Dalikouras v Transport Accident Commission
[2017] VCC 648
•26 May 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CI-16-01224
| SOPHIA DALIKOURAS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 May 2017 | |
DATE OF JUDGMENT: | 26 May 2017 | |
CASE MAY BE CITED AS: | Dalikouras v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 648 | |
REASONS FOR JUDGMENT
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Subject TRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to the lumbar spine – causation – whether injury was an aggravation to a pre-existing lumbar spine condition – failure to disclose pre-existing lower back condition to medico-legal doctors
Legislation Cited: Transport Accident Act 1986
Cases Cited: Philippiadis v Transport Accident Act [2016] VSCA 1
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC with Ms E Tueno | Zaparas Lawyers |
| For the Defendant | Mr P Elliott QC with Mr J Frederico | Transport Accident Commission |
HER HONOUR:
Preliminary
1 Mrs Dalikouras is a 63 year old lady who was injured in a transport accident on 15 July 2013, whilst a passenger in the back seat of a car. Mrs Dalikouras claims that as a consequence of this accident she has suffered a serious injury to her lower back.
2 In order for Mrs Dalikouras to be entitled to claim common law damages, the impairment of her lower back must satisfy paragraph (a) of the definition of “serious injury” contained in s93(17) of the Transport Accident Act 1986.
3 The Transport Accident Commission (“the TAC”) accepts that the accident occurred, but claims that Mrs Dalikouras had longstanding prior back problems, such that it disputes her lower back injury was caused by the transport accident. In the alternative, the TAC contends that, if Mrs Dalikouras did suffer a lower back injury in this accident, the consequences to her cannot be described as at least very considerable.
4 Only Mrs Dalikouras was called to give evidence and she was cross-examined. Also in evidence were medical reports and other material, including an affidavit from her closest friend. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this Judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my Judgment.
5 It is apparent to me that Mrs Dalikouras has suffered greatly, both physically and emotionally, as a consequence of a multitude of misfortunes and health events in her life. However, my sympathy for her predicament cannot be the basis of a favourable determination in this application. For reasons that I will explain below, I am not satisfied that the transport accident caused Mrs Dalikouras to suffer a permanent injury in her lower back. As such, her application must be dismissed.
Relevant background
6 Mrs Dalikouras was born in Florina, Greece in March 1954. She attended primary school, before leaving to help her mother at home.
7 In 1975, Mrs Dalikouras migrated to Australia, where she initially worked in a carpet factory for two years. In 1976 she married her husband and, in 1977, she gave birth to her first child, a son. The following year she gave birth to her first daughter.
8 From approximately 1979 to 1981, Mrs Dalikouras was employed as a process worker in a factory. She ceased such work when the factory closed down.
9 In December 1981, Mrs Dalikouras gave birth to her second daughter, Vicki, who sadly, was born with severe intellectual disabilities. Vicki has required extensive care from her mother since that time.
10 In 1993, Mrs Dalikouras’ husband was diagnosed with schizophrenia. His mental health has remained very poor since that time, such that Mrs Dalikouras has cared for him as well as her daughter, Vicki.
11 In the late 1980s, Mrs Dalikouras was again employed as a process worker. However, she ceased such work after suffering an injury to her shoulders and wrist. Mrs Dalikouras has not worked in paid employment since that time.
12 In approximately 1994, Mrs Dalikouras first experienced some lower back and left buttock pain. On 12 April 1994, an x‑ray was taken of Mrs Dalikouras’ lumbar spine, which was reported as normal.
13 In the late 1990s, Mrs Dalikouras was diagnosed with osteoporosis. On 4 April 2000, an x‑ray was taken of Mrs Dalikouras’ lumbosacral spine, which again was reported as normal.
14 On 23 March 2004, Mrs Dalikouras underwent a bone densitometry test, at which time she was diagnosed as suffering osteopenia in her lumbar spine and hip.
15 On 5 March 2008, Mrs Dalikouras was referred by her general practitioner, Dr Jim Romas, at the Rochdale Medical Centre, to Lawn Street Osteopath for assessment and management of “chronic back pain”. At that time, it was noted that she had been prescribed medications including Nexium and Panamax.
16 On 12 May 2010, Mrs Dalikouras underwent a sensory nerve conduction study which investigated the possible cause of her left foot paraesthesia. The findings raised the possibility of low grade S1 radiculopathy.
17 On 4 June 2010, a CT scan was taken of Mrs Dalikouras’ lumbar spine. It reported that the L4-5 and L5-S1 discs showed mild diffuse disc bulges consistent with mild degenerative disc disease. No disc herniation, canal stenosis or nerve root compression was observed.
18 On 14 October 2010, Dr Romas referred Mrs Dalikouras to Back In Motion for physiotherapy treatment of “back pain”. The general practitioner management plan, prepared at the time of the referral, noted that Mrs Dalikouras was suffering from “chronic back pain”. The purpose of the referral was to assist Mrs Dalikouras to relieve her pain, to remain independent and to regain strength, range of movement, function and mobility.
19 On 21 August 2012, an x-ray was taken of Mrs Dalikouras’ thoracic and lumbar spine to exclude osteoporotic compression fractures.
20 In late December 2012, whilst lifting Vicki out of the bath, Mrs Dalikouras felt something click in her back. She said that after about 40 minutes, she felt a sharp stabbing pain in her lower back. Mrs Dalikouras said that by the following day, she also felt pain down her left leg and into her hip. She said the pain persisted for approximately one month and that she took up to four Panadeine a day, whilst also using a heat pack on her lower back every night.
21 On 9 January 2013, her lower back pain worsened to the extent that Mrs Dalikouras consulted Dr Romas the following day. At that time, Mrs Dalikouras reported that she was having difficulties getting dressed and putting weight on her left foot. Dr Romas referred Mrs Dalikouras to the Northern Hospital for an emergency review. In his letter of referral, Dr Romas stated that she had suffered lower back pain and left hip pain for the last month and that it was “severe+++”, and had worsened in the last 24 hours. It was noted that she had paraesthesia in the left lateral upper thigh and leg. Dr Romas was concerned that Mrs Dalikouras was suffering from severe sciatica. At that time, Dr Romas was also concerned by the presence of left arm pain, and considered that Mrs Dalikouras may have suffered a possible cervical prolapse.
22 Mrs Dalikouras remained an inpatient at the Northern Hospital overnight. An x‑ray was taken of her lumbar spine, but no fracture was identified and it was reported as normal. She was discharged with Panadeine Forte.
23 Mrs Dalikouras was then referred by Dr Romas to Fawkner Spinal Care and Rehabilitation, where she received chiropractic treatment from Dr Samantha Elia, once a week for about two months. She also received dry needling on her lower back and leg. Mrs Dalikouras said that she was not assisted by the dry needling, but felt the massage therapy had helped to reduce her pain.
24 In an undated letter from Dr Elia to Dr Romas (received by Dr Romas’ clinic on 22 March 2013), Dr Elia stated that Mrs Dalikouras had experienced significant improvement from the treatment. In addition to chiropractic therapy, dry needling and massage therapy, Dr Elia provided Mrs Dalikouras with stretching exercises to complete at home, as well as information pertaining to the avoidance of aggravating activities such as bending and lifting, and the importance of maintaining a correct posture, and seated and sleeping positions.
25 Mrs Dalikouras said that from mid to late March 2013, she “no longer suffered any pain to her back and leg” and that she remained in such a state until the transport accident on 15 July 2013.
26 In addition to these pre-existing lower back symptoms, the plaintiff also suffered from several co-morbidities unrelated to this claim. These medical conditions included Type 2 Diabetes, gastrointestinal problems, high cholesterol, right Carpal Tunnel Syndrome, vitamin D deficiency and a full thickness tear to the right supraspinatus.
27 Prior to the transport accident, Mrs Dalikouras was the primary carer of both Vicki and her husband, and was in receipt of a carer’s pension. She said that she is assisted by a specialist carer who comes to look after Vicki two days per week, in order to provide her with some respite.
The accident and its consequences to Mrs Dalikouras
28 The transport accident occurred on 15 July 2013. At that time, Mrs Dalikouras was in the back seat of a car being driven by Vicki’s carer. They had visited a coffee shop in Oakleigh and were returning home to Thomastown.
29 After the accident, Mrs Dalikouras was taken by ambulance to the Alfred Hospital, where it was noted she complained of sternal pain. An x‑ray was taken, which indicated she had suffered an undisplaced fracture in the sternum. It was also noted that she had suffered soft tissue injury to the anterior abdominal wall. There was otherwise no evidence of traumatic injury.
30 After only two days, Mrs Dalikouras discharged herself from hospital, as she was concerned to return home to care for Vicki.
31 On 19 July 2013, however, Mrs Dalikouras suffered pain in her chest and had difficulty breathing. She was taken to the Northern Hospital where she was admitted for chest pain and shortness of breath, secondary to the recent transport accident.
32 On 23 July 2013, Mrs Dalikouras was discharged from the Northern Hospital, at which time it was noted that her pain had resolved. It was recommended that she be reviewed by the Cardiology Department.
33 In her first affidavit, Mrs Dalikouras claimed that on 29 July 2013, she consulted Dr Romas and complained of pain in her “chest, right shoulder, lower back and left hip”.
34 However, in his clinical notes, Dr Romas referred to Mrs Dalikouras suffering left lower rib discomfort, associated with undisplaced fractures on the seventh, eighth and ninth ribs. He stated that she suffered from multiple regions of pain, and issued her a prescription for Celebrex.
35 Mrs Dalikouras continued to see Dr Romas on numerous occasions from August 2013 until 18 February 2014. On such occasions, he recorded complaints of right shoulder pain, chest pain, headaches, dizziness, poor sleep, lower neck pain and anxiousness. However, there is no reference to a complaint of lower back pain in any of the medical attendances. In August 2013, Dr Romas requested home help from the TAC, as Mrs Dalikouras had suffered “fractured ribs and chest wall injuries”. Further, in October 2013, Dr Romas referred Mrs Dalikouras for physiotherapy in relation to right shoulder pain.
36 The first clinical record in which Mrs Dalikouras is reported as suffering from lower back pain, after the transport accident, is an attendance note of Dr Romas dated 17 February 2014. In this record, Dr Romas noted that Mrs Dalikouras was continuing to complain of chest pain, lower neck pain and left shoulder pain, as well as pain in her lower back. His record stated that she experienced lower back discomfort and that the pain had been increasing.
37 On 20 February 2014, a CT scan was taken of Mrs Dalikouras’ lumbar spine, which demonstrated “mild L4/5 spinal canal and left-right exit neuroforaminal narrowing bordering on stenosis”.
38 In April 2014, Dr Romas referred Mrs Dalikouras to rheumatologist, Dr Mundae, in respect of her ongoing chest pain, lower neck pain, left shoulder pain and lower back pain. Mrs Dalikouras believed she only saw Dr Mundae on one occasion, and no report was tendered.
39 Mrs Dalikouras continues to consult Dr Romas at least once a month, at which time he provides prescriptions for her diabetes, cholesterol and osteoporosis medication. Mrs Dalikouras said she also receives prescriptions for Panamax and Panadol Osteo, as they are available at a cheaper price from the pharmacist with a prescription.
40 Mrs Dalikouras said that she takes two tablets of Panamax and two tablets of Panadol Osteo, every morning and every night.
41 Mrs Dalikouras also received massage therapy about once a fortnight from Mr Harry Turnas in Fawkner.
42 Mrs Dalikouras said that her pain is worse in her lower back, and that it is a piercing pain that is always present. She moves around her house and does stretching exercises during the day, which can help to alleviate her pain. Mrs Dalikouras said that she is able to walk for about 30 minutes, before she then needs to sit down and rest.
43 Mrs Dalikouras said that she has trouble sleeping because of her back pain, and also because Vicki cries out during the night.
44 Mrs Dalikouras also suffers some pain in her neck, but said it has improved over the last year.
45 Additionally, Mrs Dalikouras suffers from dizziness, which she does not attribute to the transport accident.
46 Mrs Dalikouras continues to care for her daughter and husband, although she now has help from her husband in relation to domestic tasks around the home. She said that although she is still able to cook and vacuum, her husband now does most of the cooking, and is also happy to do the vacuuming.
47 Mrs Dalikouras said that she has travelled to Greece on one occasion since the transport accident. She went with Vicki to visit her sisters and her eldest daughter, who lives in Greece.
Medico-legal evidence
48 Mrs Dalikouras’ solicitors arranged for her to be examined by orthopaedic surgeon, Mr Charles Flanc, in March 2015. In his report dated 27 March 2015, Mr Flanc considered the July 2013 accident had probably aggravated a pre-existing degenerative condition, and noted that her symptoms were consistent with a persisting aggravation.
49 Mr Flanc reported that Mrs Dalikouras informed him she had not suffered from any lower back pain prior to the transport accident. When asked about this in cross-examination, Mrs Dalikouras denied providing such a history. I note that Mr Flanc obtained a history from Mrs Dalikouras that she suffered from Type 2 Diabetes and gastrointestinal problems, and that she had previously been admitted to hospital for chest pain. Given the detail with which Mr Flanc recorded her unrelated health problems, I consider it likely that Mrs Dalikouras told him that she had not previously suffered any lower back pain.
50 Mr Flanc was aware of the contents of the Northern Hospital records from January 2013, and suggested that it was important to consider how Mrs Dalikouras recovered after that hospital admission. Despite this suggestion, Mr Flanc was not asked to provide a further opinion in this matter.
51 Mrs Dalikouras’ solicitors also arranged for her to be examined by neurosurgeon, Mr David Brownbill, in April 2015 and April 2017. In his first report dated 2 April 2015, Mr Brownbill stated that Mrs Dalikouras had denied suffering from any past neck or back injury or pain. In cross-examination, Mrs Dalikouras denied having ever said that, and alleged that Mr Brownbill had not asked her about any prior injuries or pain. I note, however, that within the same paragraph, Mr Brownbill detailed that Mrs Dalikouras had previously undergone an appendectomy and cholecystectomy, and that she had received treatment for depression and trigeminal neuralgia. In such circumstances, I do not accept Mrs Dalikouras’ evidence that Mr Brownbill did not specifically ask her about prior back pain.
52 Mr Brownbill was of the opinion that as a consequence of the transport accident, Mrs Dalikouras had probably “sustained L4-5 level intervertebral disc derangement, on probability based on pre-existing asymptomatic lumbar spine degenerative changes.”
53 In his most recent report dated 26 April 2017, Mr Brownbill acknowledged the medico-legal report of Dr Gerard Powell, dated 13 April 2017, but maintained that it was his understanding that Mrs Dalikouras had not suffered any previous back pain prior to the transport accident.
54 Mrs Dalikouras’ solicitors also arranged for her to be examined by orthopaedic surgeon, Mr Thomas Kossmann, in April 2015 and December 2016. Mr Kossmann does not refer to Mrs Dalikouras suffering any prior lower back pain in either report. He diagnosed Mrs Dalikouras as suffering discogenic and mechanical pain in her lumbar spine with an L4-5 broad based disc bulge. Mr Kossmann noted that prior to the accident, the degenerative changes in Ms Dalikouras’ lumbar spine were asymptomatic, such that he considered her current injury to be related to the transport accident.
55 The TAC arranged for Mrs Dalikouras to be examined by orthopaedic surgeon, Dr Gerard Powell, in April 2017. In his report dated 13 April 2017, Dr Powell noted that Mrs Dalikouras had “emphatically” denied suffering any back pain prior to the transport accident. In cross-examination, however, Mrs Dalikouras refused to acknowledge that she had made any such denial. I consider it highly unlikely that Dr Powell would have described Ms Dalikouras as “emphatically” denying that she had suffered any previous pain, if Mrs Dalikouras had made no denial at all. In these circumstances, I do not accept Ms Dalikouras’ evidence that she made no denial to Mr Powell.
56 The medical records provided to Dr Powell included Mrs Dalikouras’ admission to the Northern Hospital in January 2013. Dr Powell was of the opinion that Mrs Dalikouras’ current medical condition is a continuation of the pre-existing degenerative changes in her lumbar spine. Dr Powell noted that there was “ample evidence” of pre-existing degenerative lumbar spondylosis, and stated that the natural history of such a degenerative condition is for ongoing complaint.
57 Dr Powell noted that Mrs Dalikouras’ first recorded complaint of lower back pain after the transport accident was in February 2014. Dr Powell was of the opinion that such symptoms were unrelated to the transport accident, and instead, thought they represented a continuation of the lower back pain Mrs Dalikouras had suffered prior to the accident.
The plaintiff’s reliability
58 I am satisfied that, prior to the transport accident, Mrs Dalikouras suffered intermittent, but at times significant, lower back pain, for which she had, on occasions, required painkillers and physiotherapy. In June 2010, a CT scan demonstrated mild disc bulges at L4-5 and L5-S1.
59 Six months prior to the transport accident, Mrs Dalikouras’ lower back pain was so severe that she was admitted to the Northern Hospital overnight. She thereafter required chiropractic treatment, including dry needling.
60 In her first affidavit, Mrs Dalikouras simply stated that she had “occasional low back pain” since 1994.
61 It was not until she swore her third affidavit, two days prior to the hearing of this matter, that she detailed the incident in which she hurt her lower back in December 2012, together with her admission to hospital for severe lower back pain in January 2013.
62 Mrs Dalikouras could offer no explanation as to the lack of detail in her affidavits regarding her pre-existing lower back pain.
63 Mrs Dalikouras was cross-examined as to the histories she provided to Mr Flanc, Mr Brownbill, Mr Kossmann and Dr Powell. Whilst she denied having told those doctors that she had not previously suffered any lower back pain, I do not, for the reasons explained above, accept this evidence.
64 I am therefore satisfied that Mrs Dalikouras gave incomplete histories to Mr Flanc, Mr Brownbill, Mr Kossmann, and Dr Powell, in relation to her pre-existing lower back pain.
65 I am also satisfied that she did not adequately detail the extent of this pre-existing lower back pain in her affidavits. Irrespective of whether these omissions were intentional, or were simply as a result of poor memory, Mrs Dalikouras’ failure to adequately detail her pre-existing lower back pain in her affidavits, together with her failure to inform the medico-legal doctors, is such that I have significant reservations as to her reliability.
66 My reservations as to Mrs Dalikouras’ reliability also extend to her evidence in relation to lower back pain immediately following the transport accident. I note that there was no recorded complaint in her medical records until February 2014.
67 The Court of Appeal in Philippiadis v Transport Accident Commission[1] warned that care ought to be taken when relying upon records of medical practitioners, as such records usually contain a selective summary in the doctor’s own words. However, it was also recognised that:
“very often clinical notes constitute highly probative evidence because they are independent and contemporaneous and deal with matters within the author’s area of expertise.”[2]
[1][2016] VSCA 1
[2]Ibid at [105]
68 Although Mrs Dalikouras claimed that she suffered lower back pain from the moment she got out of the car following the transport accident, I note that there was no recorded complaint of lower back pain in the hospital records.
69 I also note that Mrs Dalikouras attended Dr Romas on several occasions, and that he took quite detailed notes of each such attendance. I consider it significant, however, that his records made no mention of lower back pain until 22 February 2014. I also consider it significant that, when Mrs Dalikouras required home help in August 2013, due to fractured ribs and chest wall injuries, that Dr Romas made no reference to her lower back pain. I note that she was also referred for physiotherapy in October 2013, for right shoulder pain. Had Mrs Dalikouras suffered lower back pain immediately following the accident, as she claimed, I would reasonably expect Dr Romas to have recorded such pain in his notes and, if bad enough, to have mentioned it in her physiotherapy referral.
70 I therefore consider Mrs Dalikouras’ memory to be unreliable in relation to the presence of lower back pain immediately after the transport accident, and I am not satisfied that she has suffered lower back pain since the transport accident.
Did Mrs Dalikouras suffer an aggravation to her pre-existing lower back injury in the transport accident?
71 Each of the medico-legal doctors diagnose Mrs Dalikouras as suffering degenerative changes in her lumbar spine. For Mrs Dalikouras to succeed in her claim, I must be satisfied that the transport accident caused an aggravation of those degenerative changes, and that such aggravation persists. If I am so satisfied, I must then be satisfied that the consequences of the additional impairment arising from the aggravation can be described as at least very considerable.
72 Mrs Dalikouras’ close friend, Mrs Dimitrou, provided an affidavit in support of her claim. However, as Mrs Dimitrou’s affidavit does not refer specifically to her lower back pain, it is of no assistance in determining the state of Ms Dalikouras’ back pain prior to the transport accident, or the time at which she first suffered symptoms in her back following the transport accident.
73 Dr Romas provided two medical reports dated 15 April 2014 and 11 May 2017. Dr Romas did not detail Mrs Dalikouras’ pre-existing lower back pain in either of his reports, nor did he mention any previous investigations he had undertaken or treatment he had recommended for such pain. In those circumstances, I gain no assistance from the reports of Dr Romas in assessing the cause of Mrs Dalikouras’ current lumbar spine condition.
74 Although each of the medico-legal doctors appear to have been provided with the clinical records of the Northern Hospital, including the hospital admission in January 2013, only Mr Flanc and Dr Gale commented on the 2013 admission. Both Mr Flanc and Dr Gale considered this hospital admission to be significant to an assessment of the cause of Mrs Dalikouras’ impairment.
75 The opinions of both Mr Brownbill and Mr Kossmann were based on the incorrect understanding that the pre-existing degenerative changes in Mrs Dalikouras’ spine were asymptomatic. In such circumstances, I gain no assistance from their opinions as to whether the transport accident is an ongoing cause of Mrs Dalikouras’ current condition.
76 Mr Flanc was aware of the January 2013 hospital admission, and sought further information as to the state of Mrs Dalikouras’ lower back in the months leading up to the transport accident. Mr Flanc stated that he needed this information in order to determine what impairment, if any, in her lumbar spine, was related to the transport accident. As this information was not subsequently provided to Mr Flanc, I gain no assistance from his report in determining the issue of causation.
77 Dr Powell is the only doctor who appears to have fully considered the nature and extent of Mrs Dalikouras’ pre-existing lower back condition. He is also the only doctor who is aware that there was a seven month delay from the time of the accident to the time any recorded complaint of lower back pain was made.
78 I consider it significant that none of the medico-legal doctors were provided with, or commented on, the CT scan report of 4 June 2010. It may have been of assistance, if at least one of the doctors had compared the MRI scan of June 2010 with the MRI scan of July 2016.
79 In view of the inadequate histories provided to Mr Flanc, Mr Brownbill and Mr Kossmann, I can rely only upon Dr Powell’s opinion in determining causation in this case. Dr Powell is of the opinion the transport accident is not the cause of Mrs Dalikouras’ current condition.
80 In such circumstances, Mrs Dalikouras has failed to satisfy me that the transport accident has caused her an ongoing aggravation of her pre-existing lumbar spine condition. Her application must therefore fail.
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