Cofie v Transport Accident Commission
[2020] VCC 1772
•20 November 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-04219
| STEPHAN KWEKU ATTA COFIE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HIS HONOUR JUDGE D PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 and 14 October 2020 | |
DATE OF JUDGMENT: | 20 November 2020 | |
CASE MAY BE CITED AS: | Cofie v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1772 | |
REASONS FOR JUDGMENT
---
Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the lumbar spine – nature and extent of injury – credit of plaintiff
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Siddel-Whipp v Transport Accident Commission [2020] VSCA 109; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment:Application dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with Mr Y C Chen | Polaris Lawyers |
| For the Defendant | Mr P Y Rattray QC with Ms J E Clark | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction and background
1 Mr Stephan Cofie (“the plaintiff”) was born in Ghana in November 1977. He completed school and then worked in Ghana, including as a tour guide and volunteer. While living in Ghana he met a lady from Australia, his son was born and he migrated to Australia to live with the mother of his son. That relationship did not work out. He is now a single man. He has a second son from a subsequent relationship. Since 2015, he has been a permanent resident of Australia.
2 The plaintiff’s work in Australia has mostly been in warehousing/driving. The plaintiff is a man who has an interest in fashion and styling. He operates businesses from his home, mostly selling fashion-related products, including shoes. He has worked as a stylist, actor and model. There is no relevant past history of any problem with his back. More recently, he has radiologically demonstrated change in his lumbar spine. The conundrum posed in this proceeding is whether the demonstrated radiological change – the claimed injury – produces “very considerable” consequences.
3 On 28 October 2016, the plaintiff was involved in a car accident on the Princes Highway–EastLink overpass (“the accident”). He was driving a BMW sedan. It was an accident of some force, as the airbags inflated and his car was written off.[1] At the time of the accident, he had a manual job with AstralPools.
[1]Transcript (“T”) 8, Line (“L”) 28
4 The plaintiff claims that as a consequence of the accident, he has suffered injury to the lumbar spine. It is an injury said by him to not be totally incapacitating, but rather incapacitating for heavier activities, and producing chronic pain from certain activities.[2] The plaintiff has required conservative treatment for the injury to the lumbar spine.
[2]T5, L26–31
The application
5 This is a serious injury application brought pursuant to s93 of the Transport Accident Act 1986.
6 The plaintiff alleges that he has suffered a serious long-term impairment or long-term loss of body function by way of injury to the lumbar spine. He relies upon subparagraph (a) of the definition of “serious injury” by way of a physical/organic injury. The principles in respect to such an application are well known and are not in dispute.
7 The plaintiff was represented by Mr Tobin SC and Mr Chen. The issues in the case were identified by his Counsel as the nature and extent of the injury to the lumbar spine, and whether the consequences from injury are such so as to meet the test of a “serious injury”.
8 The defendant was represented by Mr Rattray QC and Ms Clark. The defendant identified the issues as the nature and extent of injury to the lumbar spine, whether the plaintiff had exaggerated the nature and extent of his injury and therefore credit was an issue, as well as whether or not the plaintiff’s claimed consequences were better understood by way of a psychological condition and not a physical condition.
9 The evidence in the case comprised the tendered parts of the joint Court Book.[3] In addition, the defendant tendered three surveillance videos of the plaintiff taken on 6 and 22 November 2019 and 4 January 2020.[4] The defendant also relied upon a video clip of an advertisement prepared on behalf of BCF in May 2020, in which the plaintiff is seen to perform as an actor.[5] The defendant further tendered a referral letter to a Dr Ahmet, psychologist, dated 23 May 2015,[6] and a medical registration form of the Chandler Road Medical Clinic dated 20 October 2014.[7]
[3]Exhibit P1, “CB”
[4]Exhibit D1
[5]Exhibit D2
[6]Exhibit D3
[7]Exhibit D4
10 The plaintiff was the only witness required to give oral evidence. I shall refer to his oral evidence in more detail later in these reasons. In closing submissions, his Counsel accepted that he was not “a perfect witness”[8] and that “the plaintiff in relation to his giving of evidence is not a good witness”.[9] However, his Counsel submitted that “not being a good witness does not mean that he doesn’t have the level of symptoms when he’s cross-examined about something”.[10]
[8]T127, L15
[9]T129, L3–5
[10]T129, L5–7
What is the nature and extent of the claimed back injury?
The Plaintiff’s affidavit evidence
11 The plaintiff provided three affidavits, dated 8 May 2019,[11] 6 November 2019[12] and 12 October 2020.[13]
[11]CB 1-7
[12]CB 8-10
[13]CB 334
12 In his first affidavit, the plaintiff states that since the accident, he has continued to experience pain in his lower back. The pain goes up and down in severity. It is there most of the time. He describes it as an aching feeling usually, and that he gets sharp pain when he twists his back and reaches for things. He describes the pain as worse on the left, and pain in his legs sometimes. He states that the back feels stiff a lot of the time, and now “freezes” occasionally when he twists his back. He describes taking over-the-counter medication, Panadol and Nurofen, and completing stretches recommended by the physiotherapist, which help “a little”.
13 The plaintiff describes his back injury as affecting his sleep and sex life. He describes walking slowly because of back pain, difficulty dressing, bending, struggling with household chores and the like. He describes restriction in his social life, such as dancing and attending live bands. He describes difficulty handwashing his car, playing outdoors with his son, and having to be careful of his back. In the first affidavit, he notes he is still doing agency work, but work that involves twisting his back and reaching is harder for him. He describes pain, worse for a few days if he has a hard day at work, and needing time to recover afterwards. He described his eBay business in some limited detail.[14]
[14]CB 1-7
14 In his further affidavit, he states that he continues to suffer the symptoms and restrictions as set out in the previous affidavit. The further affidavit refers to a discussion with the medico-legal examiner, Mr D’Urso, neurosurgeon, regarding the prospect of surgery. In the further affidavit, he describes continuing to attend a general practitioner but not on a frequent basis. He states he has continued to have warehousing and forklift-driving jobs, but often experiences “an aggravation to my back symptoms which then requires me to take some time off work” and eventually leads to finishing up with such a job. He describes recent work at MCM Logistics and financial assistance from his sister.[15]
[15]CB 8-10
15 In the most recent affidavit, sworn the day before the hearing, the plaintiff describes varying levels of pain “depending on the amount of physical exertion I had engaged in”. He describes at times pain radiating to either leg, and that “the radiating pain can be triggered by, for instance, repetitive lifting or prolonged standing”. He states that his “lower back pain continues to impact on my day-to-day activities, including my ability to get a good night’s sleep”. He notes ongoing physiotherapy and chiropractic treatment and a request for a pain-management program that had been denied by the Transport Accident Commission.
16 The most recent affidavit describes continuing use of Panadol and other over-the-counter painkillers, the amount of which “depends on my level of physical activity”. He describes recent attempts at work and a resignation from a company called Visa Global Logistics on 6 October 2020. He states that he is “now looking for other, less demanding jobs” and continues to sell some items such as shoes and clothing on eBay. He describes continuing to undertake daily exercise and stretches, and that his “back symptoms vary day to day and some days are better than others”.
17 In the most recent affidavit, he says that when wearing supportive shoes he can walk at a normal pace, which was an improvement from his first affidavit. He also says that he can “manage a degree of everyday bending and lifting, but repeated exertion of my back causes an increase in symptoms”.[16]
[16]CB 34-38
The Plaintiff’s oral evidence
18 The plaintiff was cross-examined in particular about the contents of his affidavits and the histories he has given to doctors.
19 Before dealing with his evidence in detail, I acknowledge the candour of his Counsel in accepting that there were aspects of the manner in which the plaintiff gave his oral evidence which were not reflective of being a “good witness”. My impression of the plaintiff in the “witness box” was confirmed upon re-reading the transcript of his evidence. In cross-examination, he was frequently argumentative, non-responsive and unable to give a direct answer to questions asked of him. Whilst it is appropriate to make an allowance for the fact that the plaintiff is not legally qualified and not a man familiar with the process of giving evidence, perhaps compounded by his background in that he was born overseas and is a somewhat flamboyant man, that does not, in my opinion, completely excuse or justify the manner in which he gave his evidence. He was at times unnecessarily argumentative, avoided answering questions or seemed to find the process amusing.[17]
[17]See as an example, T56, L1-13
20 There is no doubt that the credit of the plaintiff is an important factor in the determination of cases of the present kind.[18] The plaintiff’s evidence was at times difficult to understand, argumentative, and unreliable. It raises issues as to his credit, and as to the reliability of his evidence. Therefore, it is necessary to carefully scrutinise the whole of the evidence and to cross-reference his evidence with such objective evidence in respect to consequences from the accident, as I cannot simply rely on what he says in his written and oral evidence.
[18]Johns v Oaktech Pty Ltd [2020] VSCA 10 at paragraph [76]; Siddel-Whipp v Transport Accident Commission [2020] VSCA 109 at paragraph [87]
21 The plaintiff was challenged about a number of matters as set out in the affidavits or histories to doctors. He eventually conceded in cross-examination that he left the job with AstralPools because he did not have a vehicle to enable him to get to work, and not because of his back injury.[19] He conceded that he had some sexual function difficulties before the accident, but in any event, he no longer had any sexual function difficulties or problems with libido.[20] He conceded that he has been able to continue in warehousing-type work from time to time, including with Adecco.[21] He conceded that prior to the accident, he had consulted his general practitioner after he was sacked from agency work at BMW and felt traumatised by that,[22] and in fact at one stage, had been referred to a psychologist, Dr Ahmet, although he may not have attended Dr Ahmet.[23] He conceded that his last attendance at the Chandler Road Medical Clinic for treatment for his back was 23 January 2017, and he sought no further general practitioner treatment for his back until May 2018, when he attended Dr Muzzafar.[24]
[19]T11
[20]T13
[21]T18
[22]T21
[23]T24
[24]T32
22 The cross-examination of the plaintiff explored his ongoing online eBay business and the fact that in recent times, he had 650 items for sale, mostly shoes.[25] He was cross-examined about the omission in his affidavits to describe any of his acting work,[26] including appearances in movies, as an extra, and in an advertisement for BCF. The plaintiff was cross-examined about trips overseas to America, Ghana, and interstate to Sydney and Canberra. For some reason, he seemed to find answering questions about the trip to Canberra, to purchase shoes for his online business, to be amusing.[27]
[25]T37
[26]T41
[27]T56
23 There was cross-examination regarding the video surveillance that the defendant played in Court and tendered in evidence. It is convenient to broadly record my opinion of the video surveillance. Firstly, it was taken over three days, and only a few minutes of video surveillance was captured and played to the Court. As such it must, of course, be taken in context, namely very limited depiction of activities engaged in by the plaintiff on limited days and for particular purposes, such as getting fuel for his vehicle.
24 The videos of 6 November 2019 and 4 January 2020 were not particularly useful to the determination of this application.
25 The more interesting video was that captured on 22 November 2019. Whilst that video was for only a short period of time, it did show him attend at a service station to fuel his vehicle, attain appropriate postures to inflate a car tyre, and to walk without any apparent restriction. I do not consider the video to be of such magnitude so as to “destroy” the plaintiff’s case, but by the same token it appeared to demonstrate a man capable of engaging in a range of day-to-day activity without any apparent restriction, and to that extent, it is inconsistent with some of the affidavit evidence and what he has told the doctors. For example in his first affidavit, sworn 8 May 2019, the plaintiff said “I walk more slowly now because of the back pain from my accident”.[28] There was no suggestion of a man needing to walk more slowly in the video. Likewise, in that affidavit, the plaintiff described difficulty with twisting his back, and said that his back now “freezes” occasionally when he twists. The video does not demonstrate the plaintiff twisting, but neither does it demonstrate any activity which caused his back to “freeze” or any difficulty with any of the movements of his back as seen in the video.
[28]CB 4, paragraph 21
26 The plaintiff was reluctant to acknowledge the obvious: namely that the video surveillance appeared to show him capable of engaging in a range of unremarkable daily activities such as driving, fuelling his car and walking. As an example, in respect to the films, he was asked by Mr Rattray:
Q: “It shows a man moving without restrictions, doesn’t it?---
A: Mr Rattray, but my father died - - -.”[29]
[29]T64, L10-11
27 The plaintiff was pressed on the issue of the video surveillance. His evidence was argumentative and hard to understand. As a consequence I asked him the following question:
“Do you agree on that video you are shown to move without restriction?”
28 In response to my question, he answered:
“No, I have restrictions all the time, most times some of the things I do, sometimes I’m fine, sometimes I’m not. If you see how I was bending at the tyre as I was putting air in my tyre, it wasn’t the normal way I will bend.”[30]
[30]T65, L15-20
29 With the limitation of a short section of video surveillance, I could see no evidence of any restriction of movement in the way the plaintiff was bending so as to inflate the tyre. I do not accept that he was restricted in that task or that he has restrictions all the time.
30 The plaintiff was cross-examined about a job application to join the Australian Defence Force. It was put to him that he applied to get the job on the basis that he knew he would not get it, in an endeavour to improve his case. He denied that.[31] In the absence of objective evidence supporting that allegation, I do not accept that the ADF job application was to improve his case.
[31]T72, L22-23
31 The plaintiff was cross-examined about manufacturing material to assist his case and having treatment to try and improve his case. He said that he did not. Again, in the absence of some other evidence, I do not accept that the recent treatment was undertaken to improve his case.
32 The plaintiff was cross-examined about various employments he has had and the reasons for leaving them. In particular, he was taken through his taxation returns and the numerous employers he has had over the last several taxation years. To illustrate the point, it was put to him that during the 2016 financial year, he had some sixteen employers.[32] He accepted, eventually, that over the years he has regularly changed employers.[33]
[32]T83
[33]T84, L22
33 The plaintiff was then re‑examined. Re‑examination commenced on day 2 of the hearing. For whatever reason, the plaintiff presented as a much more calm and reliable witness in re‑examination. He confirmed that the general nature of his employments has been in picking, packing and forklift driving.[34] More recently he confirmed that he had, on 2 October 2020, applied for a job with Goodman Fielder, and that he had, as recently as 13 October 2020, been advised that he had made it through to a further video interview stage, and he seemed to have an expectation of obtaining that employment, which again would be forklift and warehousing work at a higher rate of pay than any of his previous employments.
[34]T96, L23‑26
The medical evidence
34 It is convenient to start by setting out the limited medical evidence from treating practitioners. Following the accident, the plaintiff attended at the Chandler Road Medical Clinic. The plaintiff was taken in his oral evidence to various entries in medical records from the Chandler Road Medical Clinic. There is no report from any doctor at that clinic but the progress notes from that clinic were included in the Court Book. The plaintiff was first seen as a patient at that clinic (for unrelated matters) on 20 October 2014. He first attended the clinic after the accident on 29 October 2016, where he was seen by Dr Haroun, who recorded complaints of pain in the neck, lower back and right shoulder and arranged x-rays. The x-rays were performed on 9 November 2016 and reported as “unremarkable”.
35 The plaintiff then attended the Chandler Road Medical Clinic from time to time for complaints related to the accident and also for unrelated matters. He was seen by Dr Masoudi on 29 November 2016 and an MRI scan of the lumbar spine was arranged. The MRI scan was performed on 30 November 2016 and reported as demonstrating:
“L4/5 disc desiccation and protrusion compressing the proximal left L5 nerve root sheath. This is likely to be responsible for symptoms.”
36 At review on 2 December 2016, Dr Masoudi records that back exercise, rest, physiotherapy input, NSAID medications and review were suggested.
37 By 22 December 2016, Dr Haroun records “occasional pain but not taking any medication”.
38 Next, on 23 January 2017, Dr Masoudi records “ongoing lumbar pain” but “excellent function. Can walk 45 min. Can drive. Gait is normal. Back to work – managing in a cloth shop.”
39 Then, on 10 February 2017, Dr Harindran records “wants to go back to normal work from 13/.2. No back pain. Can bend and kneel. O/e can squat.”
40 The plaintiff was last seen as a patient at that clinic on 23 August 2017 by Dr Masoudi for unrelated matters, including “had a chest wall pain after heavy work last week. Symptoms resolved.”
41 Insofar as treating doctors go, there is no evidence from any health practitioner that the plaintiff may have attended – such as a physiotherapist – covering the period up to May 2018, when the plaintiff commenced attending the general practitioner, Dr Muzzafar.
42 Pausing. The plaintiff was seen for medico-legal purposes by Mr Chehata, orthopaedic surgeon, on 21 November 2017. Mr Chehata has provided a report dated 12 December 2017, which is of some help in understanding the plaintiff’s condition between 23 August 2017 (the last attendance at Chandler Road) and before he attended Dr Muzzafar in May 2018. In that report, Mr Chehata diagnoses “an acute L5 disc prolapse at the level of L4/5 affecting the left nerve root” referable to the accident. Mr Chehata recommended a review by a neurosurgeon and a urologist for the symptoms the plaintiff then complained of, seemingly directed to the impact of the left nerve root compression on the plaintiff’s complaints of sexual dysfunction. At that time, Mr Chehata recorded:
“The pain levels require Panadol and neurofen [sic] at times, and prevented him from his normal hobbies such as dancing. It affected his general employment and caused pain during sexual intercourse affecting his relationships.”
43 Returning to the treating material, the general practitioner, Dr Muzzafar, has provided four reports. The first of those reports is dated 13 October 2018.[35] As the doctor notes, that report was based on “history provided, reports from his specialists and on basis of his consultations with me”. In particular, Dr Muzzafar appears to have been influenced in her opinion by medico-legal reports provided from Mr Chehata, Dr Ingram, psychiatrist, and Mr D’Urso, neurosurgeon (I will deal with the balance of medico-legal opinion later in these reasons). Dr Muzzafar provides a diagnosis of “chronic back pain with L4‑5 disc prolapse resulting in compression of the left L5 nerve root”.[36] In a further report of 9 February 2020,[37] Dr Muzzafar notes that the plaintiff was complaining of ongoing lower back pain. She notes:
“The intensity of the pain varies, and it radiates to the left leg. He is restricted in sitting or standing for more than 30 minutes at a stretch. He is unable to do repetitive bending, heavy lifting, heavy domestic chores like vacuuming and gardening.”
[35]CB 12
[36]CB 13
[37]CB 15
44 Dr Muzzafar notes in that report that the plaintiff “has been recommended microdiscectomy ... by the neurosurgeon Mr Paul D’Urso”. The doctor notes various restrictions and that surgical correction of his disc prolapse could improve his pain and functioning “but I am not sure the extent of improvement”.[38]
[38]CB 16
45 Dr Muzzafar then provided a report dated 10 March 2020[39] which appears to be a copy of the earlier report of 9 February 2020. She then provided her final report dated 23 May 2020,[40] which to some extent echoes the earlier reports. In the final report, she does say that:
“He is able to walk and sit for 45 minutes at a stretch and complains of pain at night, radiating to the left leg, pain during sexual function, pain on dancing which happens to be his main hobby and pain on playing soccer which is his other hobby. He is not fit for unrestricted physical activities and any manual employment. He is unable to do repetitive bending, heavy lifting, heavy domestic chores like vacuuming and gardening.”
[39]CB 17
[40]CB 186
46 The doctor then comments on the video surveillance, and states that the –
“… surveillance reports do not prove otherwise. He is able to continue with his personal and other activities of daily life but his quality of life is affected as he is limited in his activities as stated above. The activities which he has been seen to be doing during surveillance have not been claimed as being unable to do from the very beginning.”[41]
[41]CB 187-188
47 Dr Muzzafar has also referred the plaintiff for further radiological investigations.
48 An MRI scan was performed at the request of Dr Muzzafar on 12 July 2018. It is reported as demonstrating a “central and left paracentral disc herniation at L4/5 compressing L5 nerve root”.[42]
[42]CB 83
49 A further MRI scan was arranged by Dr Muzzafar and performed on 23 December 2019. It is reported as demonstrating “desiccation with diffuse bulge and left paracentral disc protrusion at L4/5 causing compression of the left L5 nerve root in the lateral recess”.[43]
[43]CB 85
50 More recently, Dr Muzzafar referred the plaintiff for an MRI scan, which was performed on 31 August 2020. That scan records a clinical history of “severe back pain with left radiculopathy recent flare-up” and concludes as demonstrating “diffuse disc bulge left paracentral disc protrusion at L4/5 causing impingement of the left L5 nerve root”.[44]
[44]CB 214
51 In the absence of any prior history and in light of the contemporaneous reporting of low back symptoms to the Chandler Road Medical Centre the day after the accident, I conclude that radiologically demonstrated L4-5 disc prolapse and left L5 nerve root compression is as a consequence of the accident. However, it is trite to note that conclusions expressed based on radiology do not necessarily equate to ongoing injury or consequences. But I accept, as a starting point, that the plaintiff did suffer injury to the lumbar spine in the accident, as described on the radiology. The real issue – the conundrum posed by this case – is what is the impairment that flows from the compensable injury and whether such impairment produces consequences to the plaintiff that are “very considerable”.
52 Returning to the material from treating health practitioners, the plaintiff attended for physiotherapy at Sunshine Primary Health on 4 January 2020. In a report dated 1 October 2020, Thuan Luong, physiotherapist, sets out the plaintiff’s attendances at the Sunshine Primary Health Clinic and the treatment provided.[45] The physiotherapist notes that in the initial session, the plaintiff reported that he had seen Mr D’Urso, neurosurgeon, and that Mr D’Urso had referred him for an MRI scan on 12 July 2018. That history is clearly wrong as the MRI scan of that date records the referring practitioner as Dr Muzzafar. In any event, the physiotherapist took a history initially that symptoms would begin in the lower back and travel to the left leg, and into the left shoulder at times. The physiotherapist had a history that, based on the MRI, the neurosurgeon had mentioned the plaintiff may need an operation.
[45]CB 194
53 There was then a gap in treatment until 2 May 2020 before the plaintiff attended weekly until 6 June 2020. The physiotherapist notes that the initial session was a subjective history-taking session, but that physical assessments were completed in the sessions commencing in May 2020. The plaintiff’s ongoing symptoms as at 6 June 2020 were that―
“He had difficulties with standing and sitting for prolonged periods of time; he would experience pain carrying objects of more than 5 kilograms; difficulty with having consistent sleep throughout the night; and at times he would experience pain walking for longer distances between work stations”.[46]
[46]CB 196
54 At that last session, the plaintiff was also provided education and exercises “for his general health and fitness”, and he was prescribed a series of lower back stretches and strengthening exercises for the core and lumbar area. It was recorded that the plaintiff responded well to the exercise component of physiotherapy.[47]
[47]CB 198
55 The physiotherapy report concludes by suggesting that the plaintiff may need a comprehensive program of strengthening and conditioning, as well as approval for a gym/swim membership, and he might need several supervised physiotherapy sessions. The physiotherapist made a note of the report from Mr D’Urso on 25 September 2018. It is unclear who provided that report to the physiotherapist. The report concludes that the plaintiff is fit for modified duties.[48]
[48]CB 199
56 There is then a report from chiropractor, Dr Murphy, dated 24 September 2020.[49] Dr Murphy has treated the plaintiff since 25 August 2020 for lower back pain and stiffness, with radiating pain into both legs and feet. The chiropractor noted, upon assessing the plaintiff, that his lumbar range of motion was grossly reduced, which is not a finding reproduced by other health practitioners when examining the plaintiff. Likewise, there were reports of radiating pain bilaterally into the legs and feet. The chiropractor reports performing orthopaedic tests of the neck and lower limbs and describes the plaintiff as suffering from “chronic lumbopelvic dysfunction with associated hypertonicity of bilateral quadratus lumborum and gluteal muscles”. Without resorting to a dictionary, it is difficult to know exactly what is meant by that diagnosis, particularly when the chiropractor adds that the diagnosis “is complicated by multilevel disc bulge and decreased sensation in bilateral lower limbs”. The chiropractor further records a history of severe pins and needles or numbness-like pain down both of his legs multiple times during the day, mainly when bending or doing twisting movements. It was recorded that the plaintiff’s low back pain had progressively worsened since 2016. The pain was recorded as a constant 7 out of 10, but on occasion increasing to 9 out of 10, depending on what he is doing.[50] I will not deal with the balance of the report. I place little weight on it, as the symptoms recorded are inconsistent with what has been recorded by other medical examiners and are, in fact, inconsistent with the plaintiff’s own evidence before the Court. As set out earlier in these reasons, the plaintiff does not describe constant 7 out of 10 pain. He does not describe pins and needles or numbness in both legs, “multiple times during the day”.
[49]CB 189
[50]CB 191
57 That completes a summary of the material from treating practitioners. It is limited. In my view, a fair reading of the treating practitioners’ reports leads to a conclusion that the health practitioners, and, in particular, Dr Muzzafar, when expressing opinions regarding the plaintiff, have very much relied on his subjective complaints of pain and restrictions, and considerable reliance appears to have been placed on the medico-legal opinion of Mr D’Urso in circumstances where the plaintiff’s subjective complaints are unreliable and where he has not been referred independently for specialist assessment of his lumbar spine injury.
Medico-legal material
58 The plaintiff relies on reports from the neurosurgeon, Mr D’Urso, and the sports and industrial physician, Dr Kennedy. In addition, there were tendered two reports from Dr Ingram, psychiatrist. The plaintiff does not rely on a discrete psychiatric condition for the purposes of this application.
59 The last report in time from Dr Ingram is dated 30 November 2018. In that report, Dr Ingram described “mild symptoms of depression and mild symptoms of post-traumatic stress disorder”. He did not think the plaintiff needed any specific treatment and the symptoms would continue to improve, leading to minimal psychiatric impairment. Dr Ingram’s opinion is now out of date but, in any event, tends to the conclusion that the plaintiff did not have much wrong with him from a psychiatric perspective. However, Dr Ingram did take a history in the last report that by November 2018, the plaintiff “had been seeing more of his friends than previously and he had liked music and he had been able to do a little dancing, although had still been more limited than he had been before the accident”.[51] Dr Ingram further noted that the plaintiff’s “libido had been down a little, though had improved since he had been back at work”.[52]
[51]CB 54
[52]CB 54
60 I have read and considered the reports from Mr D’Urso and Dr Kennedy. Mr D’Urso’s opinion is probably the “high water mark” of the plaintiff’s case. In his first report of 23 March 2018,[53] Mr D’Urso conducted an examination of the plaintiff which exhibited normal limb power. Reflexes were brisk and symmetrical. Sensation was intact. The plaintiff had a restriction to 80 per cent of normal cervical flexion, extension and rotation. He could flex his spine so he came to 15 centimetres from touching his toes and extended to 30 degrees.[54] Mr D’Urso had available the MRI of 30 November 2016. He recommended that a further MRI scan be performed and otherwise a self-management program of core exercise and hydrotherapy exercise. In that report, he stated that the plaintiff “appears to have made a satisfactory recovery from the lumbar disc prolapse which is evident shortly after the motor vehicle accident” and that the plaintiff “has a partial incapacity for unrestricted physical or manual employment activities”.[55]
[53]CB 25
[54]CB 26
[55]CB 27
61 Mr D’Urso was then provided with further radiology, including the MRI of 12 July 2018, and armed with that material, provided a further report of 25 September 2018.[56] Notwithstanding his earlier opinion that a self-management program of exercise et cetera was appropriate, in light of the further MRI, in that report, he states:
“After carefully reviewing the imaging of the cervical and lumbar spine, it would appear there is a significant disc prolapse at the L4/5 level causing subarticular left L5 nerve root compression … I would recommend a surgical opinion regarding this. A microdiscectomy procedure would appear to be an appropriate option.”[57]
[56]CB 29
[57]CB 29
62 Mr D’Urso then re-examined the plaintiff on 28 November 2019, at which time he was provided with various reports and clinical records. He then produced a report dated 10 January 2020.[58] The report records that when he examined the plaintiff, once again, reflexes were preserved at the knees and ankles. Sensation appeared to be intact. The plaintiff had some restriction of straight-leg raising on the left and some related back pain. The plaintiff’s left hip was painful with movement and a little stiff. At that examination, the plaintiff could flex his spine so he came to 40 centimetres from touching his toes and he could extend to 20 degrees.[59] Mr D’Urso then reviewed the material and repeated his earlier opinion that the accident precipitated the onset of back pain and sciatic symptoms and is likely to have contributed to the development of an L4-5 disc prolapse. He recorded the plaintiff reporting persistent back and intermittent bilateral sciatic symptoms. He states:
“The plaintiff would appear to have a ‘permanent incapacity of a partial nature’ that would incapacitate him from arduous physical activity or unrestricted employment activity and put various restrictions on bending, lifting and the like.”
[58]CB 32
[59]CB 33
63 Mr D’Urso states that the plaintiff remained symptomatic and consideration should be given to a surgical intervention.[60]
[60]CB 35
64 More recently, Mr D’Urso provided a report dated 25 May 2020.[61] That report was in response to what appears to be a request to consider reports from Dr John Owen, Dr Kennedy and the video surveillance footage and reports. Mr D’Urso notes that in the video surveillance―
“Mr Cofie did exhibit an ability to flex his spine which was greater than what I documented from an examination that was conducted on 28 November 2019. At that time, Stephan Cofie could only flex his spine so that he came to 40 centimetres from touching his toes. However in a surveillance video dated 27 November 2019, he was able to flex his spine so he could touch the ground with his knees flexed.
Regardless of the information provided, Stephan Cofie does have a significant organic injury at the L4/5 intervertebral disc level with a degree of nerve root compression on the left side and to a lesser extent on the right. It will result in a permanent incapacity of a partial nature.”[62]
[61]CB 201
[62]CB 201‑202
65 I do not intend to refer to the reports from Dr Kennedy in more detail than is necessary. They can be described as supportive of the plaintiff’s application and are not dissimilar to Mr D’Urso. Indeed, in his most recent report of 5 May 2020,[63] Dr Kennedy says:
“On reviewing all the available medical information and reports, particularly the information from Mr Paul D’Urso, an eminent neurosurgeon, I can concur with the analysis and evaluation of Mr Cofie’s transport accident-related injuries involving his lumbar spine as outlined by Mr Paul D’Urso, and I also agree with his assessment as to the treatment that Mr Cofie requires.”[64]
[63]CB 203
[64]CB 204
66 Dr Kennedy then goes further in his most recent report to comment on the video surveillance. In my opinion, his comments veer into advocacy and beyond the role of an independent medico-legal examiner. He says, in respect to the video surveillance footage―
“The surveillance videos indicate that Mr Cofie is able to perform some activities with regard to the functioning of his spine and his upper and lower extremities but it does not indicate that he could perform these activities constantly or repetitively over any extended period of time, nor does it indicate that Mr Cofie, following these activities, had a period of severe pain necessitating him to lie down or rest following these activities. Mr Cofie may have taken increased doses of analgesic medication prior to performing these physical activities.”[65]
[65]CB 204
67 Dr Kennedy’s report must be read in light of the plaintiff’s own evidence. The plaintiff did not give evidence that he had severe pain after the activities depicted in the video surveillance. He did not give evidence that he had to lie down or rest following those activities. He did not give evidence of having to take increased doses of analgesic medication.
68 I do not place much weight at all on the reports from Dr Kennedy. In my view, he has become an advocate and not an independent expert. His reports rely heavily on subjective complaints which do not marry up with the objective evidence. For example in his report of 20 December 2018, he took a history that the plaintiff then had persistent low back pain and stiffness and that sometimes the lower back locked up and then released suddenly. The plaintiff described to him difficulty standing for more than five to ten minutes, especially leaning forward, and that sometimes he got pain in the back of his thighs and down the legs to his feet. Dr Kennedy took a history that the plaintiff was restricted in the range or number of activities of daily living affecting playing soccer, dancing, as well as some sexual activities.
69 In his further report of 20 November 2019,[66] Dr Kennedy took a history that the plaintiff had only worked intermittently since last seen. He continued to take a history of pain in the left shoulder, which the plaintiff did not describe to me. Again, there was a history taken of the plaintiff’s lower back locking up, yet insofar as I have objective material before me, there is nothing to objectively confirm that complaint. Once again, there was a subjective recording of difficulty standing for more than five to ten minutes and worsening low back pain, particularly when leaning forward.
[66]CB 42
70 Dr Kennedy then conducted a physical examination of the plaintiff’s lumbosacral spine. Flexion was tight to 65 degrees, extension 20 degrees, and there was restricted lateral flexion and lateral rotation with pain. The straight-leg raising was very tight, particularly on the right side. There was marked tenderness of the lower extremities on palpation, particularly in the left leg, with hypersensitivity to palpation. I mention these restrictions, because Dr Kennedy does not refer to them when going into bat for the plaintiff in light of the video surveillance.
71 Finally, in respect to medical material, the defendant relies upon reports from Mr John Owen, orthopaedic surgeon, and Mr Kevin Siu, neurosurgeon. Those reports can be summed up as being unsympathetic to the plaintiff’s serious injury application.
72 In the first report from Dr Owen of 11 December 2019,[67] Dr Owen took a history that the plaintiff’s back condition “interferes with doing most things that he wants to do. For example even walking to the appointment from the railway station he had back pain. He gets pain and stiffness if he sits for a while”. Those recorded complaints are not consistent with what the plaintiff has told other doctors. In any event, he then described pins and needles in both his legs and feet. He described disturbed sleep if he did not take over‑the‑counter sedatives. Dr Owen conducted a clinical examination and described the range of movement of the lumbar spine as “quite reasonable”. Dr Owen does state:
“On the balance of probabilities I think it reasonable to accept that he did suffer a significant deceleration force in the accident. That would have put a compression load on his lumbar spine. So it is possible that he has aggravated his lumbar spine problem.”[68]
[67]CB 59
[68]CB 63
73 However, Dr Owen opined that the clinical picture was then clouded by illness behaviour and the prognosis depended very much on the plaintiff’s psychosocial state.
74 Dr Owen then provided a further report of 9 March 2020, having been provided with the reports from various practitioners, including Mr D’Urso and Dr Kennedy, as well as the video surveillance. I will not deal with his report in detail. He clearly takes issue with the opinion of Mr D’Urso. Dr Owen also found that the video surveillance was “not consistent with his stated level of disability” and that―
“In light of the video of Mr Cofie showing how freely and easily he moves and does the tasks, particularly inflating the car tyre, makes me very much of the opinion that his functional status is much better than he reports. In light of that I think any surgical intervention is difficult to justify.”[69]
[69]CB 77
75 Finally, Mr Siu, neurosurgeon, examined the plaintiff on 22 June 2020 at the request of the defendant. He has provided a report dated 24 June 2020.[70] Mr Siu conducted a physical examination and noted that the plaintiff was able to undress, his gait was normal and he could forward flex to well below his knees “which was quite remarkable”, but that lateral flexion was only to the level of the knee because of an onset of pain.[71] Mr Siu had available the video surveillance. He then went on to opine that he did not believe that the plaintiff sustained a spinal injury in the transport accident. However, somewhat confusingly, he then states “the injury has long since resolved, but remains symptomatic”.[72] He volunteered that he “would have thought” the plaintiff’s limitations were now from non-organic reasons.[73]
[70]CB 206
[71]CB 208
[72]CB 209
[73]CB 210
76 Save for noting the examination findings, I do not place much emphasis on the opinion of Mr Siu, as he is dismissive of the MRI reports and is on his own in that he does not appear to accept that the accident caused or contributed to any injury to the lumbosacral spine.
The lay evidence
77 The final piece of evidence is an affidavit from the plaintiff’s sister, Judith Cofie, affirmed 9 October 2020.[74] That affidavit is clearly supportive of the plaintiff’s claim. Ms Judith Cofie lives in the United States, in New Jersey. In her affidavit, she records a number of telephone conversations with the plaintiff in which he makes subjective complaints of pain. No objection was taken to her affidavit, but clearly there are limitations as to what weight is placed on her evidence where she records what her brother has told her about his back injury, in circumstances where I do not consider him to be reliable witness.
[74]CB 181
Resolution of the application
78 As already mentioned, I accept that there is radiological support and contemporaneous medical support so as to conclude that in the accident, the plaintiff did suffer an injury to the L4-5 disc with L5 nerve root compression.
79 The issue that arises in this application is whether, on the whole of the evidence, the plaintiff, bearing the onus of proof, has demonstrated that he has an ongoing impairment of the lumbar spine, which is productive of “very considerable” consequences in respect to pain and suffering, and economic loss.
80 In respect to economic loss, in final submissions, the plaintiff’s Counsel accepted that the way in which the reliance was placed on economic loss was, in effect, that the plaintiff now has a “light work” back which restricts him from certain employments or causes difficulty with employments. It was said by his Counsel that―
“It is a restriction in the range of employments that he can undertake, but the evidence is that he’s continuing to seek employments and undertake employments. And it is not a situation where your Honour could find on the basis of economic loss alone.”[75]
[75]T146, L16‑21
81 Dealing firstly with the issue of economic loss, the plaintiff is a man who has chopped and changed employments over the years. He has continued in similar employments to that which he was performing at the time of the accident and with a similar pattern of chopping and changing. He continues to pursue warehousing forklift-type employments and on his own evidence, he has reasonable prospects of shortly resuming similar employment with Goodman Fielder for a higher salary than he had previously earnt. Other than the plaintiff’s own evidence, there is no objective evidence from any employer to suggest that he has ever ceased employment, or been unable to continue in employment, because of his claimed back injury. As the plaintiff conceded in cross‑examination, he has, in fact, left several employments since the accident for reasons unrelated to his back injury, including personal conflicts and problems with transport. His own evidence about cessation of employment due to the claimed back injury is unreliable when viewed against such objective evidence as is available.
82 Therefore, I conclude that whatever symptoms the plaintiff now suffers in his back, they do not in fact prevent him from engaging in warehousing and forklift-type employments. This conclusion is consistent with the fact that he not only has maintained those employments from time to time and has the prospect of the Goodman Fielder employment, but he also applied for a warehousing job with the Australian Defence Force. It does not matter whether or not he was actually applying to join the army, as was put to him in cross-examination. What matters is that he considered himself physically well enough to even seek that employment in the first place.
83 In addition, he is able to engage in his ongoing online business of selling items. His affidavits are deficient as to his full involvement in that business. Not only is he able to source and store some 6,000 or 7,000 items for sale, he is able to regularly engage in listing those items, selling them and arranging for them to be sent to purchasers. His affidavits do not fully set out that business. His affidavits do not set out the fact that he has made business trips to source stock, including at least one trip interstate to Canberra. His affidavits do not properly set out his overseas trips and do not set out his activities in New Jersey when visiting a shoe business, which curiously is something that his sister does not deal with in her affidavit. Further, his affidavits are silent as to his ongoing work as an actor. His affidavits do not set out the fact that he has an agency representing him or that he was able to secure an allegedly humorous role in the BCF commercial. He has appeared in at least one movie and other Netflix programs. None of that is dealt with in his affidavit material and nowhere does he say that his back injury restricts him for any of those activities.
84 I have already mentioned the video surveillance. It shows that he is still able to engage in a range of day‑to‑day activities. The video itself is, on one view, neither here nor there, but it is inconsistent with some of the evidence and histories given to medical practitioners.
85 His affidavits also do not properly deal with his sleep and sexual issues that predated the motor vehicle accident. The sexual dysfunction falls away, because the plaintiff denied he has any ongoing sexual dysfunction. He may have some ongoing intermittent limitation for sleep, but that appears to be a longstanding problem and not particularly debilitating.
86 Based on the whole of the evidence, and bearing in mind that the plaintiff bears the evidentiary onus, I accept that the plaintiff may have ongoing intermittent low back pain of a mild nature which requires occasional Panadol or Nurofen and may provoke some pain upon repetitive activity. It is at a level that requires ongoing occasional conservative treatment by way of self-management or occasional chiropractic or physiotherapy treatment.
87 I accept that at times the pain from the back injury may interfere with his hobby of dancing, but he is still able to engage in that hobby. He is still able to spend time with his son and interact with him. He still has a social life. He is able to form and maintain friendships and relationships, including sexual relationships. He is able to drive and travel interstate or overseas. He maintains an interest in his fashion business without any impediment from the back injury. He completed a fashion course after the accident. He is still an active man, both professionally and socially. It is true that impairment consequences are concerned with what has been lost. But as was submitted on behalf of the defendant, the significance of what has been lost may be informed, to an extent, by what is retained.[76] In circumstances where the plaintiff’s own evidence is unreliable, the objective evidence leads to a conclusion that there is much that he retains and not so much that has been lost.
[76] Dwyer v Calco Timber (No 2) [2008] VSCA 260 at paragraph [27] per Ashley JA
88 Based on the whole of the evidence, I conclude that such ongoing symptoms and restrictions that are referrable to the back injury suffered in the accident are not sufficient so as to meet the test of “very considerable”, either in respect to pain and suffering and pecuniary loss consequences, or when those consequences are combined.
89 The plaintiff has failed to discharge the burden of proof to persuade me that the lumbar spine injury is “serious”. He is an unreliable witness. Insofar as there is objective evidence of ongoing consequences, that objective evidence does not meet the “very considerable” test.
90 Finally, for completeness, the opinion of Mr D’Urso that the plaintiff may require surgery is an opinion that I do not accept. Mr D’Urso expressed that opinion relying on a correlation between the MRI and the plaintiff’s described symptoms. To some extent, he retreated a little in his most recent report when he noted the video surveillance was somewhat inconsistent with examination findings. I conclude that the true clinical picture is not as bad as the plaintiff described to Mr D’Urso and, on that basis, I do not accept Mr D’Urso’s opinion regarding the possibility of surgery. This conclusion is sufficient to resolve the difference of opinion between those practitioners sympathetic to the plaintiff’s case and those sympathetic to the defendant’s case. Mr D’Urso got it right in his first report when he recommended limited ongoing self-management as appropriate treatment.
91 The plaintiff’s application is dismissed.
92 I shall hear the parties on the question of costs.
- - -
0
3
0