Gencer v Transport Accident Commission

[2014] VCC 1184

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-13-04224

RESIDE GENCER	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	16, 17 and 18 July 2014
DATE OF JUDGMENT:	22 July 2014
CASE MAY BE CITED AS:	Gencer v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2014] VCC 1184

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Transport Accident – aggravation of degenerative changes in the cervical and lumbar spines – pain and suffering damages only

Legislation Cited:     Transport Accident Act 1986

Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317

Judgment:                Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr V Morfuni QC with Ms J Frederico	Zaparas Lawyers
For the Defendant	Ms R Annesley QC with Mr P Gates	Solicitor to the Transport Accident Commission

HIS HONOUR:

1 In this matter the application for leave pursuant to s93(4) of the Transport Accident Act 1986 (“the Act”) relies on a paragraph (a) injury, being an aggravation of degenerative changes in the spine including the cervical and lumbar spines. A paragraph (c) psychiatric injury was not pursued.[1]  The consequences relied on are pain and suffering consequences as the plaintiff has never been in paid employment.

[1]Transcript (“T”) 2 and 17

2       The single issue for determination is really whether or not, on a before and after analysis, the aggravation caused an impairment of the spine which of itself, can be fairly judged to be productive of long-term consequences that could be said to be “at least very considerable”.[2]

[2]          Petkovski v Galletti [1994] 1 VR 436

3       The plaintiff is aged forty-nine years and came to this country from Turkey when she was twelve years old.  She married at eighteen years of age and apart from some trips back to Turkey, has remained in this country ever since.  She is married with four adult children.  On any view of the evidence, she has suffered unfortunately from some very serious unrelated physical and psychiatric health issues. 

4       The subject transport accident occurred on 8 April 2009 (“the accident”) when her vehicle was struck from behind.  She was thrown up and down in the accident and she was taken to the Northern Hospital.  Only minor vehicle damage if any was recorded in the ambulance and hospital notes. 

5       Some time after that her treatment was taken up by two of her usual general practitioners who are brothers, Dr B Munir and Dr H Munir.  She was also referred to Mr P Kudelka, orthopaedic surgeon, for treatment in 2011 but it is fair to say that her treatment generally has been minimal.  She had also attended two other local general practitioner clinics in the years leading up to the accident and afterwards.[3]

[3]Defendant’s Court Book (“DCB”)  51, 66, 76a, 115

6       The plaintiff’s background involved an earlier transport accident in 1983 or 1984.  She injured her back and received a common law settlement.[4]   The plaintiff was rather reticent in oral evidence in terms of admitting that she had sustained injury to her back in this accident.  That reluctance became much more evident with regard to many topics she thought did not help this claim. 

[4]Plaintiff’s Court Book (“PCB”) 3-4

7       The plaintiff suffered a number of stomach and back symptoms in the 1990s and underwent a gallbladder operation in 1997.  She clearly suffered, from that time, very serious depression and psychiatric problems that required specialist referrals and medications.  She was psychotic.

8       The plaintiff was involved in a second transport accident on 28 October 2002 which, on any view of the evidence, was a very serious collision in which her car was a write-off.  The plaintiff was treated at several general practices including a Dr Choon in Coolaroo, as well as Dr R Ebringer, rheumatologist.  She described in her affidavit that she suffered occasional neck and back pain after a period of treatment following that transport accident.  Clinical notes indicated she was still seeking treatment for back pain with tenderness at two spinal levels less than a month before 8 April 2009.[5]

[5]DCB 83A

9       The plaintiff was diagnosed with cancer in about 2005 and underwent surgery to her stomach.  Some time around 2005 or 2006, her psychiatric condition deteriorated very significantly.  The CAT Team had to be called.  There was very serious suicidal ideation and she needed a great deal of treatment that occurred in emergency circumstances.  Her family struggled to keep her from taking her life.[6]  In March 2006, notes of an emergency call from the family recorded her husband saying “…come and get my wife, she’s crazy … .”[7]

[6]DCB 26, 32

[7]DCB 32

10      The plaintiff’s affidavit evidence and that of her daughter and husband gave a very incomplete picture of her physical and psychiatric health prior to the accident.

11      Examples of the gross inadequacy of the before accident picture painted by her daughter is apparent when her brief affidavit described “some mental issues in the past” and really not much more.[8]  There was no mention at all of the previous spinal problems arising out of the 2002 accident and or any serious life-threatening psychotic problems.  Her mother had been referred for specialist psychiatric treatment only some seven months before the accident.[9] She was also still attending a doctor for back pain only four weeks before.  A fair reading of the affidavit would indicate that the plaintiff was leading a virtually normal home and family life prior to the accident.  I find this is very inconsistent with the weight of the evidence in this application.

[8]PCB 25 and 27

[9]PCB 35

12      The plaintiff’s husband’s affidavit is similarly grossly inadequate and indeed positively misleading.  Apart from her surviving bowel cancer, he spoke about her having “had some mental health issues” and that “she had recovered from those issues”.[10]  The plaintiff’s husband said nothing about her previous spinal problems.  His affidavit is extremely inaccurate in that the picture presented was of a woman with no health issues that were impacting on any aspect of her home life and family life.  Post accident, she struggled with virtually everything because of her spinal problems is the husband’s version of the before and after picture.[11]  The affidavits of the husband and daughter also totally ignore at least three referrals for specialist psychiatric treatments since the accident.[12]

[10]PCB 28

[11]PCB 28-29

[12]DCB 121-123

13      The affidavit evidence in this application is so deficient that it casts doubt on the reliability of any findings about her life before and after the accident.

14      I will address some comments about the unsatisfactory nature of the plaintiff’s oral evidence generally.  Before doing that, it needs to be pointed out that the medical evidence presented on behalf of the plaintiff is also deficient in presenting a proper understanding of what her health issues were before the accident.  There really is no medical report from those who treated her for her spinal problems addressing the 2002 accident.  A report from her treating psychiatrist, Dr P Dasanayake, is the only material from the plaintiff’s tender that throws any light at all on her life and how her enjoyment of it was affected pre accident.  Not one of the doctors who have treated her for the accident or the medico-legal experts engaged has been given anything like a comprehensive picture of her health problems before the accident.  All their opinions are, in my opinion, flawed in terms of the inadequacy of the material they were given.  They could not give an educated view about what effect the accident has had on her since 2009.  One of the few doctors who could speak about the past was Dr H Munir and as will be discussed later, he did not help.[13]

[13]PCB 41

15      Credit is crucial in a pain and suffering consequences case such as this, which involves essentially soft tissue spinal damage.  This is even more so in an aggravation case.  The plaintiff must satisfy the Court of the situation prior to the accident and then just what consequences are attributable to an alleged aggravation now five years ago.  The Court is very heavily reliant on the plaintiff’s credibility in order to compare the pre and post injury pictures.  A number of areas were cause for real concern as to the plaintiff’s credibility. 

16      The plaintiff gave oral evidence.  I found her evidence very unreliable.  She denied matters that she felt at different times did not assist her case about the impact of the accident on her spine.  At other times, she gave very inconsistent answers.  On other occasions, she prevaricated.  Generally, she was a witness, both on affidavit and in the witnessbox, who was not reliable in terms of her injuries before and after the accident and any consequences of them.  Starting with the doctors who saw her before the accident and then from the time she went to the Northern Hospital, she disputed clear references in the notes and reports that did not help her case.  She denied she was even examined when examination findings were not to her liking.  This went on doctor after doctor in cross-examination.

17      In court on quite a number of occasions, the plaintiff physically indicated where she had neck or back or referred symptoms.  These are not all recorded on the transcript.[14]  She demonstrated where she had sites of pain after the 2002 accident as well as after the 2009 one.  She was not consistent, in my view, in terms of the demonstrations.  At times, she pointed inconsistently to areas different from what she had earlier pointed out when she attempted to deal in cross-examination with suggestions of symptoms that she thought might not advance her case.

[14]T19-21, 35, 48, 99, 122

18      In this jurisdiction when no doctor has given oral evidence, the usual disadvantage of dealing with a large number of medical reports and handwritten clinical notes was apparent.  The courts have been reminded of the imperfection of note taking for a number of reasons and it would be unwise to rely too heavily on omissions in notes or matters that the plaintiff thought were erroneous.[15] 

[15]Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317

19      However, this case went much further.  The plaintiff persistently blamed doctor after doctor for matters that she did not perceive as assisting her case when the medical reports or clinical notes were very clear.  I will not give all of these examples as they ranged from her saying a doctor had just got it wrong, to doctors not even examining her at all in the face of examination findings that she did not like.  It even reached a point where she suggested a specialist and a general practitioner put material in detailed Centrelink applications for a Disability Support Pension that was in effect false. 

20      In regard to Dr B Munir, who has treated the plaintiff for years, her allegations included that Dr Munir never examined her at all.[16]  At other times, she said that he incorrectly recorded lower back symptoms in relation to the 2002 accident.[17]  She disputed his notes and records in relation to low back references in 2004-2005.[18]  She even indicated at one stage that he seemed to be “putting something else there” in an implied suggestion that he was deliberately misrecording what she was saying.[19]  When a note of 10 March 2009 was put to her suggesting that she was complaining about her back only one month before the accident, she alleged that he did not even examine her on that day.[20] 

[16]T43-44, 67-68

[17]T48

[18]T51-53

[19]T55

[20]T67-68

21      A Dr R Ebringer, who had seen the plaintiff after the 2002 accident, also had it wrong in terms of the reports that he had written.[21]  Mr C Flanc did not correctly record back pain in 2004 and 2005.[22]  Another of the plaintiff’s general practitioner’s, Dr Hussain, was wrong when he clearly recorded that he referred her off to a psychiatrist in 2008 according to her version of events.[23]  She even seemed to deny that she had seen Dr Hussain after 2006 when it was obvious that she had.[24]  Dr P Kornan, consultant psychiatrist, was also wrong in the record he had made about her sexual life.[25]  Her treating surgeon, Mr P Kudelka, orthopaedic surgeon, incorrectly recorded back symptoms after 2002.[26]  Professor S Davis, neurologist, also was not an accurate recorder of important information according to the plaintiff.[27]  Associate Professor P Doherty, consultant psychiatrist, also reported inaccurately on matters of significance.[28]  Even at the Northern Hospital where she attended after the accident, the staff there did not record the history correctly.[29]  The plaintiff even claimed that they did not examine her properly after being brought in by ambulance following the accident.[30]

[21]T59

[22]T90-91

[23]T104; DCB 44

[24]T106

[25]T167-168

[26]T164

[27]T115-116

[28]T123-124

[29]T119-120, 124-125

[30]T122

22      When confronted later in cross-examination about some of the things Dr B Munir had recorded and which the plaintiff took exception to, she then volunteered that he did not want to deal with her because it was a TAC case.[31]  In circumstances that were quite strange, she then related how the doctor’s wife had telephoned the plaintiff with some suggestion that she go and see the caller’s brother-in-law, Dr H Munir.  Aspects of this evidence were quite inexplicable but followed a consistent vein of being volunteered by the plaintiff when she was awkwardly faced with medical records that were not to her liking.[32] 

[31]T129

[32]T130-131

23      The complaints about Dr B Munir went on and on and included him just not wanting to put things in his report, in spite of her continuously complaining about them.[33]  He was a doctor who “did nothing” for her and yet she seems to have gone back to him repeatedly.[34]  In the end, it was she who had to ask him for x-rays to be taken.  Yet he is the same doctor who filled out for her a Centrelink Disability Support Pension Application in August 2009 following the rejection of an earlier one she had put in via her psychiatrist in June 2009.[35]

[33]T134-135

[34]T137

[35]T147; PCB 104; DCB 36

24      Probably the most major criticism the plaintiff made about the medical profession concerned her treating psychiatrist, Dr P Dasanayke.  She had been referred to her in 2008 and continued to see her over the next four years or so, at least until November 2012.  Although on the notes it is unclear whether or not this was in fact the last attendance from that doctor.  In any event, the plaintiff was critical of the doctor in relation to the tendered medical report and the problems the plaintiff was clearly having at the first referral in September 2008.[36]

[36]PCB 35, DCB 47, T71-74

25      These criticisms of the treating psychiatrist ranged far and wide but included the history of the plaintiff saying she had had continuous neck and back pain since 2002.[37]  Others were about her capacity to lift heavy objects after 2002 and a record of back problems related to 2002.[38]  There were other matters that the plaintiff said had not been accurately recorded about her husband and about her daughter’s situation in the years after the accident but the plaintiff’s attitude was the same, that is, criticise the doctor in the face of suggestions that she thought did not help her case.  Some other examples were in relation to being sent for x-rays, depression with respect to family issues and being committed to hospital for psychiatric care.[39]  She also would not agree with notes that indicated a dependence on people in terms of some household issues well before the accident.[40]

[37]T77

[38]T80-81

[39]T35-36, 37-38, 41-42; DCB 27

[40]T39-41

26      Another troubling aspect of the plaintiff’s evidence was the inconsistency between her affidavit material and what emerged in cross-examination.  To take but one example, she said in her affidavit that she continued to have occasional back pain following the 2002 accident.  Yet continuously in oral evidence, she was at pains to deny that she had ever suffered back symptoms after the 2002 accident and before 2009.[41]  Another example, among many, of inconsistent evidence that was just impossible to reconcile was the picture painted of what was needed around her home due to previous psychiatric problems and the very different picture painted in the affidavit evidence she gave about her previous life. 

[41]PCB 6; T116

27      The plaintiff gave evidence about general difficulties sitting and these were affecting studies.  However, in court she sat without any apparent difficulty for very considerable lengths of time.[42]  There was no obvious discomfort often seen in this jurisdiction when a plaintiff is in court for three days.

[42]PCB 23, T28-30

28      Another doctor that she blamed for not properly listening to her and treating her was Dr Choon, one of her early general practitioners.  He just ignored her she said with respect to problems she had in relation to her cancer.[43]  While that is not really to the point in terms of the consequences to be judged in this case, he was just added to the very long list of doctors that this plaintiff blamed for one thing or another, especially when matters were put to her that she did not seem to think assisted this application.

[43]T63

29      One aspect of the plaintiff’s evidence that was almost bizarre was in relation to her being referred to the treating psychiatrist, Dr Dasanayake, in September 2008.  The plaintiff maintained persistently that she had no problems in 2008 with her psychotic condition that was obviously so serious the CAT Team had to be involved when according to her “the devil” had in effect possessed her.  The plaintiff claimed this condition had effectively ended and was all a 2006 problem.  She claimed she had been healed after she went to Turkey with this problem.  Somehow, however, she had the specialist referral in September 2008.  This was only seven months before the accident.  Symptoms of the most serious nature were recorded in September 2008 by the psychiatrist as current.[44]  The plaintiff claimed, although questioned a number of times, including by myself, that she sought the referral in 2008 just because she wanted to “talk to” the psychiatrist.[45]  She persistently said that she had been healed and she was “good and happy” after the trip to Turkey in relation to her psychotic problems.[46]  The evidence indicated that she had indeed had referrals, not only in September 2008 but also in 2009, 2010 and 2011 for psychiatric help.  Nevertheless, the plaintiff was adamant that all these problems were a thing of the past and not troubling her after 2006.[47]

[44]PCB 35-36; T64

[45]T64, 68, 110-111, 114-115

[46]T69-70

[47]DCB 121-123

30      An aspect of the plaintiff’s case that did no service to her credit was in relation to two Centrelink applications for a Disability Support Pension.  The first was on 4 June 2009, less than two months after the accident.[48]  It described a claim for social welfare benefits in very graphic terms for severe psychotic illness and symptoms.  The application speaks for itself in terms of what the treating specialist recorded there.  Faced with this document and the plaintiff maintaining that she had had no problem since 2006, some of her answers were almost bizarre.  She alleged that the psychiatrist would in effect put anything down.[49]  The plaintiff then disagreed with the detail the psychiatrist had recorded as some of the very significant problems the plaintiff was faced with on account of mental illness.[50]  Her evidence in this regard was little more than lashing out at the doctor and blaming the doctor for something she did her best to disavow responsibility for.  Moreover, the plaintiff seemed to have little regard for the truth of what Centrelink were told.[51]

[48]DCB 36

[49]T139-142

[50]T143-145

[51]T139, 142

31      The circumstances of the second pension application were then traversed.  This had been completed by Dr B Munir, the doctor who she said would not do anything for her.  Again, she took serious issue with respect to a number of aspects he recorded.  She signed the application that he had filled out.[52]  In particular, she was most aggrieved about his description that she had had chronic back and neck pain for “years”.[53]  It must be remembered this was only four months after the accident.  The plaintiff in effect attacked him in relation to what he had recorded on her behalf in spite of him being a doctor she had been attending in fact for years.  His practice notes go back 30 years.[54]

[52]PCB 104

[53]PCB 105

[54]DCB 93

32      Probably this general practitioner pretty accurately recorded the situation for Centrelink four months after the accident when he said that the plaintiff had chronic spinal pain at both levels and also had chronic anxiety, depression with possible schizophrenia.  He noted she was seeing a psychiatrist regularly.[55]  He probably summed up the evidence overall in this case that this plaintiff has been suffering for many years very serious psychiatric problems as well as some spinal symptoms.  Clearly, in the witness box the plaintiff was not happy with this document and what it recorded. 

[55]PCB 107

33      There were other examples of the plaintiff’s credit which led to her evidence about symptoms, consequences and the before and after picture being unreliable and unacceptable.  She was prone to great exaggeration.  She spoke, for example, of pain at times “killing me”.  Pain meant “…I can’t even move”.[56]  She sat for over three days in court really not showing any discomfort.  She is not on any strong medication.  She was offered the opportunity to sit or stand in court but hardly availed herself of that.  Too much can be made at times of demeanour and presentation in court but this is not a lady, on any view of the evidence, who is shy about going to doctors with complaints.  In my view, she exaggerated her symptoms in a number of material ways. 

[56]T22

34      In this application, it is not necessary to go through the medical material in any detail.  It was largely dependent on an acceptance of what the plaintiff said about her situation before 8 April 2009 and afterwards.  I do not accept her evidence about her symptoms and can really make very few positive findings.  She has not proved that the aggravation of itself caused very considerable pain and suffering consequences.  The medical reports basically suffer from inadequate information being provided and consequently there is little weight that can be given to the various opinions recorded.

35      I can make these findings.  The plaintiff has been very unwell psychiatrically over many years, both before and after April 2009.  She is still unwell and presented as a person who is quite delusional, erratic and unreliable in her version of events and life generally.  She at times seemed to be in a world of her own in terms of her description of her life, her injuries, her health and her various medical practitioners. 

36      In the end, she has not discharged the onus of indicating any organically based long-term pain and suffering consequences attributable to the accident that could be described as “serious”.  Indeed, I cannot make any positive findings that there are any consequences to speak of that she has endured.  Probably she suffered some mild aggravation of spinal symptoms that she had been suffering for years up to 2009.  Also on the probabilities, she would still be suffering these even if the accident had not occurred.

37      The defendant was prepared to concede that the plaintiff has suffered some musculoskeletal aggravation of a neck and back condition.  I agree with the defendant’s submission that the plaintiff has not established that that aggravation has led to any serious consequences.  If I am wrong on that, I find that the plaintiff has not discharged the onus of disentangling the organic from the non-organic in terms of her spinal pain and complaints.  She has demonstrated since the accident the need for psychiatric care.  Whilst she is not presently under a psychiatrist at the time of this hearing, on the probabilities and on her presentation in court, I find she is still suffering from problems of a non-organic nature that cloud any attempts to clearly delineate physically based symptoms.

38      It is worth noting that there has been very little organically directed treatment in the six years since the aggravation alleged.  She is not on prescription analgesics.  There has been no radiology of the cervical spine for over five years.[57]  There has been none required of the low back since 2011.[58]  There were two chiropractic visits now five years ago.[59]  Minimal physiotherapy of some six visits took place.[60]  The last was in 2011.  Some over-the-counter Panadol and pilates seem to be still relevant but the treatment does not point to a very considerable level of physical pain now.[61]

[57]PCB 100

[58]PCB 103

[59]PCB 7

[60]PCB 45-47

[61]PCB 22

39      In the end, when one looks at the plaintiff’s life, there has been minimal, if any impact on her activities at home and outside the home since April 2009.  Since the accident, she has started lessons in Arabic from 2012 and she attends for one and a half hours a week.[62]  She still does a certain amount of housework.[63]  She underwent a chaplaincy course that went for two full days and she now does chaplaincy work at the Royal Melbourne Hospital visiting six strangers either once a week or once a fortnight.  This started in 2014.[64]  She has undergone a cooking course or classes since 2009.[65]  She is involved in religious group discussions with ladies of her faith.  She still drives, does a certain amount of washing and cooking at home, as well as ironing and making beds.[66]  She still goes out with her family for dinner at times.[67]  She still visits friends.[68]

[62]T29

[63]T30

[64]T31-34

[65]T89

[66]T165-166, 170-171

[67]T172

[68]T174, 56-57

40      There is no purpose in going through the medical evidence in detail.  The application essentially required an examination of the before and after enjoyment of life.  Apart from her psychiatrist, the plaintiff has not tendered a single medical report from a treating doctor who commented on her condition pre accident.  It appears she has seen a Dr Choon, Dr Hussain, Dr B Munir, Dr Ebringer as well as a physiotherapist, naturopath and osteopath pre accident but there is no report really addressing the before situation from them.  Clearly, a number of practitioners treated her before and after and would be well placed to comment on the comparison.

41      It is of great significance that the only general practitioner report tendered at all by the plaintiff is from Dr H Munir.  I repeat what he thought:

“I am in no position to give an accurate degree of disability due to the MVA”.[69]

This statement accurately summed up the position the Court has been left in. 

[69]PCB 41

42      For the reasons described, I find the plaintiff has not discharged the onus of establishing a “serious injury” as a result of the aggravation of her spinal condition.  The application must be dismissed.

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