Coskun v TAC
[2021] VCC 670
•7 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-03293
| Serkan Coskun | Plaintiff |
| v | |
| Transport Accident Commission | Defendant |
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JUDGE: | Her Honour Judge Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 April 2021 | |
DATE OF JUDGMENT: | 7 June 2021 | |
CASE MAY BE CITED AS: | Coskun v TAC | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 670 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering – injury to cervical and lumbar spine – adjustment disorder – chronic pain syndrome/somatic symptom disorder – prior and subsequent transport accidents – disentanglement of consequences
Legislation Cited: Transport Accident Act 1986 (Vic)
Cases Cited:Humphries v Poljak (1992) 2 VR 139; Markovski v Woolworths Limited (2015) VCC 1866; Mobilio v Balliotis [1998] 3 VR 833; Peak Engineering & Anor v McKenzie [2014] VSCA 67; TAC v Kamel [2011] VSCA 110; TAC v Katanas [2017] HCA 32; TAC v Zepic [2013] VSCA 232
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett QC Mr O Lesage | Zaparas Lawyers |
| For the Defendant | Mr P Jens QC Ms A Bannon | Wisewould Mahony |
HER HONOUR:
1Mr Coskun, who is 42 years old, applies for a serious injury certificate under s 93 of the Transport Accident Act 1986 (Vic) in respect of injuries suffered to the spine and and/or psychological injury following a transport accident on 21 November 2015 (“the 2015 transport accident”). In relation to the injury to the spine, he relies on injury to the lumbar spine (“LS”) and cervical spine (“CS”), as well as a consequential Adjustment Disorder. The injury to the LS is said to comprise the aggravation of pre-existing and symptomatic disc injury at L5-S1. The injury to the CS is said to comprise the aggravation of pre-existing but asymptomatic cervical disc injury at C5-6. In the alternative, he relies on sub-paragraph (c) of the definition of serious injury, and says he has suffered a chronic pain disorder (also known as chronic pain syndrome or somatic symptom disorder) which has severely impacted his life.
2Mr Coskun says that as a result of his neck and back injuries suffered in the 2015 transport accident, he has a reduced work capacity, reduced enjoyment of life, and reduced capacity to perform daily activities such as showering, dressing, cooking, cleaning, prolonged standing, gardening, walking his dog, playing soccer with his sons, and driving. His sleep is interrupted by back and neck pain and by his depression and anxiety. He is irritable and socially withdrawn, has poor memory and concentration, and has a poor libido. He has been in receipt of the Disability Support Pension since early 2020. He takes daily medications as follows: Cymbalta (for depression), Valium (for anxiety), Lyrica (for nerve pain in the legs from his back), Mersyndol Forte and Tramadol (for neck pain), and Nexium (for stomach upset).
The issues
3Mr Coskun acknowledges that he was involved in transport accidents in 2000 (“the 2000 transport accident”), in which he injured his LS.[1] Mr Coskun also acknowledged that he was involved in a transport accident in September 2017 (“the 2017 transport accident”). He had visa problems for 4 years or so but was also unable to work due to his back injury. In 2005, his back problems prevented him from working, wearing a seatbelt, or playing soccer with his son. With the exception of some work as a kitchen hand in his daughter’s kebab shop in 2011 and 2012;[2] helping with his wife’s cleaning business;[3] and the private buying and selling of cars, he has been unable to work since the 2000 transport accident because of his back injury and his chronic depression since 2005. His main source of income for the past 20 years has been social security benefits.
[1]In the tendered material, the date of that transport accident is variously described as having occurred in 1999, or 2000. For the sake of consistency, I have simply referred to it as having occurred in 2000.
[2] Transcript of Proceedings, Coskun v Transport Accident Commission (County Court of Victoria,
CI-20-03293, Judge Davis, 30 April 2021) (‘T’) 14.25-15.11.
[3] T18.16-19.
4He was involved in a subsequent transport accident in September 2017 (“the 2017 transport accident”), which aggravated his injuries and led to a curtailment of his social activities.
5He agrees that, prior to the 2015 transport accident: he was suffering from anxiety and depression for which he had been treated by Dr Lawrence Woo, general practitioner, for many years; had been certified by Dr Woo in late 2009 and late 2014 as totally and permanently unfit for work due to his back problem, his chronic depression (with a recorded date of onset in 2005)[4] and the fatigue that resulted from his medications (with a recorded date of onset in 2008)[5]; and he had been prescribed a number of medications (including Celebrex, Mersyndol Forte, Endone, Tramadol, Norspan patches, Cymbalta and Temazepam). He also agrees that he did not give a full history of his previous conditions (in the LS and psychiatric), or of the sequelae of each of the 2000, 2015 and 2017 transport accidents, to many of the treating and examining specialists who provided reports in this case.
[4] Defendant Court Book (‘DCB’) 178-179.
[5] Ibid.
6However, the plaintiff relies on Dr Woo’s clinical notes, which suggest flare-ups of pre-existing low back pain between 2005 and 2008, and then again in late 2014, but then only few consultations up till the time of the 2015 transport accident. The notes also reveal no complaint of neck pain prior to the 2015 transport accident, but a complaint after it of severe neck pain with restriction of movement and left sided radiculopathy.[6] The plaintiff relies on a number of specialist opinions (from Mr John Cunningham, orthopaedic surgeon,[7] Dr Geoffrey Abbott, consultant in rehabilitation medicine,[8] Mr Craig Timms, neurosurgeon,[9] and Dr Clayton Thomas, consultant in rehabilitation and pain medicine[10]) which, he says, support a finding that the 2015 transport accident caused or contributed to organic injuries by way of an aggravation of his LS condition, as well as the onset of symptoms in the CS.
[6] DCB 143, 149.
[7] Plaintiff Court Book (‘PCB’) 86.
[8] PCB 94-97.
[9] PCB 124-125.
[10] PCB 74-75.
7In relation to the application under sub-paragraph (c) of the definition of serious injury, the plaintiff says that, to the extent that the plaintiff’s complaints are considered to be largely functionally based (whether called a chronic pain syndrome or somatic symptom disorder), the consequences of this condition have had “a massive effect” on his life and therefore satisfy the narrative test for serious injury in terms of being “severe”.[11]
[11] Plaintiff’s Submissions [21].
8The defendant says that Mr Coskun is an unreliable witness in relation to a number of matters: his work history; his prior back/neck condition and psychiatric condition; his reliance on medication prior to 2015; his social activities after the 2015 transport accident; and the injuries sustained in the 2015 transport accident.
9In addition, the defendant says that the plaintiff’s affidavits are internally inconsistent and confuse the consequences relating to the 2015 transport accident with those resulting from the 2000 transport accident and 2017 transport accidents;[12] that he has a long history of back problems and was certified totally unfit for work for that, and other reasons, between early 2006 and early 2010 and then again from late October 2014 until 31 January 2015; and that he has given inconsistent or unreliable histories to the doctors he has seen. For these reasons, he has failed to disentangle the consequences relating to the organic spine condition or psychiatric injury sustained in the 2015 transport accident from those consequences that relate to the 2000 and 2017 transport accidents.
Finally, the defendant says that, in any event, because there was no discernible change in the plaintiff’s lifestyle and activities after the 2015 transport accident, the claimed consequences of the 2015 transport accident alone do not meet the relevant threshold of serious injury, under either sub-paragraph (a) or (c) of the definition of serious injury.
[12] Defendant Submissions [2].
The plaintiff
10The plaintiff swore three affidavits in support of his application.[13] His first affidavit was in respect of injuries to the spine, left upper extremity, right upper extremity and for psychiatric injuries sustained “as a result of transport accidents on around 23 November 2015 and 9 September 2017”.[14] That affidavit listed all the medical consultations and treatment received by the plaintiff until July 2019. He was taking Lyrica, Celebrex, Mersyndol Forte, Endone, Tramadol and Norspan patches for his pain, and Cymbalta and Minipress for depression. He had left sided neck pain and stiffness, and lower back pain with sharp leg pain and burning feelings down to the soles of his feet. That “spinal pain”[15] had been “severe since the 2015 accident”.[16] He was depressed and irritable, socially withdrawn, lacked motivation and was nervous as a passenger. He had more intrusive flashbacks about the 2015 transport accident than about the 2017 transport accident. He ceased working as a used car dealer in around 2018.
[13]PCB 11-32. I note that his wife, Oznur Mouslim, swore an affidavit supporting the contents of his affidavits.
[14] PCB 12 [2].
[15] PCB 18 [38].
[16] Ibid.
11He had suffered a reduced capacity to perform domestic and daily activities, gardening, shopping, prolonged sitting and walking after the 2015 transport accident. His neck and back pain interfered with his sleep. He was no longer able to play soccer in the park with his sons due to his LS symptoms. His libido worsened in 2018 and 2019.
12In his further affidavit, sworn 26 March 2021,[17] the plaintiff provided further details of his treatment, although these were now stated to relate only to the 2015 transport accident. He ceased physiotherapy in 2020 because treatment aggravated his pain. He ceased acupuncture because it did not help him. He had not had a Ketamine infusion because of his anxiety concerning hospitals and clinics. Mr Timms had told him that he could persevere with conservative treatment or consider decompression and fusion surgery. His psychiatrist Dr Farazdak El Wahab had recommended an inpatient psychiatric stay with a pain management program, but due to the Covid-19 pandemic and his fear of hospitals, he had not undertaken this treatment. He continued to have psychological treatment with psychologist Ms Serma Durmaz. He continued to take Valium and Cymbalta for his anxiety and depression, but was no longer taking Minipress. He was taking Lyrica for his lumbar spine related nerve pain, Mersyndol Forte (and Tramadol when needed) mainly for his neck pain. He has been receiving the Disability Support Pension since early 2020.
[17] PCB 23.
13His restrictions continued. His “spinal pain”[18] was aggravated by prolonged bending, walking or standing. His sleep continued to decline. Prior to the 2015 transport accident, he was sleeping six or seven hours per night. By July 2019, he was sleeping around three to four hours. His sleep was disturbed by his pain and anxiety. Prior to the 2015 transport accident, he enjoyed fishing, camping, mushroom and fruit picking within the limits of his pre-existing “spinal pain”[19]. He also played tennis and soccer with his son. He owned homing pigeons. After the 2015 transport accident, he continued to go out for business dinners as necessary. His smoking gradually increased to cope with his pain and anxiety. He gave up his pigeons around late January 2021. He had not had an active sexual relationship with his wife for the past one to two years.
[18] PCB 18 [38].
[19] PCB 18 [38].
14In his second further affidavit, sworn 28 April 2021,[20] the plaintiff sought to clarify his work history. Prior to the 2015 transport accident, he had been in receipt of social security benefits for a number of years. During that time, he bought and sold cars, but not enough to require a motor car traders licence. At the time of the 2015 transport accident, using his daughter’s money, he bought a new car detailing business. He provided the site and the contacts, and he had a partner who did the actual detailing work. This business was not profitable and closed after a few years.
[20] PCB 30-32.
15The plaintiff stated that, prior to the 2015 transport accident, he had never had problems with his neck, but since that time he had significant persisting neck pain.
16He acknowledged the vague histories given to various doctors, but stated that he believed that the 2015 transport accident “has been the most significant in my life”.[21]
[21] PCB 32 [5].
17The plaintiff agreed that, after the 2015 transport accident, he continued to attend restaurants with his family up till two years ago but said it was less frequently, and that his social life was less enjoyable due to his pain; and that he went to Sydney in 2016 and to Turkey for a few months in 2016 and then again in 2017 or 2018. Prior to the 2015 transport accident, he went to the park with his son to teach him soccer, but did so less after that accident. His son is now 17 years old.
18At the hearing, the plaintiff agreed that the car he was driving in the 2015 transport accident received minor damage to the front left side.
19The plaintiff was taken to his bank statements for 7 April 2015, which contained reference to eight withdrawals, each of $200, at the Keysborough Hotel.[22] He said that $1,000 withdrawn on 7 April 2015 was part payment (of a total of $5,000) to the business partner of the amount paid to buy the car detailing business. When taken as to multiple withdrawals of the same sum, on the same days, at other establishments before and after November 2015, the plaintiff said that he attended these venues with his business partner, and loaned him all of these sums (which derived from his daughter’s lump sum payment) so that his partner could gamble. He said the business partner used to repay him, but that he still owed the plaintiff between $800 and $900.[23]
[22] T62.22-63.11.
[23] T65.7-14.
20The plaintiff was taken to bank statements in January and June 2016 and agreed that he continued, after the 2015 transport accident, to attend various hotels with the business partner and to lend him multiple sums of $200 in cash. He said that his business partner used to repay the money within a week or two.[24] The plaintiff denied gambling himself. He said he followed his business partner to the hotels, sometimes to two hotels on one day, to enable him to gamble. He said that he stopped lending his partner this money in 2017 because his partner developed a gambling problem.[25] The plaintiff’s role in the business ceased in 2018.
[24] T 69.4-6.
[25] T64.30-31.
Radiology
21CT scan of the lumbar spine on 13 October 2005 was reported as showing at L5/S1:
High density disc material is seen in the left paracentral region and in the left intervertebral canal. This finding is due to disc herniation. It indents onto the left L5 and S1 nerve roots.[26]
[26] PCB 236.
22CT scan of the lumbar spine on 1 July 2008 was reported as showing at L5/S1: “A small paracentral disc protrusion is seen. It indents onto the left S1 nerve root”.[27]
[27] PCB 237.
23MRI of the lumbosacral spine on 21 August 2008 was reported as showing at L5/S1:
At the L5/S1 level there is a left paracentral /foraminal broad based disc herniation which is contacting, slightly displacing and slightly deforming the descending left S1 nerve root. It appears to contact but not deform the exiting left L5 nerve root. The neural exit foramina bilaterally are adequate. The central canal is adequate.[28]
[28] PCB 238.
24On 21 November 2015, CT scan of the cervical spine was reported as revealing “no acute cervical spine pathology”.[29]
[29] PCB 239.
25On 23 November 2015, MRI of the cervical spine was reported by Dr Maurice Molan as normal apart from at C5-6, where there was a finding as follows:
C5-6:
Mild loss of disc height and signal. There is a broad posterior disc-osteophyte complex which does not reach the cord or produce central canal stenosis. The disc osteophyte complex projects into the adjacent left neural foramen producing moderate left neural foramen stenosis and mild to moderate right neural foramen stenosis at this level.[30]
[30] PCB 62.
26On the same day, Dr Kiran Gorai reported the same MRI with the following findings at C5-6:
C5-6:
There is a broad-based posterior annular disc bulge and posterior osteophyte formation which indent the ventral thecal sac and make cord contact. There is mild central spinal canal narrowing without significant neural impingement.
There is narrowing of the left exit neural foramen with neural impingement. The right exit neural foramen is minimally narrowed without significant neural impingement.[31]
[31] PCB 64.
27Dr Gorai made the following comment:
Comment:
The predominant abnormality is at C5-6 where a broad-based annular disc bulge and posterior osteophytes indent the thecal sac and cause mild central spinal canal narrowing. There is narrowing of both exit neural foraminae with left-sided neural impingement on the exiting C6 nerve root. This would account for patient’s symptoms.[32]
[32] Ibid.
28MRI of the lumbar spine on the same day was reported with the following relevant conclusions:
Conclusion:
Desiccated L5-S1 disc with left paracentral disc bulge/annulus tear and impingement on the traversing left S1 nerve roots.
Desiccated L4-5 disc with left foraminal annulus tear. No central canal stenosis.[33]
[33] PCB 63.
29On 19 April 2017, MRI of the cervical spine was reported with the following, relevant, conclusion:
C5-6:
There is mild loss of disc height and a moderate broad based posterior disc osteophyte complex. This just reaches the cord and is associated with mild buckling of the ligamentum flavum posteriorly. The changes are also associated with mild to moderate cord flattening at this level consistent with mild to moderate central canal stenosis. In addition, there is mild to moderate bilateral neural foramen stenosis secondary to uncovertebral spurring.[34]
[34] PCB 90.
30On the same day, MRI of the lumbar spine was reported as revealing at L5-S1:
L5-S1:
Moderate loss of disc height and signal consistent with disc desiccation. There is a mild diffuse disc bulge and a small associated left paracentral disc protrusion. The disc bulge and disc protrusion just impinge on the budding left S1 nerve roots and may produce mild impingement. In addition there is mild narrowing of the left L5 neural foramen and mild impingement of the exiting left L5 nerve roots secondary to foraminal component of the disc bulge. Right L5 neural foramen is normal.[35]
[35] PCB 91.
31On 12 March 2020, MRI of the spine was reported with the following relevant findings:
C5-6: Uncovertebral discophyte mildly impinges the cord without myelopathy. In conjunction with facet hypertrophy, there is bilateral foraminal narrowing impinging both C6 nerve roots.
…..
L5-S1: Moderate disc bulging is seen asymmetrically prominent to the left with moderate facet and flavum hypertrophy. Lateral recess narrowing on the left contacting the transiting left S1 nerve root without true impingement. Foraminal narrowing is seen on the left with minimal deformation of the left L5 nerve root.
Minimal degenerative change of the sacroiliac joints.[36]
[36] PCB 253-254.
Plaintiff’s medical and psychological treatment
32On 8 August 2008, the plaintiff was seen by Mr Brian Barrett, orthopaedic surgeon, in relation to back pain after a fall at McDonalds.[37] Mr Barrett took a history of the 2000 transport accident which resulted in some back pain which settled with intermittent flare-ups. Between 2001 and 2008, the plaintiff was off work but suffered intermitted lower back pain requiring physiotherapy, hydrotherapy and analgesia, without ongoing relief. Clinical examination of the plaintiff did not reveal any serious aggravation of his longstanding back problem in the fall. Mr Barrett viewed the CT scan of the LS taken in 2008 but disagreed with the report of that scan in that he felt that the plaintiff’s upper lumbar discs appeared quite normal and that any disc bulge at L5-S1 was small, close to but not necessarily impinging on the left S1 nerve root.
[37] DCB 118.
33Mr Barrett subsequently viewed the CT and MRI scans taken in 2005 with those taken in 2008. He considered that the disc bulge at L5-S1 was considerably larger in 2005 than it was in 2008 and that in 2008 the disc bulge no longer touched nor pushed the left L5 and S1 nerve roots as it had done in 2005.[38] Mr Barrett discussed these findings with the plaintiff and advised him that surgery was unlikely to help him, but that he should avoid heavy work so as to prevent aggravations to the disc ruptures.[39]
[38] DCB 120.
[39] DCB 121.
34According to the Ambulance Report dated 21 November 2015,[40] the plaintiff told attending members that he had been travelling at around 70-80 kph when his vehicle was struck on the front passenger guard by another vehicle. They observed minimal damage to both vehicles. The plaintiff complained to them of pain in the cervical spine, left shoulder, left hip and left lower leg. He demonstrated a full range of motion to all of his limbs.
[40] PCB 46-50.
35The tendered material includes a number of letters, certificates or referrals by Dr Woo in relation to the plaintiff written between January 2006 and May 2015.[41] In early 2006, Dr Woo stated that the plaintiff had been suffering severe back pain for the previous two years as a result of a transport accident in 2000 and could not wear a seatbelt[42]. There were attendances on 17 February 2006,[43] 3 June 2006,[44] 15 February 2007,[45] 31 July 2007,[46] 8 July 2008,[47] 18 February 2009,[48] 11 August 2009,[49] and 8 October 2009[50] in which the plaintiff complained of persistent low back pain which were attributed to the 2000 transport accident. The attendances on 11 August 2009,[51] and 8 October 2009,[52] involved complaints of depression which were aggravated by his back injury and which resulted in a referral to psychological counselling. There was a further referral to psychological counselling in 12 August 2013,[53] this time to Ms Dermaz. In the attendance on 29 May 2015, Dr Woo recorded that the plaintiff was experiencing chronic depression.[54]
[41] DCB 78-117.
[42] DCB 78.
[43] DCB 79-82.
[44] DCB 83-84.
[45] DCB 85-87.
[46] DCB 88-89.
[47] DCB 90-93.
[48] DCB 94.
[49] DCB 95-99.
[50] DCB 100-104.
[51] DCB 95-99.
[52] DCB 100-104.
[53] DCB 105-108.
[54] DCB 113-117.
36Dr Woo provided reports to the plaintiff’s solicitor on 12 November 2016,[55] 1 September 2017 and 6 April 2019[56] concerning the plaintiff’s attendances after the 2015 transport accident.
[55] PCB 59-68.
[56] PCB 88-92, 130-138.
37On 23 November 2015, the plaintiff complained to Dr Woo of “neck pain, back pain, left shoulder pain, pain the left side of his body….and anxiety”.[57] The next day he complained of a very sore neck with numbness and tingling around the back of his neck. He also complained of a recurrence of back pain, which had once been severe but had got better prior to the 2015 accident. He was prescribed pain killers and referred for investigations, and for specialist orthopaedic assessment, as well as to Ms Durmaz for psychological treatment On 5 December 2015, he complained, among other things, of back pain, persistent anxiety and when examined complained of moderate pain when moving his neck. There was a further complaint of lower back pain on 13 February 2016, and of persistent neck and shoulder pain on 1 and 11 April 2016. On 17 June 2016, he complained of severe lower back pain, and on 26 July 2016, he complained of the same neck pain.
[57] PCB 59.
38On 11 April 2017, he complained of moderate depression, weakness in his legs, and demonstrated mild pain on movement of his neck. He was sent for MRIs and also referred for psychological treatment. On 13 June 2017, he attended with neck and lower back pain and right leg pain and was prescribed a number of medications. On 1 September 2017, Dr Woo noted that his conditions had stabilised, but that he had experienced little improvement after seeing Dr Thomas. Dr Woo felt that his prognosis was poor.
39On 6 April 2019, Dr Woo reported that as a result of transport accidents in 2000, 2015 and 2017, the plaintiff had sustained a number of injuries in his neck, shoulders, wrists and his lower back. He was continuing to take Lyrica, Mersyndol Forte and Tramadol for his pain.[58] He was taking Cymbalta for depression and was being treated by psychiatrist, Dr Srirekha Vadasseri. He attended Dr Woo on 15 December 2018 complaining, relevantly, of severe pain in the neck, back and leg, and of extreme anxiety, insomnia, poor memory and depressed mood. On 17 February 2019, he complained of moderate to severe headache and neck pain. on 17 March 2019 his conditions remained the same.
[58] PCB 130.
40On 1 September 2020, Dr Woo reported to the TAC in relation to the 2017 transport accident, that he suffered, relevantly, cervical neural compression, lumbar disc bulge at L5-S1 with S1 nerve root compression, major depression, post-traumatic stress disorder, and psychosis.[59] He was receiving psychiatric and psychological treatment, taking anti-depressant medication as well as analgesic medication on a daily basis. He had been seen by a number of specialists in relation to his cervical and lumbar spine injuries, but was reluctant to have any surgery. Dr Woo considered that the plaintiff was permanently disabled on physical and psychological grounds and would need treatment indefinitely.
[59] PCB 161.
41Dr Thomas saw the plaintiff on 9 May 2017 (prior to the 2017 transport accident), in relation to the 2015 transport accident. The plaintiff gave a history of a minor back injury in 2005 from which he fully recovered. He complained to Dr Thomas of: “fairly diffuse and widespread pain complaints … in the left side of his neck, his inter-scapular region, his lower lumbar spine, his buttocks, his left leg all the way down to his foot, in his right leg from his knee to his ankle”, which was not relieved by lying down, and which were said to be at levels of between 7 and 9/10 at all times.[60] Dr Thomas thought that the plaintiff was suffering from a diffusive widespread pain syndrome, noting that “organic and non-organic components” contributed to this.[61]
[60] PCB 74.
[61] PCB 75.
42On 26 July 2017, Dr Thomas, provided a further report in which he confirmed his previous diagnosis.[62] He considered that the plaintiff’s injuries were consistent with the history given, that his work capacity had been affected, and that his prognosis was poor because there was no curative treatment for his “diffusive widespread pain syndrome”.[63] Dr Thomas did not consider it appropriate to refer the plaintiff for further pain management and rehabilitation.
[62] PCB 83-85.
[63] PCB 85.
43On 25 July 2017, Ms Durmaz reported to the plaintiff’s solicitors that, when she saw the plaintiff, he gave a history of a transport accident in 2015 in which he injured his back.[64] He told Ms Durmaz that he developed severe anxiety and depression following the 2015 transport accident. He also completed three months of a pain management program but was unable to do many of the exercises. He travelled to Turkey for three months in July 2016 in the hope that he would feel better. He told her he could no longer work due to his pain, and left his business to others. His neck and back pain interfered with his sleep and with his ability to drive. His anxiety also affected his driving. He felt useless at home and was no longer able to take his family out or help with shopping, gardening and housework. He had put on weight and was smoking much more heavily. Ms Durmaz felt that he presented as a person who was overwhelmed by the physical and psychological changes he had experienced since the 2015 transport accident. On assessment, Ms Durmaz concluded that he met the criteria for diagnosis of Major Depressive Disorder and Post-Traumatic Stress Disorder. Ms Durmaz treated the plaintiff with cognitive and behavioural interventions and felt he needed ongoing psychological treatment to manage his pain and other symptoms. She felt that he had no work capacity.
[64] PCB 76-82.
44In a further report dated 19 December 2018,[65] Ms Durmaz stated that the plaintiff continued to suffer from severe levels of depression, anxiety and trauma symptoms, with interference in his sleep. He struggled to complete his daily tasks and had to be reminded to take his medication. He remained withdrawn and socially isolated. He continued to receive intensive psychiatric and psychological treatment but his condition was resistant to treatment. His quality and enjoyment of life had drastically diminished and his mental functioning remained significantly impaired. She concluded that the plaintiff was permanently incapacitated for any work or for vocational training.
[65] PCB 115-118.
45On 19 April 2019, Ms Durmaz reported that the plaintiff complained of ongoing symptoms similar to those described in her previous report, that his sleep had worsened, and that his psychiatrist had increased his dose of antidepressant medication.[66] He told her he believed nothing would help him, that he had lost his identity, and that he would permanently suffer with pain and limitations. Ms Durmaz concluded that his psychological problems were persisting and were the result of his ongoing pain and functional limitations. He required ongoing psychological treatment to prevent further deterioration.
[66] PCB 139-144.
46On 30 October 2020, Ms Durmaz reported that the plaintiff continued to suffer treatment resistant depression.[67] It was difficult to motivate to undertake activities which would assist his physical and mental states. He continued to see his psychiatrist and was compliant with medication but his prognosis continued to be poor.
[67] PCB 173-174.
47Dr Abbott reported on 12 February 2018 that he saw the plaintiff for rehabilitation in relation to two transport accidents, one in 2005[68] and one in 2015, “with continuing back and neck pain subsequently”.[69] The plaintiff told him that in 2005 after a transport accident he had two prolapsed discs, was treated with physiotherapy, pain killers, acupuncture and chiropractic, and was unable to work for 2 years. He then opened his own cleaning business, and then worked in his daughter’s kebab shop, but did not do any heavy work. He was able to cease medication and manage his pain. There was a further exacerbation of pain in 2012. After the 2015 transport accident, the plaintiff told him that his car was a “a write-off after being struck on the left side”.[70] He suffered sharp back pain and was unable to move his neck, and was told that he had suffered a ruptured disc in the neck.
[68] I have taken this to be a reference to the 2000 transport accident.
[69] PCB 94-97.
[70] PCB 94.
48The plaintiff presented to Dr Abbott with low back pain radiating down the left side to his toes, with numbness in the left foot, but the major source of his pain was neck pain, especially at the base of the neck, which interfered with his sleep. He also complained that his ability to turn his neck was limited and was accompanied by clicking in his left shoulder with pain radiating down the arm to his fingers. On examination, Dr Abbott noted there were exaggerated pain responses, but limited cervical rotation and clearly significant hamstring tightness. He felt that the plaintiff’s presentation was “more in keeping with a chronic pain presentation than with specific localised nerve root impingement”,[71] and he referred the plaintiff to a chronic pain management programme. The plaintiff attended six sessions but was unhappy doing a physical programme and wanted passive treatment. Dr Abbott concluded that the programme would be unlikely to assist the plaintiff. He concluded that the onset of the plaintiff’s back pain was after the transport accident in 2005, but that he suffered a major exacerbation of his pain after the 2015 transport accident.
[71] PCB 95.
49Mr Cunningham saw the plaintiff on 21 January 2016.[72] Mr Cunningham noted a history of a previous transport accident in 2005,[73] with subsequent intermittent back pain which fluctuated in intensity. After the 2015 transport accident, the plaintiff reported that he was managed in a spinal brace for 3 weeks, that his back pain had deteriorated and that he had pain down his left arm into his thumb. Mr Cunningham noted the radiological findings at C5-6 and L5-S1 but was unable to conclude whether the lumbar disc bulge at L5-S1 was due to the 2015 transport accident. He felt that the arm symptoms and back symptoms were consistent with the radiological findings. He felt that the plaintiff might benefit from a rehabilitation program.
[72] PCB 55, 86-87.
[73] I have taken this to be a reference to the 2000 transport accident.
50Mr Timms saw the plaintiff in November 2018.[74] The plaintiff told Mr Timms that he had been involved in three transport accidents (2000, 2015 and 2017); that on each occasion his motor vehicle had been destroyed; that he injured his neck, shoulders, wrists, and lumbar spine; and that he had undergone wrist surgery. Since the 2017 transport accident, he suffered “marked exacerbation of neck pain, decreased range of movement, and symptoms in his arms of pain, weakness and numbness”.[75] He took analgesics and had physiotherapy but without improvement in his symptoms. He also reported pain across his lower back which limited his ability to sit, stand or walk. Mr Timms felt that the disc osteophyte at C5-6 was causing symptoms, and that the disc injury at L5-S1 was likely causing his lower back pain. He discussed surgical options (cervical decompression, discectomy and fusion) with the plaintiff. Other treatment options discussed included analgesia and physical therapies (physiotherapy, hydrotherapy and massage). Mr Timms considered that the plaintiff’s injuries were consistent with the history given of involvement in “a number of motor vehicle accidents”.[76]
[74] PCB 124.
[75] Ibid.
[76] PCB 125.
51On 1 November 2019, Dr Thomas noted that when he had seen the plaintiff in 2017, the plaintiff told him of the sequelae of two previous transport accidents.[77] At the consultation in October 2019, the plaintiff told him about the 2017 transport accident, which resulted in bilateral wrist problems. He presented with “diffuse and widespread pain” with levels of between 8 and 10/10 at times, for which he was taking medication.[78] He noted the MRI findings in relation to the LS and CS but concluded that the plaintiff was suffering from an ongoing chronic pain syndrome with “enough features to be considered fibromyalgic”.[79] He reassured the plaintiff by Telehealth in April 2020 that there was no surgical treatment available to him because his primary complaints were not radicular.[80]
[77] PCB 151.
[78] Ibid.
[79] PCB 152.
[80] PCB 159.
52Dr Srirekha Vadasseri, psychiatrist, treated the plaintiff from 29 January 2019, and reported on 29 March 2019 that the plaintiff told her of three transport accidents.[81] After the 2000 transport accident, he suffered back pain but over time this improved and he returned to work 15 to 20 hours per week. He stopped taking medications in 2013. After the 2015 transport accident, he suffered “disc problems in his neck and low back as well as damage to his shoulders and wrist”.[82] He also suffered flashbacks and nightmares daily about the accident. He was able to drive but unable to be a passenger. He had been depressed for the previous year. He had been seeing Ms Durmaz once per month since 2015. Dr Vadasseri diagnosed major depression with psychotic features, increased his antidepressant medication and commenced him on Minipress as well. Upon discovering she had treated the plaintiff’s wife, Dr Vadasseri referred the plaintiff to another psychiatrist.
[81] PCB 126-129.
[82] PCB 127.
53That psychiatrist was Dr Al Wahab, who commenced treating the plaintiff in June 2019.[83] Dr Al Wahab received a history from the plaintiff of a “serious” transport accident in 2000 which resulted in back pain from a ruptured disc.[84] He reported that after the 2015 transport accident he stayed in bed for two weeks and then wore a neck collar for three months. He reported a range of psychological symptoms, which Dr Al Wahab concluded were best described as PTSD with comorbid major depression and generalised anxiety disorder and the possibility of panic attacks.[85]
[83] PCB 153.
[84] PCB 147.
[85] PCB 148.
54On 7 September 2020, Dr Chi Lye Tang, general practitioner, provided a medical report in support of the grant to the plaintiff of a Disability Support Pension.[86] That reports notes a history of major depression since around 2015, psychotic and post-traumatic stress disorder symptoms since 2017, each requiring medication and treatment, disc pathology at C5-6 and L5-S1 resulting in chronic pain and interference with sleep, walking and the activities of daily living, which required medication, physiotherapy and injections to the spine.
[86] PCB 163-172.
Medico-legal reports
Psychiatric reports
55The plaintiff was assessed by Dr David Weissman, psychiatrist, on 19 September 2017 (shortly after the 2017 transport accident) in relation to the sequelae of the 2015 transport accident.[87] The plaintiff told him that he had injured four discs in his lower back and one disc in his neck in the 2015 transport accident. He said he had a pre-existing back problem but was “getting better” around 2012 and not taking any tablets.[88] He could not recall whether his earlier transport accident occurred in 2005 or 2008, but said that he had been off work for four or five years after it. He did not convey exactly how many hours he was able to work prior to the 2015 transport accident. “He denied a past psychiatric history”.[89] He complained that all of his body was “aching and clicking with muscle pulling” and that he had neck pain.[90] He was very upset that he was no longer able to play soccer in the park with his sons.
[87] PCB 179-194.
[88] PCB 182.
[89] PCB 185.
[90] PCB 183.
56Dr Weissman opined that the plaintiff had a pre-existing Chronic Pain Disorder, also known as Somatic Symptom Disorder, as well as at least some degree of premorbid psychological and emotional vulnerability.[91] He felt that there had been a moderate aggravation of this pre-existing condition. He also considered that his Chronic Pain Disorder had been complicated by the development of a mild to moderate chronic Adjustment Disorder with Depressed and Anxious Mood. He concluded that 12% of his whole person psychiatric impairment of 20% was secondary, reactive or consequential impairment.[92] He concluded that the plaintiff’s Chronic Pain Disorder “remains a more significant psychiatric problem for him than his depressive syndrome”.[93]
[91] PCB 189.
[92] PCB 194.
[93] PCB 190.
57In his subsequent report dated 24 April 2019, [94] Dr Weissman noted being advised of the 2017 transport accident, which had occurred prior to his last consultation with the plaintiff. He raised this with the plaintiff, who told him that after the 2017 transport accident he had pain “but not major pain”, and that his car had suffered major damage but was fixable.[95] He said he then had major pain in his hands. The plaintiff clarified that an earlier transport accident occurred in 2000 and not 2005 or 2008. The plaintiff said that prior to the 2015 transport accident he was working “nearly full-time” hours selling cars.[96] He complained of pain in his lower and middle back, neck, both hands, both shoulders, both feet and both knees. The plaintiff said he was no longer able to play soccer with his sons.
[94] PCB 195-210.
[95] PCB 199.
[96] PCB 198.
58Dr Weissman considered that on the history given of four or five years away from work after the 2000 transport accident, it seemed that the plaintiff found it very difficult to adjust to the sequelae of that accident, and found it equally difficult to cope after the 2015 and 2017 transport accidents. He noted that were “a number of inconsistencies and discrepancies in his account and presentation”.[97] He concluded that the 2015 transport accident was responsible for two-thirds of the plaintiff’s whole person psychiatric impairment, but that most of that two-thirds comprised a secondary response to physical injury.[98]
[97] PCB 210.
[98] Ibid.
59In a further report dated 10 June 2019,[99] Dr Weissman repeated his opinion, that the plaintiff did not have full-blown PTSD, nor a chronic Major Depressive Disorder. Rather, the plaintiff had: “an aggravation of a pre-existing Somatic Symptom Disorder with predominant pain, persistent, and a mild to moderate chronic Adjustment Disorder with Depressed and Anxious Mood”.[100]
[99] PCB 211-214.
[100] PCB 212.
60The plaintiff saw Assoc. Prof. Peter Doherty, consultant psychiatrist, on 1 February 2021.[101] Assoc. Prof. Doherty reported that the plaintiff told him that the 2015 transport accident caused a lot of pain and stress, and that the 2017 transport accident made everything worse and that he was “losing it”.[102] Assoc. Prof. Doherty opined that the plaintiff gave an exaggerated history of pain-related symptoms consequential to the 2015 transport accident and diagnosed a pain-related psychiatric condition and an adjustment disorder.
[101] DCB 60-72.
[102] DCB 63.
61The plaintiff saw Dr Albert Kaplan, psychiatrist, on 17 February 2021.[103] Dr Kaplan took a history of the 2000, 2015 and 2017 transport accidents. The plaintiff told him he suffered back pain after the 2000 transport accident, had visa problems which prevented him from working for four to five years, then worked in his wife’s cleaning business and his daughters cafeteria for three of four years while buying and selling cars on the side. He was unemployed and then bought a business in 2014 which commenced in 2015. He told Dr Kaplan that before the 2015 transport accident he was talkative, sociable and even tempered, and enjoyed fishing, bushwalking and picnics with his family as well as being active with his children. He said that “he was functioning effectively and was not suffering from anxiety and depression”.[104] Dr Kaplan noted in the documents provided to him that the plaintiff had been referred to a psychologist in August 2008, October 2014, May 2015, December 2015 and April 2017 for treatment of depression, anxiety and social problems. The plaintiff was unable to recall the details of those matters.
[103] PCB 227-234.
[104] PCB 232.
62The plaintiff told Dr Kaplan that after the 2015 transport accident he struggled running his business and only did administrative duties. He was anxious travelling by car and his business deteriorated. He became socially withdrawn, irritable, more anxious, and developed problems with his libido. Dr Kaplan diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood against a background of underlying pre-existing periods of depression and anxiety. He considered that the plaintiff’s condition would improve if he recovered from his physical injuries.
Reports of physicians and surgeons
63In a report dated 3 February 2020,[105] Mr Gary Speck, orthopaedic surgeon, opined that the plaintiff sustained soft tissue injuries to the neck and low back in the 2015 transport accident against a background of degenerative disease in those areas. He considered that the plaintiff had not sustained a serious aggravation of his long-standing back problem and that the injuries have now resolved. Mr Speck considered that the examination findings were consistent with a chronic pain syndrome.
[105] DCB 7-26.
64In a further report dated 8 February 2021,[106] Mr Speck considered that physical examination revealed a number of non-organic findings with non-dermatomal sensory change of the plaintiff’s right upper limb, giving way weakness in the limb and inconsistencies in movements of the shoulders when being specifically tested against observed movement. Mr Speck opined that the plaintiff sustained soft tissue injuries in the subject transport accident and that the plaintiff presented with chronic pain syndrome without identifiable specific structural injury.
[106] DCB 27-49.
65In a report dated 28 January 2021,[107] Dr Michael Baynes, occupational physician, opined that the plaintiff suffers from a chronic pain syndrome associated with chronic neck pain along with lower back pain with referred symptoms into the legs. The plaintiff told him that he had ceased all treatment in 2014 in relation to the 2000 transport accident. In a further report dated 1 March 2021,[108] Dr Baynes considered that the plaintiff would be fit to work in a range of occupations.
[107] DCB 50-57.
[108] DCB 58-59.
66The plaintiff saw Mr Mohammed Awad, neurosurgeon and spinal surgeon, on 22 January 2021.[109] Mr Awad was aware of the 2000, 2015, and 2017 transport accidents. Mr Awad opined that the plaintiff presented with an aggravation of cervical, thoracic and lumbar spondylosis, chronic pain syndrome, and depression and anxiety. Mr Awad considered that it was mostly likely that the 2015 transport accident had been a dominant contributing factor to the aggravation of cervical, thoracic and lumbar spondylosis and in turn the dominant contributing factor to the plaintiff’s ongoing pain, disability and requirement for treatment.
[109] PCB 215-226.
67In his supplementary report dated 29 April 2021,[110] Mr Awad commented on the MRI report of the CS dated 23 November 2015. Mr Awad considered that most of the findings on the MRI were likely to have been present prior to the 2015 transport accident, but that the 2015 transport accident “may have worsened them only by a small degree, enough to make the patient now symptomatic and require treatment”.[111] He noted that it was very likely that the 2015 transport accident “has increased the disc bulge only by a mm or so”,[112] and that it made him a candidate for the surgery offered to him by his treating specialist.
[110] PCB 255-256.
[111] PCB 255.
[112] PCB 256.
Legal principles
68With very few exceptions, serious injury litigation in this Court has for many years been conducted – and adjudicated – on the basis that the spine is a single body function and that impairments of the CS and the LS can be aggregated for the purposes of paragraph (a) of the definition of serious injury.[113] The Court of Appeal in Zepic did not see fit to change the settled law on this question, and indicated that any change in the law would have to be made by Parliament.[114]
[113] TAC v Zepic [2013] VSCA 232 (‘Zepic’) [136].
[114] Ibid [139].
69Medical opinions based on reports by plaintiffs about their symptoms may be of considerably reduced weight if the plaintiff is shown to be an inaccurate historian, or prone to exaggeration. However, despite the importance of credibility, care must not be taken to disregard medical evidence merely due to concerns about the plaintiff’s credibility. The case must be decided on the whole of the evidence, including the objective evidence of diagnostic tests which are unaffected by the plaintiff’s credit.[115]
[115] Markovski v Woolworths Limited (2015) VCC 1866 [198].
70The plaintiff bears the onus to:
·identify the physical injuries and psychiatric injury sustained in the 2015 transport accident and the permanent impairment attributable to those injuries;
·identify the consequences attributable to those impairments,[116] (which will relate to pecuniary disadvantage and/or pain and suffering);[117] and
·establish that those consequences were “at least …very considerable and certainly more than significant or marked”;[118] or, in the case of the claimed psychiatric injury, “severe”,[119] by comparison to the range or spectrum of comparable cases.[120]
[116] Peak Engineering & Anor v McKenzie [2014] VSCA 67 [24]-[25].
[117] Humphries v Poljak (1992) 2 VR 139, 140.
[118] Ibid.
[119] Mobilio v Balliotis [1998] 3 VR 833.
[120] TAC v Katanas [2017] HCA 32 [25].
71The psychological sequelae of an organic impairment may be taken into account in determining the seriousness of an impairment or loss of body function that is held to fall within sub-paragraph (a) of the definition of serious injury under the Act.[121]
[121] TAC v Kamel [2011] VSCA 110 [65]-[66].
Findings and reasons
72Taken at its highest, the plaintiff’s case under sub-paragraph (a) of the definition of serious injury is that the 2015 transport accident caused an aggravation of pre-existing and symptomatic symptoms in the LS and the onset of symptoms in the CS which have become permanent, together with an associated chronic Adjustment disorder with depressed and anxious mood. In the alternative, he says, under sub-paragraph (c) of the definition of serious injury, that he has suffered a chronic pain syndrome or somatic symptom disorder as a result of the 2015 transport accident. In each case, the plaintiff submits, the pain and suffering consequences of his impairment meet the relevant narrative test for serious injury.
73The Court’s effort to determine the extent to which the 2015 transport accident caused or aggravated pre-existing injuries to the LS and the CS, or psychiatric injury, is made more difficult by the following concessions made by the plaintiff in cross-examination:
· he stopped work after the 2000 transport accident due to back problems;[122]
· the same back problems continued to prevent him working in 2005; and meant that in 2006 he could not wear a seatbelt;[123]
· in 2009, he was still receiving certification for total unfitness for work; and by late 2014 that certification resumed, due to his back problem, chronic depression and the tiredness from his medications;[124]
· he was suffering from significant problems relating to his back and psychiatric injury prior to the 2015 transport accident;[125]
· he was taking a variety of medications prior to the 2015 transport accident for his pre-existing conditions (Celebrex, Mersyndol Forte, Endone, Tramadol, Norspan patches, Cymbalta and Temazepam);[126]
· the injuries he referred to in his first serious injury affidavit were sustained as a result of both the 2015 and the 2017 transport accident; and
· in essence, the plaintiff has been a recipient of social security benefits since 2000.
[122] T13.28-14.3.
[123] T48.6-8.
[124] T56.8-9; T37.24-38.4.
[125] T17.22-23; T.37.24 – T.38.4.
[126] T. 50.1-9, 15-18, 21-23.
74Importantly, the plaintiff gave contradictory evidence about his social activities with family and friends after the 2015 transport accident. In his first affidavit, he deposed to being socially withdrawn and to having a restricted recreational life. In his further affidavit, he deposed to continuing to attend dinners “for a period of time as it was required for my business”.[127] In his second further affidavit, he said he tried to continue living as full a life as possible in terms of going out with his family, including out to dinner, but that it became increasingly difficult and he does very little now. The Facebook Summary of the plaintiff’s social activities during each month in 2016 and 2017, which was prepared by the defendant, reveals attendances at weddings, restaurants, birthday celebrations, family excursions, trips to Turkey, Sydney and Mt Buller.
[127] PCB 28.
75Of most concern, in terms of determining the before-and-after the 2015 transport accident picture of the plaintiff’s LS, CS and psychiatric conditions, is the vague, inconsistent or inaccurate histories given by the plaintiff to many of his treating and assessing specialists. Several doctors received a history of no past medical history of any organic or psychiatric injury.[128] A number of doctors did not receive a history of the 2017 transport accident.[129] A number of doctors received a history that he first injured his back in 2005, rather than 2000, either in a car accident or a work accident.[130] He told a number of doctors that his car was destroyed or written off in the 2015 transport accident;[131] whereas the picture of the damaged car reveals a slightly indented left side panel around the left front wheel.[132]
[128] PCB 29, 147; DCB 66, 77.
[129] PCB 147, 176, 182.
[130] PCB 55, 74, 77.
[131] PCB 86, 94, 124, 197.
[132] PCB 41.
76Importantly, in this context, is that the plaintiff appears to have minimised the seriousness of his pre-existing back condition to a number of specialists. He told Assoc. Prof. Doherty that he was 100% well prior to the 2015 transport accident.[133] He told Mr Thomas that, in May 2017, he made a full recovery from that pre-existing injury. He told Mr Barrett that he was off work between 2001 and 2008 but had intermittent back pain.[134] He told other doctors that he had ceased taking analgesics in 2012,[135] or in 2014.[136] He told Dr Vadesseri that, after the 2000 transport accident, he returned to work 15-20 hours per week.
[133] PCB 66.
[134] DCB 118.
[135] PCB 182, 185.
[136] DCB 53.
77In fact, the plaintiff was certified totally incapacitated for all employment between 2006 and early October 2009 on the basis of back pain caused by his L5/S1 disc prolapse and then again from early October 2009 till early January 2010 and from late October 2014 till early January 2015 on the basis of his back pain as well as depression and fatigue caused by his medications.[137] Indeed the evidence from the plaintiff is to the effect that he has not worked at all for 20 years, apart from a taxation return in 2012 showing a modest income from times he assisted at his daughter’s kebab shop,[138] at times selling cars,[139] and for a period between 2015 and 2018, attempting to run a business detailing new cars.[140] The inconsistent histories given to many treating and assessing doctors undermines the weight to be given to their opinions about these matters. This makes it more difficult to determine the extent by which the 2015 transport accident exacerbated the pain and suffering aspects of his pre-existing, and longstanding, LS and psychiatric conditions.
[137] DCB 164-178.
[138] T12.24-T13-1.
[139] T15.16-28.
[140] T23.15-18; T52.22-27.
78Overall, having regard to the above matters, I found the plaintiff, at the very least, to be an unreliable historian and witness. Having considered the evidence as a whole, I have reached the following conclusions.
Application under sub-paragraph (a) of the definition of serious injury
79I prefer the neurosurgical opinions of Mr Timms and Mr Awad to that of Mr Speck and find that, as a result of the 2015 transport accident, the plaintiff suffered an aggravation of cervical and lumbar spondylosis. I made this finding leaving aside any functional or non-organic aspects of his presentation, as it is clear on the evidence (of Mr Award, Dr Baynes, Dr Thomas, Mr Speck and Dr Abbott) that the plaintiff suffers from a chronic pain syndrome. To the extent that the complaints of back and neck pain flowing from the 2015 transport accident are functional or non-organic, they fall to be considered under sub-paragraph (c) of the definition of serious injury.
80In the case of the LS, the extent of any aggravation has to be considered in the context of the plaintiff having considerable symptoms prior to November 2015, and having been certified unfit for all employment on the basis of that LS impairment, between February 2006 and October 2009, and (with the addition of psychiatric grounds) between October 2009 and January 2010 as well as between October 2014 and January 2015.
81In the case of the CS, I accept that there may have been few complaints of neck pain to Dr Woo prior to November 2015. However, I note that Mr Timms took a history that the plaintiff injured his neck in each of his transport accidents and that he has had a marked exacerbation of neck pain following the 2017 transport accident.[141] Dr Woo echoed this assessment. Moreover, Mr Awad considered that the disc bulge at C5-6 would have been present prior to 2015, and the 2015 transport accident “may have worsened them only by a small degree”.[142] In
[141] PCB 124.
[142] PCB 255.
82Nonetheless, I accept on the evidence that the aggravation of lumbar and cervical spondylosis caused by the 2015 transport accident had some impact on the plaintiff’s wellbeing, pain levels and domestic and recreational activities, and also contributed to his suffering a chronic adjustment disorder (diagnosed by Assoc. Prof. Doherty, Dr Weissman and Dr Kaplan).
83However, in the light of the unreliability of the plaintiff and the matters raised above at paragraphs 72-78, I am unable to be satisfied on the balance of probabilities that the pain and suffering consequences of the plaintiff’s LS and CS impairments (flowing from the 2015 transport accident alone), taken together with the adjustment disorder (flowing from the 2015 transport accident alone), are more than considerable when compared with other cases in the range of permanent impairments of the spine.
84For this reason, the plaintiff’s claim under sub-paragraph (a) of the definition of serious injury fails.
Application under sub-paragraph (c) of the definition of serious injury
85The plaintiff relies on the diagnosis of chronic pain disorder or somatic symptom disorder made by Dr Weissman, Dr Abbott, Dr Thomas, Mr Speck, Mr Awad, and Assoc. Prof. Doherty.
86I note that the plaintiff’s treating practitioners: Ms Durmaz, Dr Vadesseri and Dr Al Wahab, did not diagnose this condition, but rather that each of them diagnosed major depressive disorder.
87In any event, none of the experts appears to have had a full history of the plaintiff’s pre-existing psychiatric history of depression and anxiety from 2005, the extent of treatment or medication received for that condition, nor that from late 2009 to early 2010, and then again from early 2014, he was being certified as totally unfit for employment on the basis, inter alia, of his depression.
88The unreliability of the plaintiff as an historian reduces the value of the opinions provided by each of them. This makes it difficult, if not impossible, to assess the extent of any aggravation of a pre-existing psychological condition caused by the 2015 transport accident. This difficulty is compounded by the fact that the evidence does not show a great deal of change in the plaintiff’s lifestyle and activities before and after the 2015 transport accident, as noted above at paragraphs 10 to 20.
89Doing the best I can on the material before me, I consider that Dr Weissman’s opinion most closely captures the reality of the situation, namely, that the plaintiff found it very difficult psychologically to adjust to the sequelae of each of the transport accidents in 2000, 2015, and 2017. However, there is very little in the psychiatric evidence or the other evidence to paint a picture of the plaintiff before and after the 2015 transport accident.
90Whilst I am satisfied that as a result of the 2015 transport accident the plaintiff suffered an aggravation of his pre-existing chronic pain disorder, or somatic symptom disorder, I am simply unable to be satisfied on the material before me that the pain and suffering consequences of this aggravation meet the narrative test for serious injury. The plaintiff’s claim under sub-paragraph (c) fails.
Conclusion
91The plaintiff’s application is dismissed.
92I reserve the question of costs.
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