by the end of 2002, he had stopped taking all prescription pain medication for his back injury, but continued to see his psychiatrist, Dr Parekh, sporadically until about October 2004. At about this time, he ceased taking antidepressants as well.[17]
[16]Exhibit “C”, the plaintiff’s second affidavit sworn 9 November 2014 at paragraph [20], PCB 13
[17]Exhibit “C”, the plaintiff’s second affidavit sworn 9 November 2014 at paragraph [22], PCB 13
24 Accordingly, by this stage (that is, 2004), the plaintiff stated:
“… I was not incapacitated in any real way by my previous back injury, nor was I held back by my mental health. I needed no help at home, and could drive without issue.
In or about 2000, and upon feeling more myself again, my brother, Ali Chaabani, and I decided to travel to Lebanon to meet up with my mum who was holidaying over there at the time. I had no difficulty with the travel, and saw no doctors concerning my back whilst overseas.”[18]
[18]Exhibit “C”, the plaintiff’s second affidavit sworn 9 November 2014 paragraphs [23] and [24], PCB 13
25 This evidence is to be contrasted with the fact that the plaintiff was still in receipt of the Disability Support Pension at this stage and was making no attempts to return to work. Further, he was cross-examined about giving further evidence in 2002 in County Court proceedings concerning the 1999 injury, to the following effect:
Q:“And three years later in 2002, you were saying it was still excruciating in court on oath?---
A: Yeah.
Q: So you’ve got the 1995 accident?---
A: Yeah.
Q: And you’ve got the 1999 accident?---
A: Yes.
Q:And in 2002, you’re in court giving evidence like you are today on oath?---
A: Yeah.
Q: ---telling them how bad your back was?---
A: Yeah.
Q: Do you agree?---
A: Yeah. I agree.”[19]
[19]Transcript (“T”) 36, Lines (“L”) 18-25
26 This evidence in 2002 is also to be contrasted with the contents of the plaintiff’s first affidavit to the following effect:
“26. Because of our continuing relationship I travelled again to Lebanon in or around 2001 to see Nancy and we became engaged. Again I had no difficulty with my back throughout my travels, nor did it present any impediment to my relationship with Nancy.
27. I then returned to Lebanon for a third time in 2002 where I married Nancy.
28. After our wedding, my wife and I moved back to Australia in to my parent’s (sic) house. Whilst here I contributed to the running of the household with tasks such as carrying out the vacuuming, mopping, assisting with the gardening, taking out the bins, and taking my mum shopping.
29. At this time I was still on the disability support pension, but I also started to lend a helping hand to my brothers who owned a number of cafes at the time.
30. Before the accident the subject of these proceedings my wife and I travelled to various places around Australia as I showed my wife Australia. In particular I remember travelling to Sydney, Adelaide, and Queensland.
31. I also showed my wife the nightlife. We would often go to nightclubs where we both enjoyed dancing.
32. I again took up basketball. Frequently my brothers and I would book a basketball court in Mill Park where we would play friendly games. I also filled in on a number of occasions for an indoor cricket team.
33. My wife and I would frequently attend social functions, often hosted by members of my extended family, and commonly we would end up playing a game of family soccer with one or more of my 32 nieces and nephews.
34. In or about 2005 my first son was born. Before the 2007 accident I had no difficulty holding him, changing his nappy, or running around after him.”[20]
[20]Exhibit “C”, the plaintiff’s second affidavit sworn 9 November 2014 at paragraphs [26]-[34], PCB 14
27 The fact that the plaintiff was giving the above evidence in Court in 2002 with respect to his 1999 injury and was still remaining on a Disability Support Pension without ever attempting to return to work is to also be contrasted with the evidence of his wife, Nancy Chaabani, in her affidavit sworn 27 November 2014.[21] Therein, Mrs Chaabani attests as follows:
[21]Exhibit 1, PCB 102
“3. I first met Mohammed Chaabani in or around 2000 when he travelled to Lebanon. I was in high school at the time. We spent around 10 days together. Over this period of time I had no idea that Mohammed had suffered from back injuries. He made no complaint to me nor did I notice anything to suggest he had been/was injured.
4. After Mohammad returned to Australia we kept in touch. Our contact developed to the point where we were calling each other every day.
5. We became engaged and in or about 2002 Mohammad returned to Lebanon for our wedding. On this trip he stayed in Lebanon for about a month. We spent every day together. Still I had no idea that he had suffered from back troubles in the past. He certainly didn’t appear injured to me. At our wedding reception we danced, and Mohammed even carried me. Now produced and shown to me and marked ‘NC-1’ is a true and correct copy of a photo of our wedding day depicting Mohammad carrying me in his arms.
6. During that trip we hired a car from my father and drove to Syria from my hometown of Tripoli. Mohammed drove the whole way. It took approximately ten or so hours. In Syria we spent most days walking, as we went sightseeing and shopping at the local markets.
7. I couldn’t return to Australia immediately with Mohammed after our wedding as I was having some difficulty obtaining the necessary Visa. So Mohammed returned to Australia but in or around June 2002, he came back a third time to Lebanon. Again he stayed for approximately one month. We were very active again during this trip, spending most of our days exploring the city on foot. I also remember that Mohammed asked me to find him a gym where he could train. He went to that gym on a number of occasions during his stay in Tripoli. Again on this visit Mohammed made no mention of back pain and did nothing to suggest to me that he was injured.
8. I then came to Australia with Mohammed. When we first arrived in Australia we moved in with Mohammed’s parents.
9. Mohammed was entirely independent in respect of going about his daily activities.
10. Mohammed has never been in paid employment in the time I’ve known him, however he did frequently lend out a helping hand to other members of his family in their businesses. He also assisted in the upkeep of his parent’s household. Mohammed would often do the mowing, assist with the gardening, and take bins out. When we were living with Mohammed’s parents his dad was on dialysis and required a lot of assistance. Mohammed took over all the heavy work at the house, including occasionally mopping and vacuuming. Mohammed would drive his dad to all his medical appointments, and also used to take his mum shopping.
11. I only got my licence in or around 2003. Before this time Mohammed would be the one to drive us wherever we needed to go. I recall before the accident in 2007 we drove to Sydney a few times for mini breaks. Mohammed was always the driver. We also travelled to Adelaide and the Gold Coast.
12. Before the accident Mohammed was a very active person. Body image was very important to Mohammed, and he went to the gym almost every day. He also used to play soccer with his nieces and nephews and him and his brothers would often play basketball.
13. Before the accident in 2007 Mohammed was also very active with our own kids. He was very playful with them, and I would leave them with him anytime.
14. In fact before the 2007 accident, I had part time employment at a fruit shop and Mohammed would look after our kids (we had two at that time). He had no trouble picking the kids up, changing their nappies etc etc.”[22]
[22]Exhibit “1” at paragraphs [3]-[14]
28 Further, the plaintiff’s brother, Ali Chaabani, has sworn an affidavit dated 20 July 2017.[23] This affidavit does not refer to the state of the plaintiff’s health prior to the motor vehicle accident in May 2017, and is accordingly of little assistance in this claim.
[23]Exhibit “N”
Consequences of the 2007 injury
29 In his second affidavit, the plaintiff attested as follows:
“42.Following the 2007 incident I had symptoms which I don’t recall experiencing ever before with my previous injuries. I randomly started getting numbness and at other times pins and needles through my buttocks and down my legs. At times it felt like someone was poured boiling water all over me. I continue to experience these symptoms.
43.From almost immediately after the incident I needed the assistance of my wife to go about my daily duties. I found that I could no longer lower myself to the toilet seat or rise from it. I could no longer bend in the shower to wash my body. I could no longer dress myself. I could no longer assist with the cleaning of the house, all due to my back pain.
44.Most importantly I could no longer assist with our kids. By the time of the injury we had three young children. I now have 4 children. The youngest one was still in nappies and wanted to be carried constantly. After the accident I couldn’t pick him up. I still can’t.
45.After the 2009 accident the kids couldn’t be left alone with me. I can’t run after them, I can’t pick them up and I get nervous around them in case they touch my back. I am very irritable with them and have no patience because of my pain.
46.I also completely stopped assisting in the running of the house. My wife started to do everything. She gets the kids up and dressed and fed in the morning and makes their lunches for school. She does all the cooking, cleaning and housework. My oldest child notices that my wife does literally everything around the house and he asks why dad doesn’t help mum.”[24]
[24]Exhibit “C”, the plaintiff’s second affidavit sworn 19 November 2014 at paragraphs [42]-[46], PCB 15-16
30 However, despite suffering these disabilities, the plaintiff did not attend any doctor between 15 June 2007 and June 2008.
31 Further, the plaintiff related that after the accident, his relationship changed from that of husband and wife to carer and patient. He stated that he had not been intimate with his wife for over a year, and that he had only been intimate with her on a handful of occasions since the 2007 accident.[25]
[25]Exhibit “C”, the plaintiff’s second affidavit sworn 19 November 2014 at paragraph [51], PCB 16
32 The plaintiff further stated:
“I also can [no] longer drive because of the medication that I’m on. I have much difficulty concentrating and find my thoughts always wondering to what our future will be like.”[26]
[26]Exhibit “C”, the plaintiff’s second affidavit sworn 19 November 2014 at paragraph [54], PCB 16
33 This statement is consistent with the history given to the plaintiff’s treating psychiatrist, Dr Robert Arulanantham, in November 2014[27] and with the history given to Associate Professor Mendelson, psychiatrist, who examined him on behalf of the defendant.[28] This history was also confirmed in cross-examination.[29] However, video footage taken of the plaintiff on 8, 9, 15 and 17 July 2017 shows the plaintiff driving and moving relatively freely and walking at a quick pace.[30] This video footage appears to be inconsistent with the history given to Mr Michael Dooley on 18 May 2017, to the effect that the plaintiff was walking with a stick and at a slow pace.[31]
[27]Exhibit “G”, PCB 50A
[28]Exhibit 8, DCB 60
[29]T90, L24
[30]Exhibit 2
[31]Exhibit 9, DCB 69B
34 Further, when it was put to the plaintiff in cross-examination that he appeared to be moving freely at a quick pace, he replied:
“Yeah, I was doing good wasn’t I?”[32]
[32]T63, L16-28
35 There would appear to be a real discrepancy between the plaintiff’s evidence in his affidavit referred to above and that shown in the video footage in July 2017.
36 Further, when cross-examined about previous offences of dishonesty, I accept defence counsel’s submission that the plaintiff’s responses were evasive and possibly deceptive. Initially, the plaintiff denied any involvement with “buying and selling mobile phones” or “any money making to do with mobile phones”,[33] but later, subsequently admitted that he had been involved in such activities.[34] Further, where the defendant submits the fact that the plaintiff was willing to involve a young wife in such deceptive conduct early after her arrival in Australia was indicative of a manipulative character, and was a factor to be taken into account by the Court in relation to evaluating the plaintiff’s credit. I accept this submission.
[33]T48, L22-29
[34]T48, L29-31 and T49, L1-13
37 I also accept the defendant’s submission that the plaintiff’s credit was a central focus in the case and I find that he has exaggerated the effects of his injury in terms of his pain and suffering. This also becomes relevant to the reliability of the medical evidence on which he relies to establish his case.[35]
[35]See Dordev v Cowan & Ors [2006] VSCA 254 at paragraph [14]
38 The defendant submits that the plaintiff’s reliance on there being a very significant change in the symptomatology before and after the accident is not made out. Further, it is submitted, a proper evaluation of the contemporaneous objective material does not corroborate his evidence and ultimately, has failed to discharge the onus of proof.
Comparison of impairments
39 The plaintiff relies significantly on the medical reports of the treating neurosurgeon, Mr Nicholas Maartens, dated 27 March 2009, 6 August 2009, 7 July 2011, 21 November 2011 and 24 July 2013.[36] Mr Maartens first saw the plaintiff in March 2009 on referral from another orthopaedic surgeon, Mr Peter Kudelka. Mr Maartens took the following history:
[36]Exhibit “D”
(a)that he first injured his lower back in 1995 in compensable circumstances and subsequently underwent physiotherapy and pain therapy without ever returning to work;
(b)he has been on a Centrelink Disability Pension since 2000;
(c)in 2002, “… life was beginning to improve and he was progressing … .”;[37]
(d)although he was unable to work, he was nevertheless able to enjoy limited activities such as kicking a ball with his children;
(e)there was a change in his condition following the motor vehicle accident on 25 May 2007, “leading to an exacerbation of his [back] pain”;[38]
(f)he subsequently obtained physiotherapy twice a week, and has been commenced on OxyContin, Zydol and Lyrica by his general practitioner, Dr Ho;
(g)he was also seeing psychiatrist, Dr Dinesh Parekh, who has commenced him on Aropax, Normison and Tuzen.
[37]Exhibit “D”, PCB 19
[38]Exhibit “D”, PCB 19
40 On examination, the plaintiff was unable to straight leg raise beyond 10 degrees bilaterally, but was then able to sit at 90 degrees. He had tenderness in the midline in the lower lumbar spine and had almost no flexion or extension of his lumbar spine – both of which elicited marked pain, especially flexion.
41 An MRI scan of his lumbar spine at that time demonstrated degeneration at L5‑S1, with moderate loss of disc height and disc desiccation. There was also a broad-based disc bulge which, perhaps compacted, but did not appear to compress, the budding S1 nerve roots.
42 As to findings, Mr Maartens noted:
“Although there is a discrepancy between the straight leg raising and the straight sitting, his pain does appear to be severe, genuine and chronic. He maintains that he is unable to lift his children and that apparently his wife has to help him with personal toiletry. She is his carer. He appears to be already on maximal pain management. … .”[39]
[39]Exhibit “D”, PCB 19
43 The plaintiff underwent a CT discogram on 14 April 2009 and the investigation was labelled “overall unimpressive”.[40] Mr Maartens remarked:
“On discussing the results of the discogram with Mr Chaabani at follow-up, however, his recollection was entirely different from the report and apparently he maintains that he was in such agony after the investigation that he was unable to walk and had to be transported on a wheelchair. The L5/S1 disc looked very abnormal on the discogram.”[41]
[40]Exhibit “D”, report dated 7 July 2011, PCB 24
[41]Exhibit “D”, report dated 7 July 2011, PCB 24
44 At follow-up on 19 June 2009, Mr Maartens thought there had been a clinical deterioration, despite being on OxyContin. The plaintiff gave a history that he was unable to drive, and commented on a subjective feeling of numbness in his groin.
45 When reviewed on 25 March 2011, Mr Maartens considered the plaintiff:
“… remained severely incapacitated from pain which restricted all his activities of daily living, making him dependent on his wife who essentially acted as his carer. He was on large doses of Oxycontin, Zydol and Lyrica for pain which served to only partially alleviate his symptoms. … .”[42]
[42]Exhibit “D”, report dated 7 July 2011, PCB 25
46 It was Mr Maartens’ opinion that the plaintiff made a good candidate for an L5‑S1 anterior lumbar interbody fusion, and he indicated that he would be –
“… happy to offer Mr Chaabani treatment in the public sector if his TAC claim is denied … .”[43]
[43]Exhibit “D”, report dated 7 July 2011, PCB 25
47 When asked his opinion as to the effect on the plaintiff of his injuries prior to the transport accident, Mr Maartens answered:
“It is difficult for me to comment on these having not seen him prior to 2007 and having not seen any radiology from this period. According to the history I was given it is likely that he had degenerative changes at the putative level which had improved from a symptomatic point of view prior to the car [accident].
…
… According to Mr Chaabani, despite having [not] returned back to work, between 2002 and his accident in 2007, he had improved significantly. I did not quantify this improvement. Following the 2007 accident he had deteriorated significantly with a commensurate increase to his analgesic requirements. I furthermore consider his symptoms to be genuine and confirmed radiologically.”[44]
[44]Exhibit “D”, PCB 26
48 It is worth noting at this stage, that Mr Maartens did not have a history of a further back injury on 20 April 1999, also appearing in compensable circumstances, at Crown Casino. Further, Mr Maartens did not have material upon which to “quantify this improvement”[45] between 2002 and the accident in 2007.
[45]Exhibit “D”, PCB 28
49 By way of contrast, the referring orthopaedic surgeon, Mr Kudelka, had first seen the plaintiff on 21 September 1995 with respect to a workplace injury suffered on 16 June 1995. He had been referred by general practitioner, Dr Gursel Alpay.[46] Mr Kudelka took a history that the plaintiff had been employed as a despatch worker with Dwell Furniture for approximately five months. He ceased work on 13 September 1995. He received tablets both from Dr Alpay and from a psychiatrist, Dr Parekh, to which he had been referred. On examination, Mr Kudelka stated:
“… thought the extensors of both great toes were abnormally weak suggesting a diagnosis of L5 neuritis. A CT Scan of the lumbar spine was available. A photostat of this report … shows L4/5 pathology … .”[47]
[46]Exhibit 4, DCB 20
[47]Exhibit 4, DCB 20
50 Mr Kudelka, at that stage, considered the plaintiff had a work-related lumbar disc injury with sciatica, and that he had also developed an adverse psychological reaction to his accident. He recommended continuing physiotherapy, and considered him not fit for work.[48]
[48]Exhibit 4, DCB 20
51 On review on 9 April 1996, the plaintiff still had the pain and had not returned to work. He was receiving tablets from his psychiatrist, Dr Parekh. An MRI scan had confirmed L4-5 disc pathology.[49]
[49]Exhibit 4, DCB 21
52 Thereafter, Mr Kudelka reviewed the plaintiff on 16 December 1996, 13 February 1997 and 9 February 1998, and noted that his symptoms of back pain had persisted. He had had a financial settlement and was now in receipt of a Disability Support Pension.[50]
[50]Exhibit 4, DCB 22
53 Further, on 13 July 2000, Mr Kudelka reported the plaintiff was unable to work because of persistent back pain and he had received advice from Associate Professor Graeme Brazenor, neurosurgeon, and Mr Brian Davie, orthopaedic surgeon, but no back surgery was suggested.
54 Mr Kudelka again reviewed the plaintiff on 10 August 2000, 11 August 2000, 17 November 2000, 14 December 2000, 9 February 2001, 22 March 2001, 5 July 2001 and 19 October 2001. Within that time, he had also been examined by Professor Peter Choong, orthopaedic surgeon.[51]
[51]Exhibit 4, DCB 22
55 Mr Kudelka noted:
“… Apparently there was ongoing litigation through Solicitor, L Christie. The situation was unchanged on reviews … [leading up to] 19/10/01.”[52]
[52]Exhibit 4, DCB 22
56 Although not specifically mentioned, I infer the ongoing litigation probably relates to the fall at Crown Casino on 20 April 1999.
57 Mr Kudelka did not see the plaintiff again until he attended on 24 July 2008, on referral from his general practitioner, Dr Ho, and gave a history of the motor vehicle accident on 21 May 2007. Mr Kudelka obtained a history:
(a) The motor vehicle accident had aggravated his back pain;
(b) He was having physiotherapy weekly and was being treated by Dr Ho and a psychiatrist, Dr Parekh and was taking Serepax, Normison and Zydol.[53]
[53]Exhibit 4, DCB 22
58 Mr Kudelka arranged an MRI scan, which showed disc degenerative changes at L4-S1. When reviewed on 7 August 2008, the plaintiff was using a walking stick, and he referred him back to Associate Professor Brazenor. Apparently the latter did not recommend spinal surgery and he continued under the care of Dr Ho, and noted that his medication at that time was Lyrica, Zydol, Aropax, Normison and Ducene.
59 It was Mr Kudelka’s opinion:
“In summary therefore this patient’s back pain has persisted at an incapacitating level since his Work Cover claim, lifting a sofa bed, 16/6/95, despite appropriate conservative treatment and several examinations by Spinal Surgeons.
…
I doubt whether the incident in May 2007, when, as a pedestrian, he was allegedly struck by a reversing car, was anything more than a transient aggravation of his longstanding chronic back symptoms.”[54]
[54]Exhibit 4, DCB 23
60 In a follow-up report to the plaintiff’s solicitors dated 30 April 2009, Mr Kudelka confirmed that he had referred the plaintiff to Mr Maartens, and stated further:
“● It is possible that the transport accident 21.5.2007 aggravated the patient’s back symptoms which commenced in 1995 and for which he was on a disability pension, but as I did not attend him for over a year after the traffic accident, I am not in a position to offer an opinion as to whether the traffic accident significantly aggravated his pre-existing back injuries.
● I cannot comment on whether any aggravation sustained is stable, long term and permanent.
● I cannot comment on whether the traffic accident caused any new injuries or conditions.
… .”[55]
[55]Exhibit 4, DCB 24-25
61 The plaintiff’s treating general practitioner, Dr Lit Ho, first reported on 10 August 2008.[56] He noted the plaintiff was first seen in the clinic on 24 May 2007, three days after his accident on 21 May 2007. He gave the following history:
(a)he was struck on the back by a reversing car while he was standing on the kerbside, which had resulted in him sustaining some lower back pains and pains in the right heel area;
(b)he had also attended another general practitioner, Dr L Asaf, of Thomastown, and had an x-ray of the lower back performed;
(c)he gave a history of lower back pain dating back to 1995, when he had injured his lower back lifting a sofa at work and had been on worker’s compensation, and had since been on a Disability Support Pension;
(d)he had attended Dr Gursel Alpay of Meadow Heights for this condition and, also, a multitude of other injuries in 1999.
[56]Exhibit “E”
62 Dr Ho considered, at that time, the plaintiff had sustained a lower back strain which was being aggravated from the motor vehicle accident.
63 The plaintiff was next seen on 13 June 2007, complaining of worsening lower back pains, and had a CT scan of 14 June 2007, and the conclusion stated:
“No pars defect. Spina bifida occulta of L5. Minimal L4-5 diffuse disc bulge. … .”[57]
[57]Exhibit “E”, PCB 35
64 The plaintiff was seen again on 15 June 2007, and had his scan results discussed, and analgesic was given.
65 Thereafter, the plaintiff was not seen again for another year, being 12 June 2008. He gave a history that he was suffering:
“… very bad pains and stated that the pains had been worse in the past month. He says he struggles to get up and gets a lot of headaches. He said that he was taking Aropax and Ducene and had attended physiotherapy. … .”[58]
[58]Exhibit “E”, PCB 35
66 I infer from this quote that this medication was being prescribed from elsewhere. The plaintiff requested a referral to Dr Parekh, “a psychiatrist whom he had seen in the past”.[59]
[59]Exhibit “E”, PCB 35
67 At this point, Dr Ho referred the plaintiff to Mr Kudelka. Dr Ho stated:
“… In my opinion, I don’t believe he has a surgical option to his back problem. He has long standing low back pains. His past back problem was not managed by me and I am unable to give any opinion regarding his past back condition. Further opinion should be sought from Mr Kudelka who had seen him in the past and currently.”[60]
[60]Exhibit “E”, PCB 35
68 In his second report, dated 16 May 2009, Dr Ho stated:
“My feeling is that the accident of 21/5/2007 had probably aggravated his low back problem. However, there was a period of almost a year whereby he was not reviewed by me and this does make it extremely difficult to be sure if the accident had an ongoing effect on his back problem. He stated that his low back pains (sic) was a constant problem but had not seen anyone in respect to that making it hard to justify his disability. He takes Oxycontin, Lyrica and from Dr Pareth (sic), Aropax, Alodorm and Valium.
He does not have a work capacity and has not had one apparently since his 1995 workcover claim. He has been on a disability support pension since and had not worked since. I don’t anticipate him to be able to return to the work force having taken into account his age, education, trade and language skills and his past injuries. …
…
… My personal feeling is that the MCA had aggravated his back and whether this is a transient or a permanent aggravation is difficult to ascertain.”[61]
[61]Exhibit “E”, PCB 38
69 On 20 November 2011, Dr Ho reported to the plaintiff’s solicitor that the plaintiff was on a waiting list to have surgery performed on his back by Mr Maartens and Ms Amanda Robinson.[62] This has not been performed.
[62]Exhibit “E”, PCB 44
70 In his report dated 19 November 2014, Dr Ho recorded that an MRI scan of the lumbar spine performed on 8 October 2014 revealed:
“… a degenerate L4/5 disc with desiccation, height loss and annular bulge which was unchanged from the scan performed in 2013. There was mild facet arthropathy. The L5/S1 disc was normal.”[63]
[63]Exhibit “E”, PCB 47
71 It would appear that a CT scan and a lumbosacral spinal x-ray performed on 14 October 2014 revealed similar findings.
72 These investigations taken in 2014 are at variance with the investigations ordered by Mr Maartens prior to July 2013, in which the pathology now appears to be L4-5, with a normal disc at L5-S1.
73 At this time, being 19 November 2014, Dr Ho considered that it would be:
“… prudent to seek the opinion of the Neurosurgeons at the Alfred Hospital or Mr Nicholas Maartens as to the exact future management for him and if further surgery is indicated. As of today, I have no communication from them and I am unsure when … [the plaintiff] will attend for review by Mr Maartens.”[64]
[64]Exhibit “E”, PCB 48
74 There is no follow-up report from Mr Maartens before me.
75 Not surprisingly, Dr Ho has reported, at this stage:
“[The plaintiff’s] issue with his back is a little confusing as various imaging in the past has shown some L5/S1 disc degeneration and the most recent scans have revealed worsening L4/5 disc degenerative changes but a normal L5/S1 disc. My feeling is that the L4/5 disc pathology is the cause of his pain and the L5/S1 is probably no[t] causing significant issues. He has a transitional lumbosacral vertebra which is a congenital condition that has probably no significant bearing in the cause of his back pains.”[65]
[65]Exhibit “E”, PCB 48
Pre motor vehicle accident medical reports
76 Initially, there was no medical evidence tendered on behalf of the plaintiff from treating medical practitioners prior to the motor vehicle accident on 21 May 2007.
77 The defendant tendered two medical reports dated 25 January 1998 and 7 August 2002 from the plaintiff’s treating general practitioner, Dr Gursel Alpay, with respect to the injury suffered on 16 June 1995 and 20 April 1999.[66]
[66]Exhibit 3, DCB 14-19
78 In his first report, Dr Alpay relates that the plaintiff attended him on 8 June 1995 complaining of a work-related back injury. On examination, he had bilateral positive leg-raising test and there was tenderness at the L4-5 disc level centrally and to the left paravertebral region.[67] A CT scan of the lumbosacral spine revealed a mild to moderate posterior disc bulge at L4-5, slightly more focally to the left than to the right. Indentation of the thecal sac was seen. The other levels were normal.[68]
[67]Exhibit 3, DCB 14
[68]Exhibit “M”, PCB 77-94
79 Further, Dr Alpay related that the plaintiff had attempted two returns to work, in June 1995 and September 1995, which were not successful.[69] His opinion, at that stage was:
“Since 1995 he has been unable to return to work due to his physical incapacity and psychological downturn. He is a young man and may need further training and rehabilitation programs for a suitable employment. It will be unrealistic to expect him to go back to work as a furniture removalist following this kind of injury to his back.
He has permanent impairment of approximately 30 per cent to his back and may require surgical intervention in the future.
Currently he takes analgesics and attending physiotherapy on and off and has been counselled by Dr Parekh.”[70]
[69]Exhibit 3, DCB 15
[70]Exhibit 3, DCB 16
80 In his second report dated 7 August 2002, Dr Alpay related that the plaintiff had been a patient of his since 1995 and had been suffering lower back pain due to “disc herniation” sustained at work in 1995. He stated:
“He has been managed medically and his condition stabilised prior to this fall.” [ie 1999].”[71]
[71]Exhibit 3, DCB 17
81 The plaintiff was seen at Dr Alpay’s practice on 21 April 1999, having sustained a fall the previous night at the Crown Casino complex. A CT scan was ordered, which revealed:
“At L4/5 there is a minimal circumferential disc bulge … .”[72]
[72]Exhibit 3, DCB 17
82 Dr Alpay considered that the disc bulge at L4-5 was consistent with the plaintiff’s old injury. The pain then being experienced was due to exacerbation of the previous injury.[73] Treatment for the back pain consisted of physiotherapy, acupuncture and massage therapy and further referral to Mr Kudelka. The plaintiff was also referred to Dr Parekh, psychiatrist, for further management of reactive depression. At that stage, Dr Alpay was of the opinion that the plaintiff would “not be able to perform manual labour in the near future”.[74]
[73]Exhibit 3, DCB 17
[74]Exhibit 3, DCB 19
83 At the conclusion of the evidence, and on a later date, the defendant consented to the plaintiff filing and serving a report from Dr Parekh, psychiatrist, dated 29 April 2009,[75] and a report from Mr Kenneth Brearley, dated 2 February 2012.[76]
[75]Exhibit “J”, PCB 55-57
[76]Exhibit “K”, PCB 58-65
84 In his report, Dr Parekh stated that the plaintiff came “initially under [his] care in 1995 and in the last fourteen years on and off he has been under [his] care”.[77]
[77]Exhibit “J”, PCB 55
85 In 1995 the plaintiff attended on three occasions; 1996, six occasions, 1997, one occasion; 1998, one occasion and in 1999 once and, thereafter, between July 1999 to 20 October 2004.[78] Dr Parekh then did not see him for “a few years” and then saw him on 24 June 2008. He further related that between October 2005 and 24 June 2008 “he had settled down and was able to lead a sedentary life of an invalid pensioner”.[79] When seen on 24 June 2008, the plaintiff gave a history that he was:
“… doing quite well and on 21 May 2007 he was involved in a car accident … and he appeared quite dejected and unhappy [given] that he was settling down and that is the very reason he had not seen me for many years but now he was facing this pain and was in for greater suffering.”[80]
[78]Exhibit “J”, PCB 55
[79]Exhibit “J”, PCB 56
[80]Exhibit “J”, PCB 56
86 At that point, the plaintiff was prescribed Aropax, 20 milligrams, one-and-a-half tablets a day; and was also prescribed Alodorm, a sleeping tablet, one at night; and another tablet, Antenex, 2.5 milligrams at night.[81] It was Dr Parekh’s opinion at that stage:
“Objectively he has become moderately depressed and I do believe that his absence from my clinic for four years does mean that he had settled down and had accepted his limited pain which was always ongoing because his back was still bad. This accident has aggravated his back condition.
He will need to continue enthusiastically with the treatment both for his back from the physical point of view and for his depression from the psychiatric point of view.”[82]
[81]Exhibit “J”, PCB 56
[82]Exhibit “J”, PCB 56
87 Dr Parekh further opined:
“As it [is] an aggravation of his back condition which is likely to settle down in the next 15 months, until that time is reached his suffering will remain aggravated and gradually over the course of time his depression, say in about 15 months, should reach the pre-accident level as it was before the accident in question. He will need to continue with the psychiatric treatment until then.”[83]
[83]Exhibit “J”, PCB 57
Post motor vehicle accident medical report
88 Further, the defendant agreed to the late tendering of two psychiatric reports from Dr Lester A Walton dated 21 January 2010 and 11 June 2013.[84] These reports had been originally obtained by the Transport Accident Commission.
[84]Exhibit “V”, PCB 121-137
89 In the first report, Dr Walton took a consistent history that the plaintiff was suffering from pre-existing back pain and which he asserted had remained at a higher level of intensity since the transport accident. Further, the plaintiff had forsaken sporting involvement involving the first accident (in 1995). Since June 2008, there had been continuing treatment with antidepressant, anti-anxiety and sleeping medications.[85]
[85]Exhibit “V”, PCB 123
90 Mental state examination was recorded as follows:
“At interview, Mr Chaabani appeared rather despondent but he was thoroughly pleasant and cooperative … He remained adept at arithmetical calculations and he stated that mathematics had always been a strength for him. I found no other evidence of cognitive deficit. Mr Chaabani is of normal intelligence … he highlights his pain rather than psychological problems as inhibiting his return to work.”[86]
[86]Exhibit “V”, PCB 125
91 The diagnosis was one of “chronic mixed anxiety/depressive disorder”.[87] Dr Walton considered:
“The majority of Mr Chaabani’s psychiatric symptoms are occurring as a reaction to his chronic pain, that, too, seemingly having been aggravated by the transport accident.”[88]
[87]Exhibit “V”, PCB 126
[88]Exhibit “V”, PCB 126
92 Further, Dr Walton stated:
“Mr Chaabani remains thoroughly cognitively intact and neuropsychological testing is not required.”[89]
[89]Exhibit “V”, PCB 126
93 As to the future, Dr Walton stated:
“I suspect that this man will require indefinite treatment which will not be withdrawn in the future. However, it will be appropriate for the specialist intervention to terminate at some point, say, in a year or so. Thereafter management by a general practitioner would suffice.”[90]
[90]Exhibit “V”, PCB 127
94 In his second report, Dr Walton took a consistent history, although the plaintiff complained of persisting pain which was now “much worse”, although he could provide no particular explanation as to why he may have deteriorated.”[91]
[91]Exhibit “V”, PCB 130
95 On mental state examination, Dr Walton recorded:
“At interview most recently Mr Chaabani was the same pleasant and cooperative man I had encountered originally. On this occasion he identified his mood as ‘shaky’ and I would describe him as remaining subdued, much as he presented previously.
It remains the situation there was no observable intellectual compromise nor any sign of psychosis.
Mr Chaabani attempts to cling to some optimism about his future which he described as ‘not bright but I try to be hopeful’.”[92]
[92]Exhibit “V”, PCB 132
96 The diagnosis was, again, one of “chronic mixed anxiety/depressive disorder”.[93] Further, Dr Walton remained of the opinion that the “transport accident does have some relevance by way of aggravation of this man’s previous physical and psychiatric problems”.[94] He considered that, overall, he had suffered a 10 per cent psychiatric impairment, of which 5 per cent was a result of physical injury due to the relevant accident.[95]
[93]Exhibit “V”, PCB 132
[94]Exhibit “V”, PCB 133
[95]Exhibit “V”, PCB 133
97 At that stage, Dr Walton noted psychiatric treatment had been taken over by a Dr Robert Arulanantham.
98 Dr Arulanantham reported on 3 February 2012.[96] He recorded he first saw the plaintiff on 24 September 2010. The plaintiff gave a history of being “knocked down by a car a couple of years previously and had a history of back pain and depression”.[97] Thereafter, he was trialled on Seroquel, 200 milligrams, and was started on Antenex. His medication was varied on 20 May 2011, when he was given a trial of Lyrica, and thereafter, continued to attend regularly. The diagnosis for the plaintiff was “sciatica and major depression”.[98] It was Dr Arulanantham’s opinion that the motor vehicle accident had significantly contributed to his illness.
[96]Exhibit “F”, PCB 49
[97]Exhibit “F”, PCB 49
[98]Exhibit “F”, PCB 49
99 Apparently Dr Arulanantham retired due to illness, and treatment was taken over by his wife, Dr Manjula Arulanantham, who reported on 17 November 2014.[99] The history and diagnosis was consistent with her husband’s opinion, being:
“The motor vehicle accident definitely caused his physical, psychological and emotional trauma.”[100]
[99]Exhibit “G”, PCB 50A
[100]Exhibit “G”, PCB 50B
100 Dr Manjula Arulanantham reported that “He is currently off Aropax and his new Psychiatrist has put him on Endep”.[101] Neither Dr Robert Arulanantham nor Dr Manjula Arulanantham related any history of physical or emotional injuries prior to the relevant motor vehicle accident.
[101]Exhibit “G”, PCB 50B
101 Dr Leonardo Congiu, psychiatrist, reported to the plaintiff’s solicitors on 25 May 2017.[102] He related that general practitioner, Dr Manjula Arulanantham, had referred the plaintiff for management of “abnormal mood”.[103] He took a history that the plaintiff had “developed pain in his lower back following a motor vehicle accident in 2007”.[104] He first saw the plaintiff on 15 August 2014 and took a history that the plaintiff alleged his behaviour had markedly changed since the latest motor vehicle accident. He noted there had been a previous back injury sustained at work in 1997 and, thereafter, the pain had improved with the conservative treatment, but he had been unable to return to work. He also noted the plaintiff had suffered cardiomyopathy, which was diagnosed four to five years prior to his first consultation, and he was under a regular review of a consultant cardiologist. The plaintiff told him:
“As a result of his cardiac illness he had been advised not to over exert himself.”[105]
[102]Exhibit “S”, PCB 108A
[103]Exhibit “S”, PCB 108A
[104]Exhibit “S”, PCB 108A
[105]Exhibit “S”, PCB 108C
102 Dr Congiu considered the plaintiff was suffering from a Chronic Pain Syndrome and as:
“… a consequence of the injury which he sustained as a pedestrian as described above, Mr Chaabani had developed a moderately severe Adjustment Disorder with marked symptoms of both Anxiety and Depression.”[106]
[106]Exhibit “S”, PCB 108D
103 Dr Congiu also related that the plaintiff’s mood fluctuated, with experiences of severe anxiety and depressive symptoms. He noted that:
“… he frequently ruminated about the past and in particular how fit and active he was. He informed that prior to his injuries he had played football, basketball and jogged regularly. He stated that he was having trouble adjusting to his disability … ‘Now I can’t even jump …’ … .”[107]
[107]Exhibit “S”, PCB 108D
104 Dr Congiu stated that he was having “frequent dreams which disturbed sleep”.[108]
[108]Exhibit “S”, PCB 108D
105 When last seen on 2 May 2017, the plaintiff informed Dr Congiu that he was going oversees on 21 May 2017, accompanying his wife, who wanted to see her relatives whom she had not seen for fifteen years. “Because of his symptoms he was not looking forward to it.”[109]
[109]Exhibit “S”, PCB 108E
106 Finally, it was Dr Connie’s opinion that:
“The psychiatric syndrome of Adjustment Disorder with Anxiety and Depression has occurred as a result of the trauma of the injury, the continuing pain and its associated disability.”[110]
[110]Exhibit “S”, PCB 108E
107 On the basis of the psychiatric evidence thus evinced by the plaintiff, I am unable to find that the resultant psychiatric condition meets the threshold of “severe”.[111] Also, I find that the psychiatric consequences of the motor vehicle accident has been sufficiently disentangled from the injuries, and medical conditions and like events extant prior to the relevant motor vehicle accident.
[111]See paragraphs [86], [87], [90], [92] and [95]
108 For the reasons expressed above, I am unable to find that the plaintiff has discharged the onus of proof with respect to his application pursuant to s93(17)(a) or (c) of the Act.
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