Espinoza v TAC
[2018] VCC 1304
•24 August 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-03467
| EDUARDO ESPINOZA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 May 2018, 1 & 4 June 2018 | |
DATE OF JUDGMENT: | 24 August 2018 | |
CASE MAY BE CITED AS: | Espinoza v TAC | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1304 | |
REASONS FOR JUDGMENT
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Subject: Transport accident
Catchwords: Serious injury; Credit; Medical histories; Lay evidence
Legislation Cited: Transport Accident Act 1986
Cases Cited: Humphries v Poljak [1992] 2 VR 129; Richards v Wylie [2000]
1 VR 79; Petkovski v Galletti [1994] 1 VR 436
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R.W. McGarvie QC with Mr S. Scully | Slater & Gordon |
| For the Defendant | Mr P. Rattray QC with Ms J. Clark | Transport Accident Commission |
HIS HONOUR:
Introduction
1 Eduardo Espinoza seeks leave to claim damages for injuries resulting from a transport accident in which he was involved on 6 October 2013. He received a variety of soft tissue injuries as a result of the collision, but now seeks leave in accordance with section 93(4) of the Transport Accident Act 1986 (“the Act”) on the basis that he has suffered a “serious injury”.
2 Mr McGarvie QC, who appeared with Mr Scully on behalf of the Mr Espinoza, identified the spine as the body function said to be relevantly lost or impaired. The application relied upon paragraph (a) of the serious injury definition, although Mr McGarvie QC indicated in opening that aspects of the psychological sequelae of Mr Espinoza’s injuries would be relied upon in accordance with the principles in Richards v Wylie[1]
[1](2000) 1 VR 79
3 At the time of the transport accident in 2013 Mr Espinoza was 57 years of age and was working what was described as “well in excess of full-time hours.”[2] He was then working two jobs, working over six or seven days per week. He had not returned to employment since that time.
[2]Transcript (“T”) 5, Line (“L”) 2-3
4 Mr McGarvie QC made reference to an earlier spinal injury dating from 1989, but indicated that his client had been effectively asymptomatic in the years immediately preceding the transport accident. The earlier injuries had produced lower back pain with some right sciatica, whereas the cervical symptoms since the transport accident were said to be new injuries.
5 Mr Espinoza was the only witness required for cross-examination during the hearing.
6 Mr Rattray QC, who appeared with Ms Clark on behalf of the defendant, described Mr Espinoza’s application as one which fell below the range where leave could be given. He indicated that the plaintiff’s credit was heavily involved in terms of incorrect medical histories and surveillance material.
The lay evidence
7 Mr Espinoza had sworn three affidavits in support of his application on 15 April 2016,[3] 16 January 2018[4] and 17 May 2018.[5]
[3]Exhibit A, pp 3-19
[4]Exhibit A, pp 11-13
[5]Exhibit A, pp 21-24
8 Further affidavits in support were sworn by his partner, Meyci Chandra, on 7 February 2018,[6] his daughter Jessica De Lourdes Caceres on 13 December 2017,[7] and his former wife, Carmen Espinoza, sworn 1 December 2017.[8] None of these witnesses were required for cross-examination.
[6]Exhibit A, pp 14-16
[7]Exhibit A, pp 17-18
[8]Exhibit A, pp 19-20
9 In his first affidavit sworn on 15 April 2016 Mr Espinoza described his early life, completing his secondary education in Chile and then working as a labourer and a machinist. He also did some sales work. He arrived in Australia in 1984 and worked in factories and as a cleaner, both as an employee and in a self‑employed capacity.
10 Mr Espinoza referred to various pre-existing medical conditions, including a right knee injury in 1986, pains in his hands and episodes of dizziness. He also made reference to some anxiety due to family issues requiring medical treatment in about 2011.
11 Specifically he did not recall having prior back, neck or right shoulder problems preceding the transport accident.
12 He then described the accident as follows:
“I was stationary in my car in the outbound lane of the Princes Freeway in Altona Meadows when I was rear ended by another vehicle. The impact of the collision caused my vehicle to be pushed into the vehicle in front of me.”[9]
[9]Exhibit A, p 4 [5]
13 As a result of the collision Mr Espinoza described suffering injuries to his back, neck, right shoulder and knees. He also deposed to becoming anxious and depressed.
14 Mr Espinoza referred to his initial medical treatment at the Western Hospital in Footscray. He consulted his family doctor, Dr Aranda, on 9 October 2013. He also attended a physiotherapist and had some x-rays and ultrasound of his left knee.
15 His first affidavit then referred to travelling to Indonesia with his partner in January 2014. Mr Espinoza stated he was in pain whilst overseas and took medication.
16 He described further investigations in April 2014 and an assessment for pain management in August of that year. He attended the Werribee Hospital due to diverticulitis in September 2014. Ultimately this was not said to be related to the transport accident.
17 He referred to further medical treatment in late 2014 and the first part of 2015. He described an assessment at the Western Hospital in July 2014 when he stated:
“… I was feeling suicidal. My son drove me to the hospital. I was assessed by the CAT team. I was not admitted. I was very stressed due to not being able to work because of my injuries. I had financial pressures as I was not working. I was very worried about my future.”[10]
[10]Exhibit A, p 6 [16]
18 Mr Espinoza made reference to seeing a psychologist on a few occasions after this episode.
19 At the time of the first affidavit Mr Espinoza described in some detail the extent of his lower back pain, neck and right shoulder pain and problems with both knees. He also made reference to what he described as a very poor mental state. He described his ongoing treatment as seeing his general practitioner once a month and taking medication, which at that time included Panadeine Forte, Endone, Panadol Osteo, Endep, Indocid and Nexium.
20 Mr Espinoza described the impact of the transport accident on his working life stating:
“At the time of my accident, I was employed as a cleaner with Menzies International Pty Ltd as a permanent cleaner working five days a week. I was also working as a cleaner for my own business seven days a week. I had plans to buy a house and keep growing my business. I planned to work for as long as I could. I had no plans to retire.”[11]
[11]Exhibit A, p 8 [28]
21 He had previously deposed to have always worked hard and very long hours, regularly working seven days per week for many years prior to the transport accident. He had not returned to work and described feeling like a failure.
22 Mr Espinoza described being woken at night by pain, especially in his neck. He described poor sleep and nightmares. He also referred to difficulties in interacting with his grandchildren, including an inability to play games and sports with his older grandchildren due to pain.
23 In his second affidavit, sworn in January 2018, Mr Espinoza referred to what he described as:
“… constant, aching pain and restriction of movement as a result of the injuries to my lower back, neck, right shoulder and knees.”[12]
[12]Exhibit A, p 11 [2]
24 He described the pain in his lower back and neck as occurring daily, but varying in intensity depending on activity and also affected by cold weather. He again described difficulty in sleeping and various physical activities as impacting on the pain affecting his neck, lower back, shoulders, legs and knees.[13]
[13]Exhibit A, pp 11-12 [4] to [8]
25 Mr Espinoza made reference in that affidavit to his social life, describing visits to Indonesia in December 2016 and August 2017 to visit his partner. He went on to describe his partner arriving in Australia in December 2017, and how she and her 15 year old daughter resided with him.[14]
[14]Exhibit A, p 12 [10]
26 The affidavit referred to an impact on Mr Espinoza’s social life and his difficulties in sitting and concentrating during English language classes. He also referred to suffering what he described as a mild stroke in June 2015.
27 Mr Espinoza’s final affidavit was sworn on 17 May 2018. In this affidavit he commented on medical records showing that he had previously sought treatment for neck, back and right shoulder pain in the past. He stated:
“As far as I recall, at the time of the accident, and for some time beforehand, I had no back, neck or shoulder symptoms so I did not appreciate the relevance and significance of any symptoms I had experienced in the past.”[15]
[15]Exhibit A, p 22 [3]
28 In that most recent affidavit Mr Espinoza continued:
“Since the accident, I have never been free of neck or back pain. My neck and back pain is generally worse in cold weather. I have disrupted sleep every night due to neck and back pain, particularly neck pain.”[16]
[16]Exhibit A, pp 22-23[8]
29 The affidavit continued to describe particular circumstances which worsened his pain and his inability to return to any employment. He also described feeling depressed as a result of his pain and the restrictions placed upon his life.
30 When cross-examined it became clear that the material to which Mr Espinoza had deposed was, at the very least, inaccurate. I noted the following evidence as relevant to my determination.
· Mr Espinoza initially accepted that he had previously suffered neck and back pain prior to the transport accident, but stated:
“I think it was more being overtired due to working very long hours I had kept.”[17]
[17]T 20, L 31 to T 21, L 2
· He agreed later on he had taken time off when he hurt his shoulder, but did not remember for how long he was off work. He recalled having tablets and later on an injection in his back. He denied wearing a back brace.[18]
[18]T 21, L 19-29
· He agreed he may have hurt his back in 1987 handling rolls of carpet, but believes he only took medications and could not recall taking time off work.[19]
[19]T 22, L 15-30
· Mr Espinoza recalled making a worker’s compensation claim when he had a knee operation, but did not otherwise believe he had claimed in relation to his back, shoulder or neck.[20]
[20]T 23, L 17-25
· He agreed that he had not told any examining doctor that he had back problems dating from 1987. He maintained the doctors did not ask him about his past history.[21]
[21]T 25, L 1-13
· When shown various medical records Mr Espinoza agreed that he had taken some 11 weeks off in 1999 certifying him unfit to work due to his back. He stated:
“… I took all of my sick leave then because my wife had been prescribed (sic) with cancer … so that I could be with her for a couple of months.”[22]
[22]T 30, L 10-23 & Exhibit 4, p 94
· Mr Espinoza agreed that in 1999 he was being treated by Dr Parekh, who referred him to a specialist, Mr Kahn, and also for physiotherapy in relation to his back. He disagreed with the proposition that his back was giving him a lot of trouble.[23]
[23]T 31, L 29 to T 32, L 4
· Mr Espinoza maintained that he may have had 10 or 11 weeks off in one job, but continued in another cleaning job. He did not agree with the proposition that in August 2000 he was taken off cleaning duties and restricted to the maintenance office.[24]
[24]T 34, L 1-25
· He recalled having an injection in his back and using a walking stick for a couple of days. He was unaware of the date, but material put to him suggested it was in December 1999.[25]
[25]T 35, L 16 to T 36, L 30 & Exhibit 1
· Mr Espinoza maintained that his many visits to his general practitioner, Dr Parekh, with low back pain in 1999 and 2000 were to enable him to take sick days because of his wife’s illness:
“That was one of the reasons and the other reason was that the work was very hard and my body was tired.”[26]
[26]T 37, L 6-15
· He agreed he had been seeing Mr Kahn, but could not recall seeing him since April 1993 through to 2000.[27]
· He agreed suffering a flare-up of back pain while moving a recycling bin at work in January 1999. That occurred while he was employed as a cleaner:
“… I still had to go on working. It meant nothing.”[28]
· Mr Espinoza was unable to recall pain in his lower back, the right leg, neck and right arm between 2000 and 2003.[29]
· Further points from medical histories were put to Mr Espinoza. Finally he agreed with the proposition that he had “a pretty extensive history of back pain interference with work and treatment” from 1993 to at least 2009.[30]
· He recalled an earlier car accident in 2009 when another vehicle ran into the back of his car. He recalls having an injury to his neck or back and seeing his local general practitioner. He believes he only attended the doctor on one occasion.[31]
[27]T 38, L 4-27 & Exhibit 4, p 129
[28]T 40, L 5-14
[29]T 40, L 15-22 & Exhibit 2, pp 21-22
[30]T 41, L 22-26
[31]T 43, L 11-25
31 In cross-examination Mr Espinoza was asked about his current pain and restrictions of movement. He described experiencing pain in his neck, restricted movement in his neck, back and both knees with the right knee more painful than the left.[32]
[32]T 44, L 7-14
32 He also agreed with a history given to Dr Sullivan that he could walk for about 15 minutes, stand for about ten minutes and drive for around 20 minutes.[33]
[33]T 44, L 19-29 & Exhibit A, p 59
33 Surveillance videos taken on 20, 22 and 27 November 2017 and 16, 18 and 20 January 2018 were then shown to Mr Espinoza during cross‑examination. Mr Espinoza agreed that he was the subject of the surveillance film, but did not agree with the proposition put to him that there was nothing shown in the surveillance material that would indicate that he was suffering pain or any type of restriction of movement.[34]
[34]T 49, L 23 to T 51, L 27
34 Mr Espinoza was cross-examined about seeking employment. He stated that he had been looking for work over the last three to five months, but everyone rejected him, “because of my age first and also because I have my injury.”[35]
[35]T 51, L 28-31
35 There was further cross-examination concerning Mr Espinoza’s wife who had returned to Indonesia in 2014 after her visa expired. He denied stress or anxiety being caused by his attempts to enable his wife to return to Australia.[36]
[36]T 53, L 4-22
36 He denied a history taken by Dr Entwisle in November 2017 recording issues with depression and stress resulting from his wife’s migration status.[37]
[37]T 54, L 6-12
37 There was further cross-examination concerning Mr Espinoza’s visits to his wife in Indonesia. He was challenged as to why he had not deposed to travelling there in December 2015 and July 2016. He stated that he did not think it was necessary.[38] He then agreed that in July 2016 he had travelled for 45 days.
[38]T 58, L 2-12
38 Mr Espinoza was then shown material from Facebook taken mainly in Bali and Singapore in 2016.[39]
[39]Exhibit 4, pp 111-122
39 He was then asked about his current treatment and confirmed that he was seeing Dr Aranda, usually once a month, and had been referred for physiotherapy between October 2014 and February 2015, but had had no further physiotherapy.[40]
[40]T 63, L 2-25
40 He agreed that in January 2012 he was having some relationship issues and was taking Avanza and Zoloft medication.[41]
[41]T 64, L 28 to T 65, L 1
41 He then agreed that he was taking medication for joint pain in both hands in May 2013.[42]
[42]T 65, L 17-30
42 Mr Espinoza was cross-examined in relation to his earnings prior to the transport accident. He agreed he had taxable earnings of $61,745 in the 2012 financial year and $74,852 in the 2013 financial year.[43]
[43]T 66, L 14-17 & Exhibit A, pp 66-67
43 There was further cross-examination about income received in the 2014 and 2015 financial years, although it is clear that a significant income was received from TAC following the transport accident.
44 Significantly there was no puttage to Mr Espinoza suggesting that he had returned to any work since in the transport accident.
45 There was, however, considerable cross-examination as to his motivation to return to employment:
· He had told his doctor in April 2014 that he was not ready to go back to work. This was a little over four weeks after he had returned from a holiday in Indonesia.[44]
[44]T 68, L 1-17
· He agreed he had told his doctor in October 2014 and February 2015 that he was missing his wife.[45]
· He agreed he was feeling depressed in 2015 because he was missing his wife:
“I was very sad because of her absence.”[46]
· Mr Espinoza agreed he may have told doctors that his sleep was affected together with his appetite and that he had lost approximately eight kilograms between 2013 and 2014. He agreed in cross-examination that his weight did not change much since the accident.[47]
· He could not recall telling a doctor in November 2017 that the delays involving his wife’s return to Australia were getting him down.[48]
· He had met his current wife in 2009 or 2010 prior to the transport accident. He started living with her in 2011 or 2012 until she left Australia in 2014.[49]
[45]T 68, L 18-27
[46]T 69, L 16-27
[47]T 75, L 3-29
[48]T 77, L 8-19
[49]T 77, L 22-29
46 When re-examined the following evidence emerged:
· Mr Espinoza no longer rode a bicycle following the transport accident:
“… if I want to peddle my bike, then my leg hurts a lot. So I cannot really do it. And then I lost my trust to actually ride on the street, so I don’t ride it anymore.”[50]
· Activities in the film, such as using a petrol nozzle with his right hand, “really hurts,” if he pushed hard.[51]
· Despite a reference to Mr Kahn referring him for hydrotherapy in July 2000, he did not believe he had actually had hydrotherapy until following the transport accident.[52]
· He did not believe he had any particular problems with his back or neck between 2009 and 2013 when he was working more than 100 hours per weeks, sometimes in two jobs.[53]
[50]T 78, L 6-10
[51]T 78, L 19-24
[52]T 78, L 28 to T 79, L 7
[53]T 79, L 12-17
47 The material contained in the three lay affidavits in support of the plaintiff’s application were not challenged by way of cross-examination. Each of the deponents deposed to their knowledge of Mr Espinoza prior to and following the transport accident. In each case the deponents commented on the observations of what was described in each affidavit as significant changes, both physically and emotionally (or psychologically).[54]
[54]Exhibit A, p 15 [8], p 18 [5] & p 20 [6]
The medical evidence
48 The plaintiff’s general practitioner, Dr Eduardo Aranda, provided medical reports dated 12 March 2015 and 19 December 2017.[55]
[55]Exhibit A, p 27-30
49 In his first report Dr Aranda diagnosed Mr Espinoza as suffering from:
“… Chronic Pain Syndrome R side Neck, R shoulder, Lower Back and Knees with Secondary Depression.”[56]
[56]Exhibit A, p 28
50 He had referred Mr Espinoza to the Dorset Pain Clinic in Pascoe Vale and believed at that stage he had no capacity for work. He did comment that his medical and psychological condition would improve once his wife came to Australia.
51 In Dr Aranda’s more recent report he described the condition as “polycontusion and pain disorder (depression secondary to chronic pain.”[57] He regarded the prognosis as fair and stated:
“… I believe that with continued Physiotherapy sessions and CBT (Cognitive Behavioural Therapy), he may be able to slowly return to the work force in the near future.”[58]
[57]Exhibit A, p 30
[58]Exhibit A, p 30
52 Apart from the initial report from Western Health dated 20 September 2014, there is no further material relied upon by the plaintiff from any treating practitioner.
53 Mr Peter Moran, orthopaedic surgeon, saw Mr Espinoza on 14 January 2015 and 2 October 2017 for medico-legal examinations. In his first report dated 21 July 2015[59] he expressed the following opinion:
“Mr Espinoza has evidence of pre existing degenerative change in the neck and lower back, but had been entirely asymptomatic prior to this collision. His pain is essentially facetogenic, and entirely consistent with the mechanism of injury that he describes.”[60]
[59]Exhibit A, p 31-35
[60]Exhibit A, p 34
54 Following the second examination Mr Moran prepared a further detailed report dated 31 January 2018.[61] He again noted that Mr Espinoza presented with spinal pain, left shoulder pain and predominantly right knee pain resulting from the transport accident. He also noted that Mr Espinoza had been actively involved with his business as a cleaner prior to the injury, but had subsequently remained unemployed, become isolated and suffered psychological symptomatology. He stated:
“There is no doubt that Mr Espinoza has suffered a genuine physical injury to his neck, shoulder and lower back, in addition to a dashboard injury to his right knee in particular, but his medical management has been limited, and his approach to recovery passive. At this stage I would consider that his condition has stabilised, and the possibility of him resuming employment in any real capacity is remote.”[62]
[61]Exhibit A, p 36-38
[62]Exhibit A, p 38
55 Mr Moran provided a further report to the plaintiff’s solicitors on 28 March 2018,[63] after being provided with what he described as “copious documentation” relating to earlier musculoskeletal injuries. Mr Moran queried the relevance of the historical clinical material and stated:
“There is no indication in these notes as to whether his issues of spinal pain had resolved or not, but Mr Espinoza himself had indicated that prior to the transport accident, he was in full time employment as a cleaner, and the indication he gave was that he was not suffering from neck, back, shoulder or knee pain or restrictions prior to the transport accident. There appears to have been a significant change in his physical capacity from the time of injury in December 2013.”[64]
[63]Exhibit A, p 39
[64]Exhibit A, p 39
56 Mr Espinoza was also examined by Dr Richard Sullivan, a consultant in pain medicine, on 22 February 2018. Dr Sullivan provided a report to Mr Espinoza’s solicitors on the same date.[65]
[65]Exhibit A, p 58-62
57 At that time Dr Sullivan believed Mr Espinoza suffered from a “chronic pain condition of an organic basis in the context of a motor vehicle injury sustained in October 2013.” He commented on the radiological findings which noted cervical and lumbar spondylosis and degenerative changes in the right shoulder. He went on to provide the following opinion:
“I am confident that his presentation is consistent with the onset of his symptoms at the time of the injury. It is likely that he has a degree of pre‑existing cervical or lumbar spondylosis, but that the accident has aggravated his pre-existing condition. It is also plausible that the degeneration has happened subsequently as a consequence of his motor vehicle injuries.”[66]
[66]Exhibit A, p 61
58 Dr Sullivan also formed an opinion that the pain and functional limitations would continue into the foreseeable future and that he would not be able to return to his pre-injury employment.
59 Dr Sullivan provided a supplementary opinion dated 23 April 2018, after being provided with further material from Mr Espinoza’s solicitors. He pointed out that he had no report of pre-existing injury or illness relevant to the transport accident at the time of his earlier examination. Dr Sullivan then set out in some detail the earlier history that had been provided to him, noting MRI scans in 1992 and 1993 demonstrating disc pathology at the L5/S1 level, and noting reports from three orthopaedic specialists and an occupational physician in the mid-1990s. He then went on to state:
“In the context of his presentation and history related to me, this does affect the content of the medicolegal report, however it does not alter the conclusions, summaries or recommendations except in so far as to point out that the pain that Mr Espinoza suffers in his low back and any associated sciatica is likely to have had a pre-existing cause, that being the aforementioned work injury and that any exacerbation of these symptoms is an aggravation of a pre-existing condition. In terms of his neck pain and associated shoulder pain, these injuries appear on the balance of probability to have arisen de novo, consequent to the motor vehicle accident described to me by Mr Espinoza that occurred on or around the 3rd October 2013.”[67]
[67]Exhibit A, p 64
60 Dr Sullivan then concluded that the neck and right shoulder pain related directly to the transport accident, whereas the lower back and right sided lower limb pain may have been an exacerbation of the earlier injury.
61 Mr Espinoza also relied upon medico-legal opinions from two psychiatrists, Dr Nathan Serry and Dr Lester Walton.
62 Dr Serry saw Mr Espinoza in November 2014 and November 2017. His two reports dated 10 November 2014 and 8 November 2017 were tendered in evidence.[68] At the time of his first examination Mr Espinoza was seeing a psychologist as part of a pain management program. In his first report Dr Serry diagnosed Mr Espinoza as suffering from pre-existing anxiety due to family issues and also a history of pre-existing irritable bowel syndrome. He diagnosed the psychiatric illness resulting from the transport accident as being:
“… most consistent with a chronic adjustment disorder with anxious and depressed mood along with not insignificant features of traumatisation although not a full-blown PTSD.”[69]
[68]Exhibit A, pp 40 - 57
[69]Exhibit A, p 45
63 At the time of Dr Serry’s second examination Mr Espinoza was no longer having any psychological treatment. Dr Serry confirmed his earlier diagnosis of chronic adjustment disorder with anxious and depressed mood and features of traumatisation. He went on to state:
“… given the persistence of pain and given the centrality of pain in your client’s presentation, a diagnosis of somatic symptom disorder with predominant pain, persistent and of moderate severity also appears to be appropriate.”[70]
[70]Exhibit A, p 55
64 Dr Walton had examined Mr Espinoza at the request of TAC on 9 June 2016. His report dated 15 June 2016 was tendered in evidence.[71]
[71]Exhibit A, pp 69-77
65 Dr Walton expressed the opinion that Mr Espinoza had:
“… gone on to suffer from chronic pain but his disturbed mental state may well be relevant in that regard.”[72]
[72]Exhibit A, p74
66 Dr Walton described Mr Espinoza as being afflicted by depressed mood “of suicidal proportions.” He regarded the prognosis as poor with chronic pain “and chronic mental disturbance the likely outcome.”[73]
[73]Exhibit A, p 74
67 The defendant relied upon medical opinions from Dr Chris Baker, occupational physician, Dr Peter Gard, orthopaedic surgeon, and Dr Timothy Entwisle, psychiatrist.
68 Dr Baker first examined Mr Espinoza on 28 April 2014. At that time he diagnosed soft tissue injuries to the neck and right shoulder with a possible soft tissue injury to the left knee. He also made mention of soft tissue injury to the lower back. At that time Dr Baker also formed the view that there was a non‑physical component to Mr Espinoza’s presentation.[74]
[74]Exhibit 4, p 23
69 Dr Baker next saw Mr Espinoza on 30 May 2016 and reported on the same date.[75] At that time he diagnosed the same physical injuries as resulting from the transport accident, but believed Mr Espinoza had recovered:
“… but is now suffering with a chronic pain state.”[76]
[75]Exhibit 4, pp 8-17
[76]Exhibit 4, p 12
70 Dr Baker examined Mr Espinoza for a third time on 4 December 2017. He provided a report dated 6 December 2017.[77]
[77]Exhibit 4, pp 1-7
71 Once again Dr Baker expressed the view that Mr Espinoza had suffered soft tissue injuries which had subsequently resolved. He stated:
“… Mr Espinoza continues to complain of pain.
However, I note Mr Espinoza was able to move about freely and from an objective perspective, there was no obvious physical pathology impeding his activities, other than his statements of pain.
I do not consider that he is suffering any significant pain syndrome, but his perception is that he is incapacitated. He has a number of complaints of a physical and non-physical nature, but I would quantify my views. I do not consider he is suffering from a chronic pain state.”[78]
[78]Exhibit 4, pp 5-6
72 Dr Baker further commented:
“I would consider that there is a non-physical component and a psychiatric opinion should be obtained. It was noted he was taking regular painkilling medication and he considered he was incapacitated for work. He also noted that his whole life had been affected with everything being changed.
From a physical perspective, I would consider that he had a work capacity.”[79]
[79]Exhibit 4, p 6
73 Dr Baker provided a further opinion to the TAC on 12 May 2018.[80] He had been provided with the surveillance material shown to the plaintiff in this case[81] and also the clinical notes from Dr Parekh.[82]
[80]Exhibit 4, pp 101-104
[81]Exhibit 3
[82]Exhibit 2
74 Dr Baker made some comments as to the content of both the surveillance DVDs and the clinical notes, but ultimately did not wish to alter the opinion he had earlier expressed in December 2017.
75 Dr Gard examined Mr Espinoza on 9 November 2017 and forwarded a report to TAC on the same date.[83] At that time he diagnosed the plaintiff’s injuries as:
[83]Exhibit 4, pp 26-31
“. Exacerbation of right acromioclavicular joint arthritis and mild right
subacromial bursitis.
.Mild exacerbation of mild cervical spondylosis
.Exacerbation of mild lumbar spondylosis
.Soft tissue injury hip (resolved)
.Soft tissue injury knee (resolved)”[84]
[84]Exhibit 4, p 29
76 He commented on the relatively modest pathology and the observations made on physical examination. He then stated:
“He describes being completely unable to work and barely able to look after himself at home, which is a level of disability far in excess of what I would have expected. I cannot explain this in physical terms. His mental state may be a contributing factor as well. He appears to have had some profound depressive symptoms as well.”[85]
[85]Exhibit 4, p 30
77 He accepted that Mr Espinoza would have a diminished capacity for employment or other vigorous activities, but went on to state:
“I would estimate that the transport accident has been a minor contributor to these losses of ability.”[86]
[86]Exhibit 4, p 31
78 Dr Gard was again provided with the surveillance DVDs and the clinical records. He provided a supplementary report on 4 May 2018.[87] In that report he stated as follows:
“His complaints of injury and disability however are not what I would expect given the surveillance material and his physical examination. Mr Espinoza reports being not able to do any of his former work or do very much work around the home. His claims of difficulty seem far higher than what I would have expected from a man of his condition. I would describe his lumbar and cervical spine as having, at most, mild to moderate degenerative change and fairly mild pathology in the right shoulder. I would anticipate with these problems he would have some capacity for employment and be able to do most activities around the home.”[88]
[87]Exhibit 4, pp 105-106
[88]Exhibit 4, p 105
79 Dr Gard also noted the clinical notes as highlighting the longstanding problems with the lumbar spine. He did comment that:
“The symptoms and signs at this time do not appear to have progressed significantly since that time 17 years ago. Therefore these records do not change my overall opinion regarding Mr. Espinoza having some work capacity.”[89]
[89]Exhibit 4, p 106
80 Mr Espinoza was seen by Dr Entwisle on 20 November 2017 for a psychiatric examination. Dr Entwisle provided a report to TAC on 4 December 2017.[90] He described Mr Espinoza as having:
“… a chronic pain syndrome and a Major Depressive Illness in partial remission.”[91]
[90]Exhibit 4, pp 32-37
[91]Exhibit 4, p 36
81 He noted that some non-accident related factors involved his partner’s various immigration issues which he believed were resolved at that time. Dr Entwisle did not consider Mr Espinoza’s psychiatric symptoms as posing any incapacity for employment.
82 Dr Entwisle was also provided with the earlier clinical records and surveillance material. He forwarded a supplementary report on 16 April 2018.[92] He noted certain inconsistencies in respect of Mr Espinoza’s reported levels of pain, but ultimately did not wish to change the opinion set out in his earlier report.
[92]Exhibit 4, pp 107-108
83 The defendant also tendered into evidence historical medical material which had formed the basis of much of the cross-examination of Mr Espinoza concerning his pre-existing injuries. It is unnecessary to refer to those records at this stage.
Analysis
84 In order to succeed in this application, the plaintiff carries the onus of satisfying a court that the consequences of the relevant injury identified are at least very considerable and more than significant or marked. In applications for leave pursuant to section 93 of the Transport Accident Act 1986 the plaintiff may rely upon consequences of pain and suffering in combination with consequences relating to pecuniary disadvantage.[93] The first step in such a process must be an identification of the relevant injury.
[93]Humphries v Poljak [1992] 2 VR 129
85 In my view Dr Sullivan describes the nature of the injury most accurately in his final report dated 23 April 2018.[94] At that time Dr Sullivan had an opportunity to review the history relating to Mr Espinoza’s pre-existing conditions.
[94]Exhibit A, pp 63-64
86 After reviewing that material Dr Sullivan believed the condition affecting the lumbar spine was likely to be an aggravation of a pre-existing condition, whereas the neck pain and right arm and shoulder pain related directly to the transport accident.
87 Insofar as the plaintiff identifies the spine as the body function said to be relevantly lost or impaired for the purposes of the statutory definition, it is reasonable to make such an assessment on the basis of that injury being an aggravation injury, taking into account the distinction between the neck and the back identified by Dr Sullivan.
88 I have considered carefully the opinions expressed by Dr Baker and Dr Gard to the extent they suggest that the soft tissue injuries from the transport accident have now resolved.
89 I have also considered the surveillance material which did not give any real indication of a person demonstrably affected by a spinal injury which would impair their employment capacity and their activities of daily living to the extent claimed by Mr Espinoza. In fairness, however, it must be stated that the surveillance material does not show Mr Espinoza performing any particularly strenuous or heavy activity that would add support to the medical opinion that the transport accident injuries have in all probability resolved.
90 Mr Espinoza could not be described in any way as a particularly reliable witness. The obvious omission of an extensive prior history of back injury directly impacts on his credit and the extent to which I can rely on his evidence in discharging the onus which he faces.
91 Applications of this type must necessarily involve a consideration of all the relevant evidence. Notwithstanding a very thorough and rigorous cross‑examination of Mr Espinoza by Mr Rattray QC, there was no challenge ultimately made to the fact that Mr Espinoza has not returned to what was clearly a quite remunerative and very demanding cleaning business following the transport accident.
92 Similarly the evidence of the three lay witnesses in support of Mr Espinoza’s application must be given some weight. Although some scepticism might be directed towards the material in the affidavit of Meyci Chandra, particularly in light of the Facebook material, the same could not be said of the affidavits of the plaintiff’s daughter, Ms Caceres, or his former wife, Carmen Espinoza.
93 Conversely the absence of any particular active treatment regime and the somewhat unusual diagnosis of “poly-contusion and pain disorder” expressed by Dr Aranda, must also raise some concern as to the extent to which the consequences of injury impairing a return to work are organically based or otherwise. Once again in cases of this type a plaintiff is entitled to rely upon the non‑organic consequences flowing from an organic injury in order to satisfy the statutory threshold.[95]
[95]Richards v Wylie [2000] 1 VR 79
94 It seems clear, particularly from the opinion expressed by Mr Gard, that the original organic injury has produced symptoms which are greater than would ordinarily be expected. In all probability this is as a result of non-organic factors identified by all three psychiatrist who have provided reports in this matter.
95 Despite my reservations as to Mr Espinoza’s reliability as a witness, and particularly as a medical historian, the inescapable and unchallenged fact is that he has gone from a person fully employed for a number of years prior to 2013, to a man who is now 62 years of age and without any identifiable prospects of ever returning to employment in the foreseeable future.
96 Although the application in present case must rely on an aggravation injury in accordance with the principles of Petkovski v Galletti[96] those consequences in terms particularly of pecuniary disadvantage are clear. Mr Espinoza was 57 years of age and capable of working hours well in excess of what would normally be regarded as full-time prior to the transport accident. He has not subsequently been able to return to any employment.
[96][1994] 1 VR 436
97 Notwithstanding the matters put in cross-examination concerning his taxable income, which included TAC incapacity payments and superannuation payments, the plain fact remains that the predominant consequence of the transport accident in terms of spinal injury is that Mr Espinoza has been unable to return to any employment, and this situation, in my assessment, will continue for the foreseeable future. Such a consequence must be regarded as at least very considerable and more than significant or marked.
Conclusion
98 Despite my considerable reservations about the reliability of Mr Espinoza as a witness, I am persuaded on the whole of the evidence that he has discharged the onus required of him and must be given leave to claim damages in accordance with the provisions of section 93(4)(d) of the Transport Accident Act 1986.
99 I will hear the parties in relation to the formal orders sought and on the question of costs.
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