Djakovic v TAC

[2017] VCC 1768

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CI-16-04637

STJEPAN DJAKOVIC	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	DYER
WHERE HELD:	Melbourne
DATE OF HEARING:	28 & 29 August 2017
DATE OF JUDGMENT:	30 November 2017
CASE MAY BE CITED AS:	Djakovic v TAC
MEDIUM NEUTRAL CITATION:	[2017] VCC 1768

REASONS FOR JUDGMENT
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Subject:  Transport accident

Catchwords:   Serious injury; aggravation; extent of consequences; onus of
proof

Legislation Cited:                Transport Accident Act 1986
Cases Cited:  Peak Engineering & Anor v McKenzie [2014] VSCA 67;

Poholke v Goldacres Trading Pty Ltd  [2016] VSCA 232;

Meadows v Lichmore Pty Ltd [2013] VSCA 201; Dressing v Porter [2006] VSCA 215; Humphries v Poljak [1992] 2 VR 129; Petkovski v Galletti [1994] 1 VR 436

Judgment:  Application dismissed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms M. Pilipasidis	Ryan Carlisle Thomas
For the Defendant	Mr G. Lewis QC with Ms F. Spencer	Transport Accident Commission

HIS HONOUR:

Introduction

1 Stjepan Djakovic seeks leave to claim damages for injury sustained in a motor vehicle collision which occurred on 28 June 2010 in accordance with the provisions of section 93(4)(d) of the Transport Accident Act 1986 (“the Act”).

2 He relies upon an injury to his cervical spine as resulting in “serious injury” as defined in section 93(17)(a) of the Act.

3       Ms Pilipasidis, who appeared on behalf of the plaintiff, described the injury suffered by the plaintiff as an aggravation of degenerative changes in the cervical spine with referred pain, paraesthesia, numbness into the upper limbs and cervicogenic headaches.  Mr Djakovic had undergone surgery involving a double-level fusion to his lumbar spine in 1995.

4       At the time of the transport accident Mr Djakovic had retired from employment and the basis of his application for leave focused on pain and suffering consequences from his cervical spine injury.

5       Mr Djakovic was born in Croatia in 1944 and came to Australia in the late 1950s.  He was engaged in a series of manual-type employments before obtaining qualifications as a nurse in 1976.  He then worked in nursing for nearly 20 years until suffering a back injury which caused him to cease work in approximately 1994.

6       The plaintiff accepted that he had some ongoing persisting symptoms of his lower back injury in the year preceding the transport accident, but maintained that the consequences of the neck injury since that time had impacted very substantially on his activities of daily living.

7       Mr Lewis QC, who appeared with Ms Spencer on behalf of the defendant, did not dispute that there had been some mild soft tissue aggravation resulting from the transport accident.  The essential area of dispute was the extent to which the consequences flowing from the cervical spine impairment could be said to have reached the statutory threshold for leave to be granted.

8       Mr Djakovic and his daughter were each cross-examined.  The parties otherwise relied upon material tendered to the court from their respective court books.

The lay evidence

9       Mr Djakovic affirmed three affidavits in support of his application dated 14 January 2015, 31 May 2017 and 16 August 2017.[1]  A further affidavit in support of the plaintiff’s application was sworn by his daughter, Jasminka Djakovic, on 24 April 2015.[2]

[1]Exhibit A, p6-15.5

[2]Exhibit A, p16-19

10      The first affidavit sworn by the plaintiff confirmed his background as outlined in the opening and made reference to the surgery performed on his lower back in 1995.  Relevantly for this application the following matters were also referred to in the plaintiff’s first affidavit:

·    Following the laminectomy in 1995 Mr Djakovic continued to have ongoing symptoms and was unable to return to work again.  He was placed on a disability support pension thereafter.

·    In November 2009, prior to the transport accident, he was further investigated radiologically for lower back symptoms.  He continued to take medication up to the time of his transport accident.

·    Immediately following the transport accident in June 2010 he did not initially think he had been injured, but developed increased pain in his back during the day and attended a general practitioner approximately five weeks later.

·    He complained at that time of neck pain, left arm pain and lower back pain.  Physiotherapy was not helping.  He was referred to Mr Brighton-Knight.

·    He initially saw Mr Brighton-Knight approximately 13 months after the transport accident and was advised that further surgery would be in the lumbar spine and would be risky.  He was advised to continue conservative treatment and referred to Dr Clayton Thomas.

·    He saw Dr Thomas in September 2011 and was advised of potential nerve blocks.  He did not proceed with that treatment and continued with chiropractic.

·    Mr Djakovic was referred to Dr Seneviratne, neurologist, in October 2012 because of paraesthesia in his hand.  Nerve conduction studies were arranged.  He also underwent an MRI scan in late November 2012 and was told this showed damage to his neck. 

·    He was referred back to Mr Myron Rogers in November 2012, but was advised not to have surgery.

·    Mr Djakovic did not have neck problems prior to the transport accident.  At the time of his first affidavit he was having headaches at least twice per day and taking painkillers.  He had been told these were related to his neck condition.

·    He additionally experienced symptoms down both arms, the left worse than the right, with pins and needles and a loss of strength in the left arm.  On two occasions, because of the loss of sensation, he had attended hospital fearing a heart attack.

·    He was having ongoing chiropractic treatment and massage therapy.  He would prefer to attend more frequently but financially was unable to do so.

·    He was taking Panadeine Forte, three tablets per day, in addition to Digesic, Mobic and Panadol.  This was for both the neck and back.

·    He had restriction of movement of the neck and difficulty sleeping requiring the purchase of multiple pillows to alleviate his symptoms. 

·    The left arm symptoms were provoked by sneezing, coughing or lifting anything too heavy.

·    He had previously enjoyed travelling and taking long walks and playing pool, but he finds this very difficult due to his pain.

·    His previous back condition had compromised him prior to the transport accident but:

“… I feel that what I had retained in terms of my ability to engage in recreational, social and domestic activities has been greatly restricted because of the aggravation of my prior back condition and because of the new symptoms I am experiencing in my neck and into my upper left limb.”[3]

[3]Exhibit A, p11[23]

11      In his second affidavit Mr Djakovic effectively deposed to his situation remaining unchanged in that he continued to experience ongoing pain in the neck which was described as constant but varying in intensity.  There were further matters of relevance in that affidavit:

·    He experienced pins and needles in both arms frequently, lasting between 25 minutes to an hour about one or two times per week.  If he was driving he would have to pull over to let the symptoms settle down.

·    Any activity requiring him to keep his neck in one position for a lengthy period would aggravate his neck pain.

·    He continued to walk to maintain fitness but was unable to take very long walks or travel as he had previously done.  He was also unable to play pool, which he had avoided since the transport accident.

·    He continued to experience headaches which he stated were related to the neck pain.  The frequency of these was unclear in the affidavit.

·    He continued to take Panadeine Forte two to three times per day, “when the pain is very bad.”[4]  This was said to be two to three times per week at least.  He additionally took further drugs to help him sleep at night.  One of the medications, Lyrica, affected his ability to concentrate and caused drowsiness.

·    He continued to have chiropractic treatment on a fortnightly basis and saw a general practitioner about once every three months.

·    He acknowledged the earlier back injury with flare-ups a few times per year, but he had learnt to manage it.  The neck injury had caused considerable change in his activities:

“I also have a level of pain which I now cannot control even with the medication.  I am frustrated and depressed by my injury.”[5]

[4]Exhibit A, p14[8]

[5]Exhibit A, p15[14]

12      The final affidavit affirmed by Mr Djakovic confirmed the material in his earlier affidavits and described ongoing pain from the neck which had not improved.  This was said to have resulted in ongoing headaches which impacted upon him on a daily basis.

13      Mr Djakovic’s final affidavit described in some further details the impact of the neck symptoms and set out the current treatment being provided.  I noted the following matters as relevant:

·    Prior to the transport accident Mr Djakovic had taken one Mobic tablet on a daily basis, and had previously taken Serepax and Valium.  Those medications had ceased well before the transport accident.

·    He was currently taking seven medications for pain or muscle relaxation, whereas previously he had taken one.

·    He had recently ceased taking Panadeine Forte on a daily basis because of his body struggling to tolerate that medication.

·    He had learnt to live with the effects of his back injury over many years, but prior to the transport accident, “there was nothing wrong with my upper body.”[6]

[6]Exhibit A, p15.3[8]

·    Simple activities such as those requiring elevation of his arms above his head had become more difficult and painful.  He was still suffering the numbness in his arms and the prospect of surgery on his neck was unappealing.

·    He could no longer use gymnasium equipment at his home due to neck pain and increased upper body pain.

·    He had struggled financially to fund chiropractic treatment.

·    He had suffered from daily headaches which he would describe as severe on occasions.  In addition he suffers constant neck pain, tingling and numbness which radiates down his arms.  This has impacted on his ability of physically working out with weights and simple activities of daily life.

·    Prior to the transport accident he had played pool with his friends for his principal social activity.  The lack of flexibility in his neck impacted on his ability to play pool and  his enjoyment of it:

“… I have not returned to playing pool weekly or monthly, just occasionally with my daughter.”[7]

·    His daughter lives in Jeetho, which is approximately an hour and a half’s drive from his home.  Visiting has become difficult because of the long drive and the need to take medication which affects his ability to drive.  His daughter has been fighting cancer over the last two years and Mr Djakovic would like to visit her more frequently.

·    Mr Djakovic believes his neck has become worse and the numbness and pain has increased.  He would be prepared to undergo surgery, but only as a last resort.

[7]Exhibit A, p15.4[13]

14      Mr Djakovic confirmed the details deposed in his affidavits and was then cross‑examined.  I noted the following matters as relevant to my determination:

·    He agreed with a history given to Dr Nathar in January 2014 to the effect that he was not immediately aware of any pain following the accident and that his car was driveable, although eventually it had to be scrapped.[8]

[8]Transcript (“T”) 16, Line (“L”) 9-19

·    He further agreed that he had told Dr Comer, a chiropractor, on 28 June 2010 that the contact in the collision, “wasn’t more than mild and gave more of a jolt.”[9]

[9]T 17, L 6-12

·    When pressed on the severity of the collision, Mr Djakovic stated:

“Well, in the greater scheme of things, it didn’t feel like a giant one.”[10]

[10]T 18, L 2-3

·    Mr Djakovic agreed that following the back injury and surgery in the mid‑1990s he was not as fit as he had been and that the back affected:

“… most of my physical activity, so undoubtedly from time to time my sleeping as well.”[11]

[11]T 18, L 15-21

·    Mr Djakovic agreed that he had sworn an affidavit on 9 September 1996 in support of a claim for the back injury stating:

“‘Before March of 1994, I was able to go bushwalking, camping, fishing, playing tennis and travelling.  Now due to my injuries I have little or no sporting life, I am unable to walk far or stand or sit for lengthy periods of time, difficulty with steps.’”[12]

[12]T 19, L 13-24

·    He qualified the affidavit material from 1996 by stating:

“I worked on maximising my physical ability, and I still do, and I was able to regain, over the years, a fair amount of my physical ability and being able to take care of myself, up to a certain point.”[13]

[13]T 19, L 25-29

·    Mr Djakovic further agreed that when reviewed by his orthopaedic surgeon two years following the back surgery, he was still having considerable difficulty with his low back, but stated it was, “getting much, much better.”[14]

[14]T 20, L 4-12

·    When asked to comment on references to headaches in medical records in July and September 1997 Mr Djakovic agreed that they were an ongoing problem but stated that they weren’t constant.[15]

[15]T 21, L 2-20

·    He could vaguely recall telling a psychiatrist in September 1997 of a history of headaches since March of that year.[16]

[16]T 21, L 21 to T 22, L 6

·    Mr Djakovic accepted a medical record of 20 March 2002 noting:

“… flare up of back mid-thoracic area radiating up to neck.”[17]

[17]Exhibit 1, p43.6

·    He explained that when he got pains in the lower back:

“… it just cramps me and the pain works its way up into my neck and my shoulder.”[18]

[18]T 22, L 7-26

·    Mr Djakovic agreed that in 2002 and over the years he had used quite a lot of medication for pain, including Codalgin Forte and Digesic, which he alternated because he did not wish to become dependent on heavy drugs.[19]

[19]T 23, L 14-23

·    Mr Djakovic agreed with a further medical record in July 2004 that he had an x-ray of his lumbar spine and was prescribed medication including Panadeine Forte, Serepax and Valium.[20]

[20]Exhibit 1, p15 & T 24, L 3-12

·    He further agreed with an entry on 26 July 2004 of headaches twice per week.[21]

[21]Exhibit 1, p15 & T 24, L 13-23

·    Mr Djakovic agreed that in March 2005 he was referred to a neurologist with a history of episodic headaches for three years.[22]

[22]Exhibit 1, p89 & T 24, L 24 to T 25, L 12

·    He further agreed that he was suffering insomnia and muscle cramps in June 2005.[23]

[23]Exhibit 1, p24 & T 25, L 13-21

·    In March 2007 after re-injuring his back avoiding a truck, Mr Djakovic was again prescribed Codalgin Forte and Serepax.  In June 2007 his general practitioner listed his medication as Codalgin Forte, Serepax, Valium and Panadol.[24]

[24]Exhibit A, p92 & T 26, L 3-26

·    On 17 July 2008 Mr Djakovic agreed he was prescribed Codalgin, Serepax and Valium.[25]

[25]Exhibit 1, p18 & T 26, L 28 to T 27, L 5

·    Mr Djakovic agreed with a medical record on 9 June 2009 noting:

“Headaches, especially left side.  One or two each day, up to 10 minutes.”

He stated that they were episodic.[26]

[26]Exhibit 1, p21 & T 27, L 24-30

·    He agreed that he was sent back to see Mr Rogers in October 2009 with a note, “back pain and right leg pain worsening.”[27]

[27]Exhibit 1, p30 & T 28, L 20 to T 29, L 12

·    Mr Rogers arranged for an x-ray and MRI examination of his lumbar spine on 19 November 2009.[28]

[28]Exhibit A, p58 & T 29, L 17-31

·    Mr Djakovic was prescribed Mobic on 18 February 2010 for back pain, but:

“I’m not sure whether that’s for back pain or for the pain in my legs.”[29]

[29]Exhibit 1, p30 & T 30, L 3-20

·    Mr Djakovic stated that he did not make reference to headaches pre‑dating the transport accident because they were of a different quality, not frequent and he did not think that they were connected to his back injury.[30]

[30]T 32, L 6-25

·    When a history of back pain, neck pain and stiffness and left parietal headaches dating from nine days prior to the transport accident was put to him, Mr Djakovic stated that over a period of time it resolved and he didn’t see it as relevant.[31]

[31]Exhibit A, p23 & T 34, L 2-22

·    Mr Djakovic stated, “it had probably skipped my mind,” when asked why he did not include any reference to visiting the chiropractor for increasing low back pain nine days prior to the transport accident.[32]

[32]T 36, L 2-15

·    Mr Djakovic was shown a Patient Information Sheet completed for the chiropractor, Dr Comer, on 19 June 2010 and agreed that it had been completed by him.[33]

[33]Exhibit 1, p93 & T 36, L 28 to T 37, L 10

·    He further agreed that he had used Codalgin Forte, Valium, Digesic, Serepax and Panadeine Forte, “in varying degrees and various occasions in the year preceding the transport accident.”[34]

[34]T 37, L 1526

·    Mr Djakovic accepted that he had been prescribed Mobic in August 2011 and June 2012, but could not recall who had prescribed Panadeine Forte to him following the transport accident.[35]

[35]T 40, L 1-15

·    Mr Djakovic believed he had current prescriptions for Panadeine Forte but was unsure of where he would have them filled.[36]

[36]T 41, L 8-20

·    Mr Djakovic agreed that he had told Mr Kossman in 2014 that he continued to have regular check-ups with his general practitioner and saw his chiropractor every week or fortnight.  He had also told Mr Kossman that he acquired his own tip-table.  Mr Djakovic stated that this was like a see‑saw and would loosen up his neck and get rid of some symptoms.[37]

[37]T 43, L 10-29

·    He later agreed that he had first acquired a tip-table in February 2008, but did not mention this to Mr Kossman.[38]

[38]Exhibit A, p37 & T 44, L 17-31

·    He specifically denied that he had not told Mr Kossman about the earlier purchase of the tip-table in order to make the car accident symptoms worse.[39]

[39]T 46, L 2-9

·    He agreed that before the transport accident there were some days when  his back pain would prevent him from playing pool.[40]

[40]T 46, L 15-18

·    Mr Djakovic further agreed that in relation to mowing the lawns the situation was pretty much the same now as it had been before the transport accident and after suffering the back injury.[41]

·    He agreed that he does housework such as cleaning and vacuuming in stages, and further agreed that this was essentially the same situation as prior to the transport accident after injuring his back.[42]

·    Mr Djakovic described visiting his daughter whose house was approximately an hour and a half’s drive away in the week before the hearing.  He had stayed for three nights and had been there more than half a dozen times this year.[43]

[41]T 46, L 23 to T 47, L 6

[42]T 48, L 23

[43]T 49, L 16 to T 50, L 8

15      When re-examined Mr Djakovic stated that prior to the transport accident he had tried to maximise his physical abilities by buying a home gym, which he would sometimes use two or three times per day when he felt energetic enough.  The first tilt-table was part of the home gym equipment.

16      He emphasised in re-examination that the neck pain, after the transport accident, was of a different character involving permanent pain particularly on the left-hand side.  He also stated that the character of the headaches was different and involved the experience of visual auras which he had not experienced before the transport accident.

17      Ms Pilipasidis took Mr Djakovic to the Patient Information Sheet completed some days prior to the accident and he confirmed that the main complaint at that time was radiating lower back pain.[44]

[44]Exhibit 1, p93

18      Unsurprisingly, given the matters which had been raised in cross‑examination there was further evidence given in re-examination as to the changes in Mr Djakovic’s social, domestic and recreational activities following the transport accident.

19      The further lay evidence in support of the plaintiff’s application was contained in an affidavit sworn by his daughter Jasminka on 24 April 2015.  It  is likely that this affidavit was sworn prior to Ms Djakovic being diagnosed with breast cancer, as there is no reference to her suffering that condition in the affidavit, and it would appear Mr Djakovic has  first mentioned his daughter’s condition to a general practitioner on 19 April 2016.[45]

[45]Exhibit 1, p110

20      The substance of Ms Djakovic’s affidavit is as follows:

·    Her father had been operated on for his back injury when she was 24 years of age.  She was aware that he was, “in a bad way for a period of time,” but:

“… over time Dad had got himself into a state where he could do a lot, if not most things.  Dad did not have problems with his neck before the car accident in 2010.”[46]

[46]Exhibit A, p16[2]

·    Ms Djakovic believed her father had become very restricted following that car accident and had lost a lot of his ability to function and engage in his day to day activities.

·    She would see her father with some frequency, usually on a weekly or fortnightly basis, and he would often stay overnight at her home.

·    At the time of her affidavit he would visit on a much less frequent basis:

“… he might come every six to eight weeks and sometimes it has been as long as seven months.”[47]

[47]Exhibit A, p17[4]

·    Ms Djakovic was aware that her father was concerned about driving and taking medication, and also complained about his restrictions.

·    When he did stay overnight she would often hear him getting up on multiple occasions and observed that he appeared that he had not had enough sleep.

·    Ms Djakovic also described activities such as bushwalking and pool which had been impacted following the transport accident. 

·    She would observe him apparently in pain: 

“His face often goes white or grey when he is in pain.  Dad was not in this much pain before the accident.”[48]

·    She related her father going to hospital on a few occasions due to intense pain and described the occasion when he believed he was having a heart attack.  She did not recall her father ever being hospitalised or requiring emergency treatment prior to the accident.

·    She concluded her affidavit as follows:

“While Dad had some issues with his back prior to the accident, they were nothing compared to what he has now.  Dad did not have issues with his neck prior to the accident, and his social, domestic and recreational life have suffered greatly as a result of the neck injuries he has following the accident.”[49]

[48]Exhibit A, p19[13]

[49]Exhibit A, p19[16]

21      The material set out in Ms Djakovic’s affidavit was clearly supportive of the proposition that the transport accident had a massive effect on her father’s quality of life.

22      When Ms Djakovic gave evidence she essentially accepted the matters in her earlier affidavit, but explained that whilst her father had visited her with less frequency, he was obviously concerned about her diagnosis of breast cancer but could not visit her as frequently as he would like because it was difficult for him to travel.[50]

[50]T 63, L 22 to T 64, L 2

23      In cross-examination I regarded the following matters as relevant:

·    Her father had stayed one or two nights in the week prior to the hearing to assist with looking after two young children for whom Ms Djakovic had recently become the guardian.[51]

[51]T 64, L 5-30

·    On the recent visit Mr Djakovic had helped feed the children and supporting Ms Djakovic’s housemate in looking after them during the day:

“… keeping them entertained with reading, some book reading, a couple of little walks outside, that sort of thing.”[52]

[52]T 65, L 13-17

·    Mr Djakovic had been to her place perhaps 15 times in the current year.  On most occasions he would not stay overnight.[53]

[53]T 65, L 21-26

·    His earlier back condition had incapacitated him in the past, “very distant past, but certainly not recently as far as I have been aware.”[54]

[54]T 65, L 29-31

·    She disagreed with the proposition that Mr Djakovic had not been bushwalking for a decade or more.[55]

[55]T 66, L 1-10

·    In the two years leading up to the transport accident Ms Djakovic believed her father used medication very irregularly and infrequently.  She knew he was holding medication such as Serepax and Mobic:

“… but holding those medications is not the same thing as taking them on a regular basis.”[56]

[56]T 66, L 11-24

·    In the year before the accident he did not appear to have anything other than occasional back pain and he was planning an overseas trip.[57]

·    She had not been made aware of her father’s visit to a chiropractor for treatment of his neck and back shortly before the transport accident until it was explained to her prior to giving her evidence.[58]

·    She did not know that he had been referred to a neurologist in relation to headaches five years before the car accident because:

“… I have not been involved in my father’s, um, medical appointments over the years.[59]

·    Ms Djakovic was clear in cross-examination that a tip-table had arrived at her home for her father to use some time after the accident, “probably a year or two before I gave this affidavit.”  She was aware that her father previously had purchased a tip-table to use at his own home after the earlier back injury.[60]

[57]T 66, L 25 to T 67, L 1

[58]T 67, L 22 to T 68, L 2

[59]T 68, L 17-21

[60]T 69, L 6-17

24      There was no re-examination of Ms Djakovic.

The medical evidence

25      The plaintiff relied upon medical material from the treating general practitioner, Dr Andrew Haines.  Two reports dated 23 November 2013 and 12 March 2017 were tendered as part of Exhibit A.[61]

[61]Exhibit A, p20-22

26      In Dr Haines’ first report he notes the past medical history involving the spinal surgery in 1994 and makes reference to Mr Djakovic requesting a referral back to the treating orthopaedic surgeon on 15 October 2009 due to, “increasing low back pain and referred leg pain.”[62]

[62]Exhibit A, p20

27      Dr Haines first received a history of the transport accident on 5 July 2010 when Mr Djakovic presented with neck, left arm and lower back pain.  I note from his report that he had seen the plaintiff two days following the transport accident for a respiratory infection.  Apparently there was no mention of the accident recorded in the clinical notes at that time.

28      Dr Haines’ first report sets out the further investigation and treatment directed towards Mr Djakovic’s back and subsequently his neck condition.  Of some significance I note that he was recorded as having increasing neck pain with associated altered sensation in his arms following the accident (although the date is not precisely specified).  He was then referred for an MRI of his cervical spine on 10 October 2011.[63]

[63]Exhibit A, p20

29      At the conclusion of his first report Dr Haines expressed an opinion as to the relationship between the chronic neck and back pain and the transport accident.  He formed the view that the symptoms were exacerbated, but was unable to give a quantitative estimate of the degree of worsening of the symptoms.

30      In Dr Haines’ more recent report, in March 2017, he notes the continuance of symptoms impacting on Mr Djakovic’s neck and back.  He additionally states:

“He has also had some migraine headaches since January 2016 which seem to be secondary to his chronic neck problems.”[64]

[64]Exhibit A, p22

31      At that time he regarded the prognosis as being:

“… for continuation of his present symptoms with ongoing gradual deterioration over time.”[65]

[65]Exhibit A, p22

32      A single report dated 13 November 2013 from the treating chiropractor, Dr Andrew Comer, was tendered in evidence.[66]  Of significance the attendance on 19 June 2010 noting complaints of back pain, neck pain and headaches was recorded by Dr Comer.  Additionally the consultation on the day following the transport accident noted neck soreness which appears to have continued.  The diagnosis made by Dr Comer in November 2013 was of chronic mechanical low back pain, complicated with spinal fusion and chronic mechanical neck pain.[67]

[66]Exhibit A, p23-24

[67]Exhibit A, p24

33      Mr Djakovic relied upon a letter from a neurologist, Dr Janaka Senevirante, who wrote to his then treating doctor at Ferntree Gully on 9 October 2012.[68]  Mr Djakovic had been referred by Dr Lovric for evaluation of neck pain and paraesthesia of both arms. 

[68]Exhibit A, p27-28

34      Dr Senevirante noted a history of the car accident about two years before and a further history as follows:

“Following that he has experienced neck and shoulder discomfort and pain bilaterally as well as paraesthesias of the hands bilaterally.  These symptoms are intermittent and come on at any time.  He does have some neck pain and radicular symptoms which is also intermittent.”[69]

[69]Exhibit A, p27

35      Following an examination and nerve conduction studies Dr Senevirante expressed the following opinion:

“I suspect his arm and neck symptoms are predominantly due to a cervical spine pathology or a musculoskeletal/soft tissue injury.  He also has bilateral carpal tunnel syndrome which could contributed to some of the hand symptoms.  On electrophysiological grounds the carpal tunnel syndrome is mild.”[70]

[70]Exhibit A, p27

36      Dr Senevirante recommended splinting of the hands for three months and further radiology.  There is no indication that Mr Djakovic returned for a further review.

37      The plaintiff also relied upon a short letter from Professor Bladin addressed to his doctor at Ferntree Gully dated 8 August 2013.[71]  This opinion was sought after Mr Djakovic was admitted to the Angliss Hospital after suffering an episode of “visual aura, blurred vision and speech disturbance lasting about six hours.”[72]  Professor Bladin diagnosed the condition as complex migraine and not symptoms of a stroke.  The further history recorded was that the plaintiff had a history of recurrent episodes of visual aura and some episodes of loss of speech, but more short lived than the presenting condition.  There was a history of lumbar spinal fusion noted, but no history of any car accident.

[71]Exhibit A, p28A

[72]Exhibit A, p28A

38      Mr Djakovic relied additionally on two letters from his treating neurosurgeon, Mr Myron Rogers.  These letters were dated 11 November 2009 and 3 December 2009 and had been sent to his general practitioner, Dr Haines.  The history recorded by Mr Rogers noted ongoing problems with back and leg pain following the incident some two and a half years earlier where Mr Djakovic had attempted to avoid a truck which ran off the road. 

39      Mr Rogers referred Mr Djakovic for further radiology and noted degeneration at the levels immediately above the fusion in the lumbar spine.  He suggested to Dr Haines that options of rehabilitation through a pain management program or alternatively further surgery in the form of a lumbar laminectomy.

40      Mr Djakovic was referred to Mr Michael Brighton-Knight in June 2011.  It is clear from his letter to Dr Leibowitz dated 8 June 2011 that the referral was in relation to increased back pain following the transport accident.  Mr Brighton‑Knight did not see spinal surgery as the preferred option and referred Mr Djakovic on to Dr Clayton Thomas for, “consideration of non-surgical pain management.”[73]

[73]Exhibit A, p31

41      Dr Thomas’ letter reporting back to Mr Brighton-Knight in September 2011 was also tendered in evidence.[74]  The presenting complaint seemed to be lower back pain which was described to Dr Thomas as, “variable between 3/10 at best to 7/10 at worst.”  There was no mention of any neck symptoms or headaches referred to by either Dr Thomas or Mr Brighton-Knight.

[74]Exhibit A, p34-35

42      Mr Djakovic relied upon medico-legal opinions from Mr Thomas Kossman, orthopaedic surgeon, dated 17 March 2014 and 3 February 2015.  Additionally a report from Dr M. Nathar dated 23 January 2014 was relied upon.

43      When Mr Djakovic was initially examined by Mr Kossman in March 2014, the following complaints were noted:

“Mr Djakovic complained of constant pain in his lumbar spine.  The quality of pain varies.  When he does too much he will experience increased pain in his lumbar spine.  He also complained of having cramps.  Mr Djakovic complained of having also injured his cervical spine.”[75]

[75]Exhibit A, p37

44      Mr Kossman diagnosed the neck condition as “aggravation of significant degenerative changes throughout the cervical spine.”[76]  He noted that an MRI had been undertaken in October 2012 which he stated, “showed severe degenerative changes throughout his cervical spine.”[77]

[76]Exhibit A, p38

[77]Exhibit A, p39

45      Mr Kossman re-examined Mr Djakovic in 2017 and provided a further detailed report dated 3 February 2017, which was tendered into evidence.[78]  On this occasion the history was noted as follows:

“Mr Djakovic complained of constant pain in his cervical and lumbar spine.  He complained of pins and needles in both of his arms, more on the left than the right side.  He also complained of cramps in his upper extremities.  He told me that the quality of the pain varies and the more he does the more pain he suffers.”[79]

[78]Exhibit A, p41-45

[79]Exhibit A, p42

46      His prognosis in respect of the cervical spine was as follows:

“Mr Djakovic’s prognosis regarding his cervical spine conditions is poor.  He will continue to suffer from ongoing pain in his cervical and lumbar spine, for which he will require further treatment with pain medication, anti-inflammatories, physiotherapy, hydrotherapy and possibly acupuncture.

In my opinion, he is at risk of requiring surgery to his cervical and lumbar spine.  He may require decompression of his cervical spine and rhizolysis of the nerve roots at several levels.  This may be in the form of a posterolateral fusion but there is also a possibility the operation may be performed anteriorly with anterior decompression and cervical fusion of several levels.”[80]

[80]Exhibit A, p45

47      For completeness I should note the psychiatric report from Dr Nathar which diagnosed an adjustment disorder with anxious and depressed mood.  Dr Nathar believed Mr Djakovic’s psychiatric symptoms were mild and he would probably not need any treatment.

48      The defendant relied on a medical opinion from Dr Peter Boys, orthopaedic surgeon, following an examination on 12 May 2017.  His report dated 22 May 2017 was tendered in evidence.[81] 

[81]Exhibit 1, p1-12

49      He recorded Mr Djakovic’s current symptoms as involving daily discomfort in the posterior cervical spine to the left side.  He also recorded cramping sensations, intermittent pain in the forearms, primarily on the left side, and forearm and hand paraesthesia.[82]

[82]Exhibit 1, p4-5

50      In relation to Mr Djakovic’s neck Mr Boys described it as follows:

“It is my opinion that this gentleman suffered a soft tissue injury to the neck with aggravation of pre-existing cervical degenerative disc disease at that time.  I note a pre-existing complaint of general central neck pain.  I note no pre-existing radicular symptoms with continuity of complaints referrable to the left arm subsequent to 28.06.2010.”[83]

[83]Exhibit 1, p8

51      Dr Boys went on to conclude that the transport accident had resulted in Mr Djakovic suffering, “a material aggravation of pre-existing cervical degeneration occurring in the manner described.”  He regarded the condition as having stabilised, but anticipated further deterioration.  He further noted:

“This gentleman does perform all activities required at home at this time but does so in short lots however similar restrictions would have existed as a consequence of this gentleman’s lower back condition notwithstanding the claimed motor vehicle accident.”[84]

[84]Exhibit 1, p9

52      Dr Boys went on to comment that he did not believe the aggravation of Mr Djakovic’s neck condition had given rise to restrictions on domestic and leisure activities and believed that the primary limitations in relation to his activities of daily life, “reflect the effects of the pre-existent condition of the lumbar spine.”[85]

[85]Exhibit 1, p10

53      I should also note that radiological studies of the lumbar spine (19 November 2009) and the cervical spine (23 October 2012 and 27 June 2014) were tendered in evidence as part of the plaintiff’s case.[86]  The radiology was referred to by the various medical practitioners whose reports were also tendered in evidence.  The radiology is not otherwise independently probative of the extent of the plaintiff’s injuries, or any long-term consequences.

[86]Exhibit A, p58-62

Analysis

54      The entitlement for a grant of leave under the provisions of the Transport Accident Act is governed by longstanding authorities dating back to Humphries v Poljak.[87]  In the case of an aggravation injury the aggravation itself must be shown to be serious rather than the overall condition as aggravated.[88]

[87][1992] 2 VR 129

[88]Petkovski v Galleti [1994] 1 VR 436

55      I am satisfied in this case that the transport accident on 28 June 2010 resulted in Mr Djakovic suffering an aggravation of pre-existing degenerative disease in both the lumbar and cervical regions of his spine. 

56      In final address Ms Pilipasidis urged me to accept Mr Djakovic as a truthful witness who was doing his best to give his evidence in an honest manner.  I accept that Mr Djakovic was not attempting to mislead the court.  I cannot ignore the fact that his extensive previous medical history points to a conclusion that Mr Djakovic’s own perception of the serious nature of his neck injury runs contrary to a fair assessment of the actual extent of injury and resulting consequences following the transport accident.

57      I found difficulty in accepting him as a reliable witness.  It is clear that he was not symptom-free in the cervical spine prior to the transport accident, although I accept that his major area of complaint at that time was his lower back.  This is apparent from the notes recorded by the chiropractor, Dr Comer, only days prior to the transport accident.

58      There is a similar difficulty, in my view, with the reliability of the evidence given by Mr Djakovic’s daughter, Jasminka.  The evidence in her affidavit, sworn in 2015, was supportive of the proposition that her father had worked very hard to regain his health following the spinal surgery and had been set back very significantly following the transport accident.  One of the matters referred to in her affidavit concerned her father visiting on a basis of at least once per fortnight and staying for a few days.  This was apparently the situation prior to the transport accident and these visits had thereafter become very infrequent, “these days he might come every six to eight weeks and sometimes it has been as long as seven months.  We talk on the phone most days.”[89]

[89]Exhibit A, p17

59      Ms Djakovic explained that it was a long drive and her father was physically affected from the driving and also restricted by reason of his medication. 

60      Contrary to what had been stated in her affidavit, she agreed in cross‑examination that her father had in fact visited on some 15 occasions during 2017 and on most occasions did not stay overnight.[90]  This evidence in particular contradicts much of what was contained in Ms Djakovic’s affidavit.  Again there is no suggestion that she has in any way attempted to mislead the court.  I am simply left in a situation where her evidence does not provide reliable support for the proposition advocated on behalf of her father.

[90]T 65, L 21-26

61      The situation then becomes quite unclear as to the extent of any aggravation of the underlying neck condition.  Frankly, the allegations contained in the plaintiff’s affidavits concerning the worsening state of his neck, the development of headaches and the increased use of medication receives only limited support in the reports of treating medical practitioners.

62      I accept that Dr Haines gave the plaintiff some support and referred Mr Djakovic for an MRI of his cervical spine in October 2011.  He noted the development of migrainous type headaches in January 2016 which he believed were secondary to his chronic neck problems.

63      The neurological report from Dr Seneviratne in October 2012 supported a diagnosis of an injury to the neck due to cervical spine pathology or musculoskeletal/soft tissue injury.  He additionally diagnosed bilateral carpal tunnel syndrome which he described as mild.  There appears to have been no follow-up from this appointment.  This seems inconsistent with a serious long‑term impairment. 

64      Mr Djakovic had also been referred to the orthopaedic surgeon, Mr Brighton‑Knight, in June 2011, although this appears to have been in relation to increased back pain.  Mr Brighton-Knight referred Mr Djakovic on to Dr Clayton Thomas who also took a history relating to increased back pain without any mention of neck symptoms or headaches.

65      Further, the history recorded by Mr Kossman at his first medico-legal assessment in 2014 referred in particular to constant pain in the lumbar spine with the cervical spine receiving only a limited reference.  I accept that in the most recent report, in February 2017, referred to Mr Djakovic’s complaints of constant pain in both the cervical and lumbar spine which may require surgery.  Mr Kossman seems to have been the only doctor to suggest surgery and the plaintiff’s case was essentially argued on the basis that the very real increased consequences of pain and the use of medication entitled the plaintiff to leave. 

66      I was referred by Ms Pilipasidis in final address to the authority of Dressing v Porter and Anor.[91]  I acknowledge that Dressing v Porter is authority for the proposition that a court should not reject such an application under the guise of questioning an applicant’s credit without sufficiently explaining how the impugned matters of credit impact on the essential elements which need to be proved:

“… the judge accepted not only that the appellant had suffered neck injury, but that it incapacitated him to the extent which he had indicated by his affidavit and oral evidence, the second key paragraph becomes very difficult to understand.  How could it be said, in such circumstances, that the neck injury and its sequelae could not be disentangled from other conditions which affected the applicant?”[92]

[91][2006] VSCA 215

[92]Ibid [30]

67      Mr Djakovic must satisfy me that the consequences from the injury to his cervical spine have produced consequences which can be fairly described as at least very considerable.  In the present case I must take into account the fact that he had been suffering worsening back pain requiring referral back to his original orthopaedic surgeon in 2009.  I must also accept that his condition impacting on both the back and the neck in the weeks prior to the transport accident were sufficient to cause him to attend his chiropractor, Dr Comer.

68      Added to this is the plaintiff’s age.  He is now 73 and his original spinal surgery was performed in 1995.  All the doctors agree that he has a degenerative spine.  In my view the assessment made by Dr Boys most accurately describes the current medical situation impacting on the plaintiff.

69      I accept that his present condition emanating from his original lower back injury and an aggravation of both the lower back and the neck in the transport accident have produced ongoing problems of a very significant degree for him.

70      Nevertheless the recent authorities of Peak Engineering & Anor v McKenzie,[93] Poholke v Goldacres Trading Pty Ltd & VWA[94] and Meadows v Lichmore Pty Ltd[95] require the plaintiff to satisfy the court that the injury resulting from the relevant event has been shown to be relevantly a cause of the consequences described by the plaintiff.  This is not inconsistent with Dressing v Porter.  In the present case I am satisfied that the restrictions of the plaintiff’s activities of daily living result from a combination of pre-existing symptomatic degeneration in the plaintiff’s lower back and an aggravation of underlying and already symptomatic degenerative changes in the cervical spine.

[93][2014] VSCA 67

[94][2016] VSCA 232

[95][2013] VSCA 201

71      For the sake of completeness I should state that even if the plaintiff had nominated the spine as the body function said to be relevantly lost or impaired, I could still not be satisfied on the state of the medical evidence, and the lay evidence, that the extent of any aggravation resulting from the transport accident could fairly be described as at least very considerable when compared with a range of other or possible impairments.

72      The plaintiff bears the onus of proof in this application.  I am not satisfied that he has discharged that onus.  The application must therefore be dismissed.

73      I will hear the parties in relation to formal orders and the question of costs.

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