Dimitriou v Transport Accident Commission

[2025] VCC 546

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-23-02642

DIMITRIOS DIMITRIOU	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR MANOVA
WHERE HELD:	Melbourne
DATE OF HEARING:	6 and 7 March 2025
DATE OF JUDGMENT:	7 March 2025 (ex tempore)
CASE MAY BE CITED AS:	Dimitriou v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2025] VCC 546

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT

Catchwords:              Serious injury application – taxi driver - vehicle collision - non-compensable left shoulder injury - disentanglement - reliability

Legislation Cited:      Transport Accident Act 1986, s93(4)(d)

Cases Cited:Richards & Anor v Wylie (2001) 1 VR 79

Judgment:                  Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Stanley SC with Ms A Smeitanka	Zaparas Lawyers
For the Defendant	Mr S Pinkstone	Lander & Rogers

HER HONOUR:

1These are written reasons for my judgment handed down ex tempore on 7 March 2025.

2Mr Dimitriou seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring common law proceedings to recover damages in respect of injuries arising from a transport accident occurring on 20 March 2020.

3Mr Dimitriou was born in Greece in 1945. He is now eighty years old. He is a lifelong professional driver, having driven buses, trucks and taxis. As at the date of this incident, he had been a taxidriver for four decades.

4On 20 March 2020, Mr Dimitriou was seventy-five years old.  He was working as a taxidriver under a bailment agreement, which allowed him to keep a portion of his earnings, while paying a portion to his employer.  He was earning about $612 a week.  He had, as at the date of the accident, worked for eight years after the Australian Government official retiring age for men.

5On that day, Mr Dimitriou parked his taxi on the side of the road in North Carlton waiting for a passenger.  A vehicle collided with his taxi from behind.  The photos of the damage caused are in the Plaintiff’s Court Book.[1]  The driver's side rear of the taxi has been impacted and apparently at a rate of speed, because the damage looks significant.  Mr Dimitriou was not wearing a seatbelt.  He was flung forward and hit his face on the windscreen.  He was taken by ambulance to hospital, underwent scans and was discharged home.  Thereafter, Mr Dimitriou has had a range of treatment and investigations for his spine, his left shoulder and later his right shoulder.

[1]Exhibit D1 at Amended Plaintiff’s Court Book (“PCB”) 30-35

6The hearing proceeded in the usual way.  Mr Dimitriou was the only witness to give oral evidence and to be cross-examined.  The parties otherwise tendered various reports from their respective court books.

7The legal principles are well-known and not in dispute. The Court must not give leave unless it is satisfied on the balance of probabilities that the injury is a serious injury within the meaning of the definition of “serious injury” contained in s93(17) of the Act.

8Mr Dimitriou relies on impairment to his spine and/or his left shoulder, or the right shoulder, which is put on the basis of an overuse, or consequential, injury arising from the direct injury to the left shoulder at the time of the accident.

9In order to succeed, Mr Dimitriou must prove on the balance of probabilities that the injury, either to the spine alone, to the right shoulder alone, or to the left shoulder alone, was a result of the transport accident.

10“Serious injury”, as defined in subparagraph (a), can have its seriousness measured in part by a mental response to a physical impairment. However, the mental disorder cannot itself constitute, or be the producer of, the impairment of a body function.[2]

[2]        Richards & Anor v Wylie [2001] 1 VR 79

11The issues before the Court were the reliability of Mr Dimitriou.

12In terms of the injuries, the defendant conceded that the spine and/or left shoulder injuries were compensable, but did not accept that the right shoulder injury was a consequence of the car accident, nor the impact of the accident on the left shoulder.  The defendant also argued that Mr Dimitriou had not disentangled the various consequences between the right shoulder, the left shoulder and the spine.

13Mr Dimitriou swore two affidavits, the first on 14 September 2022 and the second on 5 May 2025.  In those affidavits, Mr Dimitriou set out the treatment  he has had as a result of his accident-related injuries.  They included various investigations of the left and right shoulder, and spine; osteopathy treatment at Moreland Osteopathy and attendance on an orthopaedic surgeon, Mr Audi Widjaja, for his back and left shoulder pain.

14Mr Widjaja was initially seen about left shoulder and neck pain, and last seen in November 2020.  Mr Widjaja recommended conservative treatment.  Mr Dimitriou was referred to Brunswick Private Hospital, where he participated in some rehabilitation.

15From August 2021, he attended in an outpatient setting, which he later described in his second affidavit as a twelve-week outpatient program.  He continues to take Voltaren, Nurofen and Panadol for pain.  He described the medication regime as taking Panadol most days, trying to limit how many anti-inflammatories he takes because they cause stomach upset, and he takes them between three to five days a week, but as the defendant pointed out, it was not clear in respect of which injury the medication was taken. 

16Mr Dimitriou described constant pain in his back.  Static postures, particularly static standing or sitting, flare-up his pain and he finds that bending and walking upstairs also make his pain worse.  The pain distracts him and prevents him from driving for longer distances, and has impacted on his enjoyment with his wife of long-distance car trips and vacations, including a trip to Inverloch for fishing.  He said the pain in his back keeps him up at night and it also affects his ability to enjoy as much gardening as he did before.  This was a hobby that he very much enjoyed and he was very proud of his garden.  His evidence has been that he is still able to mow the lawn and do some lighter gardening activities, but not to the same level as before the injury.

17Mr Dimitriou deposed that both his wife and himself, despite being people of advanced years well past the pension age, continue to work due to their financial circumstances.  He deposed to struggling with heavier housework, but did not attribute it to any particular injury.  He enjoyed fishing, and as well as I have been able to understand, his inability to fish is mostly attributable to the shoulder injuries, rather than the spine.  He deposed in his affidavit that as a consequence of the left shoulder injury he uses his right arm more, and has developed right shoulder pain.  He has not been able to return to any work since the injury and his oral evidence has been, effectively, that the reason for that is the spinal injury.

18As I mentioned earlier, Mr Dimitriou has attended a twelve-week outpatient program with various sessions, including physiotherapy, exercise physiology and occupational therapy, and from time to time he consulted with a rehabilitation physician, Dr Selva Mudaliar, at Brunswick Private Hospital, and has had treatment on referral from that doctor for his right shoulder.

19He has also had a right shoulder injection which provided good pain relief, but that was not lasting.  He has had neurological treatment from Dr Raju Yerra in respect of headaches, psychological treatment from Dr Helen Kalaboukas and osteopathic treatment at Moreland Osteopathy.

20In his most recent affidavit and in his presentation at court, it is clear he suffers constant pain in his back.  He deposed that he wore a lumbar support and his counsel pointed out that that lumbar support was worn when he attended orthopaedic surgeon, Mr Michael Dooley.

21He is unable to go fishing.  Firstly, he cannot drive the long trip to Inverloch, because the lumbar spine impacts his ability to drive long distance.  However, the fishing itself is impeded by his inability to sit still for very long, and that was obvious in the witness box, and the casting of the rod is impacted by his right shoulder injuries.

22He describes the pain in the right shoulder as “constant” in his affidavit and as fluctuating in his oral evidence.  He described it as “going up” and “going down” from time to time,[3] but I understood he meant that it was always there, at some level.

[3]Transcript (“T”) 130, Lines (“L”) 26-27

23If he drives for too long, he said his back plays up and his right shoulder pain becomes worse.  The right shoulder pain impedes his ability to concentrate and is distracting, and also causes difficulty in comfortably engaging in long drives.

24He describes the financial consequences of the injuries in his affidavit in broad terms and it is understandable that the defendant had issues with this, because in his second affidavit he deposes that:

“I have not returned to work. I wish I was still working. I want to be working. I would absolutely be working now, if it were not for the injuries the subject of the transport accident. My job was my life. I feel as if I was born behind a steering wheel. Since I was 17 years old, I have driven for work. It was happiness for me to be driving and I really enjoyed driving taxis. Most people I met, were lovely. I had a social life through my work because of clients. I enjoyed socialising with clients. Driving was my life. I miss the freedom of driving taxis. I had purpose and something to do.”[4]

[4]PCB 28 at paragraph [32]

25In his oral evidence, however, it was clear Mr Dimitriou's position was that he could not return to driving predominantly because of his lower back problem and that was really the reason.  The shoulder injuries might impede his ability to drive and concentrate, but I understood his evidence to be, if it was not for the back, he would probably be able to drive.

26Treating general practitioner (“GP”), Dr Ioakim Alekozoglou, has diagnosed, initially a whiplash injury affecting the neck and left shoulder and a subscapularis tendon tear with supraspinatus tendonitis, and treatment was a nonsteroidal anti-inflammatory medication, Panadol and osteopathy treatment.  There were reduced movements of the axial spine.  The upper and lower limbs were neurologically normal and Dr Alekozoglou prognosticated that Mr Dimitriou would continue to have pain and stiffness.[5]  I understood that meant in relation to the actual spine due to the accident, and restricted social and domestic and recreational activities.

[5]PCB 45-46

27Dr Alekozoglou indicated, in December 2024, that Mr Dimitriou continued to attend on a regular basis for closed-head injury, neck, lower back and left shoulder bursitis.  He diagnosed mechanical back pain which normally resolved over two years and reported that Mr Dimitriou “will no longer drive a taxi”.[6]  He also diagnosed adjustment disorder.  He reported his diagnosis as “fair”, and that Mr Dimitriou “will have difficulties with forceful activities such as lifting and bending in future” and “is unlikely to return to work as a taxidriver”.[7]

[6]PCB 49-50

[7]PCB 50

28Dr Kalaboukas took a history that Mr Dimitriou reported:

“… that the pains have continued since the accident, ‘up and down…more when he is stressed’. His said his head burns sometimes, ‘I am like in the oven…my life has turned upside down…I stay home all day…I feel tired and do nothing…I just go around my garden…”[8]

[8]PCB 55

29Dr Mudaliar, at the Brunswick Private Hospital, reported in July 2023 that Mr Dimitriou's lower back was exacerbated after his discharge on the day of the accident from The Royal Melbourne Hospital and later his left shoulder pain intensified.  An ultrasound of that shoulder revealed a partial tear of the supraspinatus muscle.[9]

[9]PCB 65-66

30Dr Mudaliar referred Mr Dimitriou for physiotherapy at the Brunswick Private Hospital Outpatient Clinic, which he commenced on 2 August 2021, and he was advised to continue with his therapy sessions.  Cortisone was also advised by Dr Mudaliar, but at the time the report was written, in July 2023, Mr Dimitriou was awaiting approval from WorkCover.[10]

[10]PCB 65

31Dr Mudaliar considered that the shoulder and back injuries were:

“… most likely from the pre-existing degenerative disease rather than from the accident. However, I will stipulate that the accident may have aggravated and exacerbated the already pre-existing conditions.”[11]

[11]PCB 66

32He was unable to prognosticate any further or for future endeavours, or his capacity for employment, and Dr Mudaliar last examined Mr Dimitriou in December 2021.[12]

[12]Ibid

33Mr Widjaja treated Mr Dimitriou between October 2020 and approximately July 2021 in relation to, initially, the left shoulder and neck and later the lumbar spine, and he diagnosed left shoulder osteoarthritis exacerbation, left AC joint osteoarthritis exacerbation, degenerative disc disease of the cervical spine and disc protrusion at L4-5 and L5-S1, with mild nerve root impingement at L5 and right S1, with muscular back pain, thoracic kyphosis and thoracolumbar spondylosis.[13]

[13]PCB 73

34He considered, in July 2021, that Mr Dimitriou may have a capacity to perform pre-injury duties as a taxidriver on a part-time basis, however he may find it difficult.  The number of hours would be dependent on his pain levels.[14]

[14]PCB 75

35He thought Mr Dimitriou might have a capacity to perform suitable employment based on his consultations with him.  However, he took into account his age and the fact he was already past retirement age, and thought Mr Dimitriou might find it difficult to find suitable employment in a different profession.[15]

[15]Ibid

Medico-legal reports

36The medico-legal reports, I will summarise briefly in terms of the submissions that were made to me about the shoulder and capacity.

37Professor Richard Bittar reported in August 2023 and again in July 2024.  In those reports, Professor Bittar firstly noted, on examination, that Mr Dimitriou walked with a slightly-stooped gait, that he had moderate restrictions of lumbar spine flexion with severe restriction of lumbar spine extension, and extension was more painful than flexion. He had bilateral paravertebral muscle spasm and tenderness, particularly at the lumbosacral junction.[16]

[16]PCB 79; see also PCB 85

38These matters Mr Pinkstone, counsel for the defendant submitted, were objective, and I accept that they are clearly objective findings of how Mr Dimitriou presented on that day, as reported by Professor Bittar, who opined:

“Neurological examination of the lower limbs did not reveal any evidence of radiculopathy or myelopathy. He did have global weakness of his lower limbs which appeared to be pain related. He did appear to be in considerable pain at the time of the assessment.

There was no abnormal illness behaviour.”[17]

[17]PCB 79; see also PCB 85

39These observations Mr Pinkstone did not accept were objective findings.  However, I consider the neurological examination was objective and the global weakness of the lower limbs is also probably objective.  Often, we see in reports of this kind where a person is voluntarily demonstrating weakness, the doctor will usually indicate “voluntary weakness”, so I consider the findings that Mr Dimitriou had lower limbs which were affected by global weakness, and that he appeared to the doctor to be in considerable pain, to be objective.

40I consider a doctor is eminently qualified to determine if someone appears to be genuinely in pain or not (taking into account the presentation and the objective evidence such as responses to clinical examination and imaging). In this case, the doctor underscored this finding with the finding of no abnormal illness behaviour.

41He diagnosed aggravation of lumbar spondylosis or spondylolisthesis, and in his opinion the facet joints were most likely the main source of the back pain.[18]

[18]PCB 80 and PCB 85

42In terms of work capacity, Professor Bittar said:

“In my opinion, he is incapacitated for his pre-injury duties as a taxi driver. His constant pain as well as his inability to sit for more than short periods of time would prevent him from being able to work as a taxi driver.

Taking into account his age, education, training skills and work experience, as well as the nature and severity of the accident-related lumbar spine condition, it is my opinion that he does not have any realistic capacity for suitable employment. In my opinion, his total incapacity for work is permanent.”[19]

[19]PCB 80

43Professor Bittar also reported Mr Dimitriou’s injury “has an organic basis” and he would be likely to continue to experience significant pain and disability into the foreseeable future.[20]

[20]Ibid

44In his second report, Professor Bittar again diagnosed aggravation of lumbar spondylosis or spondylolisthesis and expressed an opinion on causation, that the transport accident of 20 March 2020 was the cause of the lumbar spine condition and maintained his opinion that Mr Dimitriou continued to be incapacitated for pre-injury duties as a taxidriver on account of the spinal condition.[21]

[21]PCB 85

45The incapacity was permanent, because Mr Dimitriou would be unable to return to work in suitable employment on a reliable and consistent basis without a risk of re-injury and deterioration of his injury.

46The clinical justification for this relates to Professor Bittar's finding that Mr Dimitriou has ongoing pain, restricted movement and postural intolerances.[22]

[22]PCB 86

47Orthopaedic surgeon, Mr Ash Moaveni, examined Mr Dimitriou on 22 August 2023.  At the time of the examination, he had access to Mr Dimitriou’s affidavit sworn on 14 September 2023, and various other medical reports, and imaging of the lumbar spine, the left and right shoulder and thoracic spine.

48Mr Moaveni considered that:

“As a consequence of the left shoulder injury [which I understand it is not disputed that that is compensable], Mr Dimitriou reported using his right arm more and has developed some right shoulder pain.”[23]

[23]PCB 96

49Mr Moaveni considered that “Mr Dimitriou’s injury in his left shoulder is of exacerbation of a pre-existing arthritis in the shoulder and acromioclavicular joint”.[24]  While there is evidence of some prior investigation of the left shoulder some two or three years before the accident, Mr Dimitriou could not recall the investigation, what it was for, or what kind of symptom brought him to the investigation in the first place.[25]  There is no suggestion of any ongoing left shoulder problem prior to the accident.

[24]PCB 102

[25]PCB 94

50Mr Moaveni also stated that Mr Dimitriou's injury in the right shoulder is an exacerbation of pre-existing partial thickness supraspinatus rotator cuff tendon tear.  In this proceeding, it is not in dispute that the first complaints of right shoulder pain arise after the transport accident and there is no suggestion of any symptomatology associated with that shoulder prior to the accident.[26]

[26]Ibid

51Mr Moaveni considers that both of these injuries are referable to the road transport accident which occurred on 20 March 2020, stating “Mr Dimitriou reported pain in his left shoulder soon after the 20 March 2020 transport accident. With overuse of the right upper extremity, he developed pain in the right shoulder”.[27]

[27]Ibid

52Mr Moaveni then considered that the right shoulder alone and the left shoulder alone, were both capable of, and in fact, both restricted Mr Dimitriou's work option, which meant that employment activities involving pushing, pulling, lifting, repetitive action and use of steps or ladders would be problematic for Mr Dimitriou on account of the left and right shoulder.[28]

[28]PCB 102-103

53In his second report, Mr Moaveni also considered the spine and lower limbs.  He noted a history that:

“Mr Dimitriou stated a standing tolerance of less than ten minutes, a sitting tolerance of less than ten minutes, and a walking tolerance of less than 30 minutes. [That he had] reported marked difficulty with bending and twisting, and stated that he is unable to lift heavy objects. Mr Dimitriou also reported marked difficulty ascending and descending steps, as well as walking on uneven surfaces.”[29]

[29]PCB 110

54Mr Moaveni considered the left shoulder alone, the right shoulder alone, and the spine alone, and repeated his opinion in relation to capacity in respect of each shoulder, stating:

“As a result of his injury to the spine, Mr Dimitriou is limited in his standing, sitting and walking. He also has marked difficulty in bending and twisting and he is unable to lift heavy objects …  His incapacity is referable to the road transport accident which occurred in March 2020.

In relation to each of the above injuries [that is each shoulder in isolation from the other and the spine], Mr Dimitriou is not capable of undertaking unrestricted pre-accident work duties for full pre-injury hours on a regular and reliable basis. Taking into account his age …, injuries, functional limitations, education and past work experience, he also does not have capacity for suitable employment, on a regular and reliable basis.”[30]

[30]PCB 113-114

55It appears as though Mr Moaveni also had access to an affidavit of Mr Dimitriou in preparation of this report, although he has not included the date of that affidavit in his report.

56Dr Joseph Slesenger is the only occupational physician whose reports are in evidence.  He provided two reports, the first in September 2023 and the second in August 2024, and he noted a history in the first report that:

“The left shoulder symptoms have persisted with ongoing pain, stiffness and restricted range of shoulder movements. He has difficulty over shoulder reaching although this is less restricted when compared to the right side, although he advised of residual difficulty lying on the left side.”[31]

And:

“He has residual right shoulder pain that is severe and constant with restricted range of shoulder movements. He had difficulty lying on the right side. He had weakness throughout the right arm.  He advised that his right shoulder symptoms were more noticeable when compared to the left.”[32]

[31]PCB 119

[32]Ibid

57In terms of the lower back pain, Dr Slesenger noted Mr Dimitriou had developed lower back pain that has persisted since the accident.  The pain was centred in the lower back, did not radiate to either leg and the spinal impairment was similar in intensity and disability to the bilateral shoulder impairment.  The back pain impacted on the his ability to walk, stand and sit for more than twenty minutes.[33]

[33]PCB 119

58There was some uncertainty as to the imaging and Dr Slesenger opined that the left shoulder was injured in the accident.  He also considered the right shoulder condition arose as a consequence of the left shoulder injury.  He considered that Mr Dimitriou could not return to work as a taxidriver on account of the left shoulder condition, as the job demands would lie outside his capacity limits.  He expressed a similar opinion in relation to the right shoulder.[34]

[34]PCB 129-130

59In terms of the objective findings, Dr Slesenger also noted a restricted range of movement in the lumbar spine, tenderness over the lumbosacral junction and the paraspinal musculature.  There was also restricted range of movement in the left and right shoulders.  He diagnosed aggravation of degenerative disease in the left shoulder, soft-tissue injury in the right shoulder with aggravation of degenerative disease, and considered that, based on the residual bilateral shoulder impairment, Mr Dimitriou could not return to work in pre-injury duties or in suitable alternative duties.[35]

[35]PCB 122 and PCB 129-131

Defendant’s medical evidence

60The defendant relied on a report of neurosurgeon, Dr Armin Drnda, who examined Mr Dimitriou in December 2021.  He had regard to imaging taken in November 2020, being an MRI scan of the cervical and lumbar spine, and considered that there were multiple disc bulges demonstrated in the cervical spine and in the lumbar spine.  In particular, at L3-4 of the lumbar spine, there was a mild anterolisthesis and at L4-5, there was mild lateral recessed stenosis on the left.  There was L5-S1 bilateral foraminal stenosis of a moderate degree, but without definite compression on the exiting L5 nerve roots.[36]

[36]Amended Defendant’s Court Book (“DCB”) 68

61Imaging taken in February 2021 of the thoracic and lumbar spine revealed increased thoracic kyphosis with mild scoliosis.  Degenerative changes were present throughout.[37]

[37]Ibid

62Dr Drnda considered that, given Mr Dimitriou never had signs of radiculopathy or myelopathy, it was questionable whether there was a need for extensive imaging.  He diagnosed chronic neck and lower back pain, which could well be related to the natural history of cervical and lumbar spondylosis, and provided an impairment assessment of zero.[38]

[38]DCB 68-69

63Two reports of Mr Dooley were tendered by the defendant in relation to the orthopaedic condition of Mr Dimitriou's spine.

64In his first report, dated 24 September 2024, Mr Dooley diagnosed a naturally-occurring and age-related degenerative change, which had been aggravated by the transport accident.  He considered these were soft-tissue injuries that were sustained in the motor vehicle accident and that the constancy and intensity of Mr Dimitriou's ongoing pain was greater than one would expect to see for his organic condition.[39]

[39]DCB 95-96

65He believed the reason for the disproportionate pain is Mr Dimitriou’s understandable psychological reaction to his situation, given his many years of professional driving and never having been involved in a motor vehicle accident in all that time; the normal ageing process; the emotional difficulty associated with finishing work and the understandable frustration with the way the industry was treated by governments, were said to be contributing to his current situation.[40]

[40]DCB 96

66In his second report dated 31 October 2023, Mr Dooley examined Mr Dimitriou and found a reduced degree in flexion and flattening of the lumbar lordosis.  The flexion was 60 degrees and the extension 15.  Lateral flexion and rotation to the left and right were 20 degrees.  Power, tone and sensation were normal.[41]  The diagnosis and the clinical impression were similar to that in the previous report.

[41]DCB 98

67Again, he reiterated, “soft tissue spinal injuries have involved some aggravation of naturally occurring and age-related degenerative change”.[42]  He did not believe that Mr Dimitriou had sustained injuries to either shoulder joint or rotator cuff regions, et cetera.  He reported ongoing constant pain and significant disability.[43]

[42]DCB 99

[43]Ibid

68He accepted, however, that the injuries were sustained in the transport accident and maintained his view that the constancy and intensity of the ongoing pain was greater than one expects.

69There were no specific non-organic signs noted by Mr Dooley, and from an orthopaedic viewpoint only, he believed Mr Dimitriou would have difficulty carrying out any physical work and activities that involved a lot of bending, lifting and manoeuvring.  From a theoretical point of view, he thought Mr Dimitriou would have a physical capacity to carry out some light work and clerical-type work.  Mr Dimitriou was noted to be seventy-eight years old.[44]

[44]DCB 100

70Taking all of the evidence into account, it seems to me that the weight of the evidence supports a finding that the lumbar spine is producing pain and suffering consequences of such severity that Mr Dimitriou cannot return to work as a taxidriver, a job he did for forty years, and which he would have continued to do had it not been for the accident, and he would have continued to do that for as long as he was physically and mentally able.

71I consider that it is a pain and suffering consequence of some severity that a man in the twilight of his working years who had already worked a significant number of years after the official Australian Government retirement age for men, has been unable to continue working in a job he loved, as a result of the spinal injury occurring in this transport accident.

The shoulders

72The defendant submitted that the left shoulder and right shoulder were also creating an inability to work.  That is so, according to Mr Moaveni and Dr Slesenger.

73Mr Dimitriou, himself, however, said he did not think the shoulders prevented him from working as a taxidriver; he considered it was really the lumbar spine or the lower spine that was causing him difficulty.

74I accept the submissions on behalf of Mr Dimitriou that the right shoulder is secondary to the left shoulder injury, and I do so for the following reasons: firstly, I accept Mr Dimitriou’s evidence and I pause here to say something about his credit.

75In applications such as this, the credit of the plaintiff is often of great importance, both directly and indirectly.  The opinions of medical witnesses and other experts depend upon what they have been told by the plaintiff and upon his behaviour and performance on examination and on testing.  Credit is also important because the Court must be satisfied of the alleged consequences and their impact on the plaintiff's residual capacity.

76Mr Dimitriou strikes me as an honest man.  His presentation and demeanour in the witness box were that he gave direct answers, he readily made concessions, he was not defensive, he did not argue, and he made admissions against interest.  At no stage did I form the view he was trying to give answers that would support his case.

77It seemed to me his answers were directly responsive to the questions that were asked.  None of the evidence he gave appeared in any material way to be inconsistent with the history as noted by the doctors, or with his affidavit evidence, nor, indeed, with any of the evidence of what I call the “complementary witnesses”, being his wife and son.

78I formed a view that Mr Dimitriou is telling the truth.  He is telling the truth about why he cannot drive, he is telling the truth about what the taxi driving meant to him.  That it was not just a job, that it really was a social outlet for him.  That it was a way for him to continue interacting with the public and with the outside world, and was something that he loved to do very much.

79I formed the view he was telling the truth when he told the Court that an issue with a doctor caused him to be upset and to vow he would never seek medical treatment again.

80I formed the view he was telling the truth when he told the Court his friends and his doctor told him that cortisone could be damaging for his body and so he was reluctant to have it.  That had a ring of truth to it and it sounded to me the kind of thing a patient and his doctor might discuss.

81On reliability, the defendant submitted Mr Dimitriou was a credible witness and appropriately, in my view, said the defendant shares my preliminary impressions on his demeanour and on the veracity of his evidence.  In particular, that he made appropriate concessions, that he answered concisely, and that none of the doctors made adverse findings on his presentation and honesty.

82I am unable, however, to accept the defendant's submission about Mr Dimitriou’s reliability because of the basis on which it was put.  Often, it may be the case that a person has a poor memory of events, in which case it is not possible to rely on their memory, because it is simply not adequate.  However, that is not how reliability was put in this case.

83The defendant submitted that Mr Dimitriou's complaints about pain were not reliable because there was no objective evidence to support them.  The defendant also submitted that Mr Dimitriou had experienced good pain relief from the cortisone injection and there was no real explanation for why he had not gone back for more cortisone.  The defendant was dubious about whether the doctor had really given the advice about the cortisone not being able to be used frequently.  The defendant said it is a mark against his reliability and it beggars belief that he would not go to get another injection if he had such a good outcome from the first.  I reject that submission.

84I consider Mr Dimitriou was telling the truth when he said he had had a terrible reaction to, an argument, or a disagreement with a doctor, so much so he said he would rather die before he went back to a doctor for more treatment.

85I accept his evidence that that is the reason why he is not seeking more treatment and I accept his evidence also that, as a result of the advice he received, both from his friends and from his doctor, about the cortisone, he was apprehensive about having more injections.

86I do not accept that pain needs an objective test in circumstances where I have found Mr Dimitriou to be credible and reliable.  I accept his evidence about the extent of his pain and I note that there is objective evidence about his presentation on clinical examination and his restriction of movement. This includes a doctor's view that he was not engaging in abnormal illness behaviour, and that his movements were genuinely affected by his experience of pain.

87Returning to the shoulders.  I accept the opinions of Mr Moaveni and Dr Slesenger that the right shoulder is secondary to the left.  I do so for the following reasons.

(a)   firstly, the right shoulder is affected by some kind of degenerative condition, which both doctors consider has been aggravated as a result of overuse of the left shoulder consequent on the transport accident;

(b)   secondly, there is no evidence of any prior right shoulder complaints or treatment;

(c)   thirdly, I accept the submissions of counsel for the plaintiff that, had there been a continuation of treatment between Mr Widjaja and Dr Mudaliar, either of those doctors might have been in a position to express an opinion about the consequential nature of the right shoulder condition.

88Treatment ceased with Mr Widjaja in March 2021 and started with Dr Mudaliar in August 2021.  When the right shoulder pain came on, or came on in any significant way, there was no treating specialist.

89I accept the submission that the second specialist was consulted as a result of the ongoing shoulder problems.  Counsel for Mr Dimitriou said, “a year after the accident he was seeking shoulder treatment with a  specialist. That is indicative of the severity of difficulties he was experiencing as a result of the left shoulder.”[45]  I consider there is a path of reasoning visible in Mr Moaveni's report.

[45]T145, L30 ꟷ T146, L3

90Mr Moaveni accepted the description of the overuse provided by Mr Dimitriou.  He had access to his affidavits and having looked at the imaging and what the imaging disclosed, he formed the view that the right shoulder was an exacerbation of the pre-existing partial thickness tear, which was referable to the transport accident as a result of use of that arm.  He describes it as, “[w]ith overuse of the right upper extremity, he developed pain in his right shoulder”.[46]

[46]PCB 102

91In my view, whether it is overuse or whether it is ordinary use of the right arm to accommodate the left arm injury, I find Mr Dimitriou developed the pain and symptoms in his right shoulder as a consequence of that left shoulder injury.

Findings regarding the consequences of the spinal injury

92As I have said, the most significant finding in respect of the spinal injury is Mr Dimitriou's inability to return to the work he loved, as a taxi driver, on account of that spinal injury.

93In my view, that alone warrants the grant of a serious injury certificate.  However, I find also, that he has other consequences arising from that lumbar spine condition, which include an inability to do heavier gardening and an inability to engage in static postures, for example sitting or standing; and I noted his presentation in the witness box and raised with both parties that Mr Dimitriou appeared to be frequently sitting and standing and grimacing in pain as he did so.

94I find his ability to enjoy long-distance car trips with his wife and to go on vacation and do day trips, is impacted by his spinal injury.  I find he is unable to do heavier gardening.  I find he is also unable to enjoy fishing.  The spine affects the fishing, because he cannot sit for too long.  There are different findings in relation to fishing and the shoulder which I will address shortly.

95He has had significant treatment in relation to the lumbar spine.  Often in these cases we see people on medication only.  Mr Dimitriou has had treatment in an outpatient setting, a twelve-week outpatient program with twenty-four physiotherapy, twenty-four group therapy, twenty-four exercise physiology and twenty-four individual occupational therapy sessions.  In addition, he is taking Voltaren, Nurofen and Panadol, if not daily, then on a regular basis.  He has had osteopathy treatment and he attends the pool, sauna and spa.  He has continued to walk for exercise and for his mental health.  The right shoulder injury also affects his ability to drive for long distances, although he indicated he can rest the shoulder at times when he drives, unlike his back which he cannot.

96I accept Mr Dimitriou's evidence that his right shoulder also impacts his quality of sleep.  I accept he finds it difficult to lift a lot of weight with his right shoulder and that driving for too long makes the pain worse.  This is because of problems holding the steering wheel.  He tries to drive with his left hand, or one-handed, as much as possible, and he says one problem with driving too long is attributable to the right shoulder pain.

97That is also one reason, he said in his affidavit, why he is not working.  He said his right shoulder is also equally the reason why he is not fishing, because he is unable to reel in a fish, or hold a rod, and I understood his evidence in the witness box to be that, holding a rod for a significant period of time was not possible because of pain in the right shoulder.  The right shoulder pain also impacts his ability to concentrate and is distracting.

98I accept his evidence about the argument with the doctor and his inability to access further treatment, having vowed off more interactions with doctors.  Thus, he prolongs his pain and suffering because finds himself unable to attend for treatment.

99Mr Dimitriou’s right shoulder pain impacts on his ability to socialise, in the sense that pain impairs his ability to sit comfortably.  I accept that evidence. 

100Having made the findings I have in relation to the spine, and its direct impact on his ability to return to taxi-driving work, it is, in my view, for a man of his years and in the twilight of his working life, significant enough to warrant the grant of leave on its own.

101I now pause to finally consider the right shoulder.  Both Mr Moaveni and Dr Slesenger consider that the left and right shoulder, individually and by themselves, impair Mr Dimitriou's ability to return to work as a taxidriver.  As such, I consider he has suffered a serious injury on account of the accident affecting his left shoulder, and as a consequence his right shoulder, and that those both individually impair his ability to return to work.

102I find he has suffered a serious injury to the left and right shoulders, and on account of the medical evidence, I accept those shoulder conditions, themselves, individually and alone, prevent him from returning to work as a taxi driver.

103I grant Mr Dimitrious leave to commence proceedings to recover damages in respect the injuries arising from a transport accident occurring on 20 March 2020.

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