Chatzikiriazis v Transport Accident Commission
[2018] VCC 1787
•30 November 2018
cc
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-04326
| EFSTRATIOS CHATZIKIRIAZIS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 September and 16 October 2018 | |
DATE OF JUDGMENT: | 30 November 2018 | |
CASE MAY BE CITED AS: | Chatzikiriazis v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1787 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – alleged injury to the neck, and alleged aggravation of pre-existing degenerative changes in the lower back – aggravation or exacerbation of pre-existing psychiatric condition – injury to the neck and aggravation of the lower back said to constitute impairment of the function of the spine – aggravation or exacerbation of the pre-existing psychiatric condition said to be a consequence of the impairment of the function of the spine – multiple other musculoskeletal conditions concurrently causing impairments – whether the other musculoskeletal conditions contributed to the impairment consequences resulting from the impairment of the spine – creditworthiness and reliability of the plaintiff
Legislation Cited: Transport Accident Act 1986
Cases Cited:Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67; Petkovski v Galletti [1994] 1 VR 436; O’Donnell v Reichard [1975] VR 916; Richards v Wylie [2000] VSCA 50
Judgment: Plaintiff’s originating motion is dismissed with costs.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with Mr J Angenent | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr G C Lewis QC with Mr P V Bourke | Solicitor for the Transport Accident Commission |
HIS HONOUR:
Introduction
1 The plaintiff was injured in a transport accident on 21 November 2006. He was a passenger in a car driven by his wife. The car was struck from behind by a truck and was subsequently pushed into a building, where it came to rest.
2 The plaintiff says that the transport accident resulted in him suffering an injury to his neck, an aggravation of pre-existing problems with his lower back, and a secondary psychiatric problem. He submitted that the body function that is impaired is the spine, and that the secondary psychiatric problem should be taken into account as a consequence of the spinal injury.
3 Mr R W McGarvie QC appeared with Mr J Angenent of counsel for the plaintiff. Mr G C Lewis QC appeared with Mr P V Bourke of counsel for the defendant.
The issues
4 The plaintiff submitted that if I accepted that the plaintiff had suffered an injury to his neck, an aggravation of pre-existing problems to his lower back and the secondary psychiatric problem, then I should conclude that the impairment consequences are “serious”.
5 The defendant submitted that the plaintiff probably suffered an injury to his neck, perhaps an aggravation of pre-existing problems with his lower back and a secondary psychiatric problem; however, it submitted that the impairment consequences are not “serious”.
6 Furthermore, the defendant submitted that the case put by the plaintiff is factually very complex because of the significant number of other medical conditions from which the plaintiff is suffering, calling on the plaintiff to discharge the onus referred to in Peak Engineering Pty Ltd & Anor v McKenzie.[1]
[1][2014] VSCA 67 (“Peak Engineering”) at paragraph [24]
7 That issue appeared to be the principal issue raised by the defendant. There are other issues as well which I will identify in the course of summarising the evidence.
The Plaintiff’s case
8 The plaintiff swore two affidavits which he adopted as being a true and accurate account of his case.
9 Following the occurrence of the transport accident, the plaintiff was dazed and experienced pain in his neck, right shoulder, back and legs. The building into which his car was pushed was a medical clinic. A medical practitioner from that clinic attended on him, but he refused the medical attention he was offered.[2]
[2]Plaintiff’s Court Book (“PCB”) 6-7
10 The plaintiff first sought medical treatment on 22 December 2006, some thirty-one days following the occurrence the transport accident. He saw Dr Malka Gordon, general practitioner. In her first report dated 22 March 2007, Dr Gordon said that the plaintiff presented to her surgery on that day with “cervical spine soft tissue pain and stiffness”. She considered that the plaintiff had suffered a soft tissue strain injury. She advised him to have symptomatic treatment.[3]
[3]PCB 129
11 The plaintiff and his wife are Greek by birth. They returned to Greece to live in September 2008. They later returned to Australia on 8 September 2015. The plaintiff does not appear to have had any significant medical treatment between seeing Dr Gordon on 22 December 2006 and the date on which he and his wife returned to Greece.
12 Dr Gordon provided a report dated 13 October 2008. She referred to having seen the plaintiff on 22 December 2016, at which time she diagnosed a soft tissue strain of his neck. She then added “He has not presented with these complaints subsequently”.[4] The defendant referred me to a schedule of the occasions which the plaintiff saw Dr Gordon between the date of the occurrence of the transport accident of 2006 and to the time when he left with his wife to return to Greece. He saw her on eighteen occasions. It must follow that he did not complain of any neck problems on any of those eighteen occasions.
[4]PCB 130
13 The plaintiff saw Dr Zeimpekis, general practitioner, in Greece. He provided a report dated 2 October 2017 written in the Greek language.[5] It was translated into English.[6] He treated the plaintiff between 2008 and 2015 for “chronic health issues and his acute conditions”. He said that the occasions on which he treated the plaintiff were more often for “his nervous - musculoskeletal systems (Right upper-lower limb, Cervical Spine)” which he understood were suffered by the plaintiff in a transport accident. He prescribed the plaintiff anti-inflammatory and pain-relieving medication.
[5]PCB 134
[6]PCB 133
14 Dr Zeimpekis’ report contains very little detail of the nature and extent of the plaintiff’s complaints of pain; limitation of movement and loss of function in his upper and lower limbs and neck; a more precise diagnosis; a prognosis, and the medication which was prescribed, and whether it was for injuries related to the transport accident or for the plaintiff’s other chronic health issues and acute conditions. It is noteworthy that the plaintiff did not refer to the treatment he sought in Greece in either of his affidavits.
15 The plaintiff stopped work as a pool guard and a driver in 2005 when he lost his license to drive a motorcar. He does not refer to undertaking any work thereafter while in Australia nor while in Greece. I assume that he did not work at all after 2005.
16 After returning to Australia, the plaintiff saw Dr Gordon on 3 December 2015. In a report dated 17 December 2015, Dr Gordon referred to the plaintiff’s neck injury, but it would appear that the principal reason for the plaintiff seeing her was lower back pain which he suffered in a transport accident in 1980. She diagnosed that the plaintiff had suffered soft tissue injuries to his lower back and neck. She recommended that the plaintiff have symptomatic treatment. She referred to the plaintiff having physiotherapy and the prescription of analgesia.[7]
[7]PCB 131
17 In a report dated 22 November 2016, Dr Gordon recorded that the plaintiff complained of recurrent neck and shoulder pains since the transport accident of 2006 and an exacerbation of lower back pain which he had suffered in the transport accident of 1980. He was prescribed analgesia, referred to physiotherapy and prescribed a lumbar brace.[8]
[8]PCB 132
18 In a report dated 4 August 2018, Dr Gordon recorded that the plaintiff complained of pain and stiffness in his lower back, and right shoulder pain. She appears to have attributed the cause of those conditions to the transport accident of 1980 and 2006. She considered that the prognosis for the plaintiff’s lower back and right shoulder was poor. She considered that his treatment should comprise recurrent symptomatic treatment.[9]
[9]PCB 135
19 Dr Gordon’s reports are very unsatisfactory in many respects. There is some reference to the plaintiff’s neck injury, and later, his lower back injury and then later again, his right shoulder injury. The dominant injury for which she provided him treatment appears to have been his lower back. At the time when she was asked to provide her last medical report there is an absence in it of any reference to the plaintiff’s neck injury except for a reference to an MRI scan of the plaintiff’s neck, undertaken in 2016. Otherwise, by August 2018, she recorded that the plaintiff’s dominant injuries were to his lower back and right shoulder.
20 The plaintiff says that he suffered pain in his neck, right shoulder, back and legs following the transport accident of 2006. Over the following weeks and before he first saw Dr Gordon, he described his neck and back as gradually becoming more stiff and painful. After he returned from Greece, he had physiotherapy on six occasions per year, and I assume from 2015 to the date when he swore that affidavit in 2017, and used Panadol Osteo or Panamax mainly for back pain. He was taking between six to eight tablets per day.[10]
[10]PCB 7
21 The plaintiff describes the consequences of the injuries he said he suffered in the transport accident of 2006 in his affidavits as follows:
· Ongoing pain in his back, spreading into his legs
· An inability to stand for more than 30 minutes because of increasing lower back discomfort
· Using his arms when he stands up from a chair to take the strain off his lower back
· Twisting and turning can cause sharp pain in his lower back
· Difficulty bending because of pain in his lower back
· A limitation on driving for more than twenty minutes because of increased pain in his lower back
· Difficulty sleeping
· Morning stiffness in his lower back, requiring him to sit to dress and have his wife put on his socks
· Needing to sit when showering and urinating
· Difficulty gardening, and in particular, mowing lawns and tending a small herb and vegetable patch
· No longer able to use his boat to go fishing
· No longer able to watch the soccer and attend his clubs for drinks and dinner dances.
22 Apart from an initial reference to suffering pain in his neck immediately following the occurrence of the transport accident of 2006, there is not a hint that it contributed in any way to any of the consequences referred to in his first affidavit. Curiously, he rounded off his last affidavit by saying “My back and leg pain seem to be getting worse. My right shoulder pain also is getting worse over time …”.[11]
[11]PCB 10
23 In his second affidavit, the plaintiff repeated that his lower back pain worsened after the transport accident of 2006, and despite treatment, he did not experience any improvement. The plaintiff made a fleeting reference to his neck injury, saying “I still have neck pain. I feel discomfort and restriction when moving my neck.”[12] He then referred to having an MRI scan of his neck on 20 October 2016, and a reference to physiotherapy not providing him with any improvement.
[12]PCB 12
24 The plaintiff referred to interference with sleep, difficulty driving and difficulty socialising, which I assume he is saying were caused by physical impairment; however, he did not say whether any or all of those were caused by his neck injury or his lower back injury, or a combination of both. Otherwise, the balance of his second affidavit is devoted to his psychological/psychiatric reaction and a reference to a vast quantity of medication which he was taking at the time when he swore that affidavit.[13]
[13]PCB 12
25 It was only during cross-examination that there was oral evidence coming directly from the plaintiff relevant to his neck injury.
26 The plaintiff was asked why there was delay in him seeking medical treatment after the transport accident of 2006. He said he could not work out what was going on relevant to the overall pain he was experiencing until he became aware that he was experiencing more pain in his lower back and in the back of his neck.[14] He then saw Dr Gordon, who diagnosed a soft tissue strain.
[14]Transcript 28
27 The plaintiff subsequently referred to a number of consequences which he says have resulted from the impairment of function of his neck. These included:
· He cannot dance[15]
[15]Transcript 38
· Interference with his ability to play billiards and backgammon[16]
[16]Transcript 42 and 45
· The use of Lyrica for pain relief[17]
· Interference with his capacity to use a vacuum cleaner.[18]
[17]Transcript 44
[18]Transcript 46
28 It would appear that the impairment relied upon by the plaintiff is to be found in the histories recorded by the medical practitioners who examined him on a medico-legal basis. He provided them with more elaborate accounts of the impairment produced by the injuries which he says resulted from the transport accident of 2006 than are to be found in his affidavits. I will now summarise the histories they recorded of what the plaintiff told them and their opinions later in these reasons.
29 The plaintiff was examined by Mr Flanc, vascular and general surgeon, on 21 July 2008 and 3 June 2016. He provided two reports dated 4 August 2008[19] and 9 June 2016.[20] In summary, Mr Flanc recorded the following complaints made by the plaintiff following the transport accident in 2006 - neck pain; more severe right shoulder pain and lower back pain,[21] and bitemporal headaches which are occasionally severe.[22]
[19]PCB 136-142
[20]PCB 143-157
[21]PCB 138 and 144
[22]PCB 139
30 Mr Flanc was doubtful that the plaintiff’s complaints that he had aggravated the pre-existing problems with his right shoulder and right knee were justified. He considered that the transport accident probably resulted in an aggravation of pre-existing degenerative changes in the plaintiff’s neck. In relation to the plaintiff’s lower back, he noted that the plaintiff had a long past history of lower back pain, and then added that he thought it was “quite possible” that the transport accident resulted in an aggravation of pre-existing degenerative changes in the plaintiff’s lower back.[23]
[23]PCB 149-150
31 Mr Flanc considered that the plaintiff’s neck and lower back pain were likely to persist, and that the symptoms experienced by him would fluctuate. He added that he considered that the disability experienced by the plaintiff was “fairly minor” relevant to the plaintiff’s neck pain and increased pain in his right shoulder. It is noteworthy that he did not refer to the plaintiff’s lower back in this context.[24]
[24]PCB 154
32 Mr Kossman, orthopaedic surgeon, examined the plaintiff in April 2018. He provided a report dated 23 April 2018.[25] The plaintiff provided him with the same account of the injuries which he suffered as a result of the transport accident of 2006 as he gave to Mr Flanc. Mr Kossman accepted the plaintiff’s account that he had suffered injuries to his neck, lower back and right shoulder in the transport accident of 2006.[26]
[25]PCB 197-209
[26]PCB 206
33 Mr Kossman diagnosed the plaintiff’s neck and lower back spondylosis, and with respect to the plaintiff’s neck, he referred to a range of degenerative changes which were apparent on the radiology he was provided. His prognosis for the injuries to the plaintiff’s neck and lower back was poor. He considered that the plaintiff needed conservative treatment by prescription of medication. He did not consider that he required any other conservative treatment, although, he considered that there might be a place for surgery with respect to both the plaintiff’s neck and lower back.[27]
[27]PCB 207-208
34 Dr Doig, orthopaedic surgeon, examined the plaintiff on 30 April 2018. He provided a report dated 24 May 2018. Dr Doig recorded different complaints made by the plaintiff from those made to Mr Flanc and Mr Kossman. He recorded the plaintiff’s complaints as being worsening lower back pain and dominant right shoulder pain which the plaintiff attributed to the transport accident of 2006. Also, curiously, as if it was something of an after statement, Dr Doig recorded “He is also complaining of pain in his neck and also the right knee and ankle regions”.[28]
[28]DCB 9
35 Dr Doig considered all of the injuries about which the plaintiff complained, including his neck. He did not provide a specific diagnosis relevant to the plaintiff’s neck. He considered that it was “possibly related to the motor vehicle accident in question”. Otherwise, he appears to have considered all of the injuries of which he was informed by the plaintiff and dealt with them as a collection. When it came to offering an opinion relevant to treatment, he said that the plaintiff required analgesics on an ‘as required’ basis to “control his symptoms and chronic musculoskeletal conditions”. The latter no doubt encompassed the plaintiff’s neck injury as one of those musculoskeletal conditions. He also considered that the plaintiff’s prognosis for all of those musculoskeletal conditions was guarded.[29]
[29]DCB 12
36 The medical evidence I have reviewed so far, demonstrates that the plaintiff has a constellation of non-transport accident-related musculoskeletal problems, and other medical problems as well. In summary, they are:
· Right shoulder[30]
[30]Mr Flanc at PCB 137-140, 144-147 and 150; Mr Kossman at PCB 197-198 and 203-208
· Headaches[31]
[31]Mr Flanc at PCB 139 and 141
· Right knee[32]
[32]Mr Flanc at PCB 137-139, 141, 144-146,150-151 and 153; Mr Kossman at PCB 198 and 206
· Right ankle and subtalar joint[33]
[33]Mr Kossman at PCB 203, 204, 206, 207-208
· Right hip[34]
· Right elbow.[35]
[34]Mr Kossman at PCB 203, 206-208
[35]Mr Kossman at PCB 204
37 I will now summarise the evidence of a number of pre-existing medical conditions which the defendant submits are relevant.
The neck
38 There are a number of histories recorded by some medical practitioners referring to the plaintiff having a prior symptomatic neck condition.
39 Dr Piperoglou, psychiatrist, first assessed the plaintiff as his treating psychiatrist on 27 March 1997 and subsequently, on fourteen occasions between that date and 16 April 1999. He provided a report dated 13 February 2009. He recorded a history that the plaintiff had developed a work-related injury which resulted in “right-sided neck and arm pains with associated numbness and worsening of his lower back pains”.[36]
[36]DCB 16
40 Dr Kornan, psychiatrist, examined the plaintiff on 28 July 2008 and 1 June 2016. He provided two reports dated 30 July 2008[37] and 1 June 2016.[38] When he examined the plaintiff on the second occasion, he recorded “Before this accident occurred, he had some pre-existing neck pain”.[39]
[37]PCB 159-166
[38]PCB 168-183
[39]PCB 169
41 Under cross-examination, the plaintiff denied that he had suffered any prior neck pain which contributed to his incapacity for work. He admitted having some problems with an arm. He referred to having a lump on his neck which was removed by medical practitioner.[40]
[40]Transcript 24-25
42 At the commencement of addresses, the plaintiff tendered, by consent, an admission to the hospital under the control of Southern Health. It would appear that he was an inpatient on 15 and 16 September 2004. The surgical summary and accompanying clinical notes refer to a lump on the plaintiff’s neck. The plaintiff submitted that the notes refer to surgery to remove the lump. I have read the notes and am unable to determine whether that is what they disclose, but I accept the plaintiff’s submission that is what the notes represent.[41]
[41]PCB 217. The plaintiff's Court Book occupied 216 pages. The additional documents that were tendered were numbered 281 and 271-276. The numbering was obviously not chronological. I will refer to the single page of the clinical notes relevant to the surgery as PCB 217
43 The plaintiff denied suffering a neck injury as such. There appears to me to be an explanation for neck pain due to a lump on his neck. In the circumstances, I think it is improbable that he suffered from a prior neck condition.
Lower back
44 There are a number of histories recorded by some medical practitioners referring to the plaintiff having a prior symptomatic lower back.
45 Dr Kornan recorded that the plaintiff suffered significant injury to his right leg and lower back in 1991. The plaintiff told him that the incident “ruined the right leg and lower back” and that it rendered him “completely disabled” to the extent that “I can’t stand and can’t do much”.[42]
[42]PCB 159. The reference to an incident in 1991 is probably wrong. It is probable that the incident referred to was a transport accident which occurred in 1980.
46 The clinical notes of Southern Health record that on 24 December 2005, the plaintiff attended the hospital at 5.30am complaining of lower back pain which had commenced the previous day and was severe. The notes also record that the plaintiff had four episodes of lower back pain over the previous two years. Clinical examination disclosed pain on palpation at the right side of L1-2 and T12, and that a CT scan disclosed arthritis in those regions of the plaintiff’s spine.[43]
[43]DCB 108-109
47 The plaintiff saw Dr Gordon on 4 January 2006. She recorded that the plaintiff had recently attended an emergency department. It is probable that it was the hospital under Southern Health. She also recorded “attendance due to right lumbar back pain radiating to right lower ribs”. Her diagnosis was neuropathic pain. She prescribed him Tegretol.[44]
[44]DCB 97
48 Mr Flanc recorded that the plaintiff was involved in a transport accident in 1982 in which he suffered injury to his lower back and “a major injury to the right knee”. Mr Flanc noted that the plaintiff’s lower back problem “persisted and was the main reason why he was unable to work”.[45] The plaintiff had probably ceased work altogether in 2005.[46]
[45]PCB 138
[46]PCB 6. The reference to 1982 must be the transport accident of 1980.
49 Mr Kossman was provided with a CT scan taken of the plaintiff’s lower back on 28 December 2005. The radiologist commented that it demonstrated lumbar spondylosis with disc bulges from T12-L1 to L4-L5 with mild-to-moderate spinal canal stenosis due to bilateral mild ligamentum flavum hypertrophy at L1-2, mild facet joint hypertrophy at L3-4 and moderate facet joint hypertrophy resulting in moderate neural exit foraminal stenosis bilaterally, worse on the right side at the L4-5 level. He was also provided with an MRI scan of the plaintiff’s lower back taken on 20 October 2016. The radiologist’s comments are of appearances similar to the earlier CT scan. It would appear that the spondylitic changes evident on both scans were of long standing.
50 Dr Doig was not provided with the relevant radiology, but he considered that from the history given to him by the plaintiff, that his lower back condition was pre-existing.
51 The plaintiff submitted that he had suffered intermittent problems with his lower back prior to the transport accident of 2006. He accepted, however, that the injury to the plaintiff’s lower back relied on, amounts to an aggravation of the pre-existing degenerative changes. It was said by him that the aggravation then resulted in persistent pain and consequent impairment of the functioning of his lower back.
52 I should pause at this point to deal with the contrast in the plaintiff’s evidence with the histories recorded by various medical practitioners where the histories are undoubtedly at odds with the plaintiff’s evidence.
53 I am in no doubt that the histories recorded by medical practitioners are often short and sometimes cryptic and should not be treated as if they are unassailable accounts. The purpose served by a history and a clinical note is to obtain sufficient details for a medical complaint to be understood, and very rarely is the content of the sort of detail that would ordinarily be given at a serious injury application or a damages trial.
54 However, the extent to which histories and clinical notes become more important is when the evidence of the plaintiff is vague due to the effluxion of time or for some other reason. The plaintiff’s evidence was vague at times. At other times, he could not remember, and, of course, at times, he was combative and gave false evidence. I am, therefore, inclined to give greater weight to the histories and the clinical notes that I would in other circumstances.
55 What this leads me to in relation to the plaintiff’s prior lower back condition is that he appears to have suffered a significant injury in the transport accident of 1980 which appears to have troubled him since that time and not just intermittently. It is certainly what he said to Dr Kornan. Furthermore, there is other evidence which appears to me to confirm that he was more troubled by his prior lower back injury. For example the CT scan and the MRI scan have similar appearances, demonstrating a long-standing lower back condition, and Dr Gordon recorded a history that the plaintiff had suffered lower back pain since the transport accident of 1980.
56 Petkovski v Galletti[47] established that an analysis must be made of the extent of impairment of a body function before and after the relevant injury. Of course, that was said in the context of an application where the plaintiff’s lower back had been aggravated in compensable circumstances.
[47][1994] 1 VR 436
57 The position of the plaintiff here is that he submits that the prior lower back condition was aggravated, and it is the aggravation which he relies upon in combination with the neck injury to constitute impairment of the function of the spine; however, and notwithstanding how the aggravation of the plaintiff’s lower back ultimately figures into the impairment of the function of his lower back, he must demonstrate what the impairment of his lower back was like before, and what it has been and is, following the occurrence of the transport accident of 2006.
58 I accept that the plaintiff suffered an aggravation of a prior lower back condition; however, the state of the evidence has made it very difficult for me to determine the extent of the impairment before and after it was aggravated. I think all I can conclude is that he had a more symptomatic lower back following the occurrence of the transport accident of 2006. I think that is reasonably evident from the fact that he complained mostly about his lower back in his two affidavits and when he saw Dr Gordon before he left to go to Greece.
59 The plaintiff did not submit that the aggravation of the prior lower back condition of itself constitutes serious injury. On my analysis of the evidence, the impairment consequences of it fall well short of serious injury.
Right shoulder
60 The plaintiff suffered injury to his right shoulder some time prior to December 1999. The injury required surgery. He says that he recovered from the injury and its consequences, enabling him to move his right arm “quite freely”, but he had difficulty lifting his arm above shoulder height. He says that it was aggravated as a result of the transport accident of 2006.[48]
[48]PCB 8
61 Mr Flanc recorded that the plaintiff told him that he continued to suffer symptoms in his right shoulder. It remained stiff and difficult to elevate. He also told Mr Flanc that the pain he experienced following the transport accident of 2006 resulted in pain in his right shoulder “at a more severe level”.[49]
[49]PCB 138
62 Mr Kossman examined an MRI scan of the plaintiff’s right shoulder which he considered demonstrated severe osteoarthritis in the acromioclavicular joint with subacromial-subdeltoid bursal impingement, a partial-thickness tear of the supraspinatus tendon and insertional enthesopathy of the infraspinatus and subscapularis, as well as a degenerate labral tear.[50]
[50]PCB 198
63 Mr Kossman diagnosed a subacromial-subdeltoid bursal impingement and partial-thickness tear of the supraspinatus tendon and insertional enthesopathy of the infraspinatus and subscapularis tendons. He considered that the diagnosed right shoulder injury had a direct relationship with the transport accident of 2006.[51] He considered that the plaintiff needed active treatment including medication, physiotherapy, hydrotherapy, acupuncture, steroid injection or hydrodilatation and possibly surgery.[52]
[51]PCB 206
[52]PCB 207-208
64 Mr Kossman was not aware that the plaintiff had suffered prior injury to his right shoulder and had undergone surgery. At least some of the appearances on the MRI scan and the identification of pathology are probably pre-existing. His opinion is in contrast to the opinion of Mr Flanc, who found it difficult to diagnose the injury because of a lack of information relevant to the plaintiff’s right shoulder.
65 Mr Flanc suggested that any prior injury to the right shoulder might be unraveled by Dr Gordon, who had treated the plaintiff for a significant period of time prior to the transport accident of 2006; however, her reports do not refer to the right shoulder all that much until after the plaintiff’s return from Greece, when he complained of right shoulder pain which he said resulted from the transport accident of 2006.[53]
[53]PCB 132
66 The pre-existing pathological changes in the plaintiff’s right shoulder evident in the MRI scan of 2016 may have been stirred up by the transport accident of 2006, but it is simply not possible for me to conclude whether that has occurred or not, because the evidence relevant to his treatment by Dr Gordon, the examination by Mr Flanc, and the absence of any specific reference to what treatment Dr Zeimpekis, general practitioner, provided the plaintiff for his right upper limb leave me in serious doubt that if the plaintiff suffered an aggravation of the prior condition of his right shoulder, it does not amount to very much.
Right knee
67 The starting point is the history recorded by Dr Kornan that the plaintiff’s right leg (right knee) was ruined as a result of the transport accident of 1991 (scil 1980). Dr Flanc recorded that the plaintiff complained of “a lot of pain in the right knee on walking” and pain which had “persisted” presumably since the right knee was injured. Mr Flanc also noted that the plaintiff had a more serious bout of pain in his right knee while he was in Greece, and relied on a walking stick.[54] Mr Kossman obtained a fleeting history of the plaintiff’s right knee, but did not address it in any detail.[55]
[54]PCB 138, 145-146 and 150-151
[55]PCB 198 and 200
68 Dr Doig noted that when the plaintiff entered his consulting rooms, that he was using a walking stick and demonstrated a slight limp through his right leg. He considered that the plaintiff had pre-existing arthritis in his right knee and that the plaintiff’s presentation was consistent with a pre-existing problem.[56] Under cross-examination, the plaintiff says that he uses two walking sticks.[57]
[56]DCB 10-11
[57]Transcript 36
Right ankle and right hip
69 Mr Kossman was the only medical practitioner who found pain and restrictions of movement in the plaintiff’s right ankle, right hip and right elbow. He considered that the plaintiff may have suffered some injury to his right hip or that the pain emanated from degenerative changes in his lower back.[58] He considered that the plaintiff’s problems with his right ankle may have been caused by a change in his gait due to pain and restriction of movement in his lower back.[59]
[58]PCB 206-208
[59]PCB 207-208
70 Mr Kossman developed a thesis that the problems the plaintiff has with his right ankle and right hip are in some way related to the plaintiff’s lower back injury. It is an unproven thesis. It was not advanced by the plaintiff at all as being open on the evidence as a consequence of the aggravation of the pre-existing lower back injury. It is difficult on this evidence to attribute either of these problems in any way related to the plaintiff’s lower back injury.
Creditworthiness and reliability
71 The defendant submitted that the plaintiff was unnecessarily combative when cross-examined and was prepared to give misleading evidence as if to shore up his case.
72 I was first referred to the report of Dr Hayman, psychiatrist, who examined the plaintiff on 23 March 2018 at the request of the plaintiff’s solicitors. Dr Hayman referred to his assessment of the plaintiff as being difficult. He described the plaintiff as being obstreperous, not overly cooperative, abrasive, angry, irritable and communicating inappropriately.[60]
[60]PCB 186-195
73 It was with that context that I was referred to some of the cross-examination of the plaintiff in which it was very evident to me that the plaintiff was being deliberately combative and misleading.
74 The first occasion was when the defendant asked the plaintiff whether he had travelled to Greece prior to October 2006. The plaintiff’s response was to say “That’s a lie”;[61] however, after he was referred to a clinical note of Dr Gordon made on 6 October 2006 in which she referred to him having returned from Greece, he reluctantly said that he might have travelled to Greece at around the time when his father died, and when pressed on the issue, he added, in relation to that line of questioning, “That’s none of your business”.[62]
[61]Transcript 27
[62]Transcript 27
75 It was not a point of any particular importance, but evinced a response from the plaintiff which was not only combative but demonstrated a tendency on his part to mislead where he considered that the answers might not assist his case. There seemed to me to be no other reason why he would answer simple cross-examination in that way.
76 Another example relied upon by the defendant was when the plaintiff was asked about a clinical note of Dr Gordon made on 23 February 2017 which recorded that the plaintiff had been walking daily for about forty-five minutes. The plaintiff said that he could not walk for “even five minutes”.[63] When pressed, his answer was that Dr Gordon had wrongly recorded that account of his capacity to walk.[64]
[63]Transcript 39
[64]Transcript 40
77 The evidence which I found the most troubling was when the plaintiff was asked whether he performed any domestic tasks in his home. He said “At home I’m doing completely nothing”. He added that he did not do any dishes, vacuuming, making coffee, cutting his own fingernails and putting on his socks, and he emphasised his answer by then saying “I do nothing”.[65]
[65]Transcript 40
78 The plaintiff was then referred to his wife’s affidavit sworn 18 October 2016 in support of her application for serious injury. The injuries which resulted in impairment consequences occurred in the transport accident of 2006. Relevantly, she said:
“16.I live with my husband. Prior to the transport accident I did nearly all of the cooking and cleaning in the house for my husband and mother in law. It was difficult to keep this up after the transport accident. My husband had to help more. My husband did most of the vacuuming using a long handled vacuum cleaner. He also started to do the dishes and hung out the washing as my knee pain worsened. I still do much of the cooking. There is only the two of us for me to cook for. My husband always looked after the garden although I used to plant flowers but have not done so since the transport accident.
17.My husband continues to help me with domestic duties, including hanging washing on the line because of left shoulder pain when I try to lift up at this level with my left arm. He also still assists me around the house with vacuuming and washing dishes which puts strain on my neck and shoulder. … .”[66]
[66]DCB 105
79 Very obviously this account is in stark contrast to the plaintiff’s evidence that he does nothing. It was after he was confronted with what his wife said about his involvement in performing domestic tasks that he recanted what he said earlier. He said that he would do bits and pieces, and added that he would help with the vacuuming and would help her for maybe five or ten minutes in a week, but that he would pay for it after, even giving that amount of assistance.[67]
[67]Transcript 41
80 The effect of what I have just summarised is that the plaintiff’s combativeness appeared to me to be evidence of resolve on his part not to give truthful and responsive evidence. I am not sure whether he set out to give false evidence relevant to travelling to Greece and whether he could walk more than five minutes; however, I am sure that he set out to give false evidence when he said he can do nothing. That evidence was given by him for the purpose of demonstrating that the injuries upon which he relies have resulted in impairment consequences which have seriously incapacitated him. That evidence was given to shore up his case.
81 Furthermore, the plaintiff’s affidavits do not refer to evidence which I think is highly relevant. It will become plain shortly that the plaintiff’s general health has been plagued by a number of medical conditions which are relevant in an assessment of whether the impairment consequences he relies on are contributed to by some of those other medical conditions. Very little of what I will summarise shortly is referred to in the plaintiff’s affidavits. Where that evidence is to be found is mostly in the histories taken by medical practitioners who examined the plaintiff on a medico-legal basis.
82 The upshot of all of this is that I do not accept that the plaintiff is a creditworthy witness. His combativeness is one thing and may be forgiven, but when it is coupled with giving deliberately false evidence and then coupled with the serious deficiencies in his affidavits, it is difficult to forgive all of that as if it is capable of reasonable and sensible explanation.
Analysis of the evidence
83 After giving proper consideration to all of the evidence, I am not satisfied that the impairment of the function of the plaintiff’s spine has produced consequences which are “serious”.
84 I am satisfied that the impairment of the function of the plaintiff’s neck is relatively minor.
85 The plaintiff saw Dr Gordon on 22 December 2006. He subsequently saw her on eighteen occasions before he left for Greece. He did not complain of any neck problems on any of those occasions. The report of Dr Zeimpekis refers to one of the plaintiff’s musculoskeletal problems being the plaintiff’s neck, but there is precious little concerning the nature of the complaints made by the plaintiff, or the treatment he was provided.
86 There is then the very telling opinion of Mr Flanc, who considered that the disability resulting from the plaintiff’s neck injury was fairly minor, probably resulting from an aggravation of pre-existing degenerative changes.
87 Upon the plaintiff’s return to Australia, he resumed seeing Dr Gordon. In her subsequent reports, it is clear that his major complaints were of lower back and right shoulder pain. He did complain of some neck pain when he saw her on 3 December 2015.
88 The plaintiff’s affidavits refer almost exclusively to impairment consequences relevant to the plaintiff’s lower back with a fleeting reference to his neck. Under cross-examination, he elaborated on the impairment of the function of his neck interfering with his capacity to dance, play billiards, play backgammon, use a vacuum cleaner and the need for Lyrica.
89 Furthermore, under cross-examination, the plaintiff was adamant that he did “nothing” domestically in his home, and otherwise needed significant assistance with his own personal care. He recanted, when exposed to his wife’s affidavit, where she said he had taken over many of the domestic tasks to assist her because she was unable to do them due to injury.
90 The defendant submitted that it is significant that the plaintiff did not adduce evidence from his wife given the stark contrast of their accounts whether the plaintiff is significantly more active than he is prepared to say. The defendant invited me to draw an adverse inference against the plaintiff consistently with O’Donnell v Reichard.[68] I think there is merit in the defendant’s submission. The plaintiff has failed to explain why he has not adduced evidence from his wife who was a witness he might have been expected to call if her evidence was favourable to him. I will not speculate as to what she might have said, but it is open to me to infer that her evidence would not have helped him. Upon drawing that inference, I can take into account that failure against the plaintiff in deciding to accept his wife’s evidence contained in her affidavit and to infer that the plaintiff is more capable than he is prepared to admit to.
[68][1975] VR 916 at 930
91 I prefer the evidence of the plaintiff’s wife that he is far more active than he says he is. I do not accept that he is capable of nothing. I also prefer the evidence contained in the clinical note of Dr Gordon that the plaintiff can walk for forty-five minutes at a time.
92 But there are other reasons why I do not accept that the impairment of the function of the plaintiff’s spine is not “serious”. The plaintiff has a host of other musculoskeletal problems which also cause him significant problems - his right shoulder, his right knee, his right ankle, his right hip and his lower back in its unaggravated state, and the extent that it would have continued troubling him had the transport accident of 2006 not occurred.
93 The burden borne by the plaintiff under Peak Engineering is indeed a burdensome one, and one which might be very difficult for a plaintiff to discharge; however, there is precious little evidence of the impairment consequences of his right shoulder, his right knee, his right ankle, his right hip and his lower back in its unaggravated state. The medical evidence demonstrates that the plaintiff’s right shoulder, right knee, right ankle and right hip are symptomatic. The plaintiff’s right shoulder probably impairs upper body function to some degree. The plaintiff’s knee, right ankle and right hip probably impair the function of his right lower limb relevant to standing and walking. The pain produced by each of these problems may well require the use of painkilling medication.
94 These are the matters which the plaintiff needed to disentangle in discharging the burden borne by him under Peak Engineering. I think the plaintiff has fallen significantly short of discharging that burden.
95 Furthermore, the plaintiff referred to using a large quantity of medication.[69] He referred to:
[69]PCB 12
· Brimica Genuair, which is a bronchodilator
· digoxin, used in the treatment of congestive heart failure
· Dilantin, used in the treatment of seizures
· Effexor, used in the treatment of depression
· frusemide, used to treat fluid retention in people with congestive heart failure, liver disease and kidney disorders
· Lyrica, used in the treatment of nerve pain
· Panadol Osteo, used in the treatment of osteoarthritis and muscular aches and pains
· Pantoprazole, used to reduce the amount of acid in the stomach
· simvastatin, used to reduce bad cholesterol
· valerian, used to treat sleep disorders; and
· Warfarin, used to prevent harmful blood clots.
96 The plaintiff led no evidence of the medical conditions for which this medication has been prescribed/recommended as treatment. Likewise, he led no evidence about whether any of the medical conditions treated by this medication interfere with any of the consequences which he attributes to impairment of spinal function.
97 The defendant submitted that I could not be satisfied that the plaintiff has been prescribed Lyrica for the treatment of spinal pain. Dr Gordon’s clinical note of 11 November 2015 refers to the plaintiff seeing her about a left renal infarct and another condition which I am unable to decipher. The plaintiff was prescribed Lyrica to treat that condition, and perhaps the others which I am unable to decipher. I should add that I am confident that the ones I am not able to decipher have nothing to do with spinal pain.[70]
[70]DCB 64
98 The defendant also submitted that some of the medications which the plaintiff is presently prescribed have a use in the treatment of musculoskeletal pain, for example Lyrica and Panadol Osteo; however, the defendant submitted that the evidence does not disclose which medical conditions that medication has been prescribed for. Is it for his spine, right shoulder or right lower limb or, for that matter, for some other medical condition?
99 Even if I add the aggravation of the pre-existing condition of the plaintiff’s lower back, I am nonetheless not satisfied that the consequences of impairment of the spine are “serious”, and for the same reasons I have already articulated above.
100 Even if I add the consequence of the psychiatric impairment, I am likewise not satisfied that the aggregate of the impairment of the spine with the psychiatric impairment as a consequence make the impairment consequences “serious”.
101 The plaintiff referred to the plaintiff’s psychiatric impairment at some length, referring to the reports of Dr Piperoglou,[71] Dr Kornan,[72] Dr Hayman[73] and Dr Ingram,[74] psychiatrist. The preponderance of the medical evidence is that plaintiff has suffered a number of diagnosable psychiatric conditions ranging through a Post-Traumatic Stress Disorder, Adjustment Disorder with Mixed Anxiety and Depressed Mood and a specific phobia relevant to fear of involvement in further accidents.[75]
[71]DCB 16-19
[72]PCB 159-183
[73]PCB 186-195
[74]PCB 1-7
[75]As an example, these are the diagnoses made by Dr Kornan at PCB 174-175
102 The transport accident of 2006 appears to have contributed to the plaintiff’s overall psychiatric condition. For example Dr Hayman considered that the plaintiff had suffered an exacerbation of a pre-existing Chronic Adjustment Disorder with features of traumatisation. I think that is a reasonable assessment when regard is had to all of the psychiatric opinions.
103 The extent to which the psychiatric condition can be taken into account as a consequence was dealt with in Richards v Wylie[76] where it was said that seriousness can be measured in part by a mental response to a physical impairment.[77] This, of course, falls short of aggregating the physical impairment together with a mental impairment.
[76][2000] VSCA 50
[77]at paragraph [17]
104 In summary, taking into account the impairment of the function of the plaintiff’s spine by aggregating the neck and the lower back, and taking into account the mental response as a consequence, I am still not satisfied that all of this brings the impairment of the function of the plaintiff’s spine and its consequences within range of it being “serious”.
105 I should state it is not clear that the production of mental response is due only to the impairment of the function of the plaintiff’s spine. There are a number of other impairments which are likely to have contributed to the plaintiff’s response.
Conclusion
106 For the reasons which I have set out above, I am not satisfied that the plaintiff suffered an impairment of the function of his spine which is “serious” after having taken into account comparison with like impairments as I am required to do.
107 I order that the plaintiff’s Originating Motion be dismissed with costs.
- - -
0
2
0