Farid v Transport Accident Commission
[2021] VCC 1990
•10 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-02438
| NABIL FARID | Plaintiff |
| v | |
| Defendant |
TRANSPORT ACCIDENT COMMISSION
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 and 29 November 2021 | |
DATE OF JUDGMENT: | 10 December 2021 | |
CASE MAY BE CITED AS: | Farid v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1990 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – transport accident – spinal injury - right shoulder – pre-existing injury – aggravation - pain and suffering
Legislation Cited: Transport Accident Act 1986
Cases Cited:Nikolic v Transport Accident Commission [2020] VSCA 148; Mobilio v Balliotis [1998] 3 VR 833; Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; Gjorgovska v AFM Cleaning Services Pty Ltd [2006] VSCA 104; Woolworths Ltd v Warfe [2013] VSCA 22; Veljanovska v Verduci (2014) 42 VR 222; Haidar v Transport Accident Commission [2016] VSCA 182; Fenton v AIA Australia Ltd [2017] VSCA 331; Rowe v Transport Accident Commission [2017] VSCA 377; Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Yilmaz v Specialty Fashion Group Limited [2019] VSCA 100; Johns v Oaktech Pty Ltd [2020] VSCA 10; Apps v Victorian WorkCover Authority [2020] VSCA 21; Siddel-Whipp v Transport Accident Commission [2020] VSCA 109; Humphries and Anor v Poljak [1992] 2 VR 129; Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Angenent | Shine Lawyers PTY LTD |
| For the Defendant | Mr S Smith QC with Ms GJ Cooper | Wisewould Mahony |
HER HONOUR:
1The plaintiff, Mr Nabil Farid, makes an application pursuant to Section 93 of the Transport Accident Act 1986 (“the Act”) for leave to commence common law proceedings for damages in relation to a transport accident. The relevant transport accident occurred on 18 May 2012. At trial the plaintiff abandoned a claim in relation to a subsequent transport accident on 18 May 2018.
2The plaintiff claims he has suffered a serious injury pursuant to paragraph (a) of the definition of a serious injury in Section 93(17) of the Act, being
(a) a serious long-term impairment and loss of function of the spine, in particular the neck, and/or a serious long-term aggravation thereof; and
(b) a serious long-term impairment and loss of function of the right upper limb, in particular the right shoulder.
3In support of his application Mr Farid relied on three affidavits, sworn 6 September 2017, 28 January 2021 and 25 October 2021. He also relied on an affidavit of his daughter, Veronica Farid, dated 24 November 2021.
4The plaintiff relied on various radiology reports, treating doctor records and the medico legal opinion of Mr Ash Chehata. None of the doctors were required to attend for cross-examination.
5The defendant relied on an affidavit of the plaintiff sworn 1 June 2011 in a worker’s compensation proceeding, various medical reports that pre-date the 2012 accident, and reports of Mr John Owen and Dr Peter Boys.
Background to the 2012 Motor Vehicle Accident (“MVA”)
6Mr Farid is a seventy year old man who is currently in receipt of an aged pension, after having been in receipt of a disability support pension for many years following a work-related injury. I will deal in more detail with that injury below.
7Mr Farid has been imprisoned on numerous occasions in relation to drug charges, domestic violence and breaching intervention orders. This has caused him a degree of stress and anxiety. He has been ordered to attend and complete an anger management program.
8Mr Farid says that at about 3.30pm on the 18 May 2012 he pulled over on High Street, Reservoir to make a phone call, and another vehicle ran into the back of his car. At the time he noted his occupation as ‘home duties’ and that he was unemployed. He noted on his TAC claim form dated 23 July 2012 that, at the time of the accident he had a pre-existing injury described as ‘old disruption of ligament of knee other than collateral and/or cruciate ligaments’. He noted that he was regularly taking Panadeine Forte, Endone and Oxycontin at the time of the MVA.
9He says that both cars involved in the MVA were ‘written off’. In his 2017 affidavit he says he suffered significant pain in his neck and right shoulder after the accident but was unable to seek medical treatment at the time as he was imprisoned shortly afterwards (not in connection with the MVA).
10Upon his release from prison he sought treatment for his pain and was told that he had suffered a significant injury to his right shoulder. CT scan dated 10 July 2012 shows multilevel degenerative disc and facet disease (mild on the left side at C2/3, C3/4 and C4/5, moderate at the right side at C3/4 and C4/5 with subchondral cysts). There was no evidence of focal disc herniation or central spinal canal stenosis, no evidence of recent bone injury.
11MRI dated 22 August 2012 noted multilevel cervical spondylosis and neural foraminal stenosis, severe on the right.
12X-ray of the right shoulder on 6 March 2014 noted degenerative changes of the acromioclavicular joint with no acute fracture or malalignment. Ultrasound of the right shoulder of 15 April 2014 showed mild subacromial bursitis.
13Ultrasound of the right shoulder on 18 December 2014 noted a small full thickness tear of the supraspinatus with mild subacromial bursitis, mild tendinosis and acromioclavicular joint degeneration.
14Right shoulder x-ray on 27 March 2015 confirmed degenerative change of the acromioclavicular joint.
15On 28 June 2016 he had an arthroscopy on his right shoulder.
16Ultrasound of 20 June 2017 confirmed the ‘chronic’ tear of the supraspinatus tendon. There was no new rotator cuff tear and the extent of the tear was similar to the 2014 ultrasound, suggesting no progression of the injury.
17As at 17 October 2017 he said that he had reduced his medication to Panadeine Forte daily with occasional Panadol Osteo.
18On 18 May 2018 he was involved in a second MVA. In his affidavit of 28 January 2021 he says that after this second MVA he suffered ‘further serious injuries’ to his neck, back and right upper limb and severe aggravations of the neck and right upper limb injuries sustained in the first MVA.
19After the second MVA, both cars were ‘written off’ and the police, fire brigade and ambulance service all attended the scene. He says that, despite the pain he was in, he was not taken to hospital but was ‘compelled’ to visit his general practitioner within a day or two. He says as a result of this MVA he wore a neck brace for about three months and was suffering severe pain in his neck, lower back and shoulders, with his right shoulder being more painful than the left.
20CT of his cervical spine on 1 June 2018 showed degenerative change but no acute traumatic changes of the cervical spine.
21Mr Farid’s pain did not settle and on 2 June 2018 he attended the Austin Hospital because of pain and altered sensation in his right shoulder and arm. He was admitted for ‘about three days or so’ and underwent CT and MRI scans. MRI of 2 June 2018 showed multilevel degenerative changes including central canal stenosis and moderate to severe right neural exit foraminal stenosis at C4/5. There was no evidence of ligamentous cervical spine injury.
22CT of the lumbar spine showed mild disc degenerative disease of the lumbar spine and mild facet arthropathy of the lower lumbar spine.
23He subsequently had a CT guided C5 right cervical nerve root injection.
24On 2 July 2018 he again attended the Austin Hospital Emergency Department because of severe pain and a ‘burning’ type pain. He says in his affidavit of 28 January 2021 that Lyrica was added to his medications at that time.
25Subsequent radiological investigations have been consistent. There is no obvious progression of his degenerative disease.
26In his affidavit of 25 October 2021 he says he continues to experience severe pain in his spine and upper right limb. He continues to suffer depression and anxiety. He is angry, upset and frustrated by his pain and restrictions caused by his physical injuries. He has had no further treatment, though he sees his general practitioner. He has been told that there is nothing much to be done.
27Following his second MVA he is now prescribed Panadol Osteo, Panadeine Forte, Lyrica, and Celebrex for pain. He is prescribed diazepam and Pristiq for depression and anxiety and Nexium for gastro-intestinal issues.
Medical Evidence in relation to the 2012 MVA
28Mr Farid was reviewed by Mr John Cunningham, orthopaedic surgeon on 20 July 2012. Mr Cunningham notes the onset of neck pain immediately after the first MVA. He observed neck movements limited significantly by pain. At the time of that consultation Mr Farid was taking Avanza, Efexor, Oxycontin, Panadol Forte, Sodium Valproate and Phenergan occasionally.
29Dr Michael Wong, in a report dated 26 October 2012, noted the onset of complaints of neck pain following the MVA, though Mr Farid had had no immediate treatment. MRI scans in August 2012 indicated a multilevel foraminal stenoses. However, central canal remain capacious and there was no sign of any cord compression. Dr Wong opined that surgical intervention was not appropriate.
30Dr Stephen de Graaff saw Mr Farid on 14 February 2013 and noted his ongoing pain since the accident. He recommended multidisciplinary pain management assessment, including physiotherapist, occupational therapist and psychologist.
31On 30 January 2015 Mr Farid was seen by Mr Thomas Kossman who noted his complaints of pain in the neck and paraspinal muscles. He diagnosed multilevel cervical spondylosis and foraminal stenosis, with some compromise of the C4 and C5 nerve roots. Dr Kossman considered Mr Farid’s prognosis was guarded: ‘He will continue to suffer from pain in his cervical spine and right shoulder. He will require further conservative treatment with pain medication, anti-inflammatories, physiotherapy and hydrotherapy. I do not believe that he will require surgery for his cervical spine condition.’
32Mr Farid was referred for assessment to Dr Roland Ebringer, Consultant Physician and Rheumatologist on 31 March 2015. He noted significant restriction of movement of the cervical spine and long-standing multilevel degenerative cervical arthritis with foraminal narrowing, more marked on the right side. He opined, ‘These would certainly explain his symptoms. He has had these degenerative changes for a long time. They were not caused by his road traffic accident. It is reasonable to accept that his road traffic accident would have aggravated or exacerbated his symptoms.’ He recommended regular exercise and anti-inflammatory medication such as Meloxicam.
33On 26 March 2015 Mr Farid consulted Mr Anthony Bonomo, orthopaedic surgeon for a steroid injection. Review after eight weeks demonstrated persistent pain and he elected to proceed with arthroscopic subacromial decompression, excision of clavicular osteophytes and bursectomy on 28 June 2016.
34On 23 March 2016 Mr Farid was assessed for medico legal purposes by Dr Peter Boys. He notes that Mr Farid suffered a ‘soft tissue injury’ to the neck and right shoulder in the MVA. He believed that the cervical spinal injury had resolved at that time, but that his ongoing symptoms in his right shoulder reflected a tendinopathy of the rotator cuff. He recommended decompression and rotator cuff repair.
35On 26 September 2017 Mr Farid was seen for medico legal purposes by Mr Ash Chehata. He noted the high level of analgesics Mr Farid was taking each day. He diagnosed an aggravation of cervical spondylosis of the cervical spine; recalcitrant bursitis with ultrasounds confirming potential full thickness rotator cuff tear. He considered Mr Farid’s prognosis was poor due to the degenerative nature of the cervical spondylosis and Mr Farid’s age.
36Mr Farid’s general practitioner, Dr Basman Marcus noted on 25 January 2018 that he had not seen Mr Farid since 28 August 2017 but considered that his injuries were consistent with the accident circumstances.
37Dr Marcus says, ‘There is no doubt that his injuries have affected and impacted his daily living, domestic and social activities. His pain is limiting his activities and unable to use right shoulder in any lifting and activities above shoulder’s level. The pain has affected his sleep hours and sleep quality as he is unable to sleep on his right side. In addition, his low mood and depression have a negative impact on his social life and relationships.’
Medical Evidence in relation to the 2018 MVA
38Following the second MVA Mr Farid was seen by Dr Marcus who noted that his injuries from the 2012 MVA had stabilised but his condition had ‘flared up’ and been complicated by the subsequent MVA. The second MVA had exacerbated his right neck and shoulder and also involved his right hip. He noted that Mr Farid had required Panadeine Forte prior to the second MVA, but since the MVA had reintroduced Lyrica into his medications.
39Mr Chehata assessed Mr Farid on 8 October 2019 and noted that he appeared to have new symptoms relating to his lumbar spine which was likely to be degenerative and unlikely to be related to either MVA. He noted newly developed pins and needles, as well as numbness radiating from neck into right shoulder. He noted that there was no response to cortisone injections into the cervical spine and considered that the accident had caused an aggravation of pre-existing arthritic changes causing a discogenic injury that had remained and not improved with time.
40Subsequent report by Mr Chehata on 7 October 2021 noted that Mr Farid had severe and chronic pain as a result of cervical spondylosis, that he was experiencing severe headaches and had no significant improvement from physiotherapy or cortisone injection.
41The medical evidence and expert opinion is fairly consistent. Mr Farid has severe degenerative changes on the right side of his cervical spine and mild degenerative changes in his lumbar spine. He has a small tear in his supraspinatus and mild bursitis in his shoulder.
42Based on his evidence and the medical reports it appears that these are longstanding degenerative processes that became symptomatic for the first time following the first MVA in relation to the cervical spine and right shoulder, and the second MVA in relation to the lumbar spine.
43Whilst the second MVA appears to have caused an aggravation of his pain in both the cervical spine and shoulder, it does not appear to have caused any new radiological or pathological changes.
Claimed impact on the plaintiff of the first MVA
44The plaintiff submits that it is relatively easy to disentangle the consequences of his 2018 MVA from his 2012 MVA as he swore an affidavit prior to the 2018 MVA on 6 September 2017. In that affidavit Mr Farid says that he has suffered the following consequences as a result of his MVA:
(a) Driving has ‘become a chore’ because of his increased pain when holding a steering wheel and it is now something he avoids.
(b) He has to use his left hand to hold groceries when shopping.
(c) He cannot participate in sporting activities because of his neck and shoulder and this impacts on his relationship with his children.
(d) His children had to assist him with housework and other domestic tasks. ‘Often my children will comment that the bathrooms are dirty and need to be cleaned. I am unable to do the harder scrubbing and cleaning of my bathroom and the internal of my house due to the ongoing pain in my right shoulder.’ He is ‘ashamed of my home and avoid(s) having guests.’
(e) He is unable to do the gardening as his shoulder pain prevents him from pushing a lawn mower. He asks his friends and neighbours to help him in this aspect, which he describes as ‘humiliating’ and a task he previously enjoyed.
(f) The pain in his neck prevents him from having a proper sleep at night. He says he is unable to take sleeping medication when his children are at home with him in order to be alert, which results in him feeling tired and lethargic the following day. This impacts on his ability to maintain relationships with other people. He finds that after a bad night of sleep, he avoids social contact and isolates at home for days.
(g) He previously enjoyed attending the local swimming pool and ten pin bowling with his kids. He is no longer able to participate in these activities.
(h) He has difficulty with his personal hygiene, including washing in the shower.
45In his affidavit of 25 October 2021 he ascribes the following consequences to the first MVA
(a) He had acquired five or six ‘belts’ of Bo Jitsu, a martial art that employs bows and weapons. He had a ‘home Dojo’ and trained every day. He is unable to partake in this.
(b) He previously engaged in and enjoyed competitive walking with friends. He once walked from Bundoora to the City and back. Since the first MVA he is unable to walk further than one kilometre.
(c) He now has few hobbies and watches a lot of television.
46In addition his evidence about the impacts of the first MVA on his domestic and social life, Mr Farid says that as a consequence of the MVA he suffers significant and severe pain in his neck and right shoulder. He is constantly aware of the pain and notices a crunching noise when he moves his neck. He says that the first MVA ‘ruined my life. I can’t do much with my kids, I can’t do anything in the house. It completely ended my life’.
47Mr Farid says he is upset, angry and frustrated by the pain and restrictions caused by his physical injury. His social circumstances have changed several times since his first affidavit. His marriage has ended and he commenced a new relationship. That relationship has now also ended. In addition to this upheaval there have been a number of encounters with police and a number of periods of incarceration.
48Mr Farid’s evidence in his first affidavit that he had overcome his drug issues and was proud of his rehabilitation, was, with hindsight rather optimistic and he has had further interactions with the criminal justice system which have no doubt contributed to his psychological state.
Impact of his previous work related injury
49Mr Farid identified in his first affidavit that he suffered a significant knee injury on 15 April 2007. He identified other injuries including a bilateral hernia, tear in the left calf muscle and resultant psychiatric injuries. He noted that he had been diagnosed with a chronic pain syndrome arising from these injuries. He noted that these injuries resulted in him receiving a disability support pension. Counsel for the plaintiff submits that Mr Farid was candid and honest about his pre-existing injuries.
50However in his first affidavit he says ‘While at the time of the transport accident I was unable to work because of the ongoing pain and restrictions in my right knee, I was able to live a relatively active life. I was able to undertake full duties of daily living including personal care and home duties, such as gardening. Whilst I walked with a limp at times, I was able to complete most tasks, though some tasks took me a long time’.
51The impression given in his affidavit material is that, whilst his knee injury impacted on his ability to work, it had minimal impact on his domestic and social life.
52This is entirely at odds with his sworn evidence in his worker’s compensation proceeding.
53In an affidavit sworn just nine months before the first MVA, Mr Farid say he was on Endone, Oxycontin, Avanza, Effexor, Sodium Valproate, Phenergan and Somac. He had a stiff and painful knee that meant it was difficult to stand or walk for too long. He was uncomfortable sleeping. His knee felt weak and at times gave way. At times the pain was sharp and stabbing. At times the pain was unbearable.
54He said that he could not play sport and do other things with his children. His knee injury had impacted his family life. He could not do much housework or gardening. His marriage had suffered and he was depressed, upset and frustrated. He did not socialise with family and friends. He did not like being stuck at home and felt that he was a burden on his family and his friends did not want to spent time with him because of his temper.
55In cross-examination he conceded that his knee injury caused him problems with sleep prior to his MVA. He said ‘a little bit, if I turn around when I sleep at night, yep, it disturbs me’.
56He agreed that the pain in his knee had progressed between his injury in 2007 as suggested by the increase in his medication dosage. He agreed that his knee restrictions and pain made it difficult to drive a car. He agreed that, rather than it being an enjoyable experience, it was in fact a difficult and painful exercise.
57He said that the knee pain had improved by ‘about 10 per cent’ after his knee surgery in 2010 but that it was always there. When asked whether his knee was getting better he said ‘Yeah well I was managing, put it that way…not a hundred percent better but I was managing to keep going with that’.
58In relation to ten pin bowling, a sport which he said he greatly enjoyed, he agreed that after his knee injury he was prevented from bowling. However he said ‘I used to go with my daughter and put the thing – the ramp thing there and drop the ball there, right, but after [the MVA] I can’t drop it, I can’t pick it up, I can’t do nothing’.
59He conceded in cross-examination that his knee injury caused him limitations in every aspect of his daily living ‘more or less’. He would not walk any significant distance, or stand for long. He required a walking stick. He could not drive far or for long and had obtained taxi vouchers for attendances on doctors for treatment for his knee. He was restricted in his ability to play with his children and to do work around the house. Although he had said in his affidavit that his limitations in relation to household chores were caused by his MVA, in cross-examination it became apparent that his participation in such chores prior to the MVA was extremely limited. In relation to gardening it appears to have been limited to standing next to his wife and occasionally handing her things.
60It is clear from the medical evidence that his knee injury had a significant impact on his function and was the source of significant pain.
61His treating orthopaedic surgeon, Mr Owen, noted on 16 November 2012 that his prognosis was not favourable due to his failure to respond to conservative and surgical treatment. He opined that his condition would either stay the same or ‘might take a turn to the worse’.
62He developed a chronic pain syndrome as a result of the knee injury and had no capacity for his pre-injury work duties.
63The medical material provided in relation to this claim makes little reference to his knee injury. However in November 2019 Dr Haissam Naim noted that he had pain in his knee that sometimes required him to rely on a walking stick, and the pain was worse during the winter months than during the summer months.
64There is no evidence before the Court that Mr Farid’s knee condition had substantially changed, or that his pain and restrictions had significantly improved after he swore his affidavit in 2011. He says that he was ‘managing’ his pain, but accepted that it still placed very substantial limitations on almost all aspects of his daily activities.
Impact of the second MVA
65As a result of the second MVA Mr Farid said in oral evidence that it greatly increased his back pain and aggravated ‘all the injuries that I have’. He described the pain as significant.
66He agreed that his lower back pain, which apparently only arose after the second MVA, was there 24/7 and was worse when he tried to bend. He said that his condition has gone downhill since the second MVA and that he has increased his use of medication, mainly Panadeine Forte, since the second MVA. In summary he said that ‘the second collision aggravated all the pain that I got from the first one and made it worse and made my life more hell’.
Does the plaintiff meet the serious injury threshold in respect of the injuries suffered in the first MVA?
67The plaintiff’s claimed impairments must be assessed at the time of trial, but must also be disentangled from the impairments and consequences that arise as a result of his 2007 knee injury and his 2018 MVA.
68The impression from reading his affidavit material is that, prior to the first MVA he was leading a full and active life, albeit he was unable to work and had some restrictions in his knee which meant that tasks took him longer than they otherwise would. After the first MVA his life was ‘ruined’ and he required high levels of medication and was in severe and debilitating pain which impacted almost all aspects of his life.
69However after hearing the plaintiff’s evidence in cross-examination and reviewing the medical records it is clear that prior to the first MVA:
(a) He was being prescribed Endone, Oxycontin, Avanza, Sodium Valproate, Phenergan and Somac as a result of his right knee injury. This medication had caused stomach problems;
(b) He had trouble sleeping and was being prescribed Phenergan to assist with that;
(c) His right knee pain was not significantly altered by taking analgesics such as Oxycontin and Endone;
(d) He could stand for five minutes, walk for 50 to 100 metres, was unable to kneel, run or squat and had difficulty with stairs;
(e) His wife was on a carer’s allowance to look after him;
(f) He had received a disability parking permit as he sometimes needed a walking stick;
(g) He did nothing about the house or garden, save for standing beside his wife while she did things;
(h) He was unable to clean the bathrooms;
(i) Driving had ceased being enjoyable, it had become difficult and painful as he could not sit for long with his knee bent;
(j) He was unable to ten-pin bowl;
(k) He was unable to walk long distances;
(l) He was unable to participate in Bo Jitsu;
(m) He was unable to play sport and do all the things he would like to do with his children and felt like a burden on his family;
(n) He did not see much of his friends.
70Whilst the plaintiff submitted that he had been upfront and candid about his knee injury, I do not accept that his affidavit material represented a fair and accurate picture of the limitations he was experiencing prior to his first MVA. The credibility and reliability of the plaintiff’s evidence is a significant factor to be considered in making an assessment in an application such as this.[1]
[1]See Nikolic v Transport Accident Commission [2020] VSCA 148 at paragraph [64], citing generally Mobilio v Balliotis [1998] 3 VR 833 at 836; Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439 at 448; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 at 1609, paragraph [60]; Gjorgovska v AFM Cleaning Services Pty Ltd [2006] VSCA 104, paragraph [27]; Woolworths Ltd v Warfe [2013] VSCA 22, paragraph [88]; Veljanovska v Verduci (2014) 42 VR 222 at 231-232, paragraphs [39]-[40]; Haidar v Transport Accident Commission [2016] VSCA 182, paragraph [30]; Fenton v AIA Australia Ltd [2017] VSCA 331, paragraph [91]; Rowe v Transport Accident Commission [2017] VSCA 377, paragraph [89]; Petrovic v Victorian WorkCover Authority [2018] VSCA 243, paragraph [74]; Yilmaz v Specialty Fashion Group Limited [2019] VSCA 100, paragraph [73]; Johns v Oaktech Pty Ltd [2020] VSCA 10, paragraph [76]; Apps v Victorian WorkCover Authority [2020] VSCA 21, paragraph [66]; Siddel-Whipp v Transport Accident Commission [2020] VSCA 109, paragraphs [87]-[88]
71Mr Farid did not attempt to provide any explanation for the impression given in his affidavit material, other than to say that, even though his knee injury prevented him from doing many things, his other injuries now also prevented him from doing those activities. He did not suggest that his knee injury had resolved or improved to such a point that it was, in fact, the neck and shoulder injuries that were the main obstacles to his full enjoyment of life. There was no medical material to support this proposition, or to support a finding that his knee was no longer troubling him to any great extent.
72The plaintiff’s counsel says that Mr Farid did not attempt to ‘over egg’ the pudding, and that whilst he had a pre-existing injury, the first MVA has caused pain and impairments that meet the relevant test, that is that they are more than significant or marked and are at least very considerable.[2]
[2] Humphries and Anor v Poljak [1992] 2 VR 129 at 140
73The plaintiff points to the following in support of this:
(a) Although his driving was limited by his knee condition, he now gets no enjoyment from it at all, because of his neck and shoulder pain.
(b) Similarly, though he was unable to go ten pin bowling after his knee injury, the plaintiff could still attend with his daughter and put the balll on a ramp. He can no longer do this because of his shoulder injury. The plaintiff points to his daughter’s uncontested affidavit material in support of this and other impacts on his life. However I note that the timeline relied on by his daughter is not consistent with the evidence given by Mr Farid.
(c) He previously enjoyed swimming, an activity that was not affected by his knee. He was not cross-examined about his evidence that this is now no longer something in which he can partake.
(d) Most importantly the plaintiff points to the medical evidence, which is not in dispute, as to the nature of the injury he has sustained.
74The defendant says that Mr Farid’s evidence is wholly unreliable and that when one looks at the consequences he suffered arising from the knee injury and the second MVA, it is clear that the consequences from the first MVA do not meet the test.
75Having reviewed all the material I do not consider that Mr Farid has been straightforward and honest with the Court in his affidavit material and this has caused me to view his evidence more generally as unreliable. He did not impress as a candid witness, and I found it difficult to accept the veracity of his evidence as to the impacts of the first MVA on his life, given his previous affidavit material in relation to his knee. His affidavit material in this case appeared designed to misrepresent the significant impact of that injury on his life. His counsel submitted that there was no attempt by the plaintiff to resile from that injury and there was no deliberate attempt by the plaintiff to mislead the Court. I do not accept that submission. I formed the view that he had clearly exaggerated his capacity to engage in activities prior to the first MVA in order to bolster his claim and clearly exaggerated the impact of the first MVA on his subsequent inability to so engage. Given this finding, I give little weight to the affidavit material in support provided by his daughter.[3]
[3] Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8
76There is no real dispute as to the facts of the accident, or the medical material. It is clear that he was involved in a car accident that caused an underlying condition to become symptomatic for the first time. I accept that this also causes him pain and discomfort, limits and restricts his movements, and has resulted in an arthroscopy and treatment with cortisone injections. These are not insignificant consequences. Since the second MVA his need for medication has also increased, but this is not a consequence I can attribute to the first MVA.
77The question for the Court is whether the impairments that arise from the first MVA, as opposed to any of the other injuries, have consequences that can be described as serious.
78The impairments arise from the restrictions caused by his pain. I am unable to accept his evidence about the degree of pain he feels arising from the first MVA. This is because nearly all of the impairments already existed prior to the first MVA. At the time of the first MVA he was also taking significant prescription medication which in fact decreased after the first MVA before increasing after the second MVA.
79In assessing what has been lost as a result of the injury and what has been retained,[4] on his own evidence, Mr Farid had already lost a great deal as a result of the knee injury. The additional impairments he has that can be attributed to the first MVA are modest:
(a) the inability to go swimming;
(b) the inability take his daughter to ten pin bowling and put the ball on a ramp;
(c) greater disturbance of his sleep which was already disturbed by his knee injury;
(d) a further reduction in his enjoyment of driving which was already significantly reduced by his knee injury.
[4] Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27]
80Mr Farid has already lost a lot by reason of his pre-existing injuries. I am not satisfied that the additional consequences that arise from his first MVA are very considerable, or more than significant or marked.
81Accordingly the plaintiff’s application is dismissed.
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