Daou v TAC
[2011] VCC 1202
•15 August 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-01832
| CHAD DAOU | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 and 28 July 2011 |
| DATE OF JUDGMENT: | 15 August 2011 |
| CASE MAY BE CITED AS: | Daou v TAC |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1202 |
REASONS FOR JUDGMENT
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Catchwords: TRANSPORT ACCIDENT – Application pursuant to s.93(4)(d) of the Transport Accident Act 1986 – aggravation of pre-existing condition of the cervical injury – whether consequences of aggravation sufficient to constitute serious injury.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Keogh SC with | Slater & Gordon Ltd |
| Mr I Fehring | ||
| For the Defendant | Mr D Curtain QC with | Norton Rose Australia |
| Ms N Wolski | ||
| HIS HONOUR: |
1 In this proceeding, the plaintiff seeks leave to commence an action claiming damages in respect of injuries suffered by him by reason of a transport accident which occurred on 2 February 2004.
2 In the proceeding, the plaintiff relies upon an affidavit sworn by him on 13 May 2010 and a further affidavit affirmed by him in the course of evidence given by him in the proceeding which he attended for the purpose of cross- examination. In addition, the plaintiff’s general practitioner, Dr Nick Stragalinos, who has authored a number of medical reports as to the plaintiff’s condition, gave viva voce evidence and was cross-examined. Otherwise, the parties rely upon medical material tendered by them in a joint Court Book (“JCB”).
3 In his first affidavit, the plaintiff deposed as follows:
•
He was born on 29 September 1979. During the course of the last ten years he has been involved in three motor vehicle accidents, the first of which occurred on 10 July 2001 (the first accident); the second, the subject of this proceeding, which occurred on 2 February 2004 (the subject accident); and the third which occurred on 14 November 2008 (the third accident).
•
In the first accident, the plaintiff sustained injuries to his thoracic spine, neck and head. He said that at the time of the subject accident, he had regained almost full movement of his neck and that although he suffered from occasional symptoms of pain and restriction in his neck –
“I had regained substantial strength and had succeeded in
minimising my physical pain and emotional stress”.[1]
[1] JCB 11
•
As the result of the subject accident, the plaintiff sustained a whiplash injury to his cervical spine. He said that the effect of that injury had been to cause him –
“… constant and severe right-sided and left-sided pain in my neck with referred pain, numbness, loss of strength in my right and left arms and hand tingling in my fingers. I also experienced pain across my shoulders. When the pain in my neck is exacerbated it is referred into my head and I experience severe headaches.”
• That the subject accident had the following consequences upon his life and lifestyle: (i) “I have difficulty sleeping and can only manage a few hours per night.
(ii) I often wake with numbness in my arms and hands, more so in my right arm and hand. Consequently I am tired and irritable the next day.
(iii) My standing tolerance is approximately thirty minutes before my neck stiffens and pain in my neck and shoulders and head becomes unbearable.
(iv) I am only able to sit for approximately thirty minutes before I experience exacerbation of my symptoms.
(v) I now have difficulty with any activity that requires me to sit or look down, for example, sitting and eating dinner is very difficult for me. I often have to stand up and move around during a meal.
(vi) I rarely attend social functions.
(vii) I am nervous and have anxiety about traffic. And I am particularly anxious as a passenger.
(viii) I have attempted to undertake physical activity; however, I can manage only approximately thirty minutes of gentle cycling on account of my neck injury. I have to be very careful not to jolt or bump my neck as the pain is severely exacerbated when that happens. Most physical activity that I undertake now has been recommended to me by a physiotherapist and is done with the aim of improving my strength and thereby reducing my pain.”[2]
[2] JCB 11-13
4 In his second affidavit, the plaintiff deposed:
•
That he continued to suffer from constant neck pain which varied depending upon the activity he was undertaking, that his neck felt stiff and that his neck movements were restricted.
• That he suffered from severe headaches when his neck pain was severe. •
That he had difficulty sleeping and suffered from pins and needles and numbness down his arms and into his hands.
•
That activities involving lifting, pushing or pulling with his arms generally made his symptoms worse.
•
That he was employing Endone on a needs basis, taking approximately five tablets a week to manage his symptoms, and that he underwent deep-tissue massage therapy on a monthly basis.
The Plaintiff’s Viva Voce Evidence
5 In the course of cross-examination, the plaintiff said that his vehicle had been written off in the subject accident. He took issue with a statement made by Dr Stragalinos in his report, that at the time at he had consulted him following the accident, he had been able to move his neck freely. He said that Dr Stragalinos had prescribed him with Panadeine Forte and that he had consulted Dr Stragalinos on a regular basis to obtain medication. He said that every time he had consulted Dr Stragalinos he had either obtained a prescription for painkilling medication from him which sometimes took the form of repeat prescriptions. He said that he continued to have problems with his thoracic spine but that they were minimal, that his main problem was with neck pain which was sometimes mild and sometimes severe.[3] He was asked:
[3] Transcript (“T) 33
Q: “Immediately after the accident you had pain in your neck,
correct?---A: Yes. Q: Then it settled down but it didn’t go away, is that fair?---- A: Just – yeah. I guess yes. Q: From time to time it would be worse?--- A: Yes. Q: When it was worse you might have to take Panadeine Forte?--- A: Yes. Q: But you didn’t take them every day?--- A: No. Q: Nor every week?--- A: Yes, I did take it every week.”[4] [4] T 34
6 The plaintiff said that he agreed with the description by Mr Kevin King, consultant orthopaedic surgeon, that his impairment of function was “of mild to moderate severity”.[5] He confirmed the history he had provided to Mr King that his involvement in the third accident had made his neck worse.
[5] T 34
7 The plaintiff agreed that he had told Mr Sedal, a consulting neurosurgeon with whom he had consulted in August 2009, that he suffered from severe throbbing headaches associated with his neck pain. When it was put to him that he had not suffered from headaches of this nature prior to the third accident, the plaintiff disagreed with this proposition
8 The plaintiff said that he suffered neck pain daily but that the pain was not present all day. He said that whilst he was able to walk, he suffered neck pain after walking for an hour or two. He said that driving was associated with pain, as were activities such as looking down at a bench whilst preparing meals.[6] He said he was able to do light cleaning and gardening.
[6] T 38
9 In re-examination, the plaintiff said that his symptoms prior to the subject accident were intermittent and that the pain which had been associated with the first accident was a lot less than that which he was experiencing now.[7] He said he was presently experiencing a lot of neck pain during the night and during the day and suffering from referred pain into his arms.
“I am getting numbness in my arms and waking up a lot in the middle of
the night.”[8]
[7] T 41
[8] T 41
10 The plaintiff was asked:
“Q: What’s causing you to wake up in the middle of the night a lot?--- A: Just feeling in my neck that I can’t – you know, I can’t sit in that – sleep in that position for too long, so it starts to get painful, or I feel that my arms are really sore and I lose feeling in my arms.”
11 He said that since the subject accident he had felt that his neck pain and headaches were increasing gradually and that whilst the third accident had caused him to suffer severe neck pain, over the following few weeks he had:
“…started to regain, I guess, or get less pain and get back to what I call
normal conditions I guess ….
Q: So what happened to that severe level of pain in the period after
the 2008 accident?---A: It went away, gradually went away. Q:
All right, so in the period from early 2009 through to now what’s happened to the level of your neck pain, has it remained the same or has it changed?---
A: From 2009 til now there’s a slight increase in pain. Q: Is that something that’s happened suddenly or gradually?--- A: Gradually.”[9] [9] T 42-43
The Medical Reports of the Plaintiff’s Treating General Practitioner, Dr Stragalinos
12 The plaintiff has been a patient of Dr N Stragalinos, a general practitioner practising at the Station Square Medical Centre, since February 2002. Given the length of his relationship with the plaintiff and his involvement in the plaintiff’s treatment during the period which commenced well before the subject accident and has continued to date, Dr Stragalinos is well placed to opine upon all the matters in issue in this application. It was clearly for that reason that he was required to attend for cross-examination by the defendant
13 In a report dated 1 May 2006, Dr Stragalinos states that following his motor cycle accident in July 2001, the plaintiff initially consulted him in November 2001 presenting with pain and stiffness in his upper and lower back. He described the plaintiff presenting in February 2002 with neck pain and stiffness. In May 2002, Dr Stragalinos referred the plaintiff to Mr Gard, an orthopaedic surgeon “due to the perseverance of his chronic thoracic back pains”. At that time he describes the plaintiff as being forced to abandon his work as a carpenter “due to the severity of his upper back and neck pain”.
14 By August 2002, Dr Stragalinos described the plaintiff’s neck pains as having gradually improved. By August 2002, Dr Stragalinos reported the plaintiff as presenting with the emotional sequelae of the 2001 accident (secondary to his chronic thoracic back pain and stiffness).
15 Dr Stragalinos reported that the plaintiff presented to him on 3 February 2003 with a major setback in his rehabilitation following a motor vehicle accident which occurred on the previous day. He described the plaintiff as presenting with increased neck and upper back pains and stiffness on that occasion, and reported thereafter that:
“Due to the persistence of Mr Daou’s cervical and thoracic spine pains and stiffness with recurring severe exacerbations lasting 20 - 30 minutes requiring Panadeine Forte, a CT scan was targeted to the cervical and thoracic spine region revealing a mild disc bulge only at C5-C6 only.”
16 Thereafter, Dr Stragalinos reported ongoing presentations by the plaintiff during 2004 with the:
“… chronic daily pains – neck and upper back pain which were interfering
with his ability to sleep and study”
and particularly in November 2004:
“… chronic persisting neck and upper back pains and stiffness despite regular physiotherapy and home spinal exercises. He describes the pains as significant to the degree of interfering with his ability to sleep, study and perform his activities of daily living.”
17 Dr Stragalinos reported the pattern of the plaintiff’s attendances during 2004 as continuing during 2005. As at March 2006, he described the plaintiff as suffering from neck and upper back pain, his neck pains being generally more severe. He reported the plaintiff as having commenced work as a building surveyor and stated that the duties he was required to undertake in that occupation –
“… increase (sic) pains in his neck and upper back at the end of the day which usually require Panadeine. He also states that his pains interfere with his activities of daily living and he has his mother’s assistance with household tasks like shopping, cleaning and mowing.”
18 As at 1 May 2006, Dr Stragalinos reported upon the plaintiff’s then condition in the following terms:
“Mr Daou’s neck pain and upper back pain is present on a daily basis and its severity fluctuates and depends upon daily spinal exercises. The prognosis and longevity of the above-mentioned medical conditions, namely in chronic cervical and thoracic back pain with secondary anxiety and depression is uncertain at this stage and dependent upon ongoing physiotherapy and counselling.”
19 In a further report dated 1 July 2008, Dr Stragalinos updated his previous report, describing the plaintiff as having been diagnosed with chronic cervical and thoracic spine pain which produces symptoms fluctuating in intensity from mild to moderate to sharp, stabbing experiences requiring management with prescription of strong analgesics such as Panadeine Forte. He described the plaintiff as presenting:
“ … to me on numerous occasions since May 2006 relating to his chronic pain syndrome and frequent severe exacerbations requesting Panadeine Forte.”
20 In March 2008, Dr Stragalinos described the plaintiff as presenting to him:
“… with a 3-month history of increasing neck and upper back pains with radiation of pain to his right and left upper limb (sic) in the absence of any trigger and in the setting of having ceased physiotherapy. Mr Daou describes periods of insomnia, interrupted activities of daily living including the need to take days off from his fulltime job as a building inspector trainee on a regular basis.”
21 Dr Stragalinos concluded his report with the following comments:
“Mr Daou experiences daily constant pains in his neck [and] upper back with radiation of pains to his upper limbs. The pain fluctuates in its intensity and at times can be severe, interfering with his activities of daily living and requiring Pandeine (sic) Forte. Mr Daou has been compliant and has shown sheer determination to battle his chronic pain syndrome with his own home spinal exercise regime to the extent that he has been able to maintain regular employment. … The long term prognosis of his chronic pain is uncertain but seems poor at this stage due to the longevity of his pain syndrome … .”
22 In a further report dated 16 May 2010, Dr Stragalinos documents continuing attendances upon the plaintiff who made regular complaints of pain in his neck and upper back which interrupted his sleep and adversely impacted upon his activities of daily living. He described the plaintiff as presenting with–
“… a significant disability experiencing and grappling with constant daily pains of his neck and upper back of mild to moderate intensity and intermittent exacerbations – 3 to 4 attacks per year of severe spinal pain prompting reviews in general practice, requesting strong analgesics and prompting physiotherapy and spinal management.”
23 In his final report dated 13 June 2011, Dr Stragalinos reported that the plaintiff presented to him in October 2010 requesting analgesia by reason of symptoms of moderate intensity which were interfering with his sleep and interrupting his activities of daily living; presenting in December 2010 with tension headaches and a two-week history of increased pains and stiffness in the neck and upper back requiring consumption of analgesia in the form of Tramadol and Panadeine Forte; presenting in March 2011 with a moderate flare-up of pain and stiffness in the cervical and thoracic spinal regions and describing interrupted sleep:
“… and a disruption to his work as a surveyor where he required frequent rest breaks and one day off work per fortnight to help recuperate from his chronic cervical and thoracic spine pain syndrome.”
24 Dr Stragalinos commented:
“As one can see recently and in my previous reports, Mr Daou is an unfortunate 31-year-old gentleman who has sustained a chronic pain syndrome of his cervical and thoracic spine regions depicting a fluctuating course with intermittent relapses and exacerbations – 3-4 attacks per year requiring presentation to me in general practice for narcotic analgesia. In between his attacks, Mr Daou states he experiences constant daily pains and stiffness of his neck and upper back of mild to moderate intensity affecting his sleep, activities of daily living and his work as a surveyor.”
25 He continued:
“Mr Daou will require ongoing long-term multidisciplinary allied health therapy via physiotherapy, massage therapy and specialist follow up via neurosurgeons and pain specialists with a view to further rehabilitation. This will be essential to help alleviate the severity of his chronic pain syndrome and to avoid the risk of him requiring narcotic analgesics on a regular basis with the risk of narcotic dependence in the near future.”
The Viva Voce Evidence of Dr Stragalinos
26 In the course of cross-examination, Dr Stragalinos said that the plaintiff presented to him with symptoms of neck pain varying in intensity in February 2002 and August 2002 and that he had prescribed the plaintiff with Panadeine Forte in June 2003, August 2003 and September 2003. With respect to his prescriptions of Panadeine Forte, Dr Stragalinos said that he had never prescribed the plaintiff with repeats, as to do so would have required him to obtain an authority relevant to a Schedule 8 drug.[10]
[10] T 47 – 51
27 He said that the plaintiff had consulted him on 4 December 2003 with back pain, which was settling with the use of “painkillers”[11] and that in February 2004, the plaintiff had presented with mild paraspinal neck and back tenderness which was “settling with painkillers”.[12]
[11] T 52
[12] T 52
28 He said that on 3 February 2004, the plaintiff presented with a complaint of neck and upper back pain and mild headaches and that an examination undertaken by him revealed the presence of mild paraspinal neck and back tenderness with a good range of movement being present in the cervical and thoracic spines.[13] The medical record of Dr Stragalinos reveals that on this occasion, the plaintiff was prescribed Panadeine Forte and Voltaren[14]
[13] T 52
[14] JCB 89
29 Dr Stragalinos said that the plaintiff represented one week later complaining of persisting neck and upper back stiffness, pains and stiffness despite physiotherapy and despite anti-inflammatory drugs. On examination at that time, rotation and extension of the cervical spine was noted to be painful and the plaintiff was referred for diagnostic imaging in the form a CT scan of the cervical spine and was prescribed Voltaren.
30 The plaintiff represented on 16 February 2004 complaining of neck pain and again on 30 March 2004 complaining of neck and upper back pain, which could be severe in intensity, lasting twenty to thirty minutes. On this occasion, he was again prescribed Panadeine Forte.[15]
[15] T 52, 53
31 Insofar as a considerable time was spent by Mr Curtain QC, who appeared on behalf of the defendant with Ms N Wolski, putting to Dr Stragalinos the content of his medical record,[16] little point is served in dealing with the evidence given by Dr Stragalinos insofar as it involved him of merely agreeing with and adopting the content of those notes which form the basis of the various reports which he has authored in this proceeding, to which I will refer in detail.
[16] JCB 87-170
32 Relevantly, in the course of cross-examination, Dr Stragalinos said:
• That the plaintiff’s upper back pain and cervical pain had been made worse by the subject accident;[17] that MRI imaging arranged by Dr Bittar definitely revealed the presence of neural contact;[18] • That in his opinion, notwithstanding the fact that the 2007 MRI scan did not report the presence of neural contact, this was not necessarily a fair picture of Mr Daou’s neurological status in 2007, Dr Stragalinos explaining his position in the following terms: [17] T 53
[18] T 55
“I mean MRIs are pictures that at a point in time with movement, discs move, they’re not stagnant structures, so it is possible once a disc has been damaged it can easily, you know, bulge and move back into place. On that particular – on that particular day there was no neural contact in 1975. I would like to see that MRI. There was – I’m pretty sure there was. If there were signs that there was neural contact and the important thing here is, there’s been damage in the cervical spine at C5-6 that he never had – that he never had prior to the second accident. I mean, his scans – his CT scan in 2002 following his first motorcycle accident but prior to his second car accident, it was said that his cervical spine was completely normal, there were no signs of any – so any, so – the changes we’re seeing in his cervical discs seem to have emanated from his second – from his second accident, being a motor vehicle accident.”
•
He had never noted the presence of significant spasm in the plaintiff’s cervical spine in the course of his examinations of the plaintiff following the subject accident.
• That the third accident had made the plaintiff’s condition worse.[19] •
That in 2010 the plaintiff was having flare-ups and that from to time there were days when his neck condition would be a lot more severe than at other times.[20]
• That he had never noted tenderness beyond mild tenderness.[21] •
That he believed the third accident flared-up his symptoms but he had suffered from long-term chronic symptoms which were milder prior to his second accident and that:
[19] T 61
[20] T 62
[21] T 62
“… the second accident definitely was the main significant factor in
accelerating his neck, his chronic neck pain syndrome.”[22]
• He agreed that the third accident had imposed: “… some permanent long-term aggravation of his overall neck
symptoms”.[23][22] T 63
[23] T 63
33 In re-examination:
• Dr Stragalinos agreed with the statement made by Mr King that: “The greater bulk of his residual medical impairments are the effect of the second accident although the third accident does seem to have caused some mild long-term aggravation.”[24]
[24] T 64
•
That the plaintiff’s x-ray findings and CT scan findings in 2002 were completely normal findings and the significance of the findings of the CT scan of February 2004 was that:
“It’s now showing signs of a disc injury that wasn’t present for the earlier scan. At C5-6 there was a broad based – there was a disc that, it was bulging, there was mild degree stenosis on the right, neural exit foramin (sic). I also picked up the fractures to his – vertebral fractures which he sustained following his first motor vehicle accident … I believe for this reason I believe the second accident is responsible for his neck condition.”[25]
[25] T 65
•
That he believed that the MRI scan of 23 March 2005 revealed signs of disc bulging and neural contact on the right side and that there was a relationship between this finding and the plaintiff’s complaints of pain predominantly in his right arm.[26]
•
When commenting upon the relevance of the MRI finding in July 2007, that once a disc was injured it could become mobile and could move depending on one’s movement, that it would not repair and would not return to its original condition:
[26] T 65, 66
“A:
… So once the damage is done a disc – the damage remains. With time the disc – it can – there is wear and tear and it can get worse with time.”[27]
… Q:
What situation does that leave us with in terms of any
predisposition to further injury or flare ups?---A:
He is obviously – Chad will always be – remain vulnerable to further flare-ups in the future of further radiculopathy or severe – you know, pains, pains and localised pains and stiffness in his neck, but also with pains and numbness shooting down his right arm.
Q:
In the period since February 2004 you have had the plaintiff attend with you on numerous occasions and you have had the chance to take a history from him and examine him on numerous occasions?---
A: Yes. Q:
What do you say about the consistency or otherwise of the history that he has given you and the examination findings you have made with what you say about the injury to this disc evident in the CT scan in February 2004?---
A:
Look, I believe this disc has left Mr Chad Daou with a chronic pain syndrome. It’s – with his presentations he has always – he has always complained of daily pains and pains and stiffness in his neck that haven’t – which haven’t disappeared and, you know, he’s always complained of mild to moderate pains that he unfortunately has to put up with on a daily basis, but two or three times a year he had come to me with exacerbations or flare ups of his neck condition leading, you know, scrips of Panadeine Forte or Tramadol just to take the edge off the pain until his – which is usually consistent with his disc flaring up or moving out of position and then with time his symptoms abate and suggest the disc slowly moved in. He – he’s also had physio, you know, with his flare-ups he’s been – he has attended his physiotherapist quite regularly as well which has assisted with his flare ups and also with his long term maintenance of his chronic pain condition relating to his neck also his thoracic spine.
Q: What’s the relevance of the 2004 transport accident to the
continuing neck problem that you say he suffers from?---A: I believe it is the major contributing – it was the main accident
that resulted in this chronic cervical neck pain syndrome.”[28][27] T 67
[28] T 67, 68
•
Dr Stragalinos was taken to the history obtained by him from the plaintiff in November 2004 as to his symptoms interfering with his ability to sleep, and was asked:
“Q:
In your understanding, what has been the situation in terms of the effect, if any, of the neck pain on his abilities to sleep in the years since then?---
A: Look, he has complained of, yes, interrupted sleep as the
result of his neck pains and also his upper back pains.”[29][29] T 69
•
As to the plaintiff’s headaches over the years since 2004, Dr Stragalinos opined:
“A:
The headaches, according to my clinical records, is for that to have been gradually over the last few years have been increasing in frequency.
Q: What relationship, if any, is there between the injury you
diagnosed to the cervical spine and the headaches?---A:
Yes, I believe his headaches are secondary to his cervical spine. I believe they’re cervicogenic secondary to his chronic cervical spine injury, the spine pain syndrome that was sustained after his second accident.”[30]
[30] T 69
The Medical Evidence as to the Injuries and Consequences of the First Accident
34 On 8 August 2003, the plaintiff was examined by Mr Kevin King, an orthopaedic surgeon, who at that time obtained from the plaintiff a history that he suffered from –
“… mild intermittent aching discomfort in his neck and in the low-back region – there was a much lesser problem. These aches in the neck and lower back worry him to a mild degree on and off every day for a few hours. He has no symptoms in the arms or legs.”[31]
[31] JCB 46C
35 In the course of an examination undertaken on that day, Mr King elicited a full and painless range of movement of the cervical spine. Whilst Mr King was of the opinion that the plaintiff had suffered a major injury to his upper thoracic spine in the first accident, he opined as to the significance of the injury sustained by the plaintiff to his cervical spine as follows:
“The injury to the cervical lumbosacral region presumably involved some damage to cervical discs and associated ligamentous structures but he seems to have made a good almost complete recovery from these injuries, being left with only mild residual discomfort in the neck and lumbosacral region.”[32]
[32] JCB 46D – 46E
36 The medical records of Dr Stragalinos, insofar as they document the symptoms with which the plaintiff was presenting immediately prior to his accident of 2 February 2004, were relied on by the parties as providing cogent evidence as to the impact of the subject accident upon the plaintiff’s level of function.
37 In this regard, whilst it is clear that the plaintiff was presenting to Dr Stragalinos with symptoms of thoracic and cervical pain in 2001 and 2002, he made no complaint to Dr Stragalinos of any symptoms of cervical pain during the period between mid-2003 and February 2004.
38 This in turn is consistent with the comment made by Dr Stragalinos in May 2006 in which he said that the plaintiff initially presented to him in February 2002 with neck pain and stiffness which Dr Stragalinos described as being on a background of predominant thoracic spine pain and stiffness following his initial accident in July 2001.
39 Taking into account the plaintiff’s affidavit evidence as to the effect of the 2001 accident upon his cervical spine, which I accept, when considered in the context of the medical records of Dr Stragalinos to which I have referred, and the opinion of Mr King expressed on 8 August 2003, I am satisfied that immediately prior to the motor vehicle accident of 2 February 2004, the plaintiff was suffering from extremely mild symptoms in his cervical spine which promoted symptoms which were more of a nuisance value and did not impose any significant restriction upon his life or lifestyle.
The Medical Evidence as to the Injuries and Consequences of the Subject Accident
40 The plaintiff was referred by Dr Stragalinos for:
• An x-ray of the cervical spine on 12 February 2002 which reported preserved intervertebral disc height and the presence of normal pre- vertebral soft tissue. • A CT scan of his cervical spine on 16 August 2002 which was reported as demonstrating a normal appearance of the spinal canal; the absence of any disc protrusion or other pathology; normal facet joints; clear vertebral foramina and the absence of any abnormality in pre-vertebral soft tissues. • A further CT scan of the cervical spine which was performed only eleven days after the subject accident, on 13 February 2004, which reported the presence of a broad based disc bulge at the C5-6 level. 41 In my opinion, the combination of:
• The plaintiff’s relatively young age; • The relatively short period between the two CT scans; •
The absence in the 2002 CT scan of any abnormality in the structure of the C5-6;
•
The presence of the broadbased disc bulge at the C5-6 level which was reported in the 2004 CT scan;
•
The absence of a history of any trauma occurring between the two scans, other than the subject accident, which might account for the presence of the broadbased disc bulge at the C5-6 level which was reported in the 2004 CT scan;
strongly point to the abnormality in the plaintiff’s C5-6 disc being both trauma-
related and being caused by the subject accident.42 I have previously referred to:
• The series of medical reports by Dr Stragalinos; • The viva voce evidence of Dr Stragalinos; which, in my opinion, clearly supports the subject accident as being the major
factor in both initiating and continuing the plaintiff’s cervical pain.43 In his report of 13 June 2011, Dr Stragalinos described the plaintiff as being:
“An unfortunate thirty-one-year-old gentleman who has sustained a Chronic Pain Syndrome of his cervical and thoracic spine regions depicting a fluctuating course with intermittent relapses and exacerbations – three to four attacks per year requiring presentations to me in general practice for narcotic analgesia. In between his attacks Mr Daou states he experiences constant daily pains and stiffness of his neck and upper back of a mild to moderate intensity affecting his sleep, activities of daily living and his work as a surveyor.
Mr Daou has shown his sheer determination and perseverance over many years to grapple and overcome his Chronic Pain Syndrome Disorder through his compliance with conservative measures, including physiotherapy, massage therapy, hydrotherapy, acupuncture, anti- inflammatories, narcotic analgesia and his daily home spinal exercises targeted to his cervical and thoracic spine region. Mr Daou has also received home healthcare in the form of gardening assistance. His most recent neurosurgical review with Mr Bittar was in November 2007, who recommends a conservative non-surgical approach.”[33]
[33] JCB 15
44 Dr Stragalinos described the plaintiff as continuing to suffer from:
[34] JCB 15
(i) daily pains and stiffness of a mild to moderate intensity in his neck and upper back regions; (ii) daily disruptions to his personal life through interrupted sleep and an inability to carry out his activities of daily living such as cleaning and gardening; (iii) interference in his ability to work as a surveyor where he requires frequent rest breaks in the course of the day and to take time off work to help alleviate his cervical and thoracic symptoms. He opined that the plaintiff’s prognosis was poor and that his chronic pain which had persisted for many years was likely to require ongoing, long-term multidisciplinary allied health therapy via physiotherapy, massage therapy and specialist follow-up by neurosurgeons and pain specialists.[34] 45 The plaintiff was referred by Dr Stragalinos to Dr Richard Bittar, a neurosurgeon, with whom he consulted on 3 February 2005. At the time of that consultation, the plaintiff presented with complaints of neck and arm pain, his symptoms being worse in his right arm, and pins and needles in both hands, particularly at night. Dr Bittar referred the plaintiff for an MRI scan of his cervical spine which was undertaken on 23 March 2005 which he reported demonstrated the presence of a disc bulge and osteophyte formation on the right-hand side of the C5-C6 cervical disc with narrowing of the intervertebral foramina at that level. Dr Bittar diagnosed the plaintiff as presenting with a soft-issue injury of the cervical spine, together with an element of cervical radiculopathy which he opined was highly likely to be related to the 2004 accident.[35]
[35] JCB 69-70
46 Dr Bittar referred the plaintiff for a second opinion to Dr Peter Hand, a consulting neurologist, who examined him on 26 April 2005, at which time Dr Hand described the plaintiff as presenting with a major complaint of right arm pain. Dr Hand reviewed the MRI scan of 23 March 2005 and opined that the film revealed the presence of a “C5-6 disc prolapse causing moderate compression of the right C6 nerve root laterally”. Dr Hand expressed the opinion however that the plaintiff presented with a range of symptoms “far in excess of the MRI abnormality” and, accordingly, referred him for an EMG study which did not reveal evidence of a right C6 radiculopathy.[36] As at May 2005, Mr Hand opined that the plaintiff was presenting with symptoms associated with “soft-tissue damage” and opined that he expected the plaintiff’s symptoms would gradually improve.
[36] JCB 170A
47 In a report dated 6 November 2007, Dr Bittar commented that, as at June 2007, the plaintiff had complained of worsening neck pain and the presence of bilateral brachialgia, particularly at night, which was severely disrupting his sleep. He referred the plaintiff for a further MRI scan which was undertaken on 27 July 2007 which, whilst revealing the presence of mild degenerative changes at the C4-5 and C5-6 levels and the presence of mild right-sided foraminal stenosis at those levels, did not reveal any evidence of neural compression on the left side.
48 As at 6 November 2007, Dr Bittar opined:
“In my opinion his likely prognosis is guarded. There is a high probability that he will continue to suffer from similar symptoms indefinitely and these may fluctuate in severity from time to time. There is a small but significant chance that his condition will deteriorate with time.”[37]
[37] JCB 68
49 Dr Bittar expressed a similar opinion in a report dated 6 October 2008, commenting that the plaintiff’s symptoms “have been somewhat recalcitrant to the usual conservative treatment measures”[38] and that he had referred the plaintiff for a second opinion to a neurologist, Dr David Williams.
[38] JCB 65
50 In a report dated 17 October 2008, Dr Williams reported that the plaintiff had presented to him with pain and discomfort across his shoulders, neck and arms; the presence of deep aching muscle tenderness with reduced range of movement because of pain across the shoulders and neck; neuropathic discomfort radiating from his elbow to his wrist; and tingling and discomfort in his fingertips, these sensations being most troublesome at night, such that they interrupted his sleep. On examination, Dr Williams noted a limitation of cervical spinal movement in all directions, together with the presence of “much paraspinal muscle tenderness”. He opined that the plaintiff presented with a soft-tissue injury –
“… with referred pain down the arms with the possibility of neuropraxia secondary to compression. After the consultation, and explanation of my diagnosis, I recommended that Mr Daou arrange for physical therapies to complement the medical treatment of his pain. I recommended identifying a qualified masseur and also an acupuncturist to treat his current discomfort. I gave him a script for Amitriptyline to be taken half a tablet at night (12.5 milligrams) with a view to increasing this to a full tablet at night.”[39]
[39] JCB 62
51 Mr Williams opined that the plaintiff’s prognosis was guarded by reason of the chronic nature of his pain. He, however, declined to express an opinion as to the relationship between the plaintiff’s symptoms and his transport accidents of 2001 and 2004.
52 Dr Lesley Sedal, a consulting neurologist, has provided two reports dated 13 August 2009 and 19 May 2011 respectively. In his first report, Dr Sedal obtained a history from the plaintiff that he suffered from headaches which were generally of modest intensity but presented as severe throbbing headaches approximately once a week or once a fortnight; that his neck was painful all the time; and that he had not been sleeping well because of his pain. Dr Sedal opined, relevantly, that the plaintiff was presenting with cervical degenerative changes and a disc bulge with foraminal narrowing at C5-6, and that whilst he presented with symptoms of cervical nerve root irritation, he did not present with evidence of formal radiculopathy.
53 In his second report, Dr Sedal expressed an identical opinion to that which he had expressed in his first report, commenting however that if the plaintiff’s cervical injury resulted in an accelerated rate of degenerative arthritis, that neurological complications such as radiculopathy could occur.
54 Essentially it was Dr Sedal’s opinion that the plaintiff presented with a disc bulge and degenerative change resulting in foraminal compression on the right side at C5-6, and that from a neurological point of view, the plaintiff’s position had stabilised, with the remaining risk that should his cervical injury lead to an accelerated rate of degenerative arthritis, neurological changes such as radiculopathy could occur
55 I have previously commented upon the plaintiff’s assessment by Mr Kevin King on 8 August 2003. The plaintiff was re-examined by Mr King on 17 October 2006. At that time Mr King observed the plaintiff to present with mild but definite limitation of neck movements and the presence of muscle spasm and pain which restricted the movement of the cervical spine by one third. He opined that the 2004 accident had imposed significant trauma to:
“… already mildly scarred and intermittently mildly symptomatic cervical
discs and associated ligamentous structures”.
56 In this respect, Mr King was clearly referring to the effect of the plaintiff’s 2001 accident, and opined that the plaintiff was currently presenting with a twenty- five per cent impairment of his cervical spine. Mr King attributed the greater bulk of this impairment to the motor vehicle accident of 2 February 2004.
57 In a report dated 20 June 2010, Mr King reported that whilst the plaintiff presented with persistent nagging thoracic back pain and mild intermittent lumbosacral back pain –
“… his main worry continues to be constant nagging pain and stiffness in the neck, always present, fluctuating in intensity, usually of moderate severity but it can be severe for a few hours at a time several days a week”[40]
[40] JCB 33
58 On examination, Mr King detected mild but definite limitation of neck movement with the presence of muscle spasm and discomfort and opined:
“The most recent car accident in November 2008 does not appear to have left him with any significant aggravation of his pre-existing problems. As I have stated in my earlier reports, this youngish man seems to be impressively well motivated with a high pain threshold, has retained himself in the skilled trade of a building surveyor and is now permanently employed with the City of Dandenong council and can manage the job despite residual symptoms. My views about the nature of the injuries to the cervical, thoracic and lumbar discs and associated ligamentous structures in his spine as the result of the original two accidents on 8 July 2001 and again 2 February 2004 remain unchanged. …
I would still attribute all of his residual thoracolumbar spinal impairment to the effects of the first accident and the greater bulk of his residual neck impairment to the effects of the second accident. …
There is no evidence of any sort of psychological overlay or exaggeration in this man that I can detect.”[41]
[41] JCB 35
59 In a further report dated 3 March 2011,[42] Mr King states that the plaintiff presented to him in February 2011 complaining of constant nagging, mid- thoracic back pain, mild nagging lumbosacral back pain and that:
“… his main worry continues to be constant aching pain and stiffness in his neck always present, fluctuating in intensity, always of moderate severity and since the third accident in November he feels that this pain is probably about 50 per cent worse.”
[42] Jcb28
60 Whilst Mr King revised his earlier opinion, opining that the plaintiff’s third car accident in November 2008 had left him with some permanent long-term aggravation of his overall neck symptoms, he opined that the plaintiff presented with:
“A chronic impairment of the cervical spine function of mild to moderate severity equivalent on clinical grounds to a twenty five per cent impairment of the neck from the long-term point of view”
commenting that the greater bulk of the plaintiff’s residual neck impairments
should be attributed to the effects of the second car accident –
“although the third car accident does seem to have caused some mild
long-term aggravation.”[43]
[43] JCB 31
61 Mr Jonathan Snowsill, a physiotherapist, has provided an undated report in which he comments that on 28 February 2001, the plaintiff presented to him complaining of ongoing daily bilateral neck and thoracic pain and that he was suffering from intermittent generalised headaches associated with his neck pain. He commented that the plaintiff had made “slow but steady improvement symptomatically and objectively with improvements in freedom of neck and back mobility over the next six months” but that during 2002 he had required ongoing physiotherapy treatment to maintain his improvement and had been subject to intermittent exacerbations of neck and thoracic pain.
62 Mr Snowsill commented that he had last seen the plaintiff in June 2005, and opined that:
“It is obvious that Mr Daou has suffered a very significant long-term neck and back injury which is likely to continue to trouble him indefinitely and for which he is likely to seek ongoing treatment.”[44]
[44] JCB 75
63 Given the general nature of the statements made by Mr Snowsill in his report as to the plaintiff’s presentation when he was last seen in June 2005 and the absence of any differentiation in the report between the effects of the 2001 and 2004 accidents, I do not consider Mr Snowsill’s report to be of significant relevance to the issues which I must decide in this case other than that it confirms, in my opinion, the organic nature of the plaintiff’s injuries and attests to the significance of the condition with which the plaintiff presented in his cervical spine as at June 2005.
Findings
64 Having regard to the involvement of the plaintiff in a number of motor vehicle accidents, I am required to identify whether the consequences of the plaintiff’s impairment to his cervical spine is caused by the second accident when considered in the context that they involved an aggravation of a pre-existing condition such that they, in themselves, can be said to have caused the plaintiff to have suffered very considerable consequences with respect to pain and suffering.[45]
[45] See Guppy v Victorian WorkCover Authority [2010] VSCA 164 (25 June 2010) and Petkovski v Galletti [1994] 1 VR 436
65 In this respect, I must:
(i) be satisfied that the plaintiff has established that the consequences associated with the injuries sustained by him in the subject accident, when judged by comparison with other cases in the range of possible impairments or losses of body function, may be fairly described as being more than significant or marked and as being at least very considerable; and (ii) assess the consequences in terms of pain and suffering which the second accident has occasioned to the plaintiff and determine where the facts of this case sit in the broad spectrum of cases. 66 I am satisfied that the evidence clearly establishes that the injury of major consequence which the plaintiff suffered in the first accident was to his thoracic spine and that notwithstanding the fact that the plaintiff was presenting with symptoms in his cervical spine during 2002, that condition had largely resolved to one which could be appropriately described as being of little more than nuisance value at the time at which the plaintiff was involved in the subject accident.
67 I am satisfied that in the subject accident the plaintiff suffered a serious injury to his cervical spine which involved a disc injury at the C5-6 level, the effect of which has been to cause chronic symptoms of cervical pain of the type described by Dr Stragalinos.
68 I am further satisfied that Dr Stragalinos, having regard to his continued involvement in the plaintiff’s care, is in a very good position to opine as to the nature and extent of the plaintiff’s symptoms. I am satisfied, notwithstanding the use by Dr Stragalinos in both his reports and in his evidence of the terms “mild” or “moderate” when describing the plaintiff’s symptoms of cervical pain, that the evidence of Dr Stragalinos, when considered in its totality, provides strong support for the fact that the injury to the plaintiff’s cervical spine continues to have a very significant and deleterious impact upon the plaintiff’s life.
69 I am further satisfied that the plaintiff has provided an accurate account of his symptoms in the two affidavits upon which he relies in this application. Indeed, when one compares the description given by the plaintiff of his symptoms in those affidavits with the descriptions by Dr Stragalinos of the plaintiff’s presentations to him between March 2009 and June 2011, it is my impression of the plaintiff’s affidavit evidence that it suffers from a tendency towards understatement. This in turn is consistent with the opinion expressed by Mr King that the plaintiff presents as highly motivated and with a high pain threshold.[46]
[46] JCB 30
70 Whilst it is clear that the plaintiff has suffered an aggravation of the condition in his cervical spine by reason of his involvement in the third accident, I am satisfied that the subject accident bears the greater bulk of the responsibility for the present symptoms emanating from the plaintiff’s cervical spine. In this regard, I accept both the evidence of Dr Stragalinos and Mr King; namely, that the third accident caused only –
“…some mild long term aggravation of the chronic injury to the plaintiff’s
cervical spine which was caused by the subject accident.”[47]
[47] In my opinion, both Mr King and Dr Stragalinos are best placed to opine upon this issue, having regard to the fact that they have each had the opportunity of assessing the plaintiff prior to the occurrence of the subject accident, following the occurrence of the subject accident and prior to the occurrence of the third accident, and following the occurrence of the third accident.
71 Although I am not satisfied that the plaintiff presents with radiculopathy, I accept the plaintiff’s evidence that he suffers from symptoms in his arms, more so the right arm than the left arm, that these symptoms affect him in the manner he has described, and that they are organically-based.[48]
[48] In this regard, there is no suggestion that the plaintiff’ embellishes his symptoms or that any of his symptoms are psychologically-based: see, for example, the opinion of Mr King at JCB 31.
72 Taking into account:
• The plaintiff’s relatively young age, together with the fact that the general medical opinion supports the position that the plaintiff’s condition has stabilised with no prospect of improvement, there being rather a small chance that his condition will deteriorate;[49] • The fact that the plaintiff suffers from daily pain affecting both his neck arms and hands, which varies from a mild to moderate intensity but involves regular exacerbations which occasion very significant pain; • The fact that the plaintiff’s symptoms regularly interfere in a significant manner with his ability to sleep and occasion headaches which, whilst varying in intensity, are regularly severe; • That the plaintiff’s level of pain is such that he is required to make use of narcotic medication in the form of Endone on a regular basis;[50] [49] See the opinion of Dr Bittar at JCB 68 and that of Dr Sedal at JCB 51.
[50] See the plaintiff’s evidence at JCB 13B.
I am satisfied that it is appropriate to describe the consequences associated with the injury occasioned to the plaintiff’s cervical spine by reason of the subject accident as being more than significant or marked and as being at least very considerable when it is considered in the context of other cases within the range of possible impairments.
73 Accordingly, I am satisfied that the plaintiff is entitled to the leave sought by him in this application and I will hear the parties as to the precise form of the orders which should be made in this matter and upon the question of costs.
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