Ekic v Transport Accident Commission
[2014] VCC 176
•14 March 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-01308
| ISMET EKIC | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 18 February 2014 | |
DATE OF JUDGMENT: | 14 March 2014 | |
CASE MAY BE CITED AS: | Ekic v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 176 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – injury to the lower back – Chronic Depression – Post-Traumatic Stress Disorder
Legislation Cited: Transport Accident Act 1986, s93(4)(d), s93(6), s93(17)(a)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Richards v Wylie (2000) 1 VR 79; Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Barlow v Hollis [2000] VSCA 26; Dordev v Cowan & Ors [2006] VSCA 254; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Petkovski v Galletti [1994] 1 VR 436
Judgment:Leave granted to the plaintiff to bring proceedings to recover damages for injuries suffered in the transport accident on 6 November 2009.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M J Ruddle | Victorian Compensation Lawyers Pty Ltd |
| For the Defendant | Mr G Lewis SC with Mr M Klemens | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 6 November 2009 (“the transport accident”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The plaintiff brings this application pursuant to subparagraphs (a) and (c) of the definition of “serious injury” to be found in s93(17) of the Act. There –
“serious injury means—
(a) serious long-term impairment or loss of a body function.”
…
(c)severe long-term mental or severe long-term behavioural disturbance or disorder.”
4 The loss of body function relied upon in this application in respect of subparagraph (a) is an aggravation of degenerative changes, with possible disc protrusion at the lower back. The mental or behavioural disturbance or disorder in respect to sub-paragraph (c) is Chronic Depression with Post-Traumatic Stress Disorder (“PTSD”).
5 The plaintiff seeks leave to issue proceedings at common law.
6 The plaintiff relied upon four affidavits: two sworn by the plaintiff on 13 October 2010 and 13 June 2013, an affidavit of his wife, Faka Ekic, sworn 21 June 2013, and an affidavit of a friend and colleague, Remzo Kusur, sworn 11 July 2013.
7 The plaintiff was cross-examined. I have not summarised the plaintiff’s affidavits and evidence given through an interpreter. However, I will refer to the relevant evidence of the plaintiff, his wife and Mr Remzo in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
8 The Court must not give leave unless it is satisfied, on the balance of probabilities:
(a)that the injury suffered by the plaintiff was as a result of the transport accident;
(b)that the injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.
9 The inquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then, by reference to the consequences of that impairment, to determine whether it is serious and long term. The requirements of the test are set out in the decision of Humphries & Anor v Poljak,[1] where the majority of the Court of Appeal said:
“… there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”[2]
[1][1992] 2 VR 129
[2] Humphries & Anor v Poljak (supra) at [140]
10 The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.[3]
[3]Richards v Wylie (2000) 1 VR 79
11 In determining the application, the Court must make the assessment of “serious injury” at the time the application is heard.[4]
[4] Supra
12 In respect to paragraph (c) of s93(17), the word “severe” was used as a stronger word than “serious” in paragraph (a) of s93(17).[5]
[5]Per Brooking AJ in Mobilio v Balliotis [1998] 3 VR 883
13 The judgment of the Court of Appeal in Mobilio v Balliotis[6] resolved the meaning of “severe”. Brooking JA held that the considerations in Turner v Love & Transport Accident Commission[7] were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely, that the change in language from “serious” to “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.[8]
[6][1998] 3 VR 833
[7](1995) 21 MVR 314
[8]Mobilio v Balliotis (supra) at 846
14 Winneke P agreed with Brooking JA’s reasons, and further agreed with him that the word “severe”, where used in subparagraph (c) of ss(17) of the Act, was a word of stronger force than the word “serious” where used in the Act.[9]
[9]Supra. See also Phillips JA at 858 and Charles JA at 860-1 to similar effect
15 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[10]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. … .”
[10][1998] 1 VR 702
16 The term “serious” requires the impairment and its consequences to be viewed objectively, and also judged on an external comparative basis against possible impairments not necessarily in the same category.[11]
[11](supra) at 170 and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. In particular, Chernov JA at paragraph [29]
The Issues
17 Counsel informed the Court that this is a “range case”; namely whether the consequences resulting from the low-back injury are appropriately described as being “serious”. Further, whether the consequences from the Chronic Depression with Post-Traumatic Stress Disorder are appropriately described as being “severe”.
Investigations
18 On 6 November 2009, an x‑ray of the chest showed no traumatic abnormality. An x‑ray of the cervical spine showed:
“There is loss of normal lordosis of the cervical spine, which may relate to an immobilisation collar. There is no significant loss of vertebral body heights. No fracture or dislocation is demonstrated. Alignment of the dens is within normal limits. There is no significant pre-vertebral soft tissue swelling.
There is a background of mild degenerative disease, most significant at C5-6 with reduced invertebral disc space and the anterior end plate osteophytes. Note is made of the internal fixation of the right mandibular ramus.”
19 On 7 November 2009, an x‑ray of the thoracolumbar spine concluded:
“1 No convincing recent bony abnormality or significant mal-alignment of the thoracolumbar spinal region is seen.
2 Disc space narrowing at L5-S1 level is demonstrated. This may indicate underlying disc prolapse.
3 No radio-opaque foreign material is demonstrated with no destructive bony changes identified of the thoracolumbar spinal region.”
20 On 4 December 2009, a renal tract ultrasound concluded:
“Slight prostatomegaly. No significant urinary bladder retention. A simple 15 mm left kidney upper pole cyst. CT of the brain showed no evident skull fracture.”
21 On 6 November 2010, a CT scan of the thoracic spine concluded:
“No acute abnormalities were identified. Multiple level thoracic spondylosis seen with early disc degeneration.”
22 On 4 February 2011, a left shoulder x‑ray and ultrasound concluded:
“1 Calcific tendinosis of the supraspinatus. No obvious rotator cuff tear identified.
2 Subacromial bursitis with impingement. Ultrasound guided steroid injection may be useful, if clinically indicated.”
23 On 18 February 2011, an ultrasound-guided left subacromial bursa steroid injection was performed into the left subacromial-subdeltoid bursa. There was no immediate post-procedure complications.
24 On 24 November 2011, an MRI scan of the cervical spine concluded:
“Multi-level degenerative disc disease and facet joint arthropathy with no significant disc herniation, central stenosis or nerve root compression. No evidence of previous trauma.”
25 On 24 November 2011, an MRI scan of the lumbar spine concluded:
“L4/5 and L5/S1 degenerative disc pathology and facet joint arthropathy without canal stenosis or nerve root compression.”
26 On 24 November 2011, an MRI scan of the thoracic spine concluded no significant abnormality was identified.
27 On 29 May 2012, an MRI scan of the lumbar spine concluded:
“1 Transitional lumbosacral junction anatomy with a rudimentary invertebral disc at S1/2 secondary to bilateral partial lumbarisation of the first sacral segment.
2 Mild development central canal stenosis of the mid to lower lumbar spine secondary to congenital short pedicles.
3 Disc bulge, superimposed central protrusion and mild bilateral facet arthropathy at L4/5 combined to result in mild acquired central canal and minimal bilateral neural exit foraminal stenosis.
4 Disc osteophyte complex at L5/S1 with minimal retrolisthesis of L5 on S1 and mild bilateral facet arthropathy combined to result in mild acquired central canal and mild bilateral neural exit foraminal stenosis.
5 Incidental complete right L5 pars defect. No pars defect on the left side.”
28 On 11 February 2005, a CT-guided right L5-S1 facet joint injection was administered.
The Plaintiff’s medical evidence
Ms Vicki Talbot
29 On 6 January 2010, Ms Talbot, physiotherapist, confirmed that she treated the plaintiff on two occasions with lumbar and thoracic joint mobilisation, soft-tissue massage and a program of mobilising and strengthening exercises. She recommended further physiotherapy.
Dr Vladimir Bosanac
30 In February 2011, Dr Bosanac, psychiatrist, confirmed that he treated the plaintiff for mental health problems which go back many years, due to trauma experienced in the Balkan War, refugee status, initial family and marriage breakup and migration to Australia. The plaintiff reported being emotionally shocked after the transport accident. Soon after, his mother died, adding to the emotional exhaustion. The plaintiff reported significant deterioration of his mental health ever since.
31 Dr Bosanac said the plaintiff’s vulnerability to develop mental illness was quite marked because of his past. Dr Bosanac said that prior to the transport accident, the plaintiff was coping reasonably well, he remained and was working full time. The transport accident had likely shattered his life and caused significant deterioration of his mental state and reduced his work capacity. The plaintiff was unable to work successfully to his full capacity.
32 Dr Bosanac said the plaintiff required active and aggressive treatment for his psychiatric condition. He was prescribed Pristique daily, which was causing gastric problems. A further antidepressant was suggested. Dr Bosanac said the plaintiff’s diagnosis was Major Depression and Post-Traumatic Stress Disorder, Chronic.
Dr David Freilich
33 In October 2010, Dr Freilich, neurologist, examined the plaintiff on referral from the general practitioner. The plaintiff complained of occipital and bi-temporal headaches which occur “very often”, dizziness and difficulty concentrating. Numbness in his legs.
34 Dr Freilich said there was no evidence of any neurological complication resulting from the transport accident or damage to the spinal cord or nerve roots. He said the sensory findings are not anatomical and are unlikely to be organic. He expected that he would improve gradually.
Dr Seyed Assadi
35 In June and August 2013, Dr Assadi, treating psychiatrist, provided reports at the request of the plaintiff’s solicitor. He confirmed that he had been treating the plaintiff since June 2011 regularly and had seen him most recently in June 2013. He confirmed that he had reviewed the psychiatric reports of Dr Firestone, dated 10 June 2011, and Dr Kornan, dated 24 April 2011 and 21 August 2012.
36 Dr Assadi diagnosed a Major Depressive Disorder and Post-Traumatic Stress Disorder using DSM-4-TR diagnostic criteria. It was his opinion that the current psychological illness occurred mainly due to the transport accident. The plaintiff denied any pre-existing psychological problems or any family history of mental illness. He said the plaintiff did not have a current capacity for pre-injury duties. The plaintiff reported not being able to perform well at work, with his boss being unhappy with his performance.
37 Dr Assadi said the plaintiff has experienced anxiety and dizziness while working, he reported depressed mood, tiredness, amotivation and complained of poor concentration and forgetfulness. He is distracted by flashbacks of the transport accident and preoccupied with its consequences. The plaintiff reported psychological problems adversely affecting his social and domestic activities.
38 Dr Assadi described the plaintiff’s psychological illness as chronic and said he had responded poorly to treatment. Dr Assadi’s prognosis was guarded. He believed it was likely that the plaintiff’s psychological problems will continue to affect his occupational, social and domestic function into the foreseeable future.
Mr Thomas Kossmann
39 Mr Kossmann, orthopaedic surgeon, examined the plaintiff on referral from the plaintiff’s general practitioner. Mr Kossmann said the plaintiff complained of pain of the lumbosacral spinal and iliosacral joint.
40 Mr Kossmann explained the results of the MRI scan and discussed with the plaintiff further treatment. He said the plaintiff was not a candidate for surgery, and suggested the plaintiff walk daily, increasing the distance regularly. He referred him to Dr Winston Wang for acupuncture. He was to review the plaintiff in six weeks.
Dr Wen Cheng Wang
41 In June 2013, Dr Wen Cheng Wang, physician of Chinese medicine, confirmed that he treated the plaintiff on five occasions. On his last recorded treatment, he noted the range of movement and pain were better.
Dr Vladimir Caric
42 On 5 January 2014, Dr Caric, general practitioner, confirmed that he had taken over the management of the plaintiff from his previous general practitioner. He confirmed that the plaintiff suffered the following injuries:
·soft-tissue injuries to the neck and back
·disc bulge at L4-5 and retrolisthesis of L5 on S1
·degenerative changes of the neck/thoracic/lumbosacral spine seen on multiple images
·the fear of traffic engagement when the patient is stationary at traffic lights/PTSD/stress
·left supraspinatus and subscapularis calcific tendinosis/tendinopathy without focal tear; and
·left subdeltoid/subacromial bursitis.
43 Dr Caric said the injuries were as a result of the traffic accident on the base of an already vulnerable mental state following the Balkan War experience and the aging process of his neck and back/spine, overuse and repetitive movements of the left shoulder. He did not think the plaintiff had permanent and full capacity for full-time, unrestricted manual or pre-injury employment. He thought there were some psychological effects which were affecting the plaintiff’s ability to engage in social, recreational or domestic activities.
44 He said the plaintiff can perform work duties for periods of time but there is a risk of his physical and mental condition deteriorating further. He said the plaintiff requires further psychiatric and psychological treatment, painkillers and mood stabilisers. He reviewed surveillance footage, which confirmed the plaintiff worked. He said it did not change his medical opinion.
Dr Paul Kornan
45 Dr Kornan, psychiatrist, medically examined the plaintiff on 20 April 2011 and 13 April 2012 at the request of the plaintiff’s solicitors. He provided two further supplementary reports of July 2013 after considering further medical reports of treating psychiatrists, Dr Vladimir Bosanac, and Dr Assadi.
46 On 24 December 2013, Dr Kornan provided a further supplementary report after being provided with reports from Maurice J Kerrigan & Associates, investigators, dated October 2012 and July 2013, extracts of the plaintiff’s Facebook profile and surveillance DVDs with footage dated from 5 October and 20 October 2012 and footage from 31 May and 1 June 2013.
47 Dr Kornan said the plaintiff presented with a Major Depressive Disorder, Adjustment Disorder with Anxiety, a specific phobia, with fear of a further car accident, and a Pain Disorder. In April 2012, he thought the plaintiff’s condition had worsened since previously examined. It was his opinion that the transport accident had caused the plaintiff’s psychiatric condition. However, after perusing further medical reports and the extracts of the clinical file of Dr Bosanac, he said the plaintiff’s mental or psychological injury would not be in the symptomatic and incapacitating state it is presently in, but for the transport accident of 6 November 2009.
48 Dr Kornan said the plaintiff had a past psychiatric trauma from his wartime experiences in Bosnia. He was able to cope with the breakup of his own marriage and was progressing well until the transport accident. He now has to face the significant ongoing personal pain on a daily basis which has helped to uncover the previous vulnerability from the war. Dr Kornan said, had the transport accident not occurred, the plaintiff would have been able to continue to lead a life in which he remained asymptomatic. He said the plaintiff’s past explains why his symptoms appear greater than might otherwise be the case in someone who did not have his previous vulnerability.
49 Dr Kornan said the plaintiff did not have a capacity for full-time, unrestricted employment. He thought the plaintiff’s chance of continuing to work is not good. He said taking into account his age, background and his present situation, if he lost his job, realistically his chances of finding other employment are very poor. He thought the plaintiff’s psychiatric ill health would cause serious difficulties with regards to the plaintiff’s domestic activities. He said the plaintiff was significantly depressed and irritable and the plaintiff reported a loss of sexual performance and intimacy. He thought his ability to cope with social and recreational activities would be extremely limited. He said the prognosis for the plaintiff’s psychiatric health was not favourable and that he was deteriorating. He thought the plaintiff was pushing himself to continue to work.
50 In December 2013, Dr Kornan reviewed surveillance and investigators’ reports. He said there was little to observe in the surveillance footage from a psychiatric viewpoint. He said the surveillance did not alter his views.
Dr Peter A Blombery
51 In August 2012, Dr Blombery, consultant physician, examined the plaintiff at the request of the plaintiff’s solicitor. It was his opinion that the plaintiff suffered, as a result of the transport accident, a whiplash-type injury to his neck and back and soft-tissue injuries to his shoulder. This resulted in pain caused by sensitisation of pain nerve pathways, both in the periphery as well as the brain and spinal cord, such that non-painful stimuli become interpreted by the cerebral cortex as being painful. He said this is an organic disorder of pain nerve pathways. He thought the plaintiff had limited capacity for full-time, unrestricted pre-injury employment. The plaintiff reported having regular breaks from work, taking off one week every two months, and being unable to do the more difficult tasks in his employment because of ongoing pain in his back and leg.
52 It was Dr Blombery’s view that there was going to be a continuing impact of the injuries upon the plaintiff’s ability to work, as well as his enjoyment of life, which he said would remain unchanged into the future. His comments were made considering the physical injury alone. He said the plaintiff complained of nervousness and stress since the transport accident, bad dreams about the accident, waking in a sweat.
53 In July 2013, Dr Blombery said it was his opinion that the plaintiff’s lumbar spine injury would not be in the symptomatic and incapacitating state but for the transport accident. He said the lumbar spine was a consequence of the transport accident and that the pathology reported on the MRI scans was of a permanent compromise to the integrity of the lumbar spine. He said the existence of the aggravated lumbar spine pathology presents a significant medical problem to the health of the plaintiff’s spine. He accepted that the transport accident has a very significant impact on the plaintiff’s ability to engage in social, recreational, domestic and employment activities.
54 Dr Blombery reviewed the surveillance of 31 May 2012, 1 June 2012 and 4, 5 and 20 October 2012. He said the plaintiff was doing “not untoward or unexpected”, given the severity of his injuries; that is, he was not shown climbing a ladder or lifting heavy weights. He said the surveillance was consistent with the history obtained when examined in August 2012.
Mr Kenneth Brearley
55 In February 2013, Mr Brearley, surgeon, medically examined the plaintiff at the request of the plaintiff’s solicitor. Mr Brearley diagnosed mechanical lumbar pain secondary to aggravation of degenerative changes in the lumbosacral spine, causing ongoing low-back pain and disability. He said the plaintiff suffered a soft-tissue injury of the neck, from which he had recovered. It was his view that it was unlikely the plaintiff could remain in his present employment. He said he would have serious difficulty in finding work of any description in view of the fact that he is unable to do unlimited and unrestricted physical work and has no experience in other fields.
56 The plaintiff reported that he was unable to assist his wife with domestic activities; he avoids social activities and has lost motivation. He has no particular recreational activities. Mr Brearley said the prognosis was not good. He thought the plaintiff’s back pain will continue and has said his capacity for work will gradually reduce. It was his view that the physical injury itself; that is, without any psychological contribution, is responsible for his pain and suffering and loss of earning capacity. He said the plaintiff would benefit from a low impact exercise and fitness program. There was no indication for any operative treatment.
57 In June 2013, Mr Brearley provided a supplementary report as a result of receiving further information from the plaintiff’s solicitor. Mr Brearley said that as the plaintiff had no injuries or symptoms prior to the transport accident, his back would not be in its present state but for the accident. After reviewing the additional material, he took the view that the lumbar spine was a significant medical problem for the plaintiff and that the plaintiff is very susceptible to further injury.
58 In August 2013, Mr Brearley was provided with further material, namely the surveillance reports of Maurice J Kerrigan & Associates, together with the two DVDs. Mr Brearley said the surveillance did not give any positive evidence of any significant disability or impairment. It did not confirm the disability which the plaintiff explained to him at the consultation in February 2013.
59 Mr Brearley noted that the plaintiff’s symptoms may vary markedly from time to time, as does his disability. However, he noted that the surveillance was taken on four separate days; namely, 4, 5 and 20 October 2012 and 31 May 2013, and on none of these occasions was there obvious difficulty.
Mr M A Khan
60 Mr Khan, orthopaedic surgeon, provided two reports of August 2011 and June 2013. He had examined the plaintiff at the request of the plaintiff’s solicitor on 25 July 2011. Mr Khan diagnosed a fairly severe musculoskeletal and ligamentous injury to the plaintiff’s cervical spine but without radiculopathy in his upper limbs or signs of nerve root complications. The plaintiff developed severe headaches, which Mr Khan said had a major cervico-occipital component which indicated that they were associated with referred pain from the cervical spine going up to his scalp. He noted that the plaintiff’s neck injury was improved. Mr Khan said the plaintiff had a pre-existing symptomatic thoracolumbar scoliosis and he has evidence of pre-existing asymptomatic advanced disc degenerative changes of the L5-S1 level of the spine.
61 Mr Khan said the plaintiff had symptoms of low-back pain which have persisted and which is associated with hamstring spasm in his lower limbs, the left worse than the right, but without any neurological complications or signs of radiculopathy. The possibility of a lower limb disc prolapse or disc bulge without radiculopathy could not be ruled out. In relation to the thoracolumbar spine, Mr Khan said the plaintiff’s condition was now stabilised. He said the plaintiff could not perform heavy strenuous work requiring excessive bending, twisting and turning of his spine repetitively, keeping his back bent for long periods or lifting heavy weights more than 10 kilograms.
62 It was Mr Khan’s view that the injuries were consistent with the traffic accident. He said the plaintiff was not fit to perform full-time, unrestricted manual or pre-injury duties, taking into account his age, background, education and prior work experience. Mr Khan said the physical aspects of the injury have affected his ability to engage in social, recreational and domestic activities. The long-term prognosis was not favourable.
63 In June 2013, Mr Khan was provided with documentation, including an MRI scan report of the plaintiff’s cervical spine dated November 2011. After reviewing the scans and the x‑rays of the cervical spine and thoracolumbar spine of November 2009 and 2011 and the CT scan of the thoracic spine of November 2010, it was Mr Khan’s view that, on the balance of probabilities, the plaintiff’s lumbar spine injury would not be in the symptomatic and incapacitated state it is presently in, but for the transport accident. The transport accident significantly contributed to his lumbar spine injury. The aggravation of the pathology in the plaintiff’s lumbar spine will likely leave him with residual permanent compromise to the integrity of his lumbar spine.
64 Mr Khan said that the existence of the aggravated lumbar spine pathology is likely to render the plaintiff’s lumbar spine more susceptible to further aggravation and injury as compared to a person with no such pathology, if engaged in the same unrestricted domestic, recreational and employment activities. It was his view that the transport accident injury affected the plaintiff’s lumbar spine and is likely to significantly affect the plaintiff’s ability to engage in unrestricted social, recreational, domestic and employment activities.
The Defendant’s medical evidence
Dr Tony Kostos
65 In May 2011, Dr Kostos, rheumatologist, medically examined the plaintiff at the request of the defendant. It was Dr Kostos’s opinion that the plaintiff had ongoing problems with his spine which relate more to his lower back. The plaintiff described widespread pain with generalised spinal tenderness and a number of discrepancies and inconsistencies on physical examination, together with non-organic signs, described as Waddell’s signs. Dr Kostas said it would be difficult to suggest that the plaintiff had a localised injury to his lumbar spine and there were non-physical factors dominating in his presentation. He noted the plaintiff was not having any treatment, that he was working full time as a painter but required regular time off. He suspected his prognosis was poor.
66 In August 2013, Dr Kostos was provided with medical reports from Mr M Khan, orthopaedic surgeon, together with MRI scans. Dr Kostos was critical of the three reports provided by Mr Khan. In relation to the first report, he said Mr Khan’s opinion would not withstand any form of scientific scrutiny. He said:
·Mr Khan’s diagnosis that the plaintiff’s neck injury was musculoskeletal and ligamentous was non-evidence based.
·Mr Khan cannot state the cause of the plaintiff’s lumbar spine pain as there are no investigations to enable him to do this.
·Mr Khan’s statement that the plaintiff’s injuries are consistent with the traffic accident cannot be substantiated.
67 In relation to Mr Khan’s second report, Mr Khan viewed investigation results and said the plaintiff has an aggravated pre-existing pathology in his lumbar spine. Dr Kostas said this was not evidence-based. He said Mr Khan’s statement that the plaintiff’s lumbar spine pathology meant the plaintiff was more susceptible to further aggravation and injury as compared to a person with no such pathology. Dr Kostas said this statement has been disproven in scientific studies which show that the presence of abnormalities on scans do not provide any indicator to the future development of low-back pain.
68 In relation to the third report of Mr Khan, Dr Kostos said that Mr Khan cannot make the statements he made, as disc degeneration, disc prolapse and disc bulging are common features in asymptomatic individuals. Further, there is no evidence to suggest that such an abnormality occurred as a result of the transport accident. He said the entire report should be discounted.
Dr Andrew Firestone
69 In June 2011, Dr Firestone examined the plaintiff for the purpose of an impairment assessment. Dr Firestone diagnosed a Pain Disorder associated with psychological and medical factors. He said any grief for his mother’s death did not influence the course of his condition. Dr Firestone obtained a history that no family member required psychiatric or psychological treatment. The plaintiff’s school years were happy.
70 Dr Firestone was aware of the plaintiff’s experiences in the Balkan War. The plaintiff reported infrequent sex, insomnia relieved by Oxazepam and regular treatment by Dr Bosanac, psychiatrist, since February 2011.
71 Dr Firestone said the plaintiff’s lack of English was a major drawback, and suggested he attend free English classes so that he can obtain less physically demanding work. He said the plaintiff’s condition appears to be slowly deteriorating.
Mr Robert Dickens
72 In November 2013, Mr Dickens, orthopaedic surgeon, examined the plaintiff at the request of the defendant. Mr Dickens diagnosed soft-tissue injury to the cervical spine and the lumbosacral spine without evidence of radiculopathy. It was his opinion that the most recent studies indicate that the plaintiff has multilevel degenerative changes in the cervical, thoracic and lumbar spine and that it is likely that these have been aggravated by the transport accident and explains why the symptoms have persisted. He thought the injuries were consistent with the accident. He said the neck symptoms were somewhat resolved but the back symptoms persist.
73 He said the plaintiff reported that he was completely asymptomatic with regard to the neck and lumbar spine prior to the accident. It was Mr Dickens’ opinion that the accident had caused an aggravation of these pre-existing conditions and that the symptoms have persisted as a combination of the aggravation and the natural history of the condition. He thought the plaintiff should be managed conservatively, and encouraged him to continue to work. He noted that there had been substantial improvement with regards to the cervical spine but thought, due to the marked degenerative changes and persistent symptoms in the lumbosacral spine, the plaintiff is going to have ongoing difficulties in the foreseeable future.
74 Mr Dickens was forwarded the surveillance report and film of the plaintiff, which he viewed. It was his opinion that the activities he observed were activities which were in excess of what he would have expected, having assessed him clinically. He said it would suggest that these findings were not entirely consistent with his clinical findings on the day of assessment. He did not believe the video altered the diagnosis that he had provided in his original report. He said, in general, his observations of the video would suggest that there did not appear to be any significant restriction in the plaintiff’s activities when driving a car, getting in and out the vehicle, and walking to and from his workplace.
Dr Timothy Entwisle
75 In December 2013, Dr Entwisle, psychiatrist, medically examined the plaintiff at the request of the defendant. He diagnosed Chronic Post-Traumatic Stress Disorder, chronic major depressive illness previously untreated prior to the accident. He said the plaintiff’s symptoms were not a result of the accident but were pre-existing. There was an aggravation of those symptoms following the accident. He did not believe the accident explains the plaintiff’s Post-Traumatic Stress Disorder. He said the plaintiff’s psychiatric injuries do not impact upon his ability to work. He said the plaintiff’s pre-existing psychiatric history impacts upon his domestic and leisure activities. There has been aggravation by the accident due to the pain experienced which adds to his and his family’s difficulties. He said the plaintiff is likely to remain depressed for the rest of his life.
Credit of the Plaintiff
76 Counsel for the defendant relied upon a number of discrepancies in the histories given by the plaintiff to medical witnesses, which counsel submitted went to the plaintiff’s credit. The credibility of the plaintiff as a witness and as an historian of his symptoms to medical practitioners is of central importance. The Court of Appeal has referred to the fact that medical opinions may, to varying degrees, be dependant upon the accuracy of the patient or claimant as an historian.[12] A medical opinion which is based upon an account by a patient or claimant as to his or her symptoms “may have little or no probative weight where the court determines that such a witness is not reliable.”[13]
[12]For example Mobilio v Balliotis (supra); Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at [46]; Dordev v Cowan & Ors [2006] VSCA 254 at [14], [19]
[13]Dordev v Cowan & Ors (supra) at [19]
77 In Franklin v Ubaldi Foods Pty Ltd,[14] Ashley JA said:
“Two observations should be made about the history as recorded. First, what history was given to a doctor raised the questions as to what the history giver said and what the history taker recorded. To assume right on one side or the other would run counter to experience. Secondly, it would be remarkable if there had not been some variations in the patient’s history given the large number of doctors who examined him.”
[14](1995) 21 MVR 314
78 The fact that a court determines that a plaintiff is not a reliable witness either in general or in respect of particular matters does not mean that all of the medical opinions relied upon by that plaintiff should be disregarded. In Cakir v Arnott’s Biscuits Pty Ltd,[15] the Court of Appeal said an adverse finding concerning the appellant’s credibility was not, by itself, sufficient to justify the refusal of the serious injury application. Regard should be had to analysing and giving appropriate weight to all of the evidence, including objective evidence.[16]
[15][2007] VSCA 104 at [49-58]
[16]Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108
79 The plaintiff was born in Yugoslavia and came to Australia in 2005. English was his second language. He gave his evidence through an interpreter. He attended medical examinations with an interpreter. On occasions, it was difficult to obtain a clear history and understanding of the consequences of his injuries. I do not necessarily think that that was a reflection on the plaintiff’s credit, but made it more difficult to assess the plaintiff’s application. Mr Dickens expressed a similar view.[17] Mr Khan said he had a poor command of English. Mr Entwisle described him as a vague historian.[18] Dr Kornan said there appeared to be problems with his memory and concentration as the interview progressed.[19]
[17]Defendant’s Court Book 26.2
[18]Defendant’s Court Book 26.16
[19]Plaintiff’s Court Book 85
80 From my observation of the plaintiff in Court, I formed the view that the plaintiff answered questions put directly to him; he did not elaborate. The fact that some medical witnesses did not obtain a history of the plaintiff’s experience in the Balkan War may have been due to the questions asked by the medical witnesses. Accordingly, I accept that his failure to disclose his experience of the Balkan War does not reflect upon his credit. Dr Kornan became aware of the history and commented upon it. Dr Assadi did not specifically comment on it, but was provided with a report from Dr Firestone, which he said he had read and which referred to the plaintiff’s experience in the Balkan War.
81 Counsel for the defendant submitted that the plaintiff’s reliability as a historian was doubtful. The plaintiff told some medical witnesses the car was a “write-off” and others that he was able to drive home. Others were told the police drove him home. In cross-examination, he agreed the vehicle was not a write-off and the police did not drive him home. Another example referred to was what he told medical witnesses about his weight.
82 Discrepancies in the histories recorded by the various medical practitioners as to the circumstances of the accident and his weight assumed the medical witnesses recorded accurately what they were told. The discrepancies I was referred to were of an incidental nature and in large part related to the circumstances of the accident.
83 Further, the plaintiff told Dr Bosanac:[20]
“He had a serious motor car accident (MCA) when his car was hit by a trailer from behind and was fortunately not seriously hurt, but was emotionally shocked.”
[20]Plaintiff’s Court Book page 61
84 Counsel for the defendant said the plaintiff denied in cross-examination that he told Dr Bosanac he “was fortunately not seriously hurt”. As to that submission, counsel did not put to the plaintiff the complete quote. Accordingly, I do not make an adverse finding about the plaintiff on this submission.
85 The plaintiff gave a history of being unable to garden to some of the medical witnesses[21] and deposed to that in his first affidavit. In cross-examination, he agreed he had no garden. In re-examination, he said there was a small area of grass. The plaintiff agreed he told the medical witnesses about his garden and not being able to assist at home. He said he was unable to help his wife at home because, when he got home from work, he was tired and he took medication. I accept the evidence of the plaintiff not being able to garden was inaccurate.
[21]Mr Brearley and Mr Dickens
86 Counsel for the defendant submitted that there was medical evidence which was not before the Court. In particular, reports from Dr Clayton Thomas, Mr Mangos and the plaintiff’s initial general practitioner, Dr Ibrahimagic, who is now in Bosnia. In the circumstances, I can infer that the reports would not have assisted the plaintiff. Further, counsel for the defendant submitted that the plaintiff was evasive and unhelpful about when he received treatment from Dr Clayton Thomas and why there was no report from the various doctors.
87 I did not interpret the plaintiff’s evidence as being evasive and unhelpful, but rather, the plaintiff being confused and not knowing why the reports were not before the Court. These questions are more appropriately directed to those acting for the plaintiff than the plaintiff himself, particularly given his limited education and English not being his first language.
88 The evidence was that Dr Ibrahmagic had retired and was in Bosnia. There was no explanation as to why there were no reports from Dr Clayton Thomas and Mr Mangos. Accordingly, I infer the reports of Dr Clayton Thomas and Mr Mangos would not have assisted the plaintiff.
89 The evidence was that the plaintiff had become socially isolated. Counsel for the defendant submitted that this was inconsistent with the plaintiff maintaining and posting photographs on his Facebook page. The plaintiff’s evidence was the photographs were taken on trips to Bosnia. He maintained the Facebook page in an attempt to be socially active and keep in touch with family in Bosnia. I do not accept that retaining a Facebook page which contains photographs of his family is inconsistent with the plaintiff being socially isolated.
90 The plaintiff told a number of medical witnesses that his neck had improved. That suggested to me that the plaintiff was not deliberately misleading medical witnesses.
91 In considering the credit of the plaintiff, I must consider the evidence as a whole. There was evidence in the plaintiff’s affidavits that was not challenged by the defendant. In addition, there was no challenge to the evidence of the plaintiff’s wife and Mr Kusur. Overall, I am not prepared to conclude that the plaintiff was evasive and misled the Court. I accept that on occasions, he was unreliable as a witness, but that those occasions were relatively few and could be explained by his lack of education, English being his second language and providing evidence both in Court and to medical witnesses through an interpreter.
Video surveillance
92 I was shown video surveillance dated 31 October 2012 and 3 July 2013. The surveillance showed the plaintiff walking normally and carrying a bag. He was able to get into his car without obvious difficulty. His back and neck were moving normally at all times. He got out of one car and into another without any difficulty and reversed the second car, turning his head to both sides to reverse the vehicle. The footage showed him walking normally. The footage on 20 October 2012 showed him bending freely.
93 I accept the surveillance showed the plaintiff on two occasions going about daily activities with no evidence of restricted movements.
94 The surveillance was provided to a number of the medical witnesses. Mr Brearley concluded that the surveillance did not indicate any significant disability or impairment and did not confirm the disability which the plaintiff described when examined in February 2013. Mr Dickens said the activity disclosed on the surveillance was in excess of what he would have expected, having assessed him clinically. He said the findings were not consistent with his clinical findings on the day of assessment. He said the neck range of movement was better than demonstrated on formal testing, as was the range of movement in the lumbar spine. He said the plaintiff carrying what looked to be 3-ply sheets into a work area was inconsistent with what he would have expected when taking into consideration his findings on formal testing. Dr Caric said the surveillance confirmed the plaintiff was working and is functional for duties without heavy straining/loading. He said it cannot show the risk of further progression of the plaintiff’s mental and physical conditions under harsh working circumstances. Surveillance did not alter his opinion. Dr Blombery noted that the plaintiff reported taking one week off work every two months because of pain. He said the surveillance was consistent with the history he obtained from the plaintiff.
95 Dr Kornan reviewed the surveillance. He said, from a psychiatric view, there was little to observe in the surveillance footage provided. He said the surveillance material did not alter his views.
96 I accept that a video is a snapshot in time, and that a plaintiff will have days when he is able to do more activities than on other days. Overall, I take into account the opinions of the respective doctors and how they qualified their opinions in the light of the surveillance.
Analysis of the evidence
The psychiatric injury
97 Based on the psychiatric reports,[22] I am satisfied that the plaintiff suffered a psychiatric condition as a result of the transport accident. All doctors who expressed a view on the plaintiff’s psychiatric condition agreed it was related to the transport accident. The plaintiff’s condition was variously described as:
[22]Dr Bosanac, Dr Kornan, Dr Assadi, Dr Firestone and Dr Entwisle
· Major Depression and Post-Traumatic Stress Disorder, Chronic[23]
[23]Dr Bosanac and Dr Assadi
· Major Depressive Disorder
· Adjustment Disorder with Anxiety
· A specific phobia relating to further car accidents
· Pain Disorder[24]
[24]Dr Kornan
· An aggravation of Post-Traumatic Stress Disorder; and
· Chronic Major Depressive illness.[25]
[25]Dr Kornan and Dr Bosanac
98 The issue was the extent to which the plaintiff’s psychiatric condition was related to the transport accident and whether the consequences were “severe”.
99 The evidence was that the plaintiff had experienced trauma from his wartime experience in Bosnia. However, the majority of the medical witnesses accepted the plaintiff’s current psychiatric presentation was caused by the transport accident.
100 Dr Bosanac, initial treating psychiatrist, said that the transport accident caused significant deterioration to the plaintiff’s mental state.
101 Dr Assadi, current treating psychiatrist, said the plaintiff’s current psychiatric illness was mainly due to the transport accident. Dr Assadi did not refer to the plaintiff’s wartime experiences in Bosnia, but had a copy of Dr Firestone’s report of June 2011 which referred to the plaintiff’s war experience in Bosnia. Dr Assadi said he read the report of Dr Firestone. I can infer that he took it into account. I note that Dr Assadi said the plaintiff’s current psychological illness occurred “mainly” due to the transport accident.
102 Dr Kornan said he gained the impression that the plaintiff became symptomatic as a result of the transport accident. He said that had the transport accident not occurred, the plaintiff would have been able to lead a life in which he remained asymptomatic.
103 Dr Entwisle accepted the transport accident aggravated the plaintiff’s symptoms. He said the plaintiff’s vulnerability to develop mental illness was quite marked due to his experience in the War, refugee status, family and marriage breakdown and longstanding untreated depression and Chronic Post-Traumatic Stress Disorder. The transport accident has added to his difficulties due to pain which has, in turn, impacted negatively upon his previous mood state with some minor contributions. He did not believe the transport accident explained his Post-Traumatic Stress Disorder.
104 Dr Firestone said the plaintiff’s psychiatric illness was consistent with the transport accident.
105 The plaintiff denied any pre-existing psychiatric problems.
106 I am satisfied that the plaintiff suffered a compensable injury, being a psychiatric condition involving an aggravation of an asymptomatic psychiatric disorder as a result of the transport accident on 6 November 2009.
107 In respect to an aggravation to a pre-existing condition, Southwell and Teague, JJ, in Petkovski v Galletti,[26] said that the task of the Court is to analyse the extent of the impairment of the body function before and after the relevant injury. The Court said:[27]
“…a comparison must be made of the condition of the application immediately before the accident with his condition thereafter, and an assessment made of the extent of the additional impairment … .”
[26] [1994] 1 VR 436
[27](supra) at 443
108 Where the injury for which compensation is claimed is an aggravation injury, the additional impairment must, itself, involve serious long-term impairment (or loss) of a body function.
109 Accordingly, I must consider what the evidence discloses as to the plaintiff’s prior condition, and determine whether the additional impairment resulting from the November 2009 transport accident was severe.
110 The evidence was that the plaintiff was asymptomatic in respect to his mental state prior to the transport accident. This is what he told doctors and what he told the Court. The evidence was that the plaintiff was leading a normal existence. He was involved in his Bosnian social community, attending functions and hosting barbeques, participating in activities at his local soccer club, playing social soccer with friends in the local park on a regular basis.
111 The plaintiff’s wife confirmed that the plaintiff told her that in the past he had experienced difficult periods from his experiences due to the Balkan War, but this was well behind him. She said that prior to the transport accident, the plaintiff was active and capable, full of life, a happy and fun person to be around.
112 The evidence is that the plaintiff came to Australia in 2005, taught himself to paint, became a self-employed painter who was regarded by his colleague, Mr Kusur, as having a strong work ethic and performing his duties at a high level.
113 Dr Bosanac said that prior to the transport accident, the plaintiff was coping reasonably well. Dr Kornan said that had the transport accident not occurred, the plaintiff would have been able to lead a normal life in which he remained asymptomatic. Dr Entwisle said it was following the transport accident that the plaintiff first received treatment for his depression and trauma.
114 Accordingly, I accept that at the time of the transport accident, the plaintiff was asymptomatic in respect to his mental state
115 In determining the plaintiff’s impairment, I must make the assessment as at the date of hearing. Accordingly, I will be assisted by the more recent medical opinions in this case, the reports of Dr Entwisle, Dr Assadi and Dr Caric.
116 The plaintiff’s evidence was that he experiences feelings of depression, stress and anxiety. He becomes upset when he thinks about his incapacity and he is saddened by the effect the transport accident has had on his life. He reported depressed mood, anxiety, irritability, socialisation, poor concentration, flashbacks of the transport accident, anxiety while driving and tremor to Dr Assadi. He reported fleeting suicidal ideations out of frustration without any suicidal intention to Dr Assadi.
117 The evidence is that the plaintiff is receiving psychiatric treatment on a monthly basis from Dr Assadi, who has treated him since June 2011. Between February 2011 and June 2011, he was treated by Dr Bosanac on four or five occasions. In addition, he consults his general practitioner.
118 The plaintiff currently takes medication of Olanzapine, 2.5 milligrams, to assist with nightmares, and Endep, 50 milligrams, for pain and sleep. Both are prescribed by Dr Assadi. Dr Caric, his general practitioner, suggested he might benefit from additional psychological counselling. Otherwise, the medical witnesses thought his treatment appropriate. The plaintiff has received regular psychiatric treatment and medication since February 2011. This is a significant consequence that I can take into account.
119 The plaintiff has reported sleep disturbances to the psychiatrists he has seen. He reported to Dr Entwisle that he wakes with panic attacks and his sleep is variable. He told Dr Assadi he has flashbacks of the transport accident, he has poor sleep due to preoccupation with the transport accident and its consequences, and nightmares. The plaintiff’s wife confirmed that his sleep is often disrupted. He wakes tired the next day and has reported nightmares. I accept that sleep disturbance is a consequence which I can take into account.
120 The plaintiff told Dr Entwisle that he irritates people and people irritate him. He isolates himself and tends to withdraw. He reported this to Dr Assadi, who said this was confirmed by his wife, who reported that his irritability and asociality were difficult to cope with.
121 Both the plaintiff and his wife confirmed that there has been a change in their relationship since the transport accident. The plaintiff reported these consequences to Dr Assadi, Dr Kornan, Dr Entwisle and Dr Firestone.
122 The plaintiff’s evidence was that he is concerned about his future work prospects and his ability to perform his employment duties as he did prior to the transport accident. The plaintiff reported to Dr Assadi that he felt frustrated due to the chronic pain and difficulty in performing at work. He reported experiencing anxiety and dizziness while at work. The plaintiff has not been able to perform as he did in the past.
123 The medical evidence was equivocal about work. Dr Assadi said the plaintiff’s poor job performance is in part due to his psychological symptoms. Further, he has been experiencing anxiety and dizziness whilst working, depressed mood, tiredness and amotivation; complains of poor concentration and forgetfulness. Dr Assadi said the plaintiff does not have a current capacity for pre-injury duties.
124 Dr Kornan said the plaintiff was pushing himself to continue working. He is conscientious in temperament. He said the plaintiff fell into the group who slowly deteriorate. He said the plaintiff’s outlook with regards to employment has significant consequences. He thought his ability to continue to work was limited.
125 Dr Kornan said the plaintiff does not have a capacity for full-time, unrestricted work; he was using up his emotional reserves by continuing to work. Given his age, background and situation, if he lost his job, the chances of finding alternate work would be very poor.
126 Dr Entwisle did not believe his psychiatric injury itself impacted on the plaintiff’s work, but accepted that the aggravation of his psychiatric injury impacted on his domestic and leisure activities, which he said adds to his family difficulties. He thought the plaintiff would remain depressed for the rest of his life.
127 The current evidence is that his earnings have increased since the transport accident.
128 I take into account what the plaintiff and the medical witnesses said about work and the fact that his earnings have increased since the transport accident. Overall, I accept that the plaintiff’s inability to continue working as he worked prior to the transport accident is a significant consequence to this plaintiff. For a man who has come to Australia without skills, who has taught himself to paint and now finds himself in the current position, is significant.
129 Taking into account all the evidence, I accept the plaintiff has suffered the above-mentioned consequences. Those consequences are supported by the medical evidence and the evidence of his wife and colleague. I accept that there is a real risk that the plaintiff will be unable to continue working. In addition, the plaintiff described consequences of anxiety, depression, panic attacks, irritability, difficulty with sleeping, flashbacks and nightmares. He requires treatment on a regular basis from a psychiatrist, and medication. There is no indication that his condition is likely to improve. I consider those consequences are significant.
130 I am satisfied the plaintiff was involved in a transport accident which, to this plaintiff, resulted in him experiencing symptoms of a psychiatric nature which has resulted in a psychiatric impairment. The consequences of his psychiatric impairment to him are dramatic and impact upon nearly all aspects of his life, as he knew it before the accident. The plaintiff has suffered for almost five years and the medical evidence is guarded as to the future. I accept that the plaintiff’s psychiatric impairment is long term.
131 For the foregoing reasons, I am satisfied the plaintiff has established that the consequences to him of his impairment can be reasonably described as more than “serious” to the extent of being “severe” as defined in s93(17)(c) of the Act. In my experience, the consequences to the plaintiff measure up well against other serious injury applications where plaintiffs have been successful, in applications based on the consequences of possible mental or behavioural disturbances or disorders.
132 Accordingly, I propose to grant leave to the plaintiff to bring proceedings to recover damages for injuries suffered in the transport accident on 6 November 2009.
133 In view of my finding, it is not necessary for me to consider whether the low back constitutes a serious injury under s93(17)(a).
134 I will hear the parties on costs.
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