De Livera v Transport Accident Commission
[2020] VCC 299
•24 March 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-01451
| JOSEPH ANTHONY DERRICK DE LIVERA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 6 March 2020 | |
DATE OF JUDGMENT: | 24 March 2020 | |
CASE MAY BE CITED AS: | De Livera v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 299 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Transport accident – identification of injuries causally connected to the transport accident – injury to the right shoulder causally connected with claimed impairment consequences of the right shoulder causally connected – whether injuries to the neck and lower back causally connected – plaintiff unreliable historian – reliance on clinical notes of general practitioners – general creditworthiness and reliability – constellation of other medical conditions causing impairment consequences – failing to disentangle
Legislation Cited: Transport Accident Act 1986, s93(4)
Cases Cited:Davies v Nilsen & Transport Accident Commission [2014] VSCA 278; Philippiadis v Transport Accident Commission [2016] VSCA 1; Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67
Judgment: The plaintiff’s originating motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person | - |
| For the Defendant | Ms V Katotas | Solicitor for the Transport Accident Commission |
HIS HONOUR:
Introduction
1 On 30 September 2006, the plaintiff was walking through the car park of a shopping centre when he was struck by a reversing vehicle. He was knocked to the ground.
2 The plaintiff submitted that as a result of the transport accident, he suffered injuries to his right shoulder, neck and lower back which he submitted constitute serious long-term impairments of body functions.
3 The plaintiff appeared in person. Ms Katotas of counsel appeared for the defendant.
The issues
4 The defendant conceded that the plaintiff suffered an injury to his right shoulder which impaired the function of his right shoulder, but not to the extent of being “serious”. It denied that the claimed injuries to the plaintiff’s neck and lower back were caused by the transport accident.
5 Further, if the claimed injuries to the plaintiff’s neck and lower back were not caused by the transport accident, then the plaintiff has failed to disentangle the impairment consequences of those injuries from the impairment consequences of the right shoulder.
6 Further, the plaintiff has suffered from a long-standing serious heart condition, and also medical conditions affecting his right knee, right ankle and left shoulder. Likewise, the plaintiff has failed to disentangle the impairment consequences of those conditions from the impairment consequences of the right shoulder.
Contemporaneous medical treatment
7 The plaintiff first sought treatment from the William Angliss Hospital. He was examined, provided with medication and discharged.[1]
[1]Joint Court Book (“JCB”) 18
8 The plaintiff then saw Dr Parghi, general practitioner, on 3 October 2006.[2] She provided the plaintiff with a medical certificate in which she described that first consultation. She noted that the plaintiff had been struck by a reversing car on the right side of his body. She also noted that he complained of pain in his right shoulder, in the right side of his neck and in his upper back. She gave him a certificate declaring that he was unfit for work from 3 October to 3 November 2006.[3]
[2]Dr Parghi practices at the Boronia Mall Clinic
[3]JCB 124 and 152. The medical certificate was tendered separately - Exhibit A. The medical certificate is dated 3 October 2012. Dr Parghi noted that the date was applied in error and that it should have been 3 October 2006.
9 The plaintiff subsequently attended other medical practitioners at the same clinic as Dr Parghi. In summary, he attended:[4]
[4]JCB 150-152
· 13 December 2006 - soreness in the right shoulder and weakness of the right arm.
· 2 January 2006 - restriction of movement in the right shoulder and neck.
· 24 January 2007 - swelling, tenderness and restriction of movement in the right shoulder and neck.
· 2 February 2007 - swelling, tenderness and restriction of movement in the right shoulder. There is also a cryptic reference to polyarthralgia and sciatica.
· 7 February 2007 - a request for a TAC certificate from 3 November to 3 December, and from 3 December to 13 January. A reference to the use of Brufen, and a trial of Tramal, but no reference to whether it was for the right shoulder and/or the neck.
· 21 February 2007 - tenderness and restriction of movement of the right shoulder.
10 The clinical notes refer to general musculoskeletal problems. It is not clear whether they are references to the plaintiff’s right shoulder and neck or to other musculoskeletal problems.
11 The plaintiff attended Dr Parghi’s clinic once in 2009, and then there is a significant break in his attendance at that clinic until 4 May 2016, when he attended complaining of lower back pain, sciatica, joint pain and joint stiffness. The clinical notes do not make it clear whether all of those symptoms are referrable to the plaintiff’s lower back.
12 The plaintiff was referred to undergo an x-ray of his right shoulder on 14 December 2006,[5] then an ultrasound on 18 December 2006,[6] and then an MRI scan on 11 January 2007.[7] The MRI scan demonstrated a moderately large full-thickness tear of the anterior and middle fibres of the supraspinatus tendon measuring 1.6 centimetres.
[5]JCB 144
[6]JCB 145
[7]JCB 146-147
13 The plaintiff was referred to Mr Richardson, orthopaedic surgeon, who he first saw on 26 February 2007. He diagnosed a frozen shoulder. An initial hydrodilatation failed to alleviate the frozen shoulder. Mr Richardson performed surgery on the plaintiff’s right shoulder on 22 May 2007. He performed a capsulotomy. He noted that the long head of the biceps and rotator cuff tendons were intact which is in contrast to what was demonstrated on the MRI scan. Mr Richardson performed a second hydrodilatation. He referred the plaintiff to physiotherapy both before and after the surgery. It would appear the plaintiff last saw Mr Richardson on 16 July 2007.[8]
[8]JCB 109-110
14 The plaintiff was dissatisfied with the treatment provided by Dr Parghi and other medical practitioners at the Boronia Mall Clinic. He stopped attending the clinic from 17 March 2009, before returning on 7 March 2016. He then saw medical practitioners at the Greater Knox Family Practice from 27 September 2006. He principally saw Dr Somasunderam, general practitioner. He appears to have taken a similar view of the medical practitioners at that clinic because he then saw medical practitioners at the Medical Central Knox Clinic from 30 March 2015. There is very little in the clinical notes relevant to complaints by the plaintiff about his right shoulder.
The neck and lower back
15 Apart from Dr Parghi’s clinical notes of 2006, in which there is a reference to the plaintiff suffering neck pain, there is then no reference to any medical treatment for the plaintiff’s neck or lower back until about 2016.
16 The plaintiff saw Dr Parghi on 4 May 2016, complaining of back pain.[9] There is also a reference to sciatica. The clinical note does not make any mention of whether the onset of the back pain has anything to do with the transport accident.
[9]JCB 149
17 The plaintiff saw Dr Sanad, general practitioner, on 19 February 2016 at the Greater Knox Family Practice complaining of lower back pain. It appears to be the first reference in any of the clinical notes to lower back pain. The note reads:
“1. Bilateral Lower Limb Pain.
- Pain has persisted for almost a year now.
- Sharp pains, especially on movement.
… .”[10]
[10]JCB 178
18 Dr Sanad, I assume, referred the plaintiff to Mr Rogers, neurosurgeon, to treat the plaintiff for his lower back problem. The plaintiff saw him in May 2016. Mr Rogers was provided with an MRI scan taken on 1 May 2016.[11] According to the radiologist, it demonstrated severe central canal stenosis at L4-5 caused by a degenerative spondylolisthesis and a broad-based disc bulge. Mr Rogers appears to have agreed with the conclusions of the radiologist. Mr Rogers advised the plaintiff to have surgery if the symptoms he was experiencing were impacting on the quality of his life.
[11]JCB 117
19 Mr Rogers recorded a history which is not consistent with the clinical notes of Dr Parghi. The plaintiff told Mr Rogers that he suffered back pain as a result of the transport accident, and that the back pain had become increasingly frequent and severe over the preceding 12 months before he saw him.[12]
[12]JCB 116
20 It would appear that it was around the time when the plaintiff saw Mr Rogers that he was also seeing Dr Chow, general practitioner, of the Medical Central Knox Clinic. That would appear to be the case from a clinical note of that clinic dated 20 January 2017.[13]
[13]JCB 189
21 Dr Chow referred the plaintiff to Mr Akil, neurosurgeon, who the plaintiff saw in May 2019. After examining the plaintiff and inspecting an MRI scan, he considered that the ideal way to treat the plaintiff was an L4-5 decompression and fusion. Like Mr Rogers, the history he obtained is not consistent with the clinical notes of Dr Parghi. The plaintiff told him that he developed significant pain around the time of the transport accident which radiated into both legs, and, in particular, his left leg.[14]
[14]JCB 132-133
22 The plaintiff said in his first affidavit that he experienced increasing problems with his neck and right shoulder in about mid 2017. He was referred to Mr Jithoo, neurosurgeon. He underwent an MRI scan of his neck, and further x‑ray and ultrasound of his right shoulder.[15] There is no medical report from Mr Jithoo nor a report of the MRI scan or x-ray and ultrasound. I have traced through the clinical notes of the Medical Central Knox Clinic to try to unearth whether there is anything to verify what the plaintiff says.
[15]JCB 22
23 The clinical notes of that clinic between 19 May 2017 and 23 August 2017 record complaints made by the plaintiff of increasing right shoulder pain and also of neck pain. There are references to Mr Jithoo from 23 August 2017 to 6 December 2017, but nothing in the clinical notes which enables me to understand the nature and extent of the plaintiff’s neck problem, and the treatment he was provided by Mr Jithoo. Furthermore, I have not been able to uncover any references to any opinion relevant to whether any treating medical practitioner was given a history by the plaintiff that he believes that the neck injury was caused by the transport accident.
24 The task of reading through the plaintiff’s affidavits, inadequate medical reports and cryptic clinical notes was left to me, to put it colloquially, to connect the dots for the plaintiff. He was unable, or unwilling, to undertake that task. I was given able assistance by the defendant, but of course I needed to go through all this material to satisfy myself what a reading of this evidence would produce.
Preliminary conclusions
25 There is no doubt that as a result of the transport accident the plaintiff suffered an injury to his right shoulder.
26 It would appear to have been successfully treated by Mr Richardson. I can only assume that to be the case, because the plaintiff did not seek any treatment for his right shoulder until he saw Dr Prathivardi, general practitioner, on 13 June 2017 at the Medical Central Knox Clinic when he complained of worsening right shoulder pain over the preceding two weeks. I assume that by use of word “worsening” that the plaintiff was suffering from right shoulder pain for some undetermined period of time before the date of that consultation.
27 The question is whether that right shoulder pain is causally connected to the injury to the right shoulder resulting from the transport accident. It may be the case, but I simply do not know. The effluxion of time between the cessation of treatment provided by Mr Richardson and that complaint of increasing right shoulder pain is about 10 years. In the interval there do not appear to be any complaints of right shoulder pain.
28 Although, there is a reference to the plaintiff suffering pain in his neck resulting from the transport accident, there is then precious little in any of the clinical notes until about mid 2017, which is almost 11 years from the date of the transport accident.
29 The histories provided to Mr Rogers and Mr Akil regarding when the plaintiff says he first suffered a lower back injury is again not supported by the clinical notes. Dr Parghi made no note of a lower back injury. There is a reference to upper back pain in her clinical note of 3 October 2006, but that is geographically very distinct from the lower back. It is not something I would expect a medical practitioner to be mistaken about.
30 It is my preliminary view that there is insufficient evidence supporting a causal connection between the plaintiff’s current complaints of right shoulder pain with the transport accident, and similarly, with his current complaints of neck and lower back pain.
31 Clinical notes of medical practitioners can be beguiling and seductive. It is too easy to be lulled into accepting that they are something like empirical unchallengeable evidence; however, this is a most unusual case where the evidence adduced by the plaintiff is sparse and uninformative. That problem is compounded by the plaintiff’s inability to remember much about his medical history when the clinical notes were put to him under cross-examination.
32 The plaintiff’s invariable answer was a global one, simply saying that the injuries to his right shoulder, neck and lower back were caused by the transport accident, and that he experienced symptoms arising from those injuries from the very start. When confronted with the clinical notes, he endeavoured to explain that it was really the fault of the medical practitioners who had not recorded his complaints faithfully and fully.
33 I am very conscious of what the Court of Appeal said in Davies v Nilsen & Transport Accident Commission[16] that the trial judge must consider causation issues such as this on all of the evidence. To limit my considerations to the clinical notes only may be criticised as determining the issue of causation only on part of the evidence; however, in Philippiadis v Transport Accident Commission,[17] the Court of Appeal, while recognising the shortcomings of clinical notes, observed that where an injury is having serious adverse health consequences for a patient it would be very unusual for the patient not to mention those consequences and for the treating medical practitioners’ clinical notes not to refer to them.
[16][2014] VSCA 278
[17][2016] VSCA 1
34 The plaintiff expressly, and by implication, described the impairment consequences of the injuries to his right shoulder, neck and lower back as essentially being persistent since an early time after the transport accident. It is very apparent that when his right shoulder began troubling him again in 2017, his neck in 2017, and his lower back in 2015/2016, that he complained reasonably frequently and gave his treating medical practitioners a reasonable account of the nature and extent of the problems he was encountering.
35 Despite what I have just described, he did not do that for a very considerable period of time subsequent to the occurrence of the transport accident relevant to each injury. His explanation is that it was the fault of his medical practitioners, but I think the reality is that he was not troubled by his right shoulder much after he was treated by Mr Richardson, and the onset of the injuries to his neck and lower back are entirely coincidental and unrelated to the transport accident. I should add, and I repeat, it is simply not possible for me to determine whether the problems he is having with his right shoulder now, as demonstrated in the clinical notes, is causally connected to the original right shoulder injury or not.
Disentangling
36 What is clear from my reasoning thus far is that I do not accept the plaintiff’s evidence that the problems he is having with his right shoulder now and injuries to his neck and his lower back are causally connected to the transport accident.
37 Even if I accepted that the problems he is having with his right shoulder are causally connected to the transport accident, then the plaintiff has failed to disentangle the consequences of the injuries/medical conditions affecting his neck, lower back, left shoulder, hip, right knee, right ankle and his heart condition. Although the plaintiff said that the references to problems relevant to his left shoulder, hip and right knee are of no consequence, it is nonetheless the onus he bears to demonstrate that by evidence, and not just his evidence, but by medical evidence which would be the usual course taken in an application such as this.
38 According to the plaintiff’s evidence, he has pain and restriction of movement resulting from the injuries/medical conditions affecting his neck and lower back and right knee. They may well have other consequences, for example interference with social, domestic and recreational pursuits and his capacity to work.
39 In Peak Engineering Pty Ltd & Anor v McKenzie,[18] the Court of Appeal made it clear, in a WorkCover context, that where two different injuries are concurrently producing pain and suffering consequences that it will ordinarily be necessary to make findings about all the pain and suffering consequences which are operative at the date of trial. It added that this is an essential precondition to the task of deciding which of the pain and suffering consequences are attributable to which injury/medical condition. The plaintiff bears that onus; it has clearly not discharged it. It is particularly important in this case because of the gravity of the complaints the plaintiff makes about the consequences of the injuries/medical conditions affecting his neck and lower back.
[18][2014] VSCA 67
40 That, of course, is not to mention his heart condition, which appears to be a major problem, and an actively symptomatic right knee condition. Part of the plaintiff’s evidence relevant to his need to use a crutch to support himself as he stands and walks is that it is contributed to by both his lower back and his right knee.
Absence of evidence
41 This Court recognises the predicament of self-represented litigants who are faced with the almost insuperable task of defining the issues which the Court will consider, and obtaining relevant evidence to meet each of those issues one way or the other.
42 Additionally, the difficulty for the plaintiff was to determine what evidence he needed to prove the case he believes he has. In this instance there is a demonstrably large absence of critically important evidence. Even if the plaintiff had the resources to collect all of that evidence, I do not think it would have assisted him to prove a case that one of the injuries he claims is serious.
43 I will lastly say that he has not adduced sufficient evidence to inform me whether and to what extent the medical problems affecting his left shoulder, hip, right knee and heart result in consequences which need to be weighed into account in determining whether any of his claimed injuries are serious.
Creditworthiness and reliability
44 The defendant submitted that the plaintiff is neither creditworthy nor reliable. I agree to some extent, but I do not think I need to say much about that because of the reasons I consider which potently demonstrate that the plaintiff’s application must fail.
45 I was left with the impression that the plaintiff preferred to make the causal connection with the injuries to his neck and lower back in a very global way, persistently claiming that they were causally connected, and when confronted with the clinical notes, then preferred to blame the absence of clinical notes as the failings of the medical practitioners who treated him. Interestingly, all of the clinical notes demonstrate that the plaintiff was treated for many other medical conditions, some of which were relatively minor when compared to the gravity of his complaints about his right shoulder, neck and lower back. Therefore, I do not accept what he says about the failings of his treating medical practitioners. I do not accept he made the complaints he alleges he did.
46 The plaintiff was also clearly unreliable. It must be acknowledged immediately that it is a near impossible task for any plaintiff to remember occasions when resort has been had to medical treatment and what may or may not have been recorded by treating medical practitioners in clinical notes, but in this case, the plaintiff did not appear to me to have much of a recollection of the course of his medical treatment. I think in an overall sense his evidence was unreliable, and hence the reason why I placed more emphasis on the clinical notes of his treating medical practitioners.
47 One matter which I thought the plaintiff became shy about was describing his working life. It took me some time to gain an understanding of what the plaintiff was actually saying about whether he worked after the transport accident, the extent to which he worked and whether he continues to work. Ultimately, after the plaintiff gave a number of versions of his current working status, he said that he worked for only a part of 2019 in his cleaning business. I gathered he meant that he physically applied himself to doing that work. His wife and his sons now carry on the cleaning business.
48 It struck me as odd that he was unable to give the answers he did at the end much earlier on and in a simple and clear way. I infer that he was shy giving those answers because he knew that his capacity to work would inevitably impact upon an impression of the gravity of the impairment consequences of the injuries to his right shoulder, neck and lower back.
Conclusion
49 I am not satisfied that the plaintiff has discharged the onus he bears. I will order that his originating motion be dismissed.
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