Hamilton v Transport Accident Commission
[2013] VCC 1996
•20 December 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-00274
| DARYL HAMILTON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14, 15 and 16 October 2013 | |
DATE OF JUDGMENT: | 20 December 2013 | |
CASE MAY BE CITED AS: | Hamilton v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1996 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Transport accident – damages – serious injury – injury to the right upper limb or neck – Chronic Post-Traumatic Stress Disorder – severe Chronic Adjustment Disorder – credit – extension of time – prejudice – destroyed medical records
Legislation Cited: Transport Accident Act 1986, s93 – Limitation of Actions Act 1958, s23a
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Richards v Wylie (2000) 1 VR 79; Mobilio v Balliotis [1998] 3 VR 883; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Barlow v Hollis (2000) 30 MVR 441; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Dordev v Cowan & Ors [2006] VSCA 254; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Wilson v Ratrass (1995) 21 MVR 41; Swannell & Anor v Farmer [1999] 1 VR 299; Millard v State of Victoria [2006] VSCA 29; Bell v SPC Ltd [1988] VR 123; Tsiadis v Patterson [2001] 4 VR 114; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Richards v State of Victoria & Ors [2001] VSC 52; Delai v Western District Health Service & Anor [2009] VSC 151; Cowie v State Electricity Commission of Victoria [1964] VR 788; Koumorou v State of Victoria [1991] 2 VR 265; Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7; Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614; Myer Melbourne Ltd v Hammond [1984] VR 40; Ford Motor Company (Aust) Ltd v Kulic [1988] VR 152
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V A Morfuni SC with Mr E Makowski | Arnold Thomas & Becker Pty Ltd |
| For the Defendant | Mr P Rattray QC with Mr S Gladman | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 11 April 2001 (“the transport accident”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The plaintiff brings this application pursuant to paragraphs (a) and (c) of the definition of “serious injury” to be found in s93(17) of the Act. There –
“serious injury means—
(a) serious long-term impairment or loss of a body function.”
…
(c)severe long-term mental or severe long-term behavioural disturbance or disorder.”
4 The loss of body function relied upon in this application in respect of paragraph (a) of the definition of “serious injury” is the right shoulder and the cervical spine. The mental or behavioural disturbance or disorder under paragraph (c) is chronic Post-Traumatic Stress Disorder; a severe Chronic Adjustment Disorder, which was accepted to be one and the same condition; and a severe Chronic Pain Syndrome.
5 The plaintiff seeks leave to issue proceedings at common law.
6 The plaintiff relied upon two affidavits sworn by him on 10 September 2012 and 13 March 2013. The plaintiff was cross-examined. I have not summarised the plaintiff’s affidavits or his evidence. I will refer to the plaintiff’s relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
7 It was accepted that if the plaintiff was granted a serious injury certificate, the plaintiff would require leave pursuant to s23A of the Limitation of Actions Act 1958 (Vic) for an extension of time in which to bring a common law action for damages. Both counsel addressed me on the extension of time application.
8 I shall deal with the “serious injury” application first.
Relevant Legal Principles
9 The Court must not give leave unless it is satisfied, on the balance of probabilities:
(a)that the injury suffered by the plaintiff was as a result of the transport accident;
(b)that the injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.
10 The enquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term. The requirements of the test are set out in the decision of Humphries & Anor v Poljak[1] where the majority of the Court of Appeal said:
“We think that the task of a judge confronted with the requirement to determine an application made pursuant to sub-s.(4)(d) when reliance is placed upon sub-s(17)(a) may be stated in the following terms: he is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”[2]
[1][1992] 2 VR 129
[2] Humphries & Anor v Poljak (supra) at [140]
11 The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function;[3]
[3]Richards v Wylie (2000) 1 VR 79
12 In determining the application, the Court must make the assessment of “serious injury” at the time the application is heard.[4]
[4] supra
13 In respect to paragraph (c) of s93(17), the word “severe” was used as a stronger word than “serious” in paragraph (a) of s93(17).[5]
[5]Per Brooking AJ in Mobilio v Balliotis [1998] 3 VR 883; Winneke P agreeing
14 The judgment of the Court of Appeal in Mobilio v Balliotis[6] resolved the meaning of “severe”. Brooking JA held that the considerations in Turner v Love & Transport Accident Commission[7] were not sufficient to warrant departing from the conclusion at which one would, prima facie, arrive; namely, that the change in language from “serious” to “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.[8]
[6]supra
[7](1995) 21 MVR 314
[8]Mobilio v Balliotis (supra) at 846
15 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[9]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. … .”
[9][1998] 1 VR 702
16 The term “serious” requires the impairment and its consequences to be viewed objectively, and also judged on an external comparative basis against possible impairments not necessarily in the same category.[10]
[10](supra) at 170 and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. In particular, Chernov JA at paragraph [29]
Issues
17 The plaintiff’s credit was in issue. Counsel fro the defendant submitted that the plaintiff was an unreliable witness; he had a selective memory and exaggerated the situation.
18 The plaintiff agreed he had a poor memory. Based on his evidence, it would be impossible for the plaintiff to be the author of his affidavits.
Investigations
19 On 11 April 2001, an x-ray of the right shoulder showed:
“The humeral head is normal in position. No fracture is evident. The clavicle is intact. The right AC joint may be slightly widened. If an AC joint injury is suspected, further views with weight bearing may help in evaluation of this.”
20 On 24 April 2001, an x-ray of the right shoulder showed:
“The humeral head is normally positioned. The joint space is normal. No sub-articular bone lesion is shown. The AC joint is slightly widened. Weight-bearing view was also included with a comparative view of the left AC joint. The slight widening at the right AC joint increased slightly with weight-bearing and the outer clavicle is slightly elevated. The appearances are consistent with AC joint injury.”
21 On 26 June 2001, an x-ray of the cervical spine was normal. An x-ray of the thoracic spine was normal, and a minimal up thoracic scoliosis convex to the right.
22 On 16 January 2002, an ultrasound of the right shoulder demonstrated no abnormality.
The Plaintiff’s medical evidence
Williamstown Hospital
23 A report from the Williamstown Hospital confirmed that the plaintiff was admitted on 11 April 2001 complaining of a painful right shoulder and some related skin grazes, caused by a collision between a bicycle he was riding and a car. There was no evidence of any head injury. The plaintiff was diagnosed with a painful right shoulder – a possible dislocation of the right acromioclavicular joint. The plaintiff was treated conservatively. The plaintiff was last seen in the Emergency Department on 30 May 2002 complaining that he was unhappy with the care he received for the treatment of his shoulder injury.
Mr Robert M Pianta
24 On 23 January 2012, Mr Pianta, an orthopaedic surgeon, confirmed that the plaintiff was referred to him by the Williamstown Hospital and seen on 18 May 2001. At that time, the plaintiff told Mr Pianta he could not remember much of the details of the accident, and stated that the driver may have stayed 15 minutes but he was not sure. He told Mr Pianta he was a very active person and his activities included shark fishing and scuba diving. He reported he was on no medication. Mr Pianta diagnosed a dislocation of the acromioclavicular joint with marked tenderness. Mr Pianta recommended that the plaintiff have the acromioclavicular joint dislocation reduced and stabilised. The surgery was performed on 27 May 2001.
25 When reviewed on 2 July 2001, the plaintiff said he was experiencing severe pain, claiming that he wished he did not survive the accident. He was accompanied by his mother, who supported his claim that he was in severe pain. The screw was removed on 14 August 2001 and when reviewed on 23 August 2001, the plaintiff was reluctant to move his shoulder. He said he could not do much in the way of exercises because he had severe neck and shoulder pain. He reported that he had spinal problems for which he was seeing a Dr Daniels at Hoppers Crossing. Mr Pianta did not review the plaintiff after 23 August 2001.
26 Mr Pianta said the injury was consistent with a fall from a bicycle. He said the prognosis is generally favourable with such an injury and the condition would have stabilised by now but he was unaware of the plaintiff’s present situation.
Mr Clive Jones
27 In October 2001, Mr Jones, orthopaedic surgeon, examined the plaintiff at the request of the Transport Accident Commission. The plaintiff reported to Mr Jones that as a result of the transport accident, there was a complete loss of his $2,000 road bike.
28 Mr Jones said the plaintiff sustained a straining injury to his neck and dislocation of the acromioclavicular joint of the right shoulder. In 2001, he thought there was no question of the plaintiff returning to his labouring work at that time. He was aware that the plaintiff was illiterate and thought he would have difficulty performing suitable work. He said the plaintiff was unfit to return to his pre-injury employment due to his stiff shoulder and painful neck.
Mr Greg Malham
29 In December 2001, Mr Malham, neurosurgeon, reported that he had seen the plaintiff, who complained of chronic right shoulder and cervical pain arising from the transport accident. The plaintiff described the pain as severe, radiating from the cervical region down his thoracic spine. He said there was some radiation down the post-axial border of the right arm. The plaintiff reported taking multiple medications to help his pain and sleep, which included Panadeine Forte, Diazepam and Mogadon. The medications had offered little relief. He self prescribed morphine tablets, which he said significantly helped his discomfort and sleep.
30 Mr Malham reviewed x-rays and said there was no evidence of cervical disc prolapse or foraminal stenosis compressing the spinal cord or exiting nerve roots. The thoracic spine and lumbar spine x-rays showed no abnormality. It was his view that the plaintiff had a Chronic Pain Syndrome following his accident and referred him to the pain service at The Alfred hospital for further management. He said ultrasound and x-rays of the right shoulder performed on 16 January 2002 demonstrated no abnormality.
Dr Greg Anderson – the Clinic Werribee Pty Ltd
31 Dr Anderson, general practitioner, reported that the plaintiff was first seen at his practice on 9 January 2002 following the transport accident.
32 In a report dated February 2003, Dr Anderson reported the plaintiff was knocked from his bicycle on 11 April 2001. Dr Anderson said the plaintiff suffered soft-tissue injury to his neck, shoulders, upper back and right knee in addition to dislocation of his AC joint. He then said the plaintiff has “remained in severe pain affecting many, if not most parts of his body, but maximally in the areas outlined. He reported the plaintiff was attending a chronic pain clinic at The Alfred hospital, but made little progress. His pain was considered to be neuropathic and part of a Complex Regional Pain Syndrome without characteristic features of RSD. Dr Anderson said the plaintiff’s social life and leisure activities have been dramatically changed. He said the plaintiff was unable to work and he should not drive a motor vehicle.
33 In a report of January 2012, Dr Anderson said the plaintiff reported that he was driven to the hospital by the driver of the other vehicle. The plaintiff admitted being angry and abusive following the accident. Dr Anderson said the plaintiff’s moody disposition has been a feature in his almost immediate development of Post-Traumatic Syndrome. He said the plaintiff suffered regional/generalised pain affecting mostly his injured shoulder, lower back and neck. He said the plaintiff failed to respond to management of his pain condition and became dependent on prescribed opiates. He failed to follow up referrals for psychiatric assessment and management or continue psychological consultations.
34 The plaintiff was an inpatient at Western Hospital for rapid detoxification in mid 2003, which produced no lasting benefit. Since then, his medication has comprised ongoing opiate. As at January 2012, 280 milligrams per day of OxyContin, since 2005, Xanax and Avanza, 45 milligrams, an anti-depressant.
35 Dr Anderson said the plaintiff’s quality of life over the last two years has deteriorated. He said the plaintiff’s longstanding impotence following the accident was, incorrectly in his opinion, attributed by The Alfred hospital to his opiate use. The plaintiff is adamant that his limitation in this area is caused by the pain (excessive) associated with erections. He said the plaintiff’s low-back pain was his major complaint.
36 In July 2006, when the plaintiff was in Queensland, he was diagnosed with multiple cerebral tumours on CT scan. Subsequent CT and MRI scans have failed to confirm this diagnosis.
37 It was Dr Anderson’s view that the plaintiff suffered a Post-Traumatic Regional Pain Syndrome with elements of Depression and Pain Disorder, resulting in opiate/benzodiazepine dependence. He said the plaintiff was currently unfit for employment, that since the accident, he has had worked as an owner/driver of interstate trucks.
38 He said that the plaintiff’s opiate use is partially from addiction and his claims of pain not responding to lesser analgesia make his use largely therapeutic. He did not think the plaintiff was suitable for a Methadone Program.
The Alfred hospital – Chronic Pain Clinic
39 In October 2002, Dr Konstantatos confirmed that he had been treating the plaintiff as an outpatient at the Chronic Pain Clinic for approximately six months. Dr Konstantatos confirmed that the plaintiff underwent a stellate ganglion block on the site of the injury in order to give a very rapid diagnosis and potentially to facilitate treatment of his condition. The plaintiff had no response to the block. He discussed with the plaintiff therapy directed at controlling neuropathic pain, and commenced the plaintiff on medication which was of no effect. The plaintiff’s management was complicated by the plaintiff’s failure to maintain appointments. Dr Konstantatos said the plaintiff’s pain was as yet incompletely diagnosed and it was difficult to treat him.
Mr Peter Kudelka
40 In February 2003, Mr Kudelka, orthopaedic surgeon, examined the plaintiff at the request of his solicitor. It was his view the plaintiff sustained a soft-tissue injury to the neck, shoulders, back and right knee which has resulted in a super-added anxiety state. His present symptoms were due to cervical disc injury. He recommended an MRI scan of the cervical spine. He did not think there was significant abnormality in either shoulder and the symptoms in the right knee were probably the result of a patellar-femoral contusion and could be treated conservatively. He thought the plaintiff’s condition was stabilised. He said the plaintiff’s anxiety state contributes to the lack of movement in his shoulders.
41 In 2011, Mr Kudelka said the only impairment from the orthopaedic point of view which he could relate to the transport accident was the restricted movement of the right shoulder. He said the plaintiff’s capacity for employment from the orthopaedic point of view is modified duties with limited ability to lift and work with the right arm at or above the horizontal. Mr Kudelka said his main impairment is psychological and his behaviour appears to be at a level where there is no possibility of remunerative employment.
42 Mr Kudelka said the plaintiff’s future prognosis depended entirely on the results of psychiatric treatment and it would be important to reduce his addictive opiates, the use of which he could not relate to any orthopaedic injury. He said there was unlikely to be any deterioration.
Dr Michael Epstein
43 In May 2003, Dr Epstein, psychiatrist, examined the plaintiff at the request of the plaintiff’s solicitor. Dr Epstein reported that the plaintiff felt he had been permanently damaged as a result of the transport accident. He had no nightmares or flashbacks. He is frightened of riding a bicycle and is uneasy driving his car near bicycles. He is jumpy and on edge when driving. The plaintiff told Dr Epstein he had smoked marijuana at night to help him sleep. It was Dr Epstein’s view that the plaintiff had developed an Adjustment Disorder with Depressed Mood arising out of chronic pain, discomfort and disability.
Professor Jenny L Ponsford
44 In May 2005, Professor Ponsford performed a neuropsychological assessment of the plaintiff. It was her view the plaintiff had a borderline to low-average intelligence. He sustained a possible minor head injury when he was knocked off his bicycle.
45 The plaintiff performed at a level consistent with his estimated pre-injury ability levels on test of verbal and visual perception skills and working memory. His weak verbal learning skills were thought to be consistent with his learning difficulties. This could reflect the effects of a mild head injury; however, it was her opinion that it was more likely a consequence of the level of medication he is taking.
46 It was her opinion that the evolution of the plaintiff’s cognitive difficulties suggest they are a consequence of his medication/stress levels rather than of the transport accident. She thought the prospect of further improvement was unlikely.
47 She said the plaintiff was not employable due to his chronic pain problems secondary to his physical injuries.
Dr Jeremy Grummet
48 In February 2012, Dr Grummet, urologist, confirmed that he saw the plaintiff on referral from his general practitioner in January 2009 for an assessment of a firm area within the penis. He said it was likely to represent an area of fibrosis and was unrelated to any prior accident.
Dr Ming-Yun Hsieh
49 In January 2012, Dr Hsieh, clinical neuropsychologist and psychologist, provided a neuropsychological report in relation to the plaintiff. Dr Hsieh said the plaintiff had poor literacy and a likely background of borderline to low average intellectual skills. Dr Hsieh said the current assessment revealed significant attention problems which affected the plaintiff’s performance on virtually all tasks. Further, the plaintiff’s results on imbedded measures of effort provided an inconclusive result, and given his litigation status, the assessment results certainly need to be interpreted with caution.
50 Further, the available medical documentation did not provide measures of the extent and severity of head injury, if any. Taken together, there was no strong evidence for a diagnosis of traumatic brain injury.
Dr Manoj Kumar
51 In February and May 2012, Dr Kumar, psychiatrist, treated the plaintiff. Dr Kumar said there were a number of different complex factors involved in the plaintiff’s condition which need ongoing support and treatment. He thought the plaintiff’s psychiatric symptoms were linked to his Chronic Pain Disorder and functional limitation after the accident. He said the plaintiff’s life changed after the accident and he experiences a longstanding Pain Disorder. He said this situation could have an impact on his mental state and make him experience depressive and anxiety symptoms.
Dr David Weissman
52 In March 2012, Dr Weissman, psychiatrist, medically examined the plaintiff at the request of the plaintiff’s solicitor. The plaintiff reported to Dr Weissman that he had suffered a head injury in the transport accident and therefore “doesn’t remember a lot of stuff”. He told Dr Weissman that he was not wearing a bicycle helmet, that, as a result of the transport accident, he went flying through the air and “slammed” his head on the road. He reported injury to his head and right shoulder in the accident. He told Dr Weissman that he was fearful of travelling in a car (that he might be involved in a transport accident) and he does not drive a car anymore. He said “I’m always having bad dreams of the accident; it’s absolutely horrible mate”. He reported to Dr Weissman that he had been past the accident site twice, “it didn’t feel good and I won’t go past again”. He told Dr Weissman he felt depressed and cried when he went past the accident site and that he thinks about the accident itself “all the time and how it’s ruined my life”.
53 Dr Weissman said the plaintiff’s subjective reported concern and worry about his cognitive functioning was disproportionate to the actual degree of objective/observed cognitive dysfunction. Dr Weissman said the quality of assessment was dependent upon the quality of the history that he obtained from the plaintiff. There was some doubt about the reliability, validity and consistency of the plaintiff’s history in some parts. He thought it possible that the plaintiff had exaggerated and embellished some of his symptoms, in addition to there being significant evidence of abnormal illness behaviour and abnormal pain behaviour during the interview. He said the plaintiff came across as an “impressionistic historian” who tended to have an external focus of control and a tendency to project blame. Dr Weissman said there was no doubt the transport accident itself was traumatic for the plaintiff and that he sustained serious physical injuries, especially to the right shoulder for which he had undergone surgical procedures. Dr Weissman concluded that the plaintiff was suffering from:
· A severe Chronic Adjustment Disorder with mixed disturbance of emotions and conduct;
· Symptoms and features of a Chronic Post-Traumatic Stress Disorder, associated with traumatisation features;
· A severe Chronic Pain Disorder, associated with psychological factors and a general medical condition;
· Opioid and benzodiazepine dependence;
· Pre-existing illiteracy (possible aggravation of pre-existing/premorbid maladaptive personality traits). He thought the plaintiff’s condition had stabilised.
54 Dr Weissman concluded by saying that the plaintiff’s psychiatric prognosis would have been fair before the transport accident. Had the accident not occurred, there was nothing to suggest that the plaintiff would not have continued to work full time in his job, would not have continued to remain in his relationship with his girlfriend and would not have continued to socialise with a large group of friends. He said the plaintiff’s psychiatric prognosis was now very uncertain and guarded and most probably poor, unfavourable, negative and bleak. He said the plaintiff presented with severe psychiatric, psychological, emotional, behavioural, personality and pain symptoms, features, disturbances and disorders with a severe loss of quality of life, severe functional impairment, severe loss of enjoyment and severe loss of pleasure. He said there was no doubt the plaintiff was totally incapacitated for all work on the labour market for the foreseeable future. The plaintiff presented as being severely distressed and disabled.
Dr David Kennedy
55 In April 2012, Dr Kennedy, neurologist, reported to the plaintiff’s solicitor. He diagnosed a Chronic Pain Syndrome, drug dependency and related sexual dysfunction, non-organic. He said the plaintiff suffered soft tissue injuries to his neck, shoulders, upper back, right knee and dislocated his right acromioclavicular joint which was treated surgically with internal fixation. It was his opinion that the plaintiff had to give up his job as a truck driver following the accident, largely due to drug dependency. He thought the plaintiff’s injuries of post-traumatic Chronic Pain Syndrome were related to the accident.
Mr Geoffrey Klug
56 In May 2012, Mr Klug, neurosurgeon, examined the plaintiff at the request of the plaintiff’s solicitor. The plaintiff told Mr Klug he was an extremely fit person and very active prior to the transport accident. He was employed as an interstate driver, an activity which he performed without difficulties. Following the accident, he was unable to return to his employment.
57 He worked in 2004 or 2005 for two to three weeks in his former employment. The plaintiff told Mr Klug he may have undertaken temporary work some time in 2007. He was very vague regarding details.
58 The plaintiff reported to Mr Klug that he underwent a CT scan of the head which revealed multiple tumours. He was advised that surgery would be required and that there was a risk he would finish up as “a vegetable”.
59 Mr Klug said it was difficult to obtain an accurate indication of his current complaints. The plaintiff reported constant pain in his low back which sometimes spreads to higher regions of his spine, and that physical activity tends to aggravate the pain in that region. He reported pain and stiffness in the right shoulder and some pain in his left shoulder. He was troubled by his right knee; if he walks any appreciable distance he suffers pain. The plaintiff reported some impairment of his memory although this has tended to become more marked with the passage of time. The plaintiff reported that he was not having any physical treatment. He was unable to describe the medication he was taking and that the medication did not assist his condition.
60 Mr Klug was unable to detect any obvious signs related to his head trauma. He examined him neurologically without any abnormality being detected. He said the plaintiff sat reasonably comfortably during the lengthy interview.
61 It was Mr Klug’s opinion that in regard to the brain scan, any lesions were benign and were in no way contributing to any physical aspects of his current condition.
62 The plaintiff described a short period of loss of consciousness. Mr Klug said it was improbable that an injury of that type would be responsible for any impairment of neurological function, nor would it be responsible for any significant alteration as regards his mental function.
63 Mr Klug thought the plaintiff had sustained a soft-tissue injury to various regions including areas of his spine and possibly his right lower limb, together with his shoulders. He thought an orthopaedic surgeon’s opinion should be sought.
64 Mr Klug thought the plaintiff had developed a very profound psychological disorder which was not within his field of expertise. He noted that over the years there had been a high ingestion of potent drugs which in their own right may contribute to some extent. He said that any employment prospects would be limited and he thought the prognosis was extremely poor. He said from a physical point of view, the plaintiff’s condition had stabilised.
Dr Zamil Karim
65 In September 2012, Dr Karim, consultant in anaesthesia and pain medicine at the Melbourne Pain Group, reviewed the plaintiff at the request of Dr Rose. Dr Karim said the plaintiff had issues with opioids previously and was on a significantly larger dose, which had been reduced. He said the plaintiff was focused on OxyContin and was adamant it did not last 12 hours and that he needed a supplementary dose in the middle of the day. Dr Karim confirmed that he had told the plaintiff that he endorsed a maximum of 100 milligrams of OxyContin per 24-hour period. Should the dose be increased beyond that level, then his endorsement will cease and he will request the Health Department to revoke payment.
66 In a letter to the plaintiff’s solicitor in 2013, Dr Karim said that he did not make plans for the plaintiff to be reviewed as he was under the Drug and Alcohol Facility at the Raymond Hader Rehabilitation Centre. He confirmed that the plaintiff had significant issues with opiate medication and needed intensive rehabilitation therapy to manage his current predicament. He said that low-dose methadone does play a role in the management of chronic pain and drug addiction. He thought, given the increased levels of OxyContin that the plaintiff had been using, the latter is more problematic than his ongoing chronic pain.
Dr Alain Rose
67 In September 2012, Dr Rose, general practitioner, confirmed that the plaintiff had suffered injuries in a motor vehicle accident in 2001. He had chronic ongoing pain for which he had been on strong opiates. Dr Rose’s diagnosis was post-traumatic Regional Pain Syndrome as a direct cause from the transport accident. The plaintiff had first presented in June 2012 for opiate detoxification at the Raymond Hader Rehabilitation Centre. The plaintiff discharged himself in July 2012 and had achieved a reduction from 240 milligrams of OxyContin to 80 milligrams. He said the plaintiff had a dependent personality and is reliant on his mother for ongoing psychological support. The plaintiff is not capable of employment due to multiple factors of Chronic Pain Syndrome, Depression and Anxiety. He thought the plaintiff’s condition was effectively stabilised.
Dr Peter Blombery
68 In October 2012, Dr Blombery, consultant physician (vascular disease), examined the plaintiff at the request of the plaintiff’s solicitor. It was his view the plaintiff may have had a minor head injury at the time of the transport accident. He said the plaintiff had ongoing problems since that time with headache and pain. He said the plaintiff’s pain is consistent with the severity of the fall that he had onto the road. The plaintiff reported that he had been diagnosed with Complex Regional Pain Syndrome Type 1. Dr Blombery said that there was not really evidence to support that diagnosis. He thought the plaintiff had a Chronic Pain Syndrome affecting the spine and both shoulders, particularly the right shoulder. He accepted that the transport accident was the cause of the plaintiff’s current pain which is caused by sensitised pain nerve pathways, both in the periphery as well as in the brain and spinal cord, such that non painful stimuli became interpreted by the cerebral cortex as being painful. He said because the plaintiff had taken large doses of OxyContin, as well as other potent medications, it was his view the plaintiff had no capacity for employment as the medications would interfere with his concentration. In addition, his generalised pain would limit him in being able to do manual work. He thought his prognosis for recovery was extremely poor and it was his opinion that the plaintiff’s condition had stabilised.
Dr Lester Walton
69 In September 2012, Dr Walton, psychiatrist, examined the plaintiff at the request of the plaintiff’s solicitor. The plaintiff reported to him that he had cancer affecting the left side of the head of his penis. The plaintiff reported tumours and blood clots in respect to his brain. The plaintiff reported he had difficulty with narcotic dependency and his former general practitioner had been struck off the Medical Register. The plaintiff complained of unbearable pain arising in his neck and then radiating to the shoulder, and that the low-back pain was the worst. Dr Walton said that the plaintiff had not resorted to illicit drugs and did not take alcohol.
70 Dr Walton diagnosed Chronic Adjustment Disorder, drug dependency and Pain Disorder. He said there were some post-traumatic features such as leg capitulation, nightmares and intrusive memories of the accident which were not of an order that warranted an independent diagnosis of Post-Traumatic Stress Disorder. He said there were problems prior to the transport accident in the form of dyslexia and dyscalculia. Dr Walton said it was reasonable to presume there are relevant personality factors which have contributed to the plaintiff’s development of drug dependency. He thought the plaintiff’s physical and psychiatric injuries result in him being totally and permanently incapacitated for all work. He thought he was probably totally and permanently incapacitated on psychiatric grounds alone. He thought that his prognosis was unfavourable.
Beaudesert Family Practice
71 In June 2006, Dr Xiao of the Beaudesert Family Practice reported to the Transport Accident Commission. Dr Xiao diagnosed a right acromioclavicular joint dislocation and neck injuries that developed the Chronic Pain Syndrome with aggravating factors of Anxiety and Depression, insomnia, isolation, impotence, unemployment and opioid dependence. He said the plaintiff had behavioural symptoms and psycho-social issues which might interfere with his functional status. He could not find any significant functional problems physically except for some tenderness around his neck and shoulder.
The Defendant’s medical evidence
Dr Chris Baker
72 In May 2002, Dr Baker, specialist in occupational medicine, examined the plaintiff at the request of the Transport Accident Commission. Dr Baker reported the plaintiff was able to walk with a stable gait and without any evidence of a limp. On examination of the cervical spine, there was a marked restriction of movement in all directions. On examination of the left arm, there was a restriction of movement as the plaintiff was only able to elevate his arm to 120 degrees from the vertical and abduct his arm 120 degrees from the vertical. On examination of the right arm, there was a shoulder joint with some slight wasting of the muscles. There was a marked restriction of movement of the upper arm and he was only able to elevate his arm to 60 degrees and abduct his arm to 60 degrees.
73 On examination of the thoracolumbar spine, the plaintiff was only able to flex his spine to 60 degrees. The plaintiff was able to climb onto the examination couch unaided and lay supine. On examination of the right knee, there was a full range of movement.
74 Dr Baker considered the plaintiff suffered the following as a result of the transport accident:
· Soft-tissue injuries of a musculoligamentous nature to the cervical spine;
· Damage to the acromioclavicular joint of the right shoulder requiring surgery;
· Soft-tissue injuries of a musculoligamentous nature of the right shoulder;
· A psychosocial reaction to the injuries.
75 Dr Baker said the injuries were consistent with the transport accident; however, the plaintiff presented with chronic pain affecting his spine and right arm and did not use his right arm. He said the examination of the right arm did not indicate any evidence of Complex Regional Pain Syndrome Type 1. There was an overreaction to light touch along the spine, and he considered the plaintiff had developed a chronic pain problem which was psychogenic in nature. He recommended the plaintiff be examined by a psychiatrist. It was his view there was a significant non-physical component to the plaintiff’s presentation. He could not explain why the plaintiff presented as so significantly impaired with a marked restriction of movement of the right arm at the shoulder and chronic pain in the back. He said there was a significant non-physical component.
Dr David Weissman
76 In December 2002, Dr Weissman, psychiatrist, examined the plaintiff at the request of the Transport Accident Commission. He reported that at the time of the accident, the plaintiff was not wearing a bicycle helmet and there was no damage to the head. The plaintiff told Dr Weissman he got “really hooked” on morphine, taking 240 milligrams per day at one stage. He reported that he had been told “not to work by a neurosurgeon and by the Pain Management Centre”. He told Dr Weissman “My mood is alright. If I take too much morphine I go off my head at my girlfriend.” The plaintiff reported that he did not experience any anxiety when driving a car or travelling as a passenger in a car, he did not have bad dreams and there have been no flashbacks since the accident.
77 Dr Weissman said the plaintiff’s prognosis was only fair. He thought he probably had developed a pain disorder and some illness behaviour. He said from a purely psychiatric perspective alone, there was no actual incapacity for suitable duties. He said the decreased motivation to work was not part of his depressive syndrome. He recommended the plaintiff continue seeing a psychologist and that he may benefit from anger management. He thought the plaintiff required education about his use of OxyContin.
Mr Phillip Griffin
78 In December 2002, Mr Griffin, orthopaedic surgeon, examined the plaintiff at the request of the Transport Accident Commission. Mr Griffin said the plaintiff’s movements were inconsistent throughout the period of interview and examination. The plaintiff reported that he was able to drive a large four-wheel drive vehicle and it was noted he was able to move much more freely in accessing the consulting rooms and moving around the consulting rooms than when formally examined.
79 Mr Griffin said the plaintiff had dislocation of the right acromioclavicular joint, soft-tissue injury to the right shoulder and the spinal injury. He believed the plaintiff had developed a Chronic Pain Syndrome following his accident and this is the major basis for his delay in recovering. He believed that there was considerable exaggeration and voluntary restriction of movement on examination, and he recommended surveillance.
Mr Robert Marshall
80 In May 2003, Mr Marshall, surgeon, medically examined the plaintiff at the request of the Transport Accident Commission.
81 On examination, the plaintiff stood in a voluntary scoliosis position with his right shoulder down several inches lower than the left. He was very reluctant to use his right arm, although his muscles were normal. Mr Marshall said the plaintiff’s asymmetry of his shoulder was the result of an abnormal stance with his thoracic spine bent over to the right, his right shoulder down and his left shoulder up. He said the neck was correspondingly flexed to the left to keep his head upright. The plaintiff could only abduct and flex the right arm to 80 degrees, which meant he could not lift his arm even as far as the horizontal, yet the contours of his acromioclavicular joint are completely normal.
82 Mr Marshall said the plaintiff’s range of shoulder movement is completely normal and his only reason for not being able to abduct his arm further than the horizontal is unwillingness on his part to use scapular rotation. He believed the plaintiff’s problems were almost entirely psychosomatic.
Mr Rodney Simm
83 In June 2013, Mr Simm, orthopaedic surgeon, examined the plaintiff at the request of the Transport Accident Commission.
84 Mr Simm said the initial injuries were consistent with the accident. The subsequent clinical course was not the anticipated clinical course. The clinical course has been that of a chronic adverse pain response in association with dependency upon Oxycodone and an emotional disturbance. Mr Simm said, in relation to the current symptoms and diagnosis, the plaintiff has shoulder dysfunction related to a type 1/2 acromioclavicular joint strain treated surgically. The limitation of movement and the protracted pain and disability is not the anticipated outcome from his injury. The clinical course seems to have been modified by a chronic adverse pain response. He said the second bicycle accident represented nothing more than jarring of his right shoulder which was already injured. It did not result in physical injury. His current symptoms have been triggered by the transport accident. The prognosis for his current symptoms is to persist indefinitely. He has an entrenched pattern of pain and disability.
85 Mr Simm said that the plaintiff’s work capacity and activities of daily living are affected by his current symptoms. He is unable to use his right arm for strenuous activity, particularly away from his body or in the overhead position. This limits his ability to undertake household cleaning and similar tasks around the home and prevents him from returning to manual labour. The other injuries do not seem to be associated with significant clinical findings and are not incapacitating him for work. He found it difficult to relate his low-back pain to the transport accident. He said the apparent restriction of the right shoulder movement is difficult to explain on the basis of the surgically treated right acromioclavicular joint injury. There are regional sensory changes in the right upper and right lower limbs. These are non-organic findings. Mr Simm believed there is still a non-organic component. He accepted the plaintiff may not be able to use his right arm for strenuous activities.
Dr Timothy Entwisle
86 In September 2013, Dr Entwisle, psychiatrist, medically examined the plaintiff at the request of the Transport Accident Commission. Dr Entwisle noted that the plaintiff provided an unremitting account as to the problems that he has experienced subsequent to the transport accident. He said the plaintiff’s account was accompanied by strong illness belief and injury focus. His thinking was negative. Aspects of his account were not particularly convincing and contained a number of rationalisations. The plaintiff struggled to accept that he suffers from an addiction. Dr Entwisle said the plaintiff referred to memory problems. He provided a detailed and cogent description of his injury circumstances and treatment. Dr Entwisle said the plaintiff presented with an opiate dependency.
87 Dr Entwisle was aware the plaintiff struggled at school due to learning difficulty, and worked in a physical capacity. He noted the plaintiff had attended a number of pain clinics but his attendance has been spasmodic and the general pattern of his response has been towards an assumption of invalidism and reliance upon various family members who have grown tired of his continual demands. He said the plaintiff has developed an opiate dependency of significant proportions. He has shown little response to psychological interventions and has little insight into the factors driving his opiate dependency. He is more focused on his opiate dependency; he has alienated most of his family and friendship supports.
88 Dr Entwisle said the plaintiff’s Pain Syndrome essentially relates to psychological and social factors in his personal realm. He said various diagnostic possibilities have been raised and the one and only sustained diagnosis noted by all examiners is his opiate dependency.
89 Dr Entwisle said the plaintiff presented with Chronic Pain Syndrome and opiate addiction. It was his view that the plaintiff’s symptoms were not attributable either to the first or second biking accidents. He accepted the plaintiff’s Pain Syndrome and addiction interfered with his work capacity.
Credit of the Plaintiff
90 The plaintiff had a basic level of education, having left school in Year 8 or 9. He was effectively illiterate. He could sign documents and copy material, but could not read or write. He was described by Dr Hsieh, clinical neuropsychologist, as a man with poor literacy and a likely background of borderline to low average intellectual skills. Professor Ponsford agreed. A number of the medical witnesses said that the plaintiff was dyslexic. On a number of occasions when giving evidence, he did not understand the questions put to him. The result was that his evidence was often confusing.
91 The plaintiff’s memory was poor. He referred to his poor memory in the affidavits he swore; he often had difficulty with dates, names and timelines. He reported his poor memory to a number of medical witnesses.[11] Dr Hsieh said he had a reduced working memory capacity.
[11]Dr Kumar, Dr Weissman, Professor Walton and Mr Pianta
92 A number of the medical witnesses commented on difficulty obtaining a precise chronology from the plaintiff.[12] Mr Klug[13] said it was difficult to obtain a coherent history and an indication of his current complaints. He tended to jump from one aspect to another. The plaintiff was unable to describe the medication he was taking at the present time. Dr Kennedy described the plaintiff’s memory as poor.[14]
[12]Dr Blombery
[13]PCB 97
[14]PCB 112
93 The plaintiff was the only witness to give evidence. I formed the view that he was a poor historian. He told doctors about injuries that he attributed to the transport accident, which were not part of his claim. On occasions, his oral evidence was inconsistent with what he said in his affidavits. He exaggerated. A number of the medical witnesses referred to his tendency to exaggerate. I formed the view that his tendency to exaggerate was in part due to his low intellectual capacity and his poor psychological state. This was supported by the medical material.
94 The credibility of the plaintiff as a witness and as an historian of his symptoms to medical witnesses is of central importance. The Court of Appeal has referred to the fact that medical opinions may, to varying degrees, be dependent upon the accuracy of the patient or claimant as an historian.[15]
[15]For example, Mobilio v Balliotis [1998] 3 VR 833; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at [46]; Dordev v Cowan & Ors [2006] VSCA 254 at [14] and [19]
95 A medical opinion which is based upon an account by a patient or claimant as to his or her symptoms “may have little or no probative weight where the court determines that such a witness is not reliable”.[16]
[16]See Dordev v Cowan & Ors (supra) at [19]
96 The fact that a court determines that a plaintiff is not a reliable witness either in general or in respect of particular matters does not mean that all of the medical opinions relied upon by the plaintiff should be disregarded. In Cakir v Arnott’s Biscuits Pty Ltd,[17] the Court of Appeal said an adverse finding concerning the appellant’s credibility was not, by itself, sufficient to justify the refusal of the serious injury application. Regard should be had to analysing and giving appropriate weight to all of the evidence, including objective evidence.[18]
[17][2007] VSCA 104 at [49]-[58]
[18]Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108
97 The plaintiff agreed he had a problem with his memory, which he referred to in his affidavit[19] and in cross-examination. He told some of the medical practitioners he saw that he had difficulty with his memory. The plaintiff was unable to recall:
[19]10 September 2012, paragraphs 8 and 21
(a) instructing solicitors in 2001;
(b) discussions he had with Arnold Thomas & Becker in 2003 when he engaged them; in 2004 after VCAT proceedings; or between 2007 and 2008 when he returned from Queensland;
(c) medical investigations, including being examined by Mr Malham in 2001, a CT scan of his brain in October 2007, or a penile ultrasound in November 2008;
(d) telling Dr Epstein in 2003 that he had 52 convictions.
98 Given the plaintiff’s illiteracy and the length of time since these events, it is not surprising the plaintiff cannot remember.
99 The plaintiff gave different accounts of the transport accident. He told the Court he may have been thrown 10 metres after the accident. In cross-examination, he agreed he did not really remember.[20] The plaintiff gave evidence that –
“I slammed my head into the road, and I can’t remember pretty much anything that happened since then.”[21]
[20]T29
[21]T29
100 The plaintiff reported hitting his head on the road to a number of the medical witnesses. This is despite the hospital report that he suffered no head injury. The plaintiff reported brief loss of consciousness to some of the medical witnesses.[22] The plaintiff told Dr Weissman that he sustained a head injury and “doesn’t remember a lot of stuff”[23], yet he was able to provide a detailed account of the circumstances of the accident.[24] He told Dr Weissman he went “flying through the air” and slammed “his head on the road”.[25] Dr Blombery was given a history of the plaintiff’s right side of his head hitting the road.
[22]Dr Ming-Yun-Hsieh and to Dr Klug
[23]PCB 67
[24]PCB 69
[25]PCB 70
101 I accept that the plaintiff was prepared to exaggerate the circumstances of the accident.
102 The doctors who reported about the history taking were Mr Klug, Dr Weissman and Dr Blombery.
103 Mr Klug said it was difficult to obtain a coherent history and difficult to obtain an accurate indication of the plaintiff’s current complaints.
104 Dr Weissman said the quality of his assessment was dependent upon the quality of the history he obtained from the claimant. There may be some doubts about the reliability, validity and consistency of the claimant’s history in some parts. He thought it possible the plaintiff had exaggerated and embellished some of his symptoms. He said the plaintiff came across as an “impressionistic historian” who tended to have an external locus of control and a tendency to project blame.
105 Dr Blombery reported that –
“Overall, his history was a little jumbled and it was difficult to determine the precise chronological order as he often could not recollect when events occurred.”
106 There were a number of inconsistencies in the plaintiff’s evidence, for example:
(a) he gave evidence that to his knowledge he had not smoked marijuana since the transport accident; however, a number of the medical witnesses reported the plaintiff’s use of marijuana.
(b) he gave evidence that prior to the accident he had worked as a casual employee for three to four years and denied being on unemployment benefits. This evidence was inconsistent with his taxation returns for the period 1998 to 2001.
107 In addition, a number of the doctors referred to inconsistencies in the plaintiff’s presentation. Mr Klug said the plaintiff appeared to sit in reasonable comfort during the lengthy interview.[26] In December 2002, Mr Griffin said the plaintiff’s movements were inconsistent throughout the period of interview and examination. He believed there was considerable exaggeration and voluntary restriction of movement on examination.
[26]PCB 98
108 Overall I accept the plaintiff had a poor memory and was a poor historian. Given the inconsistencies between what the plaintiff could and could not remember, I accept that on occasions his memory was selective. Further, from his presentation in court and the evidence of the medical witnesses, I accept that the plaintiff was prone to exaggeration.
109 I accept that the plaintiff’s low intellectual capacity and his poor psychological state contributed to his unreliability. I also accept that the aspects of the plaintiff’s evidence that were unreliable were not central to the issues I have to determine in this case.
110 For the above reasons I take care in relying on the evidence of the plaintiff and place greater weight on the independent evidence. The medical witnesses provided reports which addressed the issues with the plaintiff’s presentation and delineated the consequences of his injuries from his exaggerated presentation. Therefore, I am able to rely on the reports of the medical witnesses when assessing the plaintiff’s condition.
Analysis of evidence
Psychiatric injury
111 Based on the majority of psychiatric reports,[27] I am satisfied that the plaintiff suffered a psychiatric response to the transport accident. Dr Entwisle was the minority view. He agreed that the plaintiff had a psychiatric condition which he described as a chronic pain syndrome and opiate dependency but said it related to the psychological and social factors in his personal realm, it was not attributable to the transport accident, but did not explain why.
[27]Dr Epstein, Dr Walton, Dr Weissman and Dr Kumar
112 There was no evidence of the plaintiff suffering or receiving treatment for a psychiatric condition prior to the transport accident.
113 The major view variously described the plaintiff’s psychiatric condition as an adjustment disorder with depressed mood arising out of chronic pain, discomfort and disability.[28]
[28]Dr Epstein
114 Dr Weissman diagnosed:
·a severe chronic adjustment disorder with mixed disturbance of emotions and conduct;
·symptoms and features of a chronic post-traumatic stress disorder, associated with traumatisation features;
·a severe chronic pain disorder associated with psychological factors and a general medical condition.
115 Dr Kumar diagnosed adjustment disorder with depressed and anxiety symptoms; differential diagnosis of major depressive disorder; opioid dependency; benzodiazepine dependence.
116 Dr Walton diagnosed chronic adjustment disorder, drug dependency and pain disorder.
117 The evidence was that the plaintiff’s psychiatric condition has been in existence since as early as 2003 when it was diagnosed by Dr Epstein.
118 The current evidence expressed by Dr Kumar, Dr Weissman and Dr Walton indicates that the psychiatric injury is severe. The plaintiff has been through several pain management treatments, detoxification programs and was suicidal last year. Dr Kumar said the plaintiff has ongoing symptoms of chronic pain, anxiety and depression. He is dependent on high doses of pain and anxiety medication. Dr Kumar said it appears that the plaintiff’s current presentation has persisted for an extended period of time and he has adjusted his life around this. Dr Kumar recommended regular treatment from a psychologist to help with the depressive and anxiety symptoms and to develop positive coping strategies. He said the plaintiff’s condition would deteriorate if further occur in his life situation.
119 Dr Weissman described a number of the features of the plaintiff’s condition as “severe”. Dr Weissman said the plaintiff’s psychiatric prognosis is very uncertain and guarded, most probably poor, unfavourable, negative and bleak.
120 Dr Walton said the plaintiff’s prognosis is unfavourable, the plaintiff is suffering from chronic pain and associated psychiatric symptoms which will persist for the indefinite future. Further, the plaintiff is at risk of deterioration as he remains vulnerable to the adverse effects of any further external stresses. He concluded by saying the plaintiff presented with a very severe group of psychiatric conditions or mental injuries that appear to be predominantly accident-related.
121 All the current medical evidence is that the plaintiff is incapacitated for work. Dr Weissman and Dr Walton said he was “totally and permanently incapacitated for all work on psychiatric grounds.” The evidence was that prior to the transport accident the plaintiff was employed, but had periods when he was in receipt of government benefits. He attempted to return to employment for short periods after the transport accident but was unable to maintain employment.
122 It is necessary for me to consider other consequences of the plaintiff’s psychiatric condition. All psychiatrists referred to his drug dependency. I accept that this is a significant consequence which I can take into account.
123 The plaintiff’s evidence was that he currently takes OxyContin for the physical pain as well as Valium and Avanza. He reported to the psychiatrists taking medication of OxyContin, Avanza, Xanax and Serepax. I accept the level of medication the plaintiff has been taking is significant and is a consequence which I can take into account.
124 The plaintiff’s evidence was that he suffers disruptive sleep and his social life has been affected. The plaintiff was not challenged about these consequences. Accordingly I can accept that these are consequences of the plaintiff’s injury. In respect to sleep, he described erratic and disruptive sleep with afternoon naps to Dr Walton, Dr Weissman and Dr Entwisle.
125 The plaintiff’s evidence was that prior to his injuries, he enjoyed socialising with friends and family members. The plaintiff reported to a number of doctors whom he saw that he spends most of the day watching television and sleeping.’ I accept this is a consequence I can take into account.
126 The plaintiff’s evidence was he previously enjoyed fishing and diving, but he no longer pursues those activities. I accept that this is in part due to his psychiatric disorder.
127 I am satisfied that the plaintiff was involved in a transport accident which, to the plaintiff, resulted in him experiencing symptoms of a psychological nature. The consequences to him are dramatic and impact upon nearly aspect of his life as he knew before he suffered the psychiatric disorder. I accept the plaintiff’s psychiatric disorder is long term. He has suffered for 10 ½ years and Dr Weissman and Dr Walton were guarded as to the future.
128 For the foregoing reasons, I am satisfied that the plaintiff has established that the pain and suffering consequences of his injury can reasonably be described as being more than serious to the extent of being severe. In my experience, the consequences to the plaintiff measure up well against other serious injury applications where plaintiffs have been successful in applications based on the consequences of possible mental or behavioural disturbances or disorders. I accept that the injury has consequences to him that when judged by comparison with other cases in the range of possible impairments, may be fairly described at the date of hearing as being “at leave very considerable” and “more than significant or marked”.
129 Accordingly, I propose to grant leave to the plaintiff to bring proceedings to recover damages for injuries suffered by him arising out of the transport accident on 11 April 2001.
The Section 23A application
130 It was accepted that if the plaintiff was granted a serious injury certificate he would need to seek leave pursuant to s 23A of the Limitation of Actions Act 1958 (Vic) for an extension of time in which to bring a common law claim for damages in respect of injuries he alleges he suffered as a result of a transport accident on 11 April 2001. The applicable limitation period was six years from the date of accrual of the cause of action,[29] and therefore expired on 11 April 2007.
[29]Section 5(1)(a) Limitation of Actions Act 1958 before amendment effective November 2002
131 The plaintiff’s common law right of action, although commencing on the date of the transport accident, was conditionally (or wholly) extinguished until he could satisfy the gateway requirement under s93 of the Act;[30] that is, that he had suffered a “serious injury”. No steps were taken or proceedings issued to obtain a finding of “serious injury” to revive his cause of action during the limitation period.
[30]Wilson v Ratrass (1995) 21 MVR 41; Swannell & Anor v Farmer [1999] 1 VR 299; Millard v State of Victoria [2006] VSCA 29 at paragraph [33]
132 On 31 January 2011, an Originating Motion was issued in this Court by the plaintiff’s current solicitor, seeking a serious injury certificate under s93(4)(d) of the Act. I was informed that the plaintiff also sought an extension to the period within which an action may be brought under s23A of the Limitation of Actions Act 1958.
133 The defendant opposed the application for an extension of the limitation period. It relied upon two affidavits of Belinda Grgic, sworn 5 August and 9 October 2013.
134 In essence, the defendant relied upon delay. Second, the defendant is prejudiced by reason of the delay as medical records relating to the plaintiff have been destroyed.
Statutory Framework
135 The Court has power under s23A of the Limitation of Actions Act 1958 to extend the limitation period if it decides that it is just and reasonable to do so,[31] having regard to all of the circumstances of the case, including the matters listed in s23A(3). The question to be decided by the Court “requires consideration of the conduct and position of both parties, including the effect of the outcome of the application on each of them.”[32]
[31]Section 23A(2)
[32]Per Booking J in Bell v SPC Ltd [1988] VR 123 at [125] to [126]; cited with approval by Buchanan JA and Tsiadis v Patterson [2001] 4 VR 114 at paragraph [33]
136 Under s23A(3) of the Limitation of Actions Act 1958, the Court shall have regard to all the circumstances of the case, including (without derogating from the generality of the foregoing), the following:
“(a) the length of and reasons for the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c) the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d) the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;
(e) the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”
Relevant Principles
137 The most recent High Court decision in relation to an application for extension of time is that of Brisbane South Regional Health Authority v Taylor.[33] The majority in that case determined that it is, prima facie, prejudicial to the defendant to allow the commencement of an action outside that period. McHugh J explained the rationale for limitation periods as follows:[34]
“Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Secondly, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Thirdly, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.
…
Even where the cause of action relates to personal injuries,23 it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.”[35]
[33](1996) 186 CLR 541
[34](supra) at page 552
[35]Supra
138 The legal principles relevant to this application which I must apply in considering the plaintiff’s application can be summarised as follows:
·The onus in establishing that it is just and reasonable to grant the plaintiff’s application is borne by the plaintiff.[36]
[36]Bell v SPC Ltd [1989] VR 170 at paragraphs [174] - [175]; Brisbane South Regional Health Authority v Taylor (supra); Richards v State of Victoria & Ors [2001] VSC 52 at paragraph [11] and Delai v Western District Health Service & Anor [2009] VSC 151 at paragraph [21]
·If the defendant places evidence before the Court sufficient to lead to the conclusion that prejudice would be occasioned by granting the plaintiff an extension of time, then it is for the plaintiff to show that the defendant’s evidence does not demonstrate prejudice.[37]
[37]Cowie v State Electricity Commission of Victoria [1964] VR 788 at [793]; Brisbane South Regional Health Authority v Taylor (supra) at [547]
·The competing considerations referred to in s23A of the Limitation of Actions Act 1958 are not to be weighed against each other, but rather the Court must synthesise the competing considerations in arriving at a conclusion that takes account of all of them, bearing in mind that the plaintiff bears the onus of persuading the Court that it is just and reasonable to extend the limitation period.[38]
[38]Bell v SPC Ltd (supra) at [125]; Tsiadis (supra) at [123] and Delai v Western District Health Service & Anor (supra) at paragraphs [21] – [22]
·The delay referred to in s23A of the Limitation of Actions Act 1958 is the delay between the accrual of the cause of action and the making of the application for an extension of time.[39]
[39]Koumorou v State of Victoria [1991] 2 VR 265 at [271]; Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7 at paragraph [11] and Delai v Western District Health Service & Anor (supra) at paragraph [22]
·The delay attributed to the plaintiff’s legal representative must be considered.[40]
·The Court can take into account prejudice –
§which comes about by reason of a lapse of time involved in that period of delay;[41] and
§which can be established by the defendant.
·An inordinate delay may be taken as evidence of prejudice.[42]
·The test of prejudice must not include whether an order extending time would make the defendant any worse off than if the proceeding had been commenced within, or at the end of the limitation period. What must be considered is that the defendant’s potential liability expired at the end of the limitation period and that the extension of time would impose a new legal liability on the defendant.[43]
[40]Repco Corporation Ltd v Scardamaglia (supra) at [13]
[41]Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614 at 622
[42]Tsiadis (supra) at [123] – [124]; Delai v Western District Health Service & Anor (supra) at paragraph [23] and Brisbane South Regional Health Authority v Taylor (supra) at [551]
[43]Brisbane South Regional Health Authority v Taylor (supra) at [554] – [555]
Analysis
139 The plaintiff delayed nine years before he filed the Originating Motion. The only reason provided by the plaintiff for the delay is that he was unaware of any limitation period. The evidence was that he first contacted his solicitors again in 2010. He did not remember having anything to do with solicitors between 2004 and 2010. In 2005, he went to live in Queensland for approximately two to two-and-a-half years.
140 It was conceded by counsel for the plaintiff that in the absence of affidavit material from the plaintiff’s current and former solicitors detailing the nature of any advice given to the plaintiff in respect to the limitation period, I can assume such advice was given to the plaintiff. The question then becomes what this plaintiff, given his condition, is likely to have understood as to the nature of the advice given by his solicitors.
141 I have accepted that the plaintiff has a psychiatric condition which amounts to a “serious injury” under the Act. In coming to that view, I have accepted the medical evidence that soon after the transport accident, there was a sufficient causal link between the initial physical injury to the right shoulder and neck and a Chronic Pain Disorder meeting the requirements of paragraph (c) of the definition of “serious injury”.
142 In February 2003, the plaintiff’s general practitioner reported that the plaintiff had become drug dependent, reliant on OxyContin. The current medical evidence is that the plaintiff has significant issues with opiate dependence and needs intensive rehabilitation therapy to manage his dependence.
143 In addition to his psychiatric condition, the plaintiff had a basic level of education, was illiterate and was described by Dr Hsieh[44] as a man with poor literacy and a likely background of borderline to low-average intellectual skills. He was considered dyslexic by a number of the medical witnesses. The plaintiff reported to doctors he saw that he suffered poor memory from as early as 2002.
[44]Clinical neuropsychologist
144 Given the plaintiff’s presentation in Court and the above evidence, I accept the plaintiff had no real understanding of what he was being told by his legal practitioners and the legal effect.
Prejudice
145 Even if I were to accept the delay to be considered is from the date of the transport accident to the date of hearing this application, I do not accept that the delay established significant prejudice.
146 Counsel for the defendant referred to Myer Melbourne Ltd v Hammond.[45] In that case, the Full Court said mere delay of itself, when inordinate, may be taken as evidence of prejudice. The Court said a delay of ten years was sufficiently demonstrable to establish significant prejudice to the defendant, and in Ford Motor Company (Aust) Ltd v Kulic,[46] a delay in excessive of nine years. In both decisions, the courts determined that the delay was and may be taken as evidence of prejudice in the absence of any specific prejudice. Prejudice need not be caused by the delay complained of, but need only have come about by reason of the lapse of time involved in the period of the delay.[47] However, s23A(3) of the Limitation of Actions Act 1958 requires a consideration of whether it is just and reasonable to extend time and that involves, by ss(3), the Court having regard to all the circumstances of the case.
[45][1984] VR 40
[46][1988] VR 152
[47]Lord v Australian Safeway Stores Pty Ltd (supra) at paragraphs [22] – [23]
147 The affidavits of Ms Grgic refer to the fact that some documents are no longer available because of the delay. Ms Grgic deposes that some medical records relating to the plaintiff have been destroyed. The medical records destroyed fall into a number of categories. The first relate to two previous injuries the plaintiff suffered in 1996. I was informed that the plaintiff returned to work after those injuries.
148 Further, the defendant has had in its possession the files of the insurance companies who acted on behalf of the employers in each of those incidents. It was apparent that there are medical reports and radiological reports in relation to the previous injuries which were made available to Mr Simm, who medically examined the plaintiff in 2013. There was no evidence that the plaintiff suffered a psychiatric condition before the transport accident. Even if the medical records would have been of some assistance, those medical records relate to treatment the plaintiff received in 1996 and thus would have been destroyed prior to expiry of the six-year limitation period. Accordingly, I am not satisfied that the defendant has been prejudiced in respect to those documents.
149 In September 2013, under the return of a subpoena addressed to Medicare, the defendant obtained the plaintiff’s Medicare Patient History, which detailed the services provided to the plaintiff from the period 26 April 1998 to 10 October 2007. The Medicare report disclosed the plaintiff attended the Geelong City Medical Clinic on 10 April 1999 and on 2 July 1999, and the Werribee Group Healthcare on 21 December 2000.[48] Both medical practices confirmed the reports were destroyed seven years after the attendances. Consequently, these records, even if they had been of some assistance, would have been destroyed prior to expiry of the six-year limitation period. Accordingly, I am not satisfied that the defendant has been prejudiced in respect to these documents.
[48]The clinic confirmed that the plaintiff attended on two occasions, one in 2000, and on the second occasion in 2001. There was no date provided for the attendance in 2001.
150 A further category of documents relate to the records of Ms Garfie, a psychologist, who provided two reports in February and June 2002 in respect to the plaintiff. Ms Garfie’s reports are available. However, Ms Garfie’s records were destroyed after seven years. Ms Grgic believes the records may be relevant to the injuries suffered by the plaintiff in the transport accident. On the basis of the affidavit, I am not satisfied that the defendant would be prejudiced by the destruction of Ms Garfie’s record, as the reports are quite detailed and relate to the treatment provided in 2002.
151 Accordingly, I do not accept that this is a prejudice which comes about by reason of the lapse of time involved in the delay. I am not persuaded that the defendant has demonstrated that it will be prejudiced by the delay or that an acceptable fair trial is unlikely.
152 Synthesising all of the matters required to be taken into account by s23A of the Limitation of Actions Act 1958, I formed the view that it is just and reasonable to extend the period of limitation applicable to the cause of action upon which the plaintiff relies. The delay in this case has not prejudiced a fair trial.
153 In all the circumstances, it is just and reasonable to extend the period of limitation. I will hear the parties as to the date to which I should extend the period.
154 I will hear the parties on the question of costs and the form of orders sought.
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