Gurlu v Transport Accident Commission

[2015] VCC 732

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-13-05489

OMAR GURLU	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

---

JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	18 and 19 February 2015
DATE OF JUDGMENT:	5 June 2015
CASE MAY BE CITED AS:	Gurlu v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2015] VCC 732

REASONS FOR JUDGMENT
---

Subject:  TRANSPORT ACCIDENT

Catchwords:           Damages – transport accident – serious injury – injury to the spine – psychiatric impairment

Legislation Cited:      Transport Accident Act 1986, s93(4)(d)

Cases Cited:            Richards v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis (1998) 3 VR 833; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Petkovski v Galletti [1994] 1 VR 436; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Dordev v Cowan & Ors [2006] VSCA 254; Papamanos v Commonwealth Bank of Australia [2013] VCC 1491

Judgment:                 Applications dismissed.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Ingram	Melbourne Injury Lawyers
For the Defendant	Mr P Rattray QC with Mr C Madder	Solicitor for the Transport Accident Commission

HER HONOUR:

1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident (“the accident”) which occurred on 16 January 2010 (“the said date”).

2 Section 93(6) of the Act provides:

“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”

3       

The definition of “serious injury” relied upon by the plaintiff is under

s93(17)(a) – “a serious long-term impairment or loss of a body function”. 

4       The body function pursuant to subparagraph (a) relied upon by the plaintiff is the spine.

5       The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.

6       In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more that “significant” or “marked”? – see Humphries & Anor v Poljak.[1]

[1][1992] 2 VR 129 at 140-1

7       The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment.  What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function: see Richards v Wylie.[2]

[2](2000) 1 VR 79

8       The plaintiff also brought an application pursuant to clause (c) claiming a severe psychiatric impairment.

9       The judgment of the Court of Appeal in Mobilio v Balliotis[3] resolved the meaning of “severe”.  Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[4] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning.  Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.

[3][1998] 3 VR 833

[4](1995) 21 MVR 314

10      Winneke P, in Mobilio,[5] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)

[5]Mobilio v Balliotis (supra)

11      The plaintiff swore two affidavits and was cross-examined.  He also relied on affidavits sworn by his wife, his daughter and two friends from the Whittlesea Soccer Club (“the Club”).  Both parties relied on medical reports and other material which was tendered in evidence.

The Plaintiff’s evidence

12      The plaintiff is presently aged sixty, having been born in August 1954 in Turkey.  He is married with five adult children.

13      The plaintiff completed school until the age of twelve, and then worked in a furniture factory, before undertaking compulsory military service prior to migration.  He then did delivery work for a family member.

14      The plaintiff migrated to Australia in 1979, aged twenty-four.  He worked on the line at General Motors Holden for about eight years.  He and his wife then bought a milk bar, which they ran for about three years.

15      They returned to Turkey for about a year in 1991-1992, but they had too many links in Australia and returned.  The plaintiff then obtained employment at a car parts factory, where he worked as a forklift driver for about two years.

16      At about that time, the plaintiff was diagnosed as suffering diabetes myelitis, which was initially controlled by tablets and diet, but in more recent years, he had become dependent upon insulin injections.

17      A further deterioration in the plaintiff’s diabetic condition necessitated the commencement of renal dialysis in March 2010 and, as at August 2013, he was having that treatment three times a week.  He also suffered hypertension, which was controlled with medication.

18      The plaintiff had lower back pain in April 2003, when a disc bulge at L4-5 was diagnosed.  He had some intermittent lower back pain for a while.  He recalled those symptoms gradually settled down and he was not troubled by ongoing back pain.

19      The plaintiff also sought treatment for anxiety and depression in 2006 after his brother’s death at the age of thirty-eight.  He was then prescribed some anti-depressants.

20      The plaintiff suffered a fractured right ankle in 2007 and had problems with aggravation and pain in his right ankle following the said date.

21      The plaintiff agreed he had a problem with his right foot before he fractured his right ankle.  He then denied having any problems before the fracture.[6]

[6]Transcript (“T”) 29

22      The plaintiff agreed that after the fracture he frequently attended the Northern Hospital.[7]  Problems with walking had continued to the present time. The plaintiff then said he could walk normally with his ankle but walking was affected by back pain.[8]

[7]T31

[8]T32

23      The plaintiff attended Northern Hospital on 10 January 2014 when his special shoe was changed.  That shoe helped.[9]  He agreed he was still troubled by his ankle and that he had been advised by his doctors he could not have ankle surgery because of his diabetic condition.[10]

[9]T32

[10]T33

24      In re-examination, the plaintiff said that before the accident, his right ankle was not that bad.  Thereafter, the pain increased to 8 out of 10.  Before the accident, it would have been about 3 out of 10.[11]

[11]T72

25      On the said date, another vehicle failed to give way to the plaintiff’s vehicle, colliding forcefully with it and causing his vehicle to become airborne and flip over, rolling several times before it came to rest on its roof (“the accident”).

26      Following the accident, the plaintiff was in a state of shock and may have suffered some temporary loss of consciousness.  Ambulance and police attended and it was suggested the plaintiff go to hospital, but he wanted to go home and called a friend to pick him up.

27      At that time, the plaintiff had neck and back pain.  He was also feeling panicky and stressed and glad to be alive.

28      The plaintiff was hopeful his symptoms would settle, but he found as time went on, they became more severe and he developed left leg pain, which had been intermittent in nature and seemed to worsen with prolonged standing.

29      About three days after the accident, the plaintiff saw Dr Alpay, his general practitioner, who referred him for radiological examinations, which were carried out on 20 January 2010.

30      So far as the plaintiff could recall, he was given some pain-relieving medication, but otherwise he was not referred for other treatment for his physical injuries.

31      Also beginning to emerge within a short period of the accident were problems with anxiety, depression and irritability with the plaintiff’s family.

32      The plaintiff understood that in late January 2010, Dr Alpay referred him to a psychiatrist, Dr Kochar, whom the plaintiff first saw the following month and continued to see about monthly.

33      The plaintiff’s problems then included nightmares and flashbacks to the accident, and anxiety and panic attacks triggered particularly by ambulances or any sight of an accident sometimes when driving.

34      The plaintiff understood Dr Kochar diagnosed symptoms of Post-Traumatic Stress Disorder (“PTSD”) and an Adjustment Disorder with Anxious and Depressed Mood.

35      As of August 2013, the plaintiff continued under Dr Kochar’s care.  He was prescribed Zoloft, 100 milligrams at night, and 5 milligrams of Diazepam as a relaxant, also at night.  He also received counselling and psychological support from Dr Kochar, whom he understood was aiming to help him better control his symptoms and pain.

36      In the meantime, Dr Alpay monitored the plaintiff’s physical condition and referred him for a CT scan and further x-ray of his lumbar spine in November 2011.

37      The plaintiff understood Dr Alpay diagnosed aggravation of degenerative changes affecting both his lumbar and cervical spine, which had been responsible for his ongoing pain.  Essentially, the plaintiff put up with variable levels of ongoing spinal pain which persisted despite the use of physiotherapy and Panadeine.

38      Physiotherapy continued until about August 2012, when funding was ceased. That decision was later challenged. The plaintiff then had access to a further three to five visits, funded by Medicare as he could not afford to pay for the treatment himself.[12]

[12]Twelve visits – second affidavit

39      In late 2012, Dr Alpay referred the plaintiff to a physician, Dr Karlov, for further investigation and treatment of the spine, and leg pain.  He arranged for the plaintiff to have a localised bone scan, which was carried out on 7 December 2012, and also an MRI scan of the left hip on 14 January 2013.

40      There had been a significant interference in the plaintiff’s lifestyle as a result of his injuries.  He was involved in a significant accident and suffered from psychiatric symptoms.  Although he had some problems with anxiety and depression prior to the accident, he believed there had been a significant deterioration in those symptoms and he required ongoing treatment and medication from Dr Kochar.

41      The plaintiff suffered from anxiety and depression, and although he drove short distances, he was very timid driving.  Also, he tended to become irritable and that affected his marital relationship in particular, and also his relationship with his children.

42      Further, physical pain had limited the plaintiff’s life to a considerable degree.  His neck and lower back pain was persistent and he also suffered some increased right ankle pain.

43      The plaintiff found difficulty with activities such as bending and twisting of both his lower spine and neck.  He tried to avoid lifting weights because that caused increased back pain.

44      Having already ceased active employment by reason of unrelated medical conditions prior to the accident, since then, the plaintiff’s social and recreational activities had also been compromised to a significant extent.

45      The plaintiff used to mow the lawns, care for the garden and perform household maintenance tasks.  However, now his children generally did these tasks.

46      The plaintiff used to go for long walks.  However, his ability to walk longer distances was drastically reduced.

47      The plaintiff used to wash and clean his car, but no longer did so himself.  He used to regularly attend the Club and watch the seniors play on a weekend. Post accident, he had difficulty standing for long periods and was no longer able to attend to watch games.

48      There had been a significant interference in the plaintiff’s enjoyment of life as a result of his continuing pain.  His sleep was disturbed by pain.

49      The plaintiff was heavily reliant on his children to assist around the house and he relied on his wife to do the housework.  She had previously been his Carer for some years due to his diabetes and its consequential impact on his life.  However, she had to take on many more tasks as a result of the plaintiff’s accident injuries.

50      The plaintiff swore a further affidavit in December 2014.

51      Having obtained his records from Social Security, the plaintiff recalled suffering some depression in 1995, when his brother died, and being prescribed medication for some months.

52      The plaintiff was not sure whether his brother died in 1995 or 2006.  The plaintiff thought it was ten years ago.[13]  He was fairly upset about his brother’s death.  At that time, the plaintiff was very nervous.  Dr Alpay gave him some medication, which he used for a time, then he was better and stopped using it.  He was not sure exactly how long he used it.[14] 

[13]T42

[14]T48

53      The plaintiff agreed he was prescribed Zoloft and also a sleeping medication.  He was not sure for how long he used this medication and did not think he took it for as long as a year.  He really did not know if he was taking this medication in 2009.[15]

[15]T44

54      The plaintiff could have been prescribed Zoloft in June 2009 as Dr Alpay noted, but the plaintiff did not think he took five3 repeats of 30 tablets.[16]  As far as the plaintiff could remember, he was not taking it at the time of the accident.[17]

[16]T45

[17]T45

55      The plaintiff initially agreed he was taking Zoloft and sleeping medication when he first saw Dr Kochar on 8 February 2010.  The plaintiff then said he had taken it long before then, prescribed by Dr Alpay.  He did not know how far back.  It was possibly a year or even two years earlier, he was not sure.[18] 

[18]T49

56      Early in 1995, the plaintiff suffered pain, particularly affecting his left wrist, elbow and upper limb.  He was then diagnosed with left carpal tunnel syndrome, although this condition did not require surgery and subsequently settled down.

57      The plaintiff agreed that as of November 2009, he had wasting and weakness in both hands that had been ongoing for about a year.  He sometimes had problems undoing jars and bottles.  He thought it was a nerve problem.  No one had suggested he undergo hand surgery.[19]  

[19]T34

58      Last year, the plaintiff had three injections in the right wrist once a week and then once a month.[20] Following these injections, there was some improvement.  He now sometimes has pain two weeks to a month apart and he takes Panadol and the pain goes away.  Naturally, he worries why he has hand pain.[21]  Monthly injections continue.  When the effects wear off, the plaintiff does not have more problems with his hands.[22]

[20]T35

[21]T36

[22]T37

59      In re-examination, the plaintiff said there has not been a lot of change with his hands after the accident.[23]

[23]T72

60      The plaintiff deposed he was also assessed as suffering from degenerative change in his lumbar spine, in particular spondylosis, in about 1995.

61      The plaintiff was cross-examined about his back condition prior to the accident.

62      The plaintiff did not recall, but it was possible that he was having back and leg pain in 2003.[24]

[24]T26

63      Three years prior to the accident, the plaintiff had a slight back pain for a few weeks.  He attended a physiotherapist once or twice.  The pain at that time was around the middle of his lower back and it did not go down either leg.[25]

[25]T19

64      The plaintiff could not exactly remember attending the Royal Melbourne Hospital in 2006, it was such a long time ago.  He could not recall saying at that time that he had lower back pain for five years.  He did not believe he had that much severe back pain.  He did not remember left leg pain and pins and needles at that time. He could remember having x‑rays, but he did not remember what they were for.[26]  He had a lot of problems with his health.[27]

[26]T22

[27]T25

65      The first time the plaintiff had really bad back pain was after the accident.[28]  He was prescribed Panadeine Forte for his back.  He may have earlier been prescribed this medication for arm pain.[29]  He did not recall a lumbar MRI scan in 2006.

[28]T23

[29]T23

66      The plaintiff could not remember pains in either his back or left leg, or pins and needles to that extent, in 2006.  Before the accident, he had slight pain in his back but it went away.[30] 

[30]T70

67      The plaintiff recalled in 2009 that he did have some sort of pain in the middle of his back, but it passed away on its own.  He did not really know how long his back pain lasted in the five years before the accident because he took a lot of medication and he had memory loss.[31]

[31]T28

68      Before the accident, the plaintiff’s back and left leg pain was not to this degree, and it had increased and worsened since.  For instance, if the pain was 2 out of 10 before the accident, thereafter, it had increased to 8 and 9 out of 10.[32]

[32]T71

69      The plaintiff was granted a sickness benefit from about 1994 because of diagnosed diabetes, a condition that in more recent years required the use of insulin injections.

70      The plaintiff’s memory of those early conditions was vague and had been refreshed by reference to documents obtained by his solicitors.

71      The plaintiff’s diabetes condition impacted upon other body functions.  He had been receiving dialysis since March 2011 and was awaiting a kidney transplant.  He was hopeful once that procedure had been performed that he would regain greater independence because his medical condition had meant he was not driving at that time.

72      The plaintiff agreed he had been told he was at the end stage of renal disease and he had a real problem.  He had been put on the transplant waiting list in 2011 and that situation naturally worried him.  No one has told him to prepare a will and he has not been told what his life expectancy is without a transplant.[33]

[33]T40

73      The plaintiff is not that stressed about his kidneys because there is nothing he can do about it.[34]  His stress about his kidney condition has increased because of the accident.  The pain in his back stresses him more than his kidney problem.  He gets very nervous.  His morale is very bad.  There have been a lot more issues with his wife and children since the accident.[35]

[34]T71

[35]T72

74      In 2013, the plaintiff had a loop recorder inserted under the skin to “test” his heart condition.  Its presence did not concern him.[36]

[36]T38

75      The plaintiff is not concerned about tuberculosis, having been treated for that condition for nine months in 2012.[37]

[37]T38

76      The plaintiff continues to see Dr Alpay perhaps once or twice a month. He prescribed Panadeine Forte, although, because of the plaintiff’s kidney problem, he had to be careful about his use of medication and simply put up with the pain.

77      The plaintiff sees Dr Kochar approximately monthly.  The plaintiff continued to suffer from nightmares and flashbacks, brought about by sighting an accident or some other similar event.  These problems occur less frequently than in the past.

78      The plaintiff was cross-examined about the nature and extent of his psychiatric symptoms post accident.

79      In February 2010, the plaintiff complained to Dr Kochar of nightmares, flashbacks and panic attacks, which he had about once or twice a week. Medication for those symptoms was not very helpful.[38] 

[38]T49

80      In 2013, the plaintiff had nightmares once or twice a week, sometimes never.  Sometimes when he was a passenger, he was very afraid. He was not normally nervous on the road.  He presently does not drive because of his diabetic condition.[39]

[39]T52

81      The plaintiff has anxiety attacks once, maybe twice a week.  They last for an hour or two; it varies.  He has panic attacks when his heart races, he shakes and gets very angry.  He does not know what causes them.[40]

[40]T53

82      Any slight thing makes the plaintiff nervous and brings on the panic attacks – anything that would excite him or make him feel uneasy.[41]

[41]T62

83      The plaintiff did not have panic attacks before the accident.[42]

[42]T61

84      In re-examination, the plaintiff described flashbacks occurring sometimes once a week, sometimes every few days a week.  It was unpredictable.  They were  brought on when he gets very nervous.  When he passes through the accident scene, he re-experiences the accident.  Flashbacks are brought on by his pains.[43]

[43]T68

85      Nightmares vary.  Sometimes they occur a few times a week, and sometimes every fortnight when the plaintiff remembers the accident.[44]

[44]T69

86      The plaintiff’s sleep continues to be disturbed despite taking the anti-depressant, Zoloft, and Diazepam to help him sleep.[45]  He did not know the present dosage of Zoloft.[46]

[45]T64

[46]T66, Dr Kochar’s notes

87      The plaintiff’s broken sleep has led to irritability, tiredness and lethargy, which has impacted upon his family relationships, particularly his marital relationship.

88      There has been a very significant reduction in social and recreational activities, and most of the plaintiff’s time is spent at home.

89      In addition to his psychiatric symptoms, the plaintiff has ongoing physical injuries of significance affecting his spine. 

90      The plaintiff continues to suffer problems with both his neck and, to a slightly greater extent, his lower back.  His neck pain continues on a constant, variable basis and is only relieved by medication.  He had a CT scan of his cervical spine of July 2014.

91      The plaintiff finds his symptoms extend down through the left side of his neck into his left shoulder and intermittently radiate down his left arm as far as the elbow.  He anticipates these symptoms will continue on a long-term basis given their duration.

92      Perhaps even more concerning is the level of lumbar spine pain, which is again constant but variable.  The plaintiff notices that there are referred symptoms also extending down through his left leg and it is believed they are likely to continue.

93      The plaintiff’s ability to undertake gardening has been very significantly restricted and he now has to delegate virtually all of it to his children.  If he tries to do anything in the garden, he suffers increased levels of pain and therefore avoids the activity which he previously greatly enjoyed.  He denied gardening problems were related to dialysis.  His wife does most of the things now.[47]

[47]T58

94      The plaintiff is similarly restricted in his ability to do household chores and maintenance.

95      The plaintiff continues to walk for exercise, but that is generally restricted to about 15 minutes, after which he tends to suffer increasingly severe back pain down through his left buttock and thigh to his calf.

96      The plaintiff’s ability to sit and stand for prolonged periods is limited and that restricts him in his social activities, such as watching soccer at the Club.  He has watched some games, but he finds even sitting and standing alternately still leaves him feeling tired and lethargic, and in pain by the time he gets home.

97      Prior to the accident, not only did the plaintiff watch the Club compete on weekends, he also attended training two nights a week and participated in social activities such as providing beverages and also assisting senior Club officials, as required.  He denied his diabetes interfered with his ability to attend Club activities prior to the accident.

98      Since starting dialysis in 2011, the plaintiff has not attended training on Tuesday and Thursday or the Sunday games.[48]  Dialysis sessions last for four hours.  After the sessions, the plaintiff he feels better and does not feel tired.[49] 

[48]T54

[49]T39

99      The plaintiff thought the dialysis centre was open every day except Saturday.  He had not asked whether he could attend on other days when there were no Club activities.

100     Because of the accident, the plaintiff cannot stand for too long as he has back pain.  He goes to the Club now and then, maybe once every two or three weeks.  In cross-examination, he agreed there are seats at the ground and he can sit and stand as he wants.  He can socialise and talk to his friends.[50]  After the accident, the plaintiff has been unable to help out at the Club.[51]

[50]T56

[51]T61

101     The plaintiff undertakes home-based stretches and exercises to try and maintain some spinal mobility, but this regime does not achieve any lasting resolution of his pain.

102     The plaintiff continues to avoid tasks such as washing the car, which places undue strain on his spine.

103     The plaintiff’s wife continues to be his Carer and she has had to take on many more of the tasks around the house by reason of his physical condition.

104     The plaintiff has been overseas twice since the accident.  It was originally planned that his son get married in Turkey and the plaintiff wanted to attend the wedding.[52]  The plaintiff could not recall if he was not allowed to go because of his need for dialysis as was noted by the Northern Hospital in March 2012.  The plaintiff could not recall whether the venue was changed to Australia because of his health.  However, the wedding did not go ahead.[53]

[52]T47

[53]T47-48

105     There is nothing wrong with the plaintiff’s heart but he has had a loop recorder inserted.[54]  It has been there for two years and does not concern him.  It did not concern him that he required medication for nine months to treat tuberculosis in 2012.[55]

[54]T37

[55]T38

106     The plaintiff has problems with his eyesight, but has not been to the Eye and Ear Hospital for a very long time, last having surgery three or four years ago. He last saw a specialist a fortnight ago.  He does worry that he has failing eyesight.  He discusses those problems with his doctor and psychiatrist.[56]

[56]T42

Lay evidence

107     The plaintiff’s wife, Suzan Gurlu, swore an affidavit on 4 December 2014.

108     Mrs Gurlu is the plaintiff’s Carer and has significant involvement with him in that capacity.  She is aware of his neck injury with referred symptoms into the left shoulder, upper limb and lumbar spine, and having referred symptoms through the left leg and buttock.  She is also aware the plaintiff suffers from a psychiatric injury, and all those injuries are attributable to the transport accident.

109     To the best of Mrs Gurlu’s knowledge, at the time of the accident, the plaintiff was not suffering any pre-existing neck or lower back pain.

110     Since the accident, the plaintiff had complained continually of symptoms in those areas and his lifestyle and activities had been significantly restricted in relation thereto. 

111     In particular, the plaintiff’s capacity to do household tasks, such as working extensively in the garden, mowing the lawns, helping with domestic chores and the like, have been significantly restricted.

112     The plaintiff’s capacity to engage in social and recreational activities has also been significantly restricted, particularly his involvement with the Club, which he used to attend numerous days a week to watch training and games.  He was also involved in the social side of the Club, assisting the senior officers with the provision of beverages and other activities around the Club.

113     Those Club activities have largely diminished.  Now the plaintiff attends perhaps once every two weeks, and when he comes home, he complains of increased spinal pain caused by standing at the Club.

114     By reason of the plaintiff’s diabetic condition and subsequent development of kidney problems, which have necessitated dialysis, the plaintiff’s lifestyle has been more severely affected because of his accident-related physical injuries.  Even with diabetic and kidney problems in the past, the plaintiff had been very actively involved in various activities.  Now he is unable to be involved in those to nearly the same extent, and if he overdoes it, he certainly pays with increased pain.  Further, the plaintiff is now prescribed Panadeine Forte, although his ability to ingest medication is affected by his kidney problem.

115     Mrs Gurlu did not recall the plaintiff having problems with depression regrading accident.  Whilst there might be some medical records to this effect, she thought the plaintiff was easy-going and of good disposition previously.  Nowadays, he suffers psychiatric symptoms with disturbed sleep patterns involving nightmares and flashbacks, although those have improved over time.

116     The plaintiff’s sleep remains disturbed however, and he is tired, lethargic and irritable as a result.  He has panic attacks, during which he has palpitations.

117     The plaintiff is prescribed the anti-depressant, Zoloft, and Diazepam to help him sleep and relax.  His anger and irritability have adversely impacted upon relations with her and other members of the family.

118     Mrs Gurlu’s impression is that despite his pre-existing health problems, from her observation, there has been a very significant impact upon activities which were otherwise open to the plaintiff.  Quite apart from those health problems, in addition, there are constant variable levels of spinal pain, both in the neck and lower back, of which he complains to her, and his psychiatric symptoms.

119     It was those problems, rather than the plaintiff’s diabetic and kidney issues, which had led to a significant loss of enjoyment of life for him.  Pre accident, he remained heavily involved in activities despite the presence of other unrelated medical conditions which she had identified.

120     The plaintiff’s daughter, Elif Gurlu, swore an affidavit on 4 December 2014.

121     Ms Gurlu then had a young daughter, now five months, whom the plaintiff has difficulty holding because of spinal pain, and she has observed him to be in pain, even handling the young baby. 

122     Ms Gurlu confirmed the plaintiff’s longstanding health issues, particularly diabetes, which had meant he had been on a Disability Pension for an extended time and the diabetes condition had impacted on his kidney function and led to the need for dialysis pending a transplant.

123     Despite those problems, the accident has had a significant effect upon the plaintiff’s life.

124     Ms Gurlu is aware, from the plaintiff’s constant complaints of pain and her observations, that he is suffering both neck and lower back pain.  He complains of referred symptoms from the neck down through the left shoulder and into the left upper limb, and also referred symptoms from the lower back, down the left buttock and left leg.  He has persisting difficulties with those body functions.

125     Despite the plaintiff’s underlying medical conditions prior to the accident, he was very outgoing and socially involved, particularly with the Club, an involvement extending over many, many years.

126     As a result of the accident and injuries, the plaintiff’s participation in the Club has diminished to the point where he attends a match only every few weeks, which is vastly different to soccer training nights, then competition days on both days of the weekend, assisting running the clubhouse with the provision of beverages and assisting Club officials, which no longer happens.

127     Previously, the plaintiff was able to undertake light gardening, mow the lawn and assist in light household maintenance, but he can no longer perform those tasks to anywhere near the same extent, with the burden largely falling upon the family.

128     The plaintiff’s medication intake is restricted by his kidney problems and he only uses Panadeine Forte, limited to three or four tablets a day.

129     The plaintiff’s psychiatric outlook has been affected by the accident.  Over an extended period of time, he has experienced nightmares, flashbacks and disturbed sleep patterns.  Ms Gurlu understands these have gradually diminished with time, but nonetheless remain troubling for him.

130     The plaintiff has also experienced panic attacks and palpitations, for which a psychiatrist has been prescribing anti-depressants and a relaxant medication, which the plaintiff had not been prescribed previously.

131     Despite these medications, the plaintiff’s moodiness, anger and irritability impact particularly upon his marital relationship and also his relationship with his children.

132     Mr Mahmut Atesok, a friend of the plaintiff for thirty years, swore an affidavit on 11 December 2014.

133     Mr Atesok could not remember, prior to the accident, the plaintiff complaining of neck or low back pain.

134     Mr Atesok is involved in the Club and has been so for many years.  He recalled the plaintiff was a regular attendee at the Cub during weekday training and on weekend matches.

135     The plaintiff assisted the president and others in the running of the Club, assisting with the provision of tea and coffee and also occasional barbecues. Since the accident, the plaintiff’s participation had diminished significantly and now he attends approximately fortnightly to watch a match.

136     The plaintiff has told Mr Atesok he suffers from spinal pain which prevents him standing for long periods in order to watch the games.  From his observations, the plaintiff appears to be in pain.

137     Mr Wihya Cehan, a longstanding friend of the plaintiff and president of the Club, swore an affidavit on 11 December 2014.  He confirmed that he had no knowledge of the plaintiff having any spinal pain prior to the accident.

138     The plaintiff was very keenly involved in the Cub over a long period, and before the accident, attended about four times a week, twice when training and each day on the weekend when matches were held.  The plaintiff was involved in the activities of the Cub, socialising and also assisting him managing the Club, particularly in his absence. The plaintiff also assisted serving tea and coffee and running barbecues.

139     Since the accident, the plaintiff’s attendance at the Club gradually dwindled and declined significantly.  He now attends perhaps only once a fortnight and told Mr Cehan that one of the principal reasons is the spinal pain he has experienced since the accident with referred symptoms when standing for extended periods of time to watch soccer matches.

140     Mr Cehan has observed the plaintiff certainly is not as heavily involved as he used to be and his social relations through the Club have diminished considerably since the accident and he appears to be in pain.

Investigations

141     On 4 January 2010, the plaintiff underwent an MRI scan of his cervical and thoracic spine to investigate bilateral hand wasting.

142     It was reported there was degenerative change of the cervical spine; however, no evidence of cord compromise or exiting nerve root impingement.  There was no alteration of cord signal within the cervical or thoracic spine and no demonstrated syrinx.

143     A nerve conduction study was also organised in March 2010 to investigate the plaintiff’s wasted hands.

144     There was electrophysiological evidence of ulnar neuropathy of the left elbow, ulnar neuropathy at or proximal to the branch, innovating flexor carpi ulnaris on the right and moderate median neuropathy at both wrists, with the right side more affected.  Chronic denervation reinnervation changes were noted in both of the right ulnar innovated muscles sampled on needle EMG. 

145     It was noted those findings, coupled with the absent sensory and markedly reduced motor potentials, indicated severe but incomplete axonal disruption at both ulnar lesion sites.  Further, it was noted the prognosis for acceptable recovery appeared guarded given the above dates and history of diabetes.

146     An MRI scan of the plaintiff’s lumbar spine was organised by Mr Khan, orthopaedic surgeon, in October 2012.

147     It was reported there was multi-level disc degeneration.  There was multi-level end plate degenerative-type changes, together with Schmorl’s nodes, particularly prominent at L1-2 and L4-5.  At L4-5, there was minor Grade 1 retrolisthesis. There was minor posterior displacement, but no frank impingement of the traversing right S1 nerve root.  There was bilateral neural foraminal stenosis with minimal compromise of both exiting L4 nerve roots.  There was no central canal stenosis and transitional lumbosacral anatomy was suspected. 

148     Following an MRI scan of the cervical spine on the same date, it was reported there was multi-level cervical spondylosis and neural foraminal stenosis.  The predominant abnormality in terms of neural foraminal stenosis was on the left at C6-7, where it was of moderate to severe severity, and there was compromise of the exiting left C7 nerve root.  There was no significant cord compression.

149     Dr Karlov, rheumatologist, organised a localised bone scan in December 2012.

150     The findings thereof suggested mild degenerative change in the lumbar spine with narrowing, particularly at the disc space at L4-5, and very mild facet joint arthropathy on the left at L5-S1.

151     An MRI scan of the left hip was organised by Dr Karlov in January 2013.  It was reported there was a tear at the posterolateral acetabular labrum with adjacent bone marrow oedema.  Insertional tendinosis was noted involving the iliopsoas hamstring tendon.  There was no evidence of gluteal tendinosis or trochanteric bursitis.

Treaters

152     Dr Alpay has seen the plaintiff on many occasions at the clinic since 2003. The plaintiff had a number of chronic conditions including type 2 diabetes mellitus complicated with end-stage renal failure, hypertension and Charcot’s right ankle.

153     The plaintiff presented to Dr Alpay on 27 January 2010 with increased nervousness, depressed mood and complaining he was arguing a lot with his children.  He was referred to Dr Kochar, who diagnosed PTSD.  He prescribed Zoloft, 50 milligrams, and a half milligram of Alprazolam.

154     On 17 May 2010, the plaintiff was prescribed Panadeine Forte for his back, and had been warned as to its addictive nature.

155     The next accident-related attendances were in August, September and October 2011.  The plaintiff was investigated for increasing low back pain and sent for a CT scan, which Dr Alpay noted showed some degenerative changes of the lumbar spine and discs.

156     The plaintiff was treated with physiotherapy and given analgesics, and attended dialysis three times a week.

157     As of April 2012, Dr Alpay thought the plaintiff’s lumbar and cervical symptoms were mainly due to degenerative changes.  He considered the initial presentation of the plaintiff’s increased pain could be an aggravation of pain from degenerative lumbar and cervical disc disease but it was difficult to say that the increased pain occurring a year later was due to the accident.  Dr Alpay also noted anxiety and depression in 2006.

158     In his November 2014 report, Dr Alpay noted the plaintiff had ongoing neck, lower back and leg pain as a result of the accident.  He was prescribed Panadeine Forte for the management of ongoing pain and would be referred to physiotherapy whenever he needed further assistance.

159     In his January 2015 report, Dr Alpay noted the plaintiff has ongoing degenerative changes of the spine (reported as longstanding advanced disc degeneration) and degenerative arthritis of the shoulder as a result of wear and tear.  The accident had caused exacerbation of symptoms of degenerative arthritis immediately after the event.

160     Dr Alpay thought the plaintiff had degenerative changes of the cervical spine and right shoulder and will have some exacerbations of the symptoms in the future as a part of ongoing degenerative changes.

161     Dr Alpay also noted the plaintiff has a number of medical conditions, the most important being diabetes, end-stage kidney failure, Charcot’s joint of ankle joint, and hypertension.  He noted the plaintiff was attending to dialysis three times a day, and his life had already been affected by those comorbidities.  In Dr Alpay’s view, the accident’s effect on the plaintiff’s recreational activities, if any, will be minimal.

162     Dr Alpay noted the plaintiff’s daily activities are affected by his comorbidities, and he did not think the accident has had any significant effect on those already restricted daily chores.

163     The plaintiff first saw Dr Kochar in February 2010.  He saw the plaintiff fifteen times in the following year.

164     In his January 2012 report, Dr Kochar noted that the plaintiff was lucky to escape without serious physical injuries in the accident.  He noted the plaintiff had certainly been going through bad nervous shock, waves of anxiety and fear, flashbacks and nightmares relating to the accident.  He was sleeping poorly and had developed pains and aches because of soft tissue injuries, including aggravation of the pain in his right leg in which he had a broken bone before the accident.

165     Dr Kochar noted the plaintiff had some anxiety and depression prior to the accident (reported to Dr Alpay in 2006) aggravated by the accident. He advised the plaintiff to recommence his Zoloft, 50 milligrams at night, and he added Xanax, 1 milligram, one twice daily.

166     Dr Kochar’s initial diagnosis was of part PTSD and part Adjustment Disorder of Anxious and Depressed Mood and behaviour.

167     Dr Kochar thought the plaintiff had responded slowly to treatment, but seemed to become less anxious and worried and less troubled by flashbacks and nightmares.  He described feeling subjective gradual improvement in his mood feelings and day-to-day behaviour.

168     As of January 2012, Dr Kochar thought the plaintiff could manage reasonable self-care, but minimal household chores, and he engaged in little social or recreational activities.

169     Dr Kochar noted the plaintiff’s pre-existing and ongoing medical conditions had obviously played a significant part in these restrictions.  However, the psychiatric consequences of the accident created further problems over the past two years.  He noted that those additional problems related to the accident would probably become minimal only in the next year.

170     On 2 January 2012, the plaintiff had continued to show a moderately good response to the combination of medications and supportive psychotherapy. 

171     Dr Kochar noted that prior to the accident, the plaintiff had suffered from several serious medical conditions and reactive nervous states, and had to use numerous medications.  At that stage, Dr Kochar hoped the risk of relapse would be minimal.  The plaintiff was then stabilised with treatment and the degree of stabilisation was moderate.  Dr Kochar noted, however, the overall prognosis was poor, mainly because of the plaintiff’s previous ill health and poor motivation given the rather pessimistic future he could foresee.

172     Dr Kochar last reported in November 2014, having seen the plaintiff a further twenty five times until October 2014.

173     Dr Kochar noted the plaintiff’s presentation had not changed much in terms of the nature of his complaints since January 2012, except they were less severe and troublesome and more manageable, particularly in the last few months with the ongoing treatment.  He had had bouts when the condition got worse a number of times.

174     In addition to psychotherapy, the plaintiff had been treated with anti-anxiety and depressant medications such as Alprazolam and Zoloft in various dosages.

175     During treatment, the plaintiff had showed some improvement, in that his anxiety and panic attacks reduced in intensity and frequency, and also his mood became more predictable and stable.  He managed to sleep better and felt less worked up and tense.  He still had recurrence of anxiety and panic on seeing or hearing of motor vehicle accidents, and more so in times of stress.

176     Dr Kochar diagnosed Chronic Adjustment Disorder with Anxiety and Depression and with moderate to severe disturbance of psychological functions with significant impairment in occupational area.  He thought the condition had stabilised and was unlikely to improve any more, and overall, the prognosis was guarded.

177     Dr Kochar thought the accident was a cause of the above-mentioned diagnosed psychiatric and psychological conditions.  He noted, with treatment, the plaintiff’s mental state and condition had stabilised, though he had hoped for a greater degree of improvement previously.  He thought, to remain stable, the plaintiff should receive ongoing psychiatric sessions monthly for an indefinite period of time.

178     Dr Kochar noted the plaintiff was able to manage his day-to-day life, but needed reminding and some logistic support and physical assistance in activities such as toileting, bathing and changing clothes.  He now had no capacity to mentally think, organise or plan to engage in paid work, and he has a significantly compromised social and recreational life.

179     Dr Kochar thought the plaintiff had developed personality changes in the form of lack of motivation and mental ability to work, and his impairment was permanent.

180     Dr Kochar’s notes from August 2012 until March 2014 do not detail medication prescribed. Lengthier handwritten notes of attendances in October and December 2014 include reference to prescription of Zoloft and Diazepam. Temaz was substituted for Diazepam in January 2015.

181     The plaintiff was referred to Dr Karlov, rheumatologist, by Dr Alpay, and first saw him on 5 December 2012.

182     The plaintiff then complained of pain in the cervical spine radiating into the occipital area and across his shoulder.  He also complained of lower back pain.  Investigations were ordered.

183     Dr Karlov diagnosed cervical radiculopathy and lumbar nerve root lesion.  In addition, he thought the plaintiff had soft tissue injuries by way of iliolumbar ligament strain.  In his view, the plaintiff also suffered from PTSD and was very loath to drive anywhere near the accident, noting he was currently under the care of a psychiatrist.

184     Dr Karlov reported that the accident was of sufficient severity to turn over the plaintiff’s car, and the injuries involved in the accident were quite significant.  He noted the plaintiff had to be helped out of the car, and did not have a memory of what had transpired.

185     Dr Karlov noted there had been no other activities which could have contributed to the plaintiff’s pain, and therefore it must be considered his symptoms related solely to the accident event.

186     Dr Karlov thought the plaintiff’s injuries were not improving but they were stable.  He considered the plaintiff’s physical injuries were of a mechanical nature, and the most appropriate treatment was mechanical treatment such as physiotherapy.  He thought the plaintiff would also need pain management to continue his psychiatric treatment for aspects of his injury.

187     Dr Karlov thought the plaintiff still had serious limitations in what he could do and his activities of daily living.  Physiotherapy treatment stabilised the situation and maintained the plaintiff’s present level of function.  If it were withdrawn, his condition would deteriorate.  He thought physiotherapy should continue at its current level of twice a week.

188     Dr Karlov noted the plaintiff had difficulty if he sat for prolonged periods, and his walking was limited.  He found it difficult to drive, and that curtailed his ability to visit friends.  He was unable to undertake any gardening or household maintenance chores.  He had difficulty bending his back, and his wife helped him to get dressed, including putting on his shoes, cutting his toenails, and anything that involved bending. 

189     The plaintiff used to go out regularly three nights a week to visit friends but had lost interest, now doing so maybe once a week.  He used to play basketball with his older grandchildren but was now unable to do so.

190     Dr Karlov noted the plaintiff’s injuries dated back to the accident, and his symptoms have continued since, and it was unlikely there would be any significant improvement in the foreseeable future.

191     Dr Karlov noted the plaintiff could not maintain posture and he had limited walking time.  He could not sit for prolonged periods.  He was no longer able to maintain the house or garden.  Prior to the injuries, he used to go swimming and to a spa, but since the accident, he had been unable to do so.

192     Dr Karlov wrote to Dr Alpay in February 2013, noting the plaintiff continued to complain of back and leg pain.  The MRI scan of the spine was overall unremarkable, and the bone scan suggested some degenerative changes.  Dr Karlov advised he had organised an MRI scan of the hip, which showed some labral tearing but also drew attention to the hamstring origins where there was some tendinosis.  He thought that fitted the clinical picture, and stressing the plaintiff’s hamstrings produced pain.  Accordingly, he would send him to the physiotherapist to have that problem attended to.

193     The plaintiff commenced physiotherapy with Mr Oflay at Glenroy Physiotherapy Centre on 19 February 2010.  He was still having treatment on an episodic basis in 2014.

194     On initial examination, it was noted that the pre-existing injury to the foot flared up in the accident and the plaintiff had difficulty walking and standing.  He also suffered from neuropathic pain and global diffuse joint pain, and was having renal dialysis twice a week. 

195     As of April 2012, Mr Oflay thought the plaintiff was suffering from chronic cervical and lumbar injury since the accident and he had problems with prolonged walking and standing due to chronic lumbar spine pain.  He ambulated independently with a CAM walker to support his foot.

196     The plaintiff’s exercise tolerance then remained low due to the diabetes and renal failure, and his chronic foot condition also limited the nature of exercise he was able to perform.  It was then thought the plaintiff’s prognosis for full recovery remained unclear due to the pre-existing conditions, namely, Charcot foot, for which he may require surgery, and chronic renal failure, for which he has medical management.

197     As of January 2014, Mr Oflay thought the plaintiff continued to suffer from the effects of the accident with a diagnosis of multi-level cervical spondylosis, primarily affecting the C5-6 and C6-7 intervertebral discs with neural foraminal stenosis.  He also suffered from multi-level lumbar discogenic pain, bilateral shoulder girdle pain, dorsal scapular pain, Charcot’s foot, chronic renal failure and diabetes type 2.

198     Mr Oflay thought the prognosis remained very poor in light of the plaintiff’s multi-faceted medical issues, and he was unlikely to fully recover and would have to learn to manage the pain and restrictions with his ADLs.

199     In Mr Oflay’s view, the accident would have significantly contributed to the injury, noting the considerable force involved.

200     Mr Oflay thought the plaintiff had been significantly limited with his ADLs as a result of the injury.  He had a very limited ability to stand and walk, not only due to his foot condition but also with his lumbar spine dysfunction and leg pain.  He had altered sleep due to chronic pain, and night pain behaviour was troublesome.  He was less sociable post-injury, going out less often, which was perhaps due to psychosocial factors after the accident.

201     Mr Oflay thought the injuries were permanent and the plaintiff would have to learn to adapt to the disability and continue his low level exercise program.  His overall prognosis remained poor for a full recovery and he would continue to benefit from episodic physiotherapy.

202     Mr Oflay noted the plaintiff had been very limited in personal hygiene tasks, sitting longer than half an hour, driving longer than an hour, walking for more than 700 to 800 metres and sleeping more than four hours a night without having to get up.  He had been limited in his home chores and gardening and his life was less enjoyable as he became more irritable.

Medico-legal evidence

Orthopaedic

203     Mr Khan, orthopaedic surgeon, first saw the plaintiff in January 2012.

204     The plaintiff told him of a fracture of the left ankle in the past.

205     The plaintiff complained of persistent lower back pain, more to the left of the midline and buttock.

206     Mr Khan noted the radiologist’s report of the CT scans of April 2003 and November 2011.

207     Mr Khan thought, as a result of the accident, the plaintiff sustained a flare-up of musculo­skeletal and ligamentous injury to his cervical spine, with flare-up of suspected degenerative changes in the left side of the neck with referred pain down the left shoulder blade, but without radiculopathy. The plaintiff also sustained soft tissue injuries to his lumbar spine, with flare-up of pre-existing multi-level disc degenerative disease and spondylosis and mild discogenic injury to L4‑5, but without radiculopathy.

208     Mr Khan thought, as a result of those multifocal injuries, the plaintiff had sustained considerable psychological trauma as he was thrown around in the rolling car.

209     At that stage, Mr Khan thought the plaintiff would require to see his general practitioner on and off for an indefinite period, as he had been left with residual permanent impairment of function in relation to his injuries.  He noted the plaintiff had developed secondary injuries following the incident, resulting in anxiety, depression, and possibly sexual and digestive problems.

210     Mr Khan then thought the plaintiff was able to perform essential activities of daily living, looking after personal hygiene and self-care.  The plaintiff had limited capacity to perform household chores, and his injuries had affected his enjoyment of recreational and social activity.  Mr Khan considered the plaintiff would be left with a partial permanent impairment.

211     On re‑examination in December 2012, the plaintiff continued to have pain in his neck and back.  Mr Khan noted reports of an MRI scan of the lumbar spine of December 2012 and a CT scan.

212     Mr Khan’s opinion remained essentially unchanged.

213     There was a further re‑examination in September 2014.

214     Mr Khan then had available the 2006 MRI scan taken when the plaintiff was complaining of left leg pain.  There was also an MRI scan of the left hip taken in January 2013.  Mr Khan noted Charcot’s joint in the right ankle was consistent with type 2 diabetes with peripheral neuropathy, with the plaintiff being diagnosed with that condition on 16 November 2009.

215     Mr Khan noted the plaintiff had a long history of medical problems and evidence of pre-existing extensive degenerative changes in the cervical and lumbar spine.

216     Taking into account the severity of the impact in the accident, Mr Khan thought the plaintiff was lucky not to have sustained any bony fractures; however, he had sustained severe musculo­skeletal and soft tissue injuries to his neck and lower back with referred pain down the left leg.  He had received a severe musculo­skeletal and ligamentous injury to his lumbar spine, and had flared-up pre-existing disc degeneration at C4‑5 and C5‑6.

217     Mr Khan noted, due to the severity of the plaintiff’s other unrelated medical conditions, he was receiving an Invalid Pension prior to the accident.

218     Mr Khan thought the plaintiff had developed psychological trauma which had been treated adequately by Dr Kochar.

219     Mr Khan considered the plaintiff’s condition had stabilised with reference to the injuries.  He had aggravated pre-existing discogenic injuries to his lower back at L4‑5 and the cervical spine at C4‑5 and C5‑6.

220     Mr Khan thought the plaintiff was considerably disabled by the after-effects of his injuries in the accident.

221     Mr Khan noted the plaintiff had an old injury to his right foot which caused some disability in the past, diagnosed in approximately 2009 as Charcot’s joint due to pre-existing advanced diabetes mellitus.  That resulted in little or no feeling of pain in the joint since when the plaintiff was able to walk on the affected ankle reasonably well.

222     Mr Khan thought the plaintiff had been left with significant residual after-effects of the injuries requiring regular follow-up by his general practitioner and his orthopaedic surgeon or neurosurgeon as deemed necessary by his treating doctors.  He thought the plaintiff would continue to require, for an indefinite period, medical treatment by his treating doctors, his general practitioner, and specialists, including a pain-management specialist as necessary.

223     Mr Khan considered the accident injuries had significantly affected the plaintiff’s capacity to take part in activities of daily living as well as enjoy recreational and social activity.  He thought the plaintiff had a partial permanent impairment of function.

224     Mr D’Urso, neurosurgeon, examined the plaintiff in October 2014.

225     The plaintiff then reported back pain as 7.5 out of 10 and neck pain as 7.5 out of 10.  He also described left thigh pain which he rated as 7 out of 10.  He could stand for 30 minutes and walk for only 25 minutes, and slept poorly at night because of pain.

226     The plaintiff told Mr D’Urso that prior to his injury, he was able to garden, clean around the house and attend soccer matches, but he could no longer perform work activities.  He walked regularly, was able to go shopping and had attended dialysis three times a week.

227     On examination, there was significant wasting and intrinsic hand musculature bilaterally. The plaintiff’s right ankle was swollen and very stiff, and his limb power generally reduced.

228     The plaintiff could not stand on his right heel, and had difficulty standing on his right toe because of his ankle condition.

229     Cervical movement was 80 per cent of normal.  Flexion, extension and rotation came to 30 centimetres from touching his toes and the plaintiff could extend to 10 degrees.

230     Mr D’Urso noted the MRI scans of the spine taken in October 2012 where there was multi-level degenerative disc disease, quite severe at C3-4, C5‑6 and C6-7.  Lumbar degenerative change was also noted at L4-5 and L2‑3.  A cervical CT scan of July 2014 demonstrated severe spondylitic change at those cervical levels.

231     Mr D’Urso thought the plaintiff would appear to be symptomatic from significant multi-level degenerative changes in the lumbar and cervical spine and he may well have an element of C6 and L4 radicular pain.

232     Mr D’Urso thought it would appear that the transport accident was a precipitating factor in the development of the plaintiff’s clinical deterioration and subsequent symptoms, and it was likely that the accident contributed to his current psychological status.

233     Mr D’Urso considered the plaintiff’s condition had stabilised and conservative treatment should be continued.  He thought counselling would also be worthwhile.

234     Mr D’Urso thought it would appear the plaintiff’s condition had had a moderate effect on his quality of life and inability to undertake activities of daily living and household activity.  It appeared the plaintiff had a permanent impairment to his multi-level cervical and lumbar spondylosis.  The impairment was significant and would have a substantial impact on his quality of life and day-to-day activities.  Mr D’Urso thought it was difficult to determine the degree of degenerative progression.

235     Mr D’Urso outlined the plaintiff’s problems with repetitive bending, twisting, lifting, overhead tasks and repetitive movements of the spine.

236     Noting the chronic cervical and lumbar pain, as well as radiating shoulder and leg pain, Mr D’Urso thought the plaintiff would appear to have a significant degree of Adjustment Disorder and Depressed Mood.

237     Having been provided with the MRI of January 2010, Mr D’Urso noted it reported multi-level degenerative changes in the cervical spine from C3-C7, which would appear to be consistent with subsequent investigations.

238     Mr D’Urso noted it was unlikely the transport accident contributed to, or aggravated, existing bilateral ulnar neuropathies that were present before the accident.

Psychiatric

239     The plaintiff was examined by Dr Weissman, psychiatrist, in January 2012. 

240     The plaintiff told him he was unaware of what was going on when the accident occurred.  He sustained pain and injuries to his lower back, neck and the back of his head.  He had become quite upset and irritable since the accident.

241     The plaintiff was then taking one Panadeine Forte three times a day, Zoloft, 100 milligrams, and Alprazolam, 2 milligrams at night.

242     The plaintiff told Dr Weissman he could not drive very far, mainly because of pain; however, he sometimes experienced anxiety when driving.  He felt anxious as a passenger.  He had occasional bad dreams about the accident.  He felt anxious going past the accident scene.  He had thoughts quite often about the accident itself.

243     The plaintiff admitted to feeling depressed and anxious.  He did nothing much except sit on the couch.  He felt very irritable and frustrated and had lowered self-esteem and confidence.  His sleep was disturbed due to pain and discomfort.

244     Dr Weissman noted the plaintiff had a medical history of diabetes with multiple complications, including renal failure, and also hypertension.

245     On examination, the plaintiff’s affect was unhappy, depressed, frustrated and mildly irritable.  There was no thought disorder.  His content of thinking revealed occasional thoughts, triggers, reminders and flashbacks, mild primary or direct post-traumatic stress and anxiety symptoms and traumatisation features, and moderate mixed reactive depressive and anxiety symptoms, themes and features probably not entirely related to the accident.  There was also some pain focus and preoccupation.  There were no abnormalities of perception.  There were occasional bad dreams related to the accident.  There was some driver, passenger and accident site-related anxiety, nervousness, hypervigilance and hyperarousal.

246     Dr Weissman noted psychiatrist, Dr Kochar’s report of 9 January 2012 where he mentioned that prior to the accident, the plaintiff had suffered from several serious medical conditions and a reactive nervous state, and had had to use numerous medications. 

247     Dr Weissman noted reference in Dr Kochar’s report to anxiety and depression in 2006 and insomnia in 2004.  There was a mention of anxiety and depression on 2 October 2006, and 50 milligrams of Zoloft was then prescribed.  There was also mention of diabetes.

248     During interview, the plaintiff and his son told Dr Weissman the plaintiff had not been the same ever since losing his youngest brother in around 2002 or 2003, and things slowed down for the plaintiff after that. 

249     On that basis, all in all, Dr Weissman thought it seemed fair, reasonable and appropriate to apportion a small amount of pre-existing or unrelated psychiatric impairment in this case for probable pre-existing depression and anxiety.  However, he thought there was no doubt the plaintiff’s depressive and anxiety syndrome had been aggravated by the accident. 

250     Having carefully questioned the plaintiff about any possible post-traumatic stress anxiety and traumatisation features, Dr Weissman reported the plaintiff appeared to have mild non-secondary symptoms in that regard.  He seemed to have sustained and developed a mild post-traumatic stress and anxiety syndrome associated with traumatisation features, but did not have a full-blown PTSD.

251     However, Dr Weissman thought the plaintiff was also currently suffering from a moderate, mixed reactive depressive and anxiety syndrome, in part pre-existing, and in part occurring as a consequence of, or secondary to, his accident-related pain, injuries and disabilities.  Therefore, the plaintiff had also sustained and developed a Chronic Adjustment Disorder with Depressed and Anxious Mood, in part consequential to the accident, or, alternatively, an aggravation of a pre-existing Chronic Adjustment Disorder with Anxious Mood.

252     Dr Paul Kornan, psychiatrist, examined the plaintiff in September 2014.

253     The plaintiff told Dr Kornan that before the accident, he had diabetes and had problems with his right foot.  He had lost a brother three or four years earlier and he might have been on stress tablets for about ten days, although he did not feel he had nervous problems.

254     The plaintiff’s kidney problems started thirteen months after the accident and, prior to that, was seeing doctors for his kidneys every three months.

255     The plaintiff reported his ongoing problems were daily back pain. There were some days he did not have back pain, but activity would trigger it.  There was neck pain, but he could not say that was every day.

256     The plaintiff could not sleep at night because of pain.  He could not go to the accident site as he had had flashbacks.  When he drove, he was very nervous.  He got flashbacks in the car, but not in his dreams.  He also had flashbacks if he saw something about a car accident on the television. 

257     The accident had made the plaintiff more anxious and depressed.  He was prone to getting panic attacks and his heart would race.  He had to put up with his dialysis, but accepted it as it was beyond his control.

258     The plaintiff reported symptoms of back and neck pain every day.  He was not having flashbacks in his dreams.  He avoided watching car accidents on the television.  He felt more anxious and depressed since the accident.  At times, he had panic attacks.

259     Dr Kornan noted there did not appear to be any immediate psychiatric history prior to the accident.

260     The plaintiff was taking Zoloft, 100 milligrams, and Diazepam anti-anxiety medication, two tablets in the evening.

261     On examination, the plaintiff spoke with a voice indicating anxiety and depression.  He showed some problems with memory and concentration.  There was a disorder of perception, with him indicating symptoms of irritability, flashbacks and some avoidant behaviour features.  He appeared to remain quite tense throughout the interview.  There were problems with his confidence levels and self-esteem.  There were no psychotic features, delusions or hallucinations.

262     Dr Kornan had available Dr Kochar’s January 2012 report in which he set out that he was hopeful that the additional motor vehicle accident-related problems might become minimal only in the next year.

263     Dr Kornan thought the plaintiff presented with a diagnosis of Pain Disorder associated with psychological factors, Adjustment Disorder with Mixed Anxiety and Depressed Mood and PTSD at the upper level of mild severity.

264     Dr Kornan thought the transport accident led to the plaintiff’s Pain Disorder associated with psychological factors, aggravated a pre-existing anxiety and depression into an Adjustment Disorder with Mixed Anxiety and Depressed Mood and caused PTSD.

265     Dr Kornan thought the plaintiff’s psychiatric ill health had stabilised and he should remain on his current medication regime.

266     Dr Kornan noted, given the plaintiff’s major ill health problems and now dialysis, as well as the car accident, he was not able to effectively do any housework, although he could perform activities of daily living.  The PTSD had added to loss of enjoyment of lifestyle and probably his ability to mix effectively with family members.

267     Dr Kornan considered that the limitations placed upon the plaintiff by reason of his psychiatric condition were that he remained nervous, prone to flashbacks and had some avoidant behaviour features.  He was nervous about driving because of a tendency to get flashbacks when doing so, and there were multiple factors, in Dr Kornan’s view, contributing to the plaintiff’s psychiatric ill health condition, but fundamentally the PTSD was significant.

The Defendant’s medical evidence

Spinal pre accident

268     In April 2003, Dr Alpay noted a specialist referral to physiotherapy, and earlier that month, the request for a range of investigations of the lumbosacral spine.

269     There was a CT scan of the plaintiff’s lumbar spine on 4 April 2003, following which it was reported at L4‑5, there was almost certainly pressure upon both exiting L4 nerve roots due to the degenerative changes in the adjacent disc and hypertrophic bone around the degenerate facet joints at that level.

270     On 22 July 2005, Dr Alpay noted a history of low back pain with left-sided numbness. 

271     The Neurological Registrar of the Royal Melbourne Hospital wrote to Dr Alpay in June 2006 thanking him for referring the plaintiff for his lower back and left leg pain.

272     It was noted the plaintiff had had lower back pain for five years, and intermittent pain radiating to the left lower limb over the last year.  He was then taking Panadeine Forte as a pain relief.  Simple analgesia was advised, and there would be consideration of an MRI scan in the next six to eight weeks.

273     The plaintiff saw another neurosurgical registrar at the Royal Melbourne Hospital on referral from Dr Alpay in November 2006, when he complained of lower back pain, recurrent left-sided lumbar back pain and also pain in the left leg.  The pain had been going on for the last year, and the plaintiff had been taking painkillers occasionally.

274     The 2006 MRI scan showed an L4‑5 disc prolapse, but there was no cord compression or any nerve root compression.  The registrar noted the plaintiff’s symptoms were more of a left L5 and left S1 nerve root compression of which there was no evidence on the MRI.  Physiotherapy and occasional painkillers were suggested.

275     The plaintiff attended Outpatients at Broadmeadows Health Service and was discharged on 21 May 2007.  Low back pain and L4‑5 disc prolapse were then noted.

Cardiology

276     There was the successful insertion of an implantable loop recorder on 19 April 2013 in relation to the plaintiff’s heart condition.  There had been a chest x‑ray in June 2010.

Tuberculosis

277     In 2012, the plaintiff was treated for latent tuberculosis infection at the Northern Hospital.  He had good compliance with medication over nine months that year.

Gastrointestinal

278     There was a referral to a gastroenterologist in February 2011 for abdominal discomfort, and a gastroscopy was undertaken on 23 March 2012.

Pneumonia

279     The plaintiff was admitted to the Northern Hospital with right lower lobe pneumonia in mid-2010.

Charcot’s disease (right ankle)

280     The plaintiff has had a range of treatment and attendances for Charcot’s disease involving his right ankle between 2007 and 2014.

281     There was an admission to the Northern Hospital with Charcot’s foot on 1 May 2009. Ongoing problems with this condition were noted by Dr Alpay in November 2009.

282     At various times, most recently January 2014, the plaintiff has been provided with a special shoe, as wearing regular footwear was painful.

Bilateral hand wasting

283     The plaintiff attended at the Neurology Clinic at Northern Health in November 2009 with a complaint of bilateral hand wasting.  An MRI scan of the cervical and upper thoracic spine was carried out in January 2010.

284     The plaintiff’s hand condition was diagnosed as severe ulnar neuropathy by neurologist, Mr Ng, who recommended conservative treatment.

Optical

285     The plaintiff was treated for vision problems relating to diabetes between 1999 and 2003.  He was diagnosed with a right cataract in May 2011 and surgery was planned.

Kidneys

286     The renal progress notes of an attendance on 6 March 2012 set out that the plaintiff’s son was originally going to be married in Turkey but due to the plaintiff’s chronic medical conditions, limiting travel due to unfitness and inability to receive dialysis – sustaining dialysis therapy – fiancée will come out to Australia for wedding but request travel subsidy/concession.

287     The plaintiff saw a social worker at the Northern Hospital in January 2014 whilst attending dialysis. The social worker noted, in terms of adjustment to illness, there were no issues raised by the plaintiff apart from the boredom of being on dialysis for so many hours per week.  Otherwise, the plaintiff had a positive attitude and was reported to be coping well.  The plaintiff reported that he did not have a will and should get on to this.

Psychological

288     Dr Alpay wrote to Dr Kochar on 27 January 2010 thanking him for seeing the plaintiff, who had been involved in a car accident two weeks earlier and had developed insomnia, nervousness and was having flashbacks of the accident. Dr Alpay noted the last prescription of Zoloft before the accident was on 25 June 2009.

289     On 2 October 2006, Dr Alpay noted anxiety and depression, and prescription of Zoloft, 50 milligrams.

Medico-legal evidence

290     Dr Tony Kostos, rheumatologist, saw the plaintiff in July 2012 with the assistance of an interpreter.  The focus of the first examination was on whether the defendant was responsible for ongoing physiotherapy treatment.

291     Dr Kostos noted that the pain the plaintiff described in his neck and lower back was consistent with the pain arising from those areas, but the exact source of the pain could not be determined and could not be substantiated by any further investigations.

292     Therefore, when a history was given to him of no previous problems in the spine, Dr Kostos would accept the plaintiff’s neck and back pain have developed as a result of the transport accident with a background of longstanding pre-existing disc degeneration and osteoarthritis.

293     Dr Kostos noted longstanding problems with the right ankle and diabetes, and also the presence of psychosocial factors.  Further, compounding the situation was the plaintiff’s general medical condition where he obviously had significant diabetes and renal failure, and had been on dialysis for the last year and a half.

294     Dr Kostos then doubted whether weekly physiotherapy would provide any further benefit for the plaintiff.  However, he would certainly encourage him to continue with a regular exercise program.  He thought the plaintiff was perfectly capable of moving into self-management strategies immediately.  However, it was quite clear that his prognosis was extremely poor for the reasons mentioned.

295     Dr Kostos re-examined the plaintiff in November 2014, at which time he told him there had not been any change in his condition.

296     The plaintiff continued to describe constant pain in the left side of the neck, referring to the left shoulder, and also constant left-sided low back pain with intermittent left buttock, posterior thigh and calf pain.  Pain was a problem at night and sleeping patterns were poor.  The plaintiff’s pain was aggravated by prolonged postures.

297     On examination, cervical movements were restricted with left-sided pain in all directions and the plaintiff had diffuse midline cervical and left paravertebral tenderness to light touch.  There was a full range of shoulder movement, with pain on the left, and diffuse tenderness over the left shoulder girdle to light touch.

298     All thoracolumbar movements whilst sitting and standing were restricted, with pain in all directions.  The plaintiff had diffuse midline tenderness on the entire thoracolumbar spine and sacrum, together with the adjacent left paravertebral areas, maximum in the lumbar region, and he also had non-specific left buttock tenderness.

299     Dr Kostos had available the MRI scan of the lumbar and cervical spine of October 2012 and he also noted that the cervical CT scan of July 2014 showed widespread disc degeneration and osteoarthritis.

300     Having been provided with Dr Alpay’s report of April 2012, Dr Kostos agreed the plaintiff had significant disc degeneration and osteoarthritis, and those findings were pre-existing, and the plaintiff certainly would not have had a normal neck or lower back prior to the accident.  However, he accepted the plaintiff did develop problems following the accident and he may have had some ongoing problems as a result of it, but he qualified his opinion by stating if the history was not accurate, his opinion would change.

301     This additional material suggested the plaintiff may have had some minor problems following the accident but the deterioration a year later clearly does not relate to the accident and probably now what is being seen is the natural progression of his condition, albeit with some embellishment of the physical findings.

302     Dr Kostos thought the truth of the matter was that investigations such as the plaintiff had undergone could not determine the cause of pain, and he thought the investigations to date were unnecessary.

303     Dr Kostos also pointed out that the lumbar and cervical aggravations are not evidence-based diagnoses and can be discounted.

304     Therefore, Dr Kostos would have to suggest the plaintiff’s condition now relates predominantly to his constitutional problems and his failure to undertake effective treatment.  He thought the plaintiff would not benefit from further physiotherapy, and in the past it had not conferred any benefit at all, but he should pursue an exercise program and hydrotherapy might be useful.

305     Mr Michael Fogarty, orthopaedic surgeon, examined the plaintiff in October 2014.

306     The plaintiff told him of neck pain with movement, which was bad at night, and he had to use a special pillow.  He did not have arm pain.  He had some pain in the low back, more to the left, and occasionally some left leg pain.

307     In addition to previous problems with diabetes, kidney trouble and raised cholesterol, the plaintiff told Mr Fogarty he had previously had an injury to his low back, but could not say when.  Mr Fogarty noted some medical imaging was done in 2003 which showed a disc bulge at L4-5.

308     On examination, there was a limitation of lumbar movement and swelling in the right lower leg, ankle and foot, believed to be related to the condition of Charcot joint, causing some deformity and swelling. There was some restriction in cervical movement and a full range of shoulder movement.

309     Mr Fogarty agreed with the reports of the MRI scan of the cervical and lumbar spine of October 2012.

310     Mr Fogarty thought the alleged injuries were probably consistent with the manner in which the accident was alleged to have occurred.

311     Mr Fogarty considered there was certainly pre-existing degenerative disc disease in both the neck and lower back, and it was likely that those conditions were aggravated in the accident.  He thought that the current complaints of neck and back pain were likely due to persisting degenerative disc disease, affecting both the cervical and lumbosacral regions of the spine, but he believed that degenerative disc disease was very likely to have been aggravated in the accident. 

312     Mr Fogarty thought there was radiological support for the plaintiff’s current complaints of disability, and examination findings were consistent with his current complaints of injury and disability.  He did not believe there were inconsistencies between the radiology and examination findings and the plaintiff’s current complaints.

313     Mr Fogarty did not think the plaintiff’s current condition altered his capacity to work and perform normal day-to-day domestic and recreational activities.  He did not believe any further treatment would assist the plaintiff, apart from analgesic medication.  In Mr Fogarty’s view, the plaintiff’s prognosis related to the condition of his low back and neck was fair to poor and he would continue to have symptoms and signs related to those conditions.

314     Dr Timothy Entwisle, psychiatrist, examined the plaintiff in October 2014 with the assistance of an interpreter. 

315     When questioned as to the effectiveness or otherwise of treatment, the plaintiff told Dr Entwisle that it helped.  He felt calm and more settled and his main problems were now pain and some limited nervousness.  The plaintiff reported no depressive symptoms.  He did indicate he felt unwell due to his poor health, for which he had required treatment for many years, and he regarded his current mental status as not very bad and he was pleased to be on dialysis.

316     The plaintiff told Dr Entwisle that since the accident, he had developed pain in the lower back and found it difficult to walk because of ankle pain.  This caused him to be angry and frustrated and he described he felt some nervousness in the car, but he could travel by car.  He was not able to drive because of poor health.

317     The plaintiff described no panic attacks and previous flashbacks had subsided.  His sleep was disturbed by pain.  His energy was limited by chronic health problems with diabetes causing him to feel weak and fatigued.

318     Dr Entwisle commented that at interview, the plaintiff’s presentation was consistent with that of a man who was struggling with pre-existing longstanding health issues, with diabetes and the requirement for dialysis three days a week.  He reported a supportive environment at home with his family, apart from some irritability and frustration.  He did not describe any psychiatric symptoms.  Whilst nervous on the road, nonetheless he travelled as a passenger but did not drive because of health problems.

319     Dr Entwisle noted that the plaintiff’s general practitioner thought the plaintiff’s current psychiatric symptoms represented an aggravation of his previous psychiatric condition.

320     Dr Entwisle thought no further treatment was required in relation to the accident injury. In his view, it was evident that attendances on Dr Kochar resulted in improvement in the plaintiff’s psychological functioning and he spoke of support being provided by that practitioner in regard to his previous health issues and general poor health.

321     Dr Entwisle thought that from a psychiatric perspective alone, the plaintiff would have a work capacity.  However, work was not a prospect given his poor health.  He noted the plaintiff had existed on a Disability Support Pension now for over a decade.  His wife was his Carer and she is in receipt of a Pension.

322     As noted by others, Dr Entwisle thought the plaintiff’s overall prognosis was poor, that prognosis being related to his previous health issues.  He continued on dialysis and it was unclear as to whether a renal transplant had been considered.

Overview

323     As the defendant conceded, the plaintiff aggravated pre-existing degenerative disease in his cervical and lumbar spine in the accident. The issue for determination however is whether any accident-related aggravation is ongoing and serious.[57]

[57]T93

324     I am satisfied that immediately prior to the accident, the plaintiff was not suffering from any spinal condition of any note, thus the principles laid down in Petkovski v Galletti[58] do not apply.

[58] [1994] 1 VR 436

325     I accept that the L4-5 disc prolapse shown on the 2006 MRI scan had gradually settled by the time the plaintiff was discharged from Broadmeadows Health Service in 2007 without ongoing problems until after the accident.[59]  As counsel for the defendant conceded, the highest it could be put was that treatment for any pre-accident spinal complaint ceased in 2007.[60]

[59]T7

[60]T91

326     The plaintiff did not complain of neck pain prior to the accident.

Credit

327     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[61]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[61](2010) 31 VR 1 at paragraph [12]

328     Counsel for the plaintiff submitted there was no frank issue about the plaintiff’s credit, although there were times he did not have immediate recall.  It was submitted the plaintiff’s evidence was given in a forthright manner, with him making numerous and appropriate concessions.  Further, it was never fairly and squarely put to the plaintiff that he was not telling the truth.[62]

[62]T105

329     However, in my view, the plaintiff was not a credible witness.  His evidence about a number of matters was at times contradictory and at other times, simply not credible, as was the case in relation to his son’s wedding, given in answer to my simple, specific questions.[63]  A further example in this regard was the conflicting evidence as to the condition of the plaintiff’s hands pre and post accident.

[63]T102, T103

330     Further, the plaintiff’s recollection as to this pre-incident state was much more detailed in re-examination than in his answers in cross-examination.  In these circumstances, it is difficult to accept his final comparison of his pre and post-accident physical and psychological condition.[64]

[64]T106

331     The plaintiff played down his pre-intake of Zoloft, where it was clear from Dr Kochar’s notes this medication was prescribed by him on five occasions between 2006 and 2009.

332     The plaintiff also tended to attribute all the present problems in his life to his accident injuries, downplaying the role of other significant non-accident-related medical conditions.

333     In these circumstances, I do not accept the plaintiff’s complaints of ongoing pain in his neck and back and referred pain in relation thereto since the accident.  Further, his evidence as to the duration and severity of his pre-accident symptoms is also unreliable

334     Given my concerns as to the plaintiff’s credit, medical evidence as to the plaintiff’s level of complaint and symptoms at various times is particularly important.

335     Whilst Dr Alpay acknowledged the plaintiff’s initial presentation of increased pain could be an accident-related aggravation, he thought it was difficult to say that the increased pain reported over a year later was due to the accident – attributing such increase to the degenerative nature of the plaintiff’s condition – a view shared by Dr Kostos, who had details of the level of the plaintiff’s early treatment.[65]

[65]T93

336     Other medical examiners who concluded any ongoing spinal problems are accident related – Mr Khan, Mr D’Urso and Mr Fogarty – did not have Dr Alpay’s report or notes available to them.  The plaintiff simply told them of ongoing spinal pain since the accident.

337     I am mindful of what was said by the Court of Appeal in Dordev v Cowan[66] in relation to the plaintiff’s credit in this type of case.  As Chernov JA said, a plaintiff’s credibility is relevant not only to whether his evidence should be accepted but it is also relevant to the reliability of the medical evidence because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.[67]

[66]Dordev v Cowan [2006] VSCA 254

[67](Supra) paragraph [14]

338     Accordingly, in this case what appear on their face to be medico-legal opinions supportive of the plaintiff’s claim must be looked at in the light of my views as to his credit.

339     Save for Mr Khan, who ultimately was told of the plaintiff’s non-accident-related conditions on re-examination in 2014, other treaters and medico-legal examiners were not given details of these other problems and therefore attributed all the plaintiff’s restrictions and problems to the accident.

340     Having treated the plaintiff since 2003, Dr Alpay was well aware of the plaintiff’s medical history and concluded in January 2015 that his daily activities are affected by his comorbidities and that he did not think the accident had any significant effect on these already restricted daily activities.

341     That was the defendant’s case in a nutshell.[68]

[68]T87

342     The plaintiff has had major medical conditions and problems predating and postdating the accident, unrelated to it. He has had pneumonia, heart problems and tuberculosis.[69]  He continues to require dialysis, he suffers from diabetes and he has longstanding problems with his right foot related to Charcot’s disease, and also has problems with his hands.

[69]T92

343     I accept that most of these medical conditions continue to play a part in the plaintiff’s claimed restrictions, and it is for him to isolate what restrictions are accident related.

344     In my view, the plaintiff has not succeeded in this task.

Treatment

345     The plaintiff has had limited treatment for his spinal condition since the accident.

346     There was only one specialist referral to Dr Karlov, rheumatologist, who saw the plaintiff in late 2012 and early 2013.  Whilst he accepted the plaintiff was functioning well pre accident and thought the plaintiff’s ongoing neck and back symptoms related totally to the accident, he made no mention in his report of the plaintiff’s comorbidities, noting there had been no other activities which could have contributed to his pain.  He suggested conservative treatment only.

347     The plaintiff underwent physiotherapy until funding ceased in August 2012.  He later underwent a further twelve sessions.

348     Whilst the treating physiotherapist, Mr Oflay, thought the plaintiff was significantly limited with activities of daily living due to his accident injuries, he also noted the plaintiff’s exercise tolerance was low due to diabetes, renal failure and the chronic foot condition.  He considered the plaintiff’s prognosis was very poor in light of multifaceted medical issues.

349     The only painkilling medication taken by the plaintiff is Panadeine Forte, the level of which is restricted by his kidney condition.

Activities

350     I do not accept the plaintiff was capable of a full range of activity before the accident, as his counsel submitted.  The plaintiff has not worked for many years and remains in receipt of a Disability Support Pension since 1994. Further, pre accident, the plaintiff obviously required significant assistance from his wife in a range of activities as she was appointed his Carer – a situation not mentioned by either her or the plaintiff’s daughter in their affidavits.

351     In these circumstances, I do not accept the plaintiff would have been able to garden and undertake household tasks without restriction, as he suggested. Further, he had significant problems walking due to Charcot’s disease.

352     One of the principal consequences relied upon in this application was the plaintiff’s inability to attend the Club[70] and also engage in various Club activities.[71]

[70]T10

[71]T10–11

353     The plaintiff initially said he could not go to the soccer because of back pain, but in cross-examination, conceded he does not attend training twice a week and the Sunday match because he has to attend dialysis at those times.  No mention of this situation was made by any of the lay witnesses who have deposed as to how the plaintiff’s spinal condition has significantly restricted his Club activities.

354     Whilst he may have problems undertaking other Club activities,[72] given his restrictions at home, which have been longstanding, the plaintiff would have not been unable pre accident to engage in Club activities involving physical strength or prolonged standing or walking.

[72]T127

355     Although the plaintiff initially maintained he did not attend matches as he had difficulty standing, he ultimately agreed there are seats available to him.

356     Any claimed restrictions on the plaintiff’s driving capacity are not accident related as he is unable to drive in any event, because of his kidney condition.[73]

[73]T80

357     Taking into account all the evidence, I am not satisfied the consequences of any ongoing spinal accident-related impairment are “serious” and the application pursuant to clause (a) is therefore dismissed.

Psychiatric impairment

358     I accept the plaintiff has suffered a psychiatric injury as a result of the accident; however, I do not consider any such impairment to be severe and permanent as at the date of the hearing.

359     In my view, the plaintiff did have a psychiatric condition prior to the accident which required the prescription of Zoloft on five occasions, whether to deal with his sadness following his brother’s death or for other unknown reasons, from June 2006 to as late as June 2009.

360     The plaintiff deposed in his first affidavit he had some problems with anxiety and depression prior to the accident.  Dr Kochar thought these problems were aggravated in the accident.

361     As Dr Kornan described, in the accident, the plaintiff aggravated a pre-existing anxiety and depression into an Adjustment Disorder with Mixed Anxiety and Depressed Mood.  Dr Weissmann thought there was no doubt the plaintiff’s depressive and anxiety syndrome had been aggravated by the accident.

362     In this case, where there is a pre-existing psychiatric condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the accident is severe and long-term.

363     In Petkovski v Galletti,[74] the Full Court of the Victorian Supreme Court accepted the proposition that –

“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused.  … .”

[74]Supra

364     I am therefore required to determine whether the aggravation is “severe”.

365     Psychiatric opinion as to the severity of the plaintiff’s present condition and its relationship to the accident depends largely upon an acceptance of the plaintiff’s evidence as to his symptoms and their frequency.

366     It is very hard to determine the true extent of the plaintiff’s accident-related psychiatric symptoms.[75]

[75]T98

367     The plaintiff’s report of his level of symptoms has varied greatly to different examiners and on different occasions, with the highest, most significant level of symptoms being given in re-examination.  There was no history to any doctor of that frequency and severity of PTSD problems until the plaintiff gave evidence.[76]

[76]T113

368     In his first affidavit, the plaintiff did not specify with what frequency he was experiencing nightmares, flashbacks and panic attacks. In his second affidavit, he noted the flashbacks and nightmares from sighting the accident scene or similar event occurred less frequently than in the past.  There was no mention of panic attacks.

369     The plaintiff’s description of flashbacks, nightmares and panic attacks was to the higher end of the range when giving viva voce evidence.

370     Again, in the medico-legal context, the plaintiff’s evidence in this regard varied significantly, with Dr Kornan, in September 2014, being give a history of flashbacks in the car but not in the plaintiff’s dreams and at times panic attacks – leading to a diagnosis of a PTSD, as well as other psychiatric conditions.   

371     When the plaintiff was examined by Dr Weissmann in January 2012, he reported bad dreams about the accident but did not mention panic attacks.  Dr Weissmann did not consider the plaintiff had a full-blown PTSD

372     At the other end of the spectrum, when examined by Dr Entwisle in October 2014, the plaintiff described previous panic attacks had subsided and no nightmares of flashbacks were reported, leading Dr Entwisle to conclude the plaintiff did not currently describe psychiatric symptoms.

373     Given the plaintiff’s differing accounts of his psychiatric symptoms, I do not accept they are not of the magnitude he described in the witness box, and they cannot be described as “severe”.

374     Further, whilst the plaintiff has undergone continuing psychiatric treatment since the accident, improvement has been noted in his condition by Dr Kochar, members of the plaintiff’s family and by the plaintiff himself.

375     In early 2012, Dr Kochar noted improvement after a year of treatment in 2011. The plaintiff then described subjective gradual improvement in mood feelings and day-to-day behaviour.

376     Dr Kochar reported in late 2014 that after 2012, the plaintiff’s presentation had not changed much in terms of the nature of his complaints except they were less severe and troublesome and more manageable with ongoing treatment.[77]

[77]T115

377     Dr Kochar noted there was some improvement and reduction in intensity and frequency of the plaintiff’s anxiety save for car accident reminders.  His mood had become more predictable and stable and he managed to sleep better and feel less worked up.

378     It is difficult to reconcile these comments with Dr Kochar’s concluding remarks in his most recent report that the plaintiff needs logistic support and he has significantly compromised social and recreational life.  

379     The plaintiff told Dr Entwisle in October 2014 that treatment had helped and he felt calm and more settled.  His main problems then were pain and some nervousness.

380     The plaintiff’s wife and his daughter deposed to some improvement in the plaintiff’s psychiatric condition following treatment.

381     Since the accident, the plaintiff has been recommenced on Zoloft on a larger dosage.  He also continues to be prescribed Diazepam to help with sleep, as his wife confirmed. I am not satisfied that there has been the addition of Xanax to this regime on a continuing basis, as counsel for the plaintiff submitted.[78]

[78]28 September 2010 – Dr Kochar’s note of prescription of Xanax

382     In all the circumstances, I do not accept that the plaintiff’s psychiatric injury, if any, was very significantly different in scale and impact after the accident from what it was before.  I do not accept that the plaintiff now has a severe psychiatric injury which will require long-term treatment. 

383     Whilst there has been ongoing treatment and prescription of antidepressant medication, there have been no symptoms or consequences seen in psychological disorders at the more severe end of the spectrum, including suicidal ideation or attempts, and psychotic symptoms – the word “severe” being held to be a word of stronger force than the word “serious”.[79]

[79]Papamanos v Commonwealth Bank of Australia [2013] VCC 1491 at page 21

384     I do not accept the there is a severe psychiatric impairment causing ongoing and significant restrictions in the plaintiff’s lifestyle, as his counsel submitted.[80]

[80]T102

385     The plaintiff is still able to attend the Club, and his absences are largely due to his need to attend dialysis.  He still visits friends and they visit him.  He no longer drives because of his kidney condition, not as a result of any accident-related psychiatric problem.  

386     Taking into account all the evidence, I am not satisfied any accident-related aggravation of the plaintiff’s psychiatric condition is “severe”.

387     Accordingly, the plaintiff’s application pursuant to clause (c) is also dismissed.

- - -