Hassani v Transport Accident Commission
[2021] VCC 1127
•17 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-03370
| ESMATULLAH HASSANI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 May 2021 | |
DATE OF JUDGMENT: | 17 August 2021 | |
CASE MAY BE CITED AS: | Hassani v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1127 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – paragraph (a) and (c) of the definition of “serious injury” – pain and suffering and loss of earning capacity consequences
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Transport Accident Commission v Katanas [2017] HCA 32; Transport Accident Commission v Kamel [2011] VSCA 110; Richards v Wylie (2000) 1 VR 79; Randhawa v Transport Accident Commission [2021] VSCA 135; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592
Judgment: Leave granted to the plaintiff to commence a proceeding for the recovery of damages under sub-paragraph (a) of the definition of “serious injury”. Application under sub-paragraph (c) refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab with Ms S Fernando | Zaparas Lawyers |
| For the Defendant | Mr W R Middleton QC with Ms J E Clark | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1Esmatullah Hassani seeks leave under s93 of the Transport Accident Act 1986 (“the Act”) to recover damages for personal injuries due to a transport accident. He relies upon paragraphs (a) and (c) of the definition of “serious injury” in s93(17). Although the claim under paragraph (c) was not abandoned, his counsel candidly said it was not the main focus.
Circumstances
2Mr Hassani is now forty-eight. He is married with five children, aged six to twenty‑one. He was born and raised in Afghanistan. He completed the equivalent of Year 12 there. After secondary school, he worked as a shopkeeper in his father’s business and was also involved in his family’s importing business.
3In November 2009, he arrived in Australia as a refugee and was detained on Christmas Island. While in detention, he studied English. He can now read very basic English. He has some spoken English but gave most of his oral evidence through an interpreter.
4In March 2010, he was released from detention and came to mainland Australia. He was able to sponsor his wife and children and they arrived in September 2013.
5After his release from detention, Mr Hassani worked for a company making caravan parts. He then worked for a tiling company. In 2013, he started working as a waterproofing subcontractor for a business called Baron Forge. He worked mainly on commercial sites, waterproofing bathrooms and balconies. When fully engaged, he worked six days per week, eight hours per day. He engaged one or two contractors in his business.
6On 18 February 2018, Mr Hassani was involved in a transport accident. He described the circumstances:[1]
“I had entered a roundabout at the intersection of Cleeland and David Streets, Dandenong. A car, to my left, failed to give way and hit my car on the passenger side near the rear tyre. The collision caused me to lose control of the car. The car hit a power pole on the driver’s side. My son was also in the car. The police did not attend the scene. I called my wife and she picked us up.”
[1]Affidavit sworn 7 February 2020 at paragraph [11]
7His wife drove him home. The accident occurred about 9 pm. Mr Hassani had collected his son from soccer training. He does not recall the speed he entered the roundabout.
8In cross-examination, the defendant raised the repeated reference to the other vehicle entering the roundabout from Mr Hassani’s right, not left. Mr Hassani was adamant it was on the left and denied telling practitioners it was the right. In the absence of any evidence of a substantial nature, I accept his evidence that the vehicle was on his left, not right.
9Overnight, he experienced pain in his lower back and mild pain in his neck. Nevertheless, the next day, he went to work. As the pain worsened, he worked until lunchtime before attending the Emergency Department of the Dandenong Hospital where he was prescribed analgesics and discharged.
10The same day, Mr Hassani attended a clinic in Dandenong and saw a Dr Pishan. Dr Pishan speaks Persian, which Mr Hassani understands. He complained of lower back pain radiating into his right leg. Dr Pishan arranged x-rays of his lower back. They revealed an essentially normal lower back.
11Mr Hassani continued working but with reduced hours.
12Dr Pishan was not his usual general practitioner. Dr Hamimi was. He attended Dr Hamimi on 2, 14 and 21 April 2018. CT scans were arranged of his neck after the second visit and MRI scans of his spine after the third. He was also referred to a physiotherapist.
13These scans revealed degenerative changes only.
14Dr Hamimi was active, referring Mr Hassani to a pain clinician and rehabilitation specialist and a neurosurgeon. There followed a number of investigations: on 12 June 2018, a nuclear bone scan; and on 9 August 2018, an erect weight bearing MRI, which revealed mild broad based bulges at L4-5 and L5-S1 and no nerve root contact.
15On 15 August 2018, Mr Hassani was examined by a neurosurgeon, Professor Bittar, following a referral by Dr Hamimi. Professor Bittar recommended medial branch blocks and participation in a pain-management program.
16On 7 September 2018, Mr Hassani underwent bilateral branch blocks from L2 to L5. On 24 September, Mr Hassani told his rehabilitation specialist there was no change.
17On 17 October 2018, there were further MRI scans. They revealed no stenosis.
18On 19 November 2018, he attended Dr Sullivan who recommended a pain-management program.
19On 7 December 2018, Mr Hassani returned to working three days a week and six hours per day. However, his work increased his pain. On 7 December 2018, he returned to work three days a week and six hours per day. However, work increased his pain.
20On 13 May 2019, he started a pain-management program, which ended on 19 June 2019. He was reviewed on 5 August and 9 December 2019.[2] The report noted Mr Hassani worked between 16 and 32 hours per week depending on the availability of work. He was mainly working as a supervisor. He was restricted as to kneeling, squatting and lifting. It also noted three barriers to his return to work (presumably pre-injury duties): limited positional tolerances and functional capacity and physical nature of pre-injury duties. According to Mr Hassani, the program helped a little but there was no lasting benefit. In light of the report that is a reasonable observation.
[2]Reports of Precision Ascend dated 13 August 2019 and 7 January 2020
21The defendant pointed out the second report omitted “injury related anxiety and depression” which appeared in the first as a barrier to returning to work. It is speculative to think that his state of mind was no longer a barrier, for it appears the reports were completed by different persons.[3]
[3]Emel Ahmet on the first occasion and Brenton May on the second
22On 27 May 2019, Mr Hassani saw Dr Hamimi about his left shoulder. An ultrasound was performed that day, revealing mild subacromial bursal thickening.
23On 3 June 2019, his left shoulder was injected with cortisone. The injections helped a little.
24On 14 August 2019, C3-C6 medial branch blocks are administered. They gave no benefit.
25On 22 October 2019, Mr Hassani attended a psychiatrist, Dr Kishore, for treatment and was prescribed an anti-depressant medicine.
26On 13 March 2020, Mr Hassani stopped working because of back and neck pain and not COVID-19 restrictions.
Medical: treating
Dr Hamimi
27Dr Qasim Hamimi has been Mr Hassani’s general practitioner since 2010.[4] He diagnosed persistent anterior lower back pain, degenerative facet joint arthropathy, chronic neck pain, disc bulge at C5-6, anxiety and depression. He is currently unfit for any employment. His prognosis is uncertain due to the chronicity of his pain and failure to respond to therapy. This contrasts with his earlier optimism expressed in his report dated 30 December 2018.
[4]Reports dated 30 December 2018, 26 February 2020, 1 December 2020 and 14 April 2021
Dr Ahmad
28Dr Sami Ahmad is a pain clinician. At the request of Dr Hamimi, he examined Mr Hassani on about 11 May 2018. Dr Ahmad focussed exclusively on the lumbar spine, for there is no mention of the cervical spine.
29His examination found localised pain at the L4-5 level with no radicular symptoms, numbness or pins and needles. The CT and MRI scans did not show any significant compression.
30Dr Ahmad diagnosed degenerative facet arthropathy aggravated by the accident. He made four recommendations for further treatment including a trial of medial branch blocks at L3-4 to L5-6.
31Pausing there. Dr Ahmad said Mr Hassani was heading towards depression. I have treated that as a passing observation, not a diagnosis. On one view, he was right: Mr Hassani does suffer from depression.
32The defendant submitted Dr Ahmad lacked post-graduate qualifications and his expertise should be seen in that light. I do not know whether there are post-graduate qualifications available to practitioners who described themselves as pain clinicians. Dr Ahmad holds a Master of Science. In a sense that is a post-graduate qualification. Without exploration, I cannot give the submission any weight.
Dr Mehr
33Dr Ali Kian Mehr is a rehabilitation physician. He first saw Mr Hassani on 5 June 2018 on referral from his general practitioner.[5] He saw Mr Hassani again on 21 June 2019, 4 June 2020, 21 August 2020, 31 August 2020, 27 October 2020, 11 November 2020 and 4 March 2021.
[5]Reports and letters dated 5 June 2018, 17 July 2018, 9 December 2018, 21 June 2019, 17 March 2020, 23 July 2020 and 18 March 2021
34In his first report, dated 5 June 2018, Dr Mehr does not mention the cervical spine, whether by way of recording a complaint or examination; his attention was on the lumbar spine. The first mention of the cervical spine appears in his report to Dr Hamimi dated 21 June 2019. However, his report dated 20 January 2021 mentions both CT scans of April 2018 and his nerve blocks of August 2019. His failure is puzzling.
35He diagnosed aggravation of cervical and lumbar spondylosis. Since his condition was stable and would not change for the foreseeable future, the prognosis was poor for returning to his pre-injury work and alternative work.
36The pain from his neck contributes to 30 to 40 per cent of his incapacity for work.
37He believes the lumbar pain comes from the facet joints due to the aggravation of the osteoarthritis in those joints from the accident. He recommended bilateral L3-L4-L5 medial branch blocks as a diagnostic tool. Depending on the results, it may lead to radiofrequency neurotomy.
Dr Sullivan
38Dr Richard Sullivan is an anaesthetist and pain specialist. He first saw Mr Hassani on 11 May 2018 at the request of Dr Ahmad.[6]
[6]Reports dated 20 January 2021 and 22 February 2021
39Over the course of about two years, Dr Sullivan:
(a) on 7 September 2018, injected his lumbar facet joints. These injections were diagnostic and gave negative results;
(b) on 14 August 2019, performed bilateral cervical medial branch nerve blocks of the C3-4, C4-5 and C5-6 facet joints. Diagnostically, again the results were negative. The blocks saw no significant improvement in reducing the posterior cervical pain;
(c) altered his medicines to tramadol, 150 mg up to twice per day, pregabalin, 75mg up to twice per day, amitriptyline 10 mg per day and mirtazapine, 30 mg per day;
(d) on 11 June 2020, arranged nerve conduction studies which showed no specific nerve pathology.
40Diagnostically, Mr Hassani sustained: aggravation of cervical and lumbar spondylosis; post-traumatic chronic pain; radicular pain of the left upper limb due to irritation of the left C6 and C7 nerve roots. Outside his area of expertise, Dr Sullivan said he sustained an affective disorder in the form of a Generalised Anxiety Disorder and Major Depressive Disorder.
41Dr Sullivan attributed the organic injuries to the accident by the traditional comparison of before and after:[7]
“Whilst the anatomical changes may have predated his motor vehicle accident, he did not experience pain in his neck or his low back of a chronic or debilitating nature; however, he has done so since the time of the accident and this condition has continued to this day.”
[7]Report dated 20 January 2021 at p 4
42When Dr Sullivan last saw Mr Hassani on 2 June 2020, he considered he had limited “maximum achievable work capacity” of about 15 to 20 hours per week, and even this resulted in exacerbation of his pain. He noted the barriers to a successful transfer into alternative work, concluding it being extremely unlikely in reality due to minimal transferable skills, limited education, chronic pain and the adverse cognitive effects of his analgesic medicines.
43As requested by the solicitors, Dr Sullivan pointed out the impairments caused by the cervical and lumbar spines individually. The former was inhibited by the inability to hold the head in a fixed posture for more than a few minutes. There were restrictions in flexion, extension and rotation. The latter inhibited standing, sitting, walking, lifting and carrying. Dr Sullivan saw the headaches as impairing concentration. Overall, he saw these areas of pain and the headaches as lasting for the foreseeable future.
Professor Bittar
44Professor Richard Bittar is a neurosurgeon. He first saw Mr Hassani on 15 August 2018 at the request of Dr Hamimi. At that stage, Mr Hassani was working four days per week, six hours per day.
45In the main, Mr Hassani complained of lower back pain, present throughout the lumbar region predominantly into the midline with intermittent radiation of pain into the left leg.
46On examination, Professor Bittar found “quite significant” bilateral lumbar paravertebral muscle spasm but no evidence of radiculopathy or myelopathy. His most significant finding was the severe restriction of lumbar extension which was extremely painful, and he suspected the involvement of the facet joints.
47Professor Bittar did not recommend surgery. He did recommend medial branch blocks and possible involvement in a pain-management program.
48Professor Bittar saw Mr Hassani on 29 June 2019, 1 June 2020, 14 July 2020 and on 26 April 2021.
49On 26 April 2021, Mr Hassani’s complaints of pain in the neck, arm and lower back continued. There had been no improvement in the past six to twelve months. Professor Bittar’s examination revealed moderate restriction of extension of the cervical spine and restriction of flexion and extension of the lumbar spine. Both movements were painful, as was extension of the cervical spine.
50Despite further treatments and investigations, Professor Bittar maintained his earlier diagnoses of aggravation of lumbar and cervical spondylosis. The former causing lower back and leg pain. The latter causing neck and arm pain. He also diagnosed cervicogenic headaches.
51Professor Bittar considered Mr Hassani totally incapacitated for all employment for the foreseeable future. With suitable employment, other than his pre-injury duties, he took into account age, education, language skills and work experience.
52Despite recommending four avenues of further investigation or treatment, Professor Bittar maintained the prognosis was poor with Mr Hassani likely to experience significant pain and disability for the foreseeable future.
53Professor Bittar considered the neck and back conditions were related to the accident, using “significantly” to qualify the degree of symptoms and disability.
Dr Ghaly
54Dr Mina Ghaly is a neurologist. During March 2020, she examined Mr Hassani at the request of Dr Mehr to manage his headaches.[8] These headaches were linked to the accident because they were “triggered by the chronic neck pain through a shared neuronal network – trigeminocervi[c]al system”.[9]
[8]Report dated 20 January 2021
[9]At p 3
55Her prognosis was guarded, partly because she recommended further treatment which might help Mr Hassani. They were occipital nerve blocks and a Botox injection trial.
Dr Kishore
56Dr Brij Kishore is a consultant psychiatrist. He first saw Mr Hassani on 22 October 2019 on referral from Dr Hamimi.[10] Prior to his report, he last saw Mr Hassani on 7 December 2020 and between those dates every two to four weeks. Mr Hassani said he now sees Dr Kishore every three or four weeks.
[10]Report dated 12 December 2020
57When Mr Hassani first saw Dr Kishore he was taking only amitriptyline daily, mainly for pain and sleep. Dr Kishore trialled an anti-depressant, Pristiq, initially at 50 mg per day, increased to 100 mg per day. After reporting dizziness with Pristiq, it was reduced and then stopped. It was replaced by Avanza, which itself was stopped because it caused insomnia. Avanza was reintroduced at a lower dose initially. By October 2020, the dose was increased to counteract a worsening of his depressive symptoms because of worsening neck and back pain.
58Dr Kishore diagnosed a Major Depressive Disorder with a differential diagnosis of an Adjustment Disorder with Depressed Mood. Both disorders were chronic, of moderate severity and were reactive to the pain Mr Hassani experiences. He raised the possibility of a Post-Traumatic Stress Disorder but did not diagnose it.
59Psychologically, the key symptoms were depressive. These developed in the context of chronic neck and back pain which, in turn, developed from the injury suffered in the accident. It was Mr Hassani’s neck and back pain which was the factor in maintaining his depressive symptoms.
60Dr Kishore outlined a psychological treatment plan. First, he would continue prescribing Avanza and monitoring Mr Hassani. Even if remission occurred, he recommended continuing Avanza for two or three years to reduce the risk of relapse. Second, a psychologist should be involved to use cognitive behaviour therapy. If these measures did not work, he foresaw the possibly of using neurostimulation techniques, such as electro-convulsive therapy or repetitive transcranial magnetic stimulation.
61As to prognosis, Dr Kishore was guarded as there was only limited improvement with his depressive symptoms. He did not think Mr Hassani’s depression was stable for if Avanza was unsuccessful, there were other treatments.
62With his depressive symptoms at the level of moderate severity, Dr Kishore thought they could “potentially” prevent Mr Hassani’s return to his pre-injury duties and yet would prevent him from undertaking any suitable employment.
63The moderate severity of his depressive symptoms affected Mr Hassani’s ability to be fully functional in social, domestic and recreational activities, specifically through lack of motivation, irritability with family and friends.
Investigations
64The plaintiff’s court book contains the reports of investigations and operations of Mr Hassani. Mainly, they are reports of CT and MRI scans of the cervical and lumbar spine.
65The defendant submits none support the existence of structural change to the spine due to the accident. With the possible exception of Dr Sullivan, that may be correct. Dr Sullivan maintains there is evidence of nerve root irritation in the cervical spine causing radiculopathy in the left upper limb.
Medico-legal
Dr Strauss
66Dr Nigel Strauss is a consultant psychiatrist. On 12 March 2019, he interviewed Mr Hassani at the request of the defendant for the purposes of a psychiatric impairment assessment.[11]
[11]Report dated 12 March 2019
67Dr Strauss did not diagnose a recognised psychological disorder, speaking instead of some post-traumatic stress symptoms and some symptoms of depression and anxiety.
68Assessing his psychological whole person impairment at 10 per cent, Dr Strauss apportioned 1 per cent as unrelated to the accident, 6 per cent as primary impairment, and 3 per cent as secondary. The primary impairment was due to post-traumatic stress symptoms while the secondary impairment was due to chronic pain causing anxiety and depression.
69Psychologically Mr Hassani was not incapacitated for work. His condition had substantially stabilised. Dr Strauss recommended five to ten visits to a psychologist who speaks Mr Hassani’s language.
Mr Awad
70Mr Mohammed Awad is a neurosurgeon. He examined Mr Hassani on 5 February 2021 at the request of his solicitors.[12]
[12]Reports dated 5 February 2021, 1 April 2021 and 26 April 2021
71On examination, Mr Awad found restrictions in cervical spine movements, particularly the left lateral rotation. With the lower back, he found limited flexion and extension.
72After noting various investigations, Mr Awad diagnosed aggravation of cervical and lumbar spondylosis. Both injuries were directly related to the accident. Mr Hassani is incapacitated from returning to his pre-injury employment and does not have any realistic alternative capacity for work presently due to the effects of his injuries and including his age, education, training, skills and work experience.
73Mr Awad foresaw the possibility of future surgery in the form of spinal cord stimulation, initially in the cervical spine and then in the lumbar spine if the first is successful.
74After being given five reports and surveillance footage, Mr Awad did not change his opinions about diagnosis, the causal link to the accident, the need for further treatment. Specially, he disagreed with opinion of Dr Rahgozar as to the absence of injury, saying:[13]
“With the utmost respect, I do not see or note that Dr Majid Rahgozar has any detailed spinal training of any kind. I have been working in the field of spinal neurosurgery and overall spinal surgery for over 10 years. My opinions are not based on radiological findings but based more as an overall picture. It is very common to see patients who had aggravation of underlying asymptomatic degenerative changes that become symptomatic due to an injury or increased line of work. That is my opinion in this case.”
[13]Report dated 26 April 2021
Dr Blombery
75Dr Peter Blombery is a consultant physician specialising in vascular disease and pain medicine. At the request of Mr Hassani’s solicitors, he examined him on 1 March 2021.[14] The solicitors gave him a wealth of material.
[14]Report dated 7 April 2021
76Dr Blombery’s examination revealed marked restrictions in movement of the neck and the lumbar spine. However, the restrictions of the latter were confined to flexion and extension.
77Dr Blombery considered the accident aggravated the degenerative changes in the cervical and lumbar spines and to the occipital nerve area. The aggravation has persisted because:[15]
“… this has been aggravated also by the development of a pain syndrome in the affected area where there is sensitisation of pain nerve pathways. This is an organic disorder of these pain nerve pathways.”
[15]At p 5
78Apart from trialling an occipital nerve block and, perhaps, a ketamine infusion, Dr Blombery thought “it is unlikely that there is going to be very much that will make a big difference to his pain” and Mr Hassani will have to come to terms with his symptoms.
79As to capacity for work, Dr Blombery considered him incapacitated for his pre‑injury employment and to have a markedly reduced capacity for other work. This was due to his inability to do heavy work with lifting, carrying or bending. These restrictions will continue into the future.
80His prognosis was poor because three years have passed since the accident and Mr Hassani’s symptoms are essentially stable.
Dr Ingram
81Nicholas Ingram is a consultant psychiatrist. On 11 February 2021, he interviewed Mr Hassani at the request of his solicitors.[16]
[16]Report dated 11 February 2021.
82Dr Ingram considered Mr Hassani’s main problem was chronic pain which prevents him working and supporting his family. As a result, he feels bad and worthless. He is significantly depressed, has constantly lowered mood, social withdrawal and frequent panic attacks.
83Dr Ingram diagnosed a Major Depressive Disorder and a Post-Traumatic Stress Disorder. The depressive illness was a secondary consequence of the accident and his chronic pain and inability to work. His Post-Traumatic Stress Disorder was a direct consequence of the accident.
84Psychologically, Mr Hassani’s depression affects his ability to work by impairing his motivation, concentration and energy levels. He would find it difficult to work full-time. It also significantly affects his social and leisure activities.
85As to prognosis, Dr Ingram thought Mr Hassani would continue to have significant psychological problems for at least the next year.
Associate Professor Doherty
86Peter Doherty is a consultant psychiatrist. On 25 January 2021, he interviewed Mr Hassani at the request of the defendant.[17] As is his practice, Associate Professor Doherty took a detailed history.
[17]Report dated 8 March 2021.
87The major feature of the psychiatric examination was Mr Hassani’s thoughts of persistent pain, functional limitations, ongoing discomfort, mild symptoms of a change in demeanour, role and status without significant traumatisation symptoms.
88Associate Professor Doherty diagnosed an Adjustment Disorder of mild severity, saying “There has been a stressor, and a disproportionate emotional response with clinically significant symptoms”.[18] Interestingly, he expressly does not diagnose any pain-related psychiatric condition. He rejected the diagnoses of Major Depressive Disorder and Post-Traumatic Stress Disorder. Mr Hassani’s psychological state was due entirely to the accident.
[18]At p 8
89As to prognosis, adjustment disorders fade over time. This has not occurred with Mr Hassani although his mood and anxiety symptoms have probably lessened. The disorder is maintained by the complaint of pain and underpins the need for adjustment. A contributing factor is his unemployment.
90Associate Professor Doherty considered psychological treatment was unnecessary. The taking of Mirtazapine was appropriate. His pain needed treatment. There should be a rationalisation of his pain-relieving medicines by a multidisciplinary team.
91Finally, psychologically, Mr Hassani is not incapacitated for work with “the predominant and very significant reason for the lack of return to work is pain”.[19]
[19]At p 10
Dr Rahgozar
92Dr Majid Rahgozar is a consultant occupational physician. On 15 April 2019, he examined Mr Hassani at the request of the defendant.[20]
[20]Report dated 16 April 2019
93Assuming a low energy motor vehicle accident, Dr Rahgozar diagnosed a musculo-ligamentous or whiplash-type injury, noting these injuries tend to settle within 12 to 16 weeks. By April 2019, Mr Hassani did not suffer from any organic condition affecting his spine or pelvic girdle. Nevertheless, his pain was chronic which was driven by psychosocial factors: concurrent mental health conditions; financial stressors; health conditions and care requirements of his wife; fear avoidance of further injury; chronic use of opioids; and, perhaps, a non-organic component in his presentation.
94He was not incapacitated for his pre-injury employment or other duties within his experience and education levels.
Mr Speck
95Mr Gary Speck is an orthopaedic surgeon. On 10 March 2021, he examined Mr Hassani at the request of the defendant.
96Mr Speck considered Mr Hassani suffered soft tissue injuries to his neck and low back due to the accident. These injuries would have resolved within six to twelve weeks of the accident. There is no ongoing injury. At present, he suffers from a Somatic Symptom Disorder with modest restriction of movement of the neck and low back.
Consequences
Pain
97Mr Hassani experiences constant pain in his lower back. The pain radiates into his legs, the left more than the right. There is numbness in the third and fourth toes of the left foot. Its intensity varies from day to day. Mr Hassani rates his lower back pain as seven out of ten generally. The intensity of this pain is worsened by activities involving bending, lifting, pushing, pulling, twisting, stooping or standing, sitting or walking for lengthy periods of time.
98He also experiences constant pain in his neck. It is worse on the left side of his neck. This pain radiates into both upper limbs, the left more than the right. It also affects the left trapezius and sternomastoid muscle areas. The intensity of his neck pain can be greater than that of the back on occasions. The pain is worsened by lifting, pushing, pulling and sudden or unexpected movements. He rates his neck pain at seven out of ten.
99Mr Hassani suffers from severe headaches about two or three times a week. These headaches can last for hours.
100One might expect a lessening of pain once Mr Hassani stopped work instead of its worsening. The defendant submitted it did not make medical sense. Implicitly, it made sense to his treating practitioners for none comment on it in their reports. This is explained as part of the process of aggravation of the degenerative conditions.
Driving
101He cannot drive for prolonged periods. He can drive distances of twenty to twenty-five kilometres to Dandenong or Cranbourne.
Sleep
102He sleeps poorly, mainly due to the pain but also due to anxiety. It is difficult going to sleep. Once asleep, he then wakes up a few times due to pain or discomfort.
Personal care
103He can undertake his personal care.
Employment
104Before the accident, he operated a waterproofing business under the name, Bamika Tiling Services. It was a profitable business where he usually engaged one or two sub-contractors at a time to assist him. He stopped working on 13 March 2020 because of the pain in his lower back pain. Although Mr Hassani was working five days a week at reduced hours before stopping, I accept it was the pain which caused him to stop. Leading up to the cessation, the nature of his work was mainly supervisory. It did not involve the kneeling, squatting and lifting which his pre-injury duties involved.
105During the period 1 July 2017 until 18 February 2018, he earned $1,070 per week before tax from the business. Owing to his inability to do more than supervise others, the business became unprofitable. By the quarter ending 31 March 2020, the business lost $2,692 or $207 per week. He received payments for loss of earnings from the defendant until 12 June 2019 when they ceased. Despite his efforts, he stopped working on about 13 March 2020. He now receives Centrelink payments, having withdrawn $20,000 from his superannuation to pay his mortgage and car loan.
Home activities
106Where before the accident, he maintained his home and garden, now he is less willing to do so through aggravating the pain in his lower back.
Project
107After the accident, he designed a machine to cut tiles without creating dust. His idea interested a Martin Earley at Baxter IP. Owing to the pain he experiences, he has lost interest.
Walks
108Before the accident, he walked at his local park on the weekend. Now, he finds such walks difficult because of his pain.
Socialising
109Before the accident, he enjoyed outings with his family and friends. Now, he has less enjoyment in these outings.
Mood
110He is anxious about his future. He has experienced panic attacks. He feels low, unenergetic and lacking motivation. He tires easily, has poor concentration and is forgetful. He feels shame through the financial reliance on others and his belief his family and friends respect him less because he is not working. At times, he thinks life is not worth living.
111He experiences flashbacks and intrusive thoughts of the accident. He is very nervous when in a car.
Treatment
112He engages in hydrotherapy and physiotherapy. He has done these treatments regularly since about October 2018. Physiotherapy he does weekly. He stopped hydrotherapy during the pandemic restrictions but has resumed on a daily basis.
113He continues to see Dr Hamimi regularly.
114Throughout 2020, he saw the pain specialist, Dr Mehr, frequently. He has seen Dr Mehr since June 2018. During the year, Dr Mehr referred him to a neurologist about his headaches, arranged MRI scans, referred him to Professor Bittar, prescribed Baclofen and arranged nerve conduction studies.
115He sees Dr Kishore every three or four weeks.
116He takes Tramadol, Pregabalin (Lyrica), Amitriptyline, Topiramate, Propranolol, Duloxetine and Mirtazapine. The pain-relieving medicines relieve the pain for a short time. In the absence of these medicines, his pain worsens, becoming “very severe”.
Legal considerations
117Mr Hassani relies on paragraphs (a) and (c) of the definition of “serious injury” to establish a serious long-term impairment. Paragraph (a) speaks of a body function and its impairment or loss. To satisfy this paragraph, the impairment or loss must be “serious” and “long-term”.
118The Act does not define the words “serious” or “severe”. As to the meaning of the former, the Full Court in Humphries & Anor v Poljak[21] described what has been called the “narrative test”:
“To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those circumstances 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’.” [22]
[21][1992] 2 VR 129
[22](Ibid) at 140
119As the Court said in Transport Accident Commission v Katanas,[23] the narrative test involves a two-stage process. First, an assessment of whether the nature and symptoms of the injury and the consequences of the injury are, subjectively for the applicant, ‘serious’ or, in the case of mental or behavioural disturbance or disorder, ‘severe’. Second, a determination of whether the injury is objectively ‘serious’ or ‘severe’ when compared with the range or spectrum of comparable cases.
[23][2017] HCA 32 at paragraph [6]
120One cannot aggregate impairments or losses of body functions. Each must be considered separately to determine whether the impairment or loss is serious and long-term[24].
[24]Transport Accident Commission v Kamel [2011] VSCA 110 at paragraph [63]
121Under paragraph (a), the serious injury can have its seriousness measured in part by a mental response to a physical impairment. What paragraph (a) will not recognise is that the mental disorder can itself constitute or be the producer of the impairment of a body function.[25]
[25]Richards v Wylie (2000) 1 VR 79 at paragraph [17] per Winneke P
122This distinction was made by the Court in the recent case of Randhawa v Transport Accident Commission.[26] If the psychiatric injury is a primary consequence of the accident then it is taken into account under paragraph (c). If it is a secondary consequence of an organic injury then it can be taken into account under paragraph (a).
[26][2021] VSCA 135 at paragraphs [78] and [79]
123As often happens in these applications, I was reminded of the observation of Dodds-Stretton JA in Kelso v Tatiara Meat Co Pty Ltd:[27]
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[27](2007) 17 VR 592 at paragraph [199]
Discussion
Credit
124The defendant submitted during his cross-examination, Mr Hassani was non-responsive, told a story and would not answer difficult questions.
125Mr Hassani’s way of answering questions during his oral evidence did not vary when questioned by the defendant’s senior counsel or his own counsel. Mr Hassani was unresponsive to an extent but I do not consider it was deliberate. During re-examination, his counsel tried hard to ascertain from him the impact on his working hours of his experience of pain before 13 March 2020.[28]
[28]See pp 52-53 of the transcript
126I agree there was some apparent confusion over the interpretation. I disagree with the criticisms made by the defendant. I have no reservations about Mr Hassani as witness and find him credible.
Accident
127The defendant submits it was a low impact accident. Mr Hassani does not remember the speed of his vehicle as it entered the roundabout. He did not see the other vehicle before the collision. Nevertheless, the impact caused him to lose control of his vehicle and it collided with a power pole. Contrary to what some practitioners believed, he did not drive his vehicle from the scene if his wife came and collected him. Being struck in the rear, losing control and striking a power pole does not suggest a low impact or low speed collision. Such collisions usually result in the vehicles remaining near the point of impact and not striking an obstacle at the side of the road. I do not find it was a low impact collision. To what extent it was greater, I cannot find for the evidence about the issue was meagre.
Injury: organic
128Dr Hamimi referred Mr Hassani for treatment. The first specialist to see him was Dr Ahmad, a pain specialist. He diagnosed facet arthropathy, aggravated by the accident.
129Dr Sullivan saw Mr Hassani on 11 May 2018, less than three months after the accident. He diagnosed aggravations of the cervical and lumbar spondylosis, post-traumatic chronic pain and radicular pain of the left upper limb due to the irritation of the left C6 and C7 nerve roots.
130Dr Mehr saw Mr Hassani less than four months after the accident and diagnosed aggravations of the cervical and lumbar spondylosis.
131Professor Bittar saw Mr Hassani six months after the accident. He diagnosed Mr Hassani’s injuries as aggravations of cervical and lumbar spondylosis and cervicogenic headaches.
132Mr Awad diagnosed aggravations of the cervical and lumbar spines.
133Dr Blombery diagnosed aggravations of cervical and lumbar spondylosis and the occipital nerve area. He considered the persistence of pain is due to the development of an organic pain syndrome.
134Both Dr Rahgozar and Mr Speck considered there was no existing injury to the cervical and lumbar spine. Although Mr Hassani suffered an injury in the accident, its effects had disappeared after several months.
135The weight of opinion favours aggravations of the degenerative states of the cervical and lumbar spine. The effect of these aggravations is that those degenerative spinal areas became painful where before the accident they were not.
136Dr Blombery adds an additional element. Apart from the aggravations as the cause of the pain, he identifies an organic pain syndrome due to the sensitisation to pain of the nerve pathways. In my experience, Dr Blombery very often expresses this view. Mr Speck was given his report but made no comment on that aspect of it. Perhaps, Mr Speck thought it unnecessary given his view there was no current injury and the complaints of pain were due to psychological factors. However that view found no support from the practitioners with expertise in the area. In fact, Associate Professor Doherty expressly rejects such a condition.
137The defendant submits I should not accept Dr Blombery’s diagnosis of a pain syndrome through a lack of “hard” evidence from his examination. Implicitly, Dr Blombery’s reasoning is the circumstances do not fully explain the level of Mr Hassani’s pain and an organic pain syndrome does. I accept that Mr Hassani’s experience of pain is partly due to this pain syndrome.
138The headaches are an interesting issue. The defendant raised the issue of causation, pointing out the lack of substantial record of the headaches by the general practitioners in 2018 and 2019. In truth, the reports of Dr Hamimi in the plaintiff’s court book do not refer to headaches.
139Dr Ghaly saw Mr Hassani because Dr Mehr referred him to her. Based on his history, she diagnosed migraine headaches triggered by chronic neck pain through a shared neuronal network – trigeminocervical system. She links these headaches to the accident. I accept the diagnosis and her opinion about the causal link. The lack of mention by Dr Hamimi remains puzzling.
140I used the expression “weight of opinion” in paragraph 135. The expression refers to a combination of the number of practitioners expressing a view but also the fact that some are treating specialists. Such practitioners are in the best position to diagnose the injuries because of their repeated contact with Mr Hassani and their need to treat his complaints.
Injury: psychological
141By the time Mr Hassani saw Dr Strauss, he had not received any psychological or psychiatric treatment. Although Dr Strauss did not diagnose a recognised disorder, he did consider Mr Hassani had a psychological impairment. That impairment did not prevent Mr Hassani from working.
142To Dr Ingram, Mr Hassani was suffering from a Major Depressive Disorder and a Post-Traumatic Stress Disorder. Although not describing the severity of his symptoms in terms of mild, moderate or severe, Dr Ingram described him as significantly depressed with a constantly lowered mood, social withdrawal and frequent panic attacks. Like Dr Kishore, of whose existence he was unaware, Dr Ingram thought Mr Hassani’s condition had not stabilised and might benefit from psychiatric treatment and supportive psychotherapy with a psychologist.
143Associate Professor Doherty diagnosed an Adjustment Disorder of mild severity.
144Dr Kishore diagnosed a Major Depressive Disorder. He also added as a differential diagnosis an Adjustment Disorder with Depressed Mood and, possibly, a Post-Traumatic Stress Disorder. The fact of differential diagnoses suggests Dr Kishore is uncertain as to the proper diagnosis. The dominant feature under either condition is symptoms of depression. Whether, for instance, an actual diagnosis of an Adjustment Disorder would make any difference to his treatment is unknown.
145On this evidence, Mr Hassani is suffering from a Major Depressive Disorder. Its symptoms are of moderate severity, where there are three categories of severity – mild, moderate and severe. That is the view of Dr Kishore who has seen Mr Hassani many times between October 2019 and 7 December 2020. He is easily in the best position to judge, both as to diagnosis and the severity of the symptoms.
Consequences
Organic
146The defendant submitted observation of Mr Hassani in the witness box was contrary to the observations made of him by Dr Mehr in his report dated 17 March 2020. I agree only to the extent that his sitting tolerance was greater than five to ten minutes. How much more I cannot recall.
147Mr Hassani was self-employed at the time of the accident. He contracted to a business called Baron Forge for five or six years before the accident. At the time of the accident, he engaged one or two other contractors in his business. The number depended on the size of the job. The business was profitable. He lived with his wife and five children in a house in Dandenong, which was mortgaged. At least, his wife and four of the children were dependent upon him. Before the accident, he undertook renovations to it.
148After returning to work following the accident, he performed lighter duties and largely relied on the others to do the hands-on work. During 2020, he was working fewer hours because of the pain and his work was of a supervisory nature. Whether one describes Mr Hassani as stoic it does not matter in this case. He continued his business after the accident but his involvement decreased over time into a lesser, non-physical role. This was due to the pain.
149Mr Hassani’s assessment of his level of pain is above the midway point. It varies but is constant with both the neck and lower back. Despite a plethora of pain-relieving medicines, it remains at those levels now.
150The pain restricts him physically, whether through lifting, pushing, pulling, sitting, standing and walking. Even keeping his head in a fixed position cannot be maintained for long.
151It is incorrect to say that Dr Blombery and Dr Ghaly are saying much the same thing with central sensitisation and the neural network. The former explains the perception of pain above what would otherwise be expected. The latter explains the cause of the headaches.
152The headaches are a frequent, disturbing consequence due to the injury to the cervical spine.
Psychological
153Mr Hassani has received frequent psychiatric treatment since October 2019 and it continues. On the other hand, his psychological state has not required an inpatient admission to a psychiatric facility. Nor has he needed the services of a Crisis Assessment Team.
154The majority of the psychological impact of the accident is secondary to the organic injuries suffered in the accident. In large part, it has arisen out of his reaction to the pain he suffers. There are other aspects but these are also secondary. It is relevant to the claim under paragraph (a) of the definition of “serious injury” and not under paragraph (c). The part played by a primary reaction to the accident is much less than the secondary reaction.
155The claim under paragraph (c) cannot succeed.
Conclusion
156Applying the test in Humphries & Anor v Poljak,[29] I am satisfied Mr Hassani has established a claim under paragraph (a) of the definition of “serious injury” and I am not satisfied he has established a claim under paragraph (c).
[29]Supra
157I will give him leave to commence a proceeding for the recovery of damages under paragraph (a) and refuse his application under paragraph (c).
158I will hear the parties on the form of the orders and the question of costs.
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