Husseinkhil v Transport Accident Commission
[2021] VCC 1261
•7 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-03486
| SAFIA HUSSEINKHIL | Plaintiff |
| v | |
| TRANPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 and 5 May 2021 | |
DATE OF JUDGMENT: | 7 September 2021 | |
CASE MAY BE CITED AS: | Husseinkhil v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1261 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – physical injury to the spine, in particular the cervical spine – left shoulder – whether the consequences for the plaintiff are “serious” – pecuniary disadvantage – credit of the plaintiff – psychological and psychiatric injury to the plaintiff – whether the psychological and psychiatric injury consequences are “serious” – whether the aggravation of the pre-existing conditions in relation to the spine and left shoulder and psychological complaints are “serious”
Legislation Cited: Transport Accident Act 1986; s93
Cases Cited:Richards & Anor v Wylie (2001) 1 VR 79; Humphries and Anor v Poljak [1992] 2 VR 129; Petkovski v Galletti [1994] 1 VR 436; Church v Echuca Regional Health (2008) 20 VR 566
Judgment: The application for serious injury certification in respect of the physical injury to the plaintiff’s spine and left shoulder as a result of the transport accident on 11 August 2016 is dismissed.
The application for serious injury certification in respect of the psychological and psychiatric injury to the plaintiff as a result of the transport accident on 11 August 2016 is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis with Mr B Johnson | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr P Y Rattray QC with Mr P V Bourke | Solicitors for the Transport Accident Commission |
HIS HONOUR:
1This application is brought by Originating Motion dated 4 August 2020. The plaintiff applies for leave pursuant to s94(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 11 August 2016 (“the said date”).
2Section 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.”
3The definition of “serious injury” relied upon by the plaintiff is under s93(17)(a) and s93(17)(c). Section 93(17)(a) is a serious long-term impairment or loss of body function and s93(17)(c) is a severe long-term mental or severe long-term behavioural disturbance or disorder.
4In this application, the plaintiff seeks certification from the Court for a serious injury in respect to loss of body function of her spine, particularly her cervical spine, and separately, a left shoulder injury. The plaintiff also seeks certification from the Court for serious injury in respect to her psychological conditions of Major Depression and Complex Regional Pain Syndrome.
5The enquiry under s93(17)(a) of the Act focuses attention on, first, 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.
6A “serious injury”, as defined by ss(17)(a), can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that a mental disorder can, of itself, constitute, or be the producer of, an impairment of a body function.[1]
[1]Richards & Anor v Wylie (2001) 1 VR 79
7In forming a judgment as to whether the consequences of the injury are “serious” the question to be asked is:
“Can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”[2]
[2]Humphries and Anor v Poljak [1992] 2 VR 129
8In assessing the psychiatric or psychological injury, the test is “severe”.
9In this application, the plaintiff swore and relied upon three affidavits, dated 12 March 2019, 21 January 2021 and 3 May 2021. The plaintiff gave evidence and was cross-examined by Mr Rattray QC, Counsel for the defendant. The plaintiff also relied upon an affidavit sworn by the plaintiff’s sister, Aseah Laghmani, dated 21 January 2021. Ms Laghmani was not required for cross-examination by the defendant.
10In addition to the four affidavits referred to above and the evidence given by the plaintiff, both parties relied on medical reports and other materials which were tendered during the course of the proceeding. I have read all of the relevant medical material and will refer to the material that is relevant to the determination of this application in these reasons.
11The plaintiff tendered the following documents in support of her application:
· Exhibit “A” – the Plaintiff’s Court Book (“PCB”) pages 9 to 67; 93 to 150 and 152 to 186.
12The defendant tendered the following documentation:
· Exhibit 1 – the Defendant’s Court Book (“DCB”) pages 6 to 45; 48; 50 to 60; 61 to 63; 65; 67; 74 to 75; 77; 79; 81; 83; 85; 96; 104; 107 to 109; 114; 126; 129 to 130; 134 to 137; 141; 148 to 150; 151; 226 to 233; 234 to 246; 243; 259; 260 to 266 and 266 to 270.
· Exhibit 2 – DVD of surveillance film for the following dates: 17 December 2020; two videos for 18 March 2021 and one video for 24 March 2021.
· Exhibit 3 – PCB pages 78 to 82 – Professor Stephen Davis’ report dated 15 November 2017.
13At the commencement of the proceedings, the issues in this application were set out by Mr Rattray QC. The issues were identified as follows:
(a) The plaintiff had pre-existing physical complaints to both her spine and shoulders. The issue is what is the extent of the aggravation to the pre-existing physical conditions;
(b) The plaintiff has previous psychological issues and has had little treatment since the transport accident. The issue is the level of the psychiatric condition;
(c) In respect of both the physical and psychological application for serious injury, the issue is whether or not either of those conditions meet the “range” as required under the Act;
(d) The credit of the plaintiff is in issue; and
(e) The pecuniary disadvantage aspect of the plaintiff’s claim is not made out.[3]
[3]Transcript (“T”) 13
The Plaintiff’s background
14The plaintiff was born in Afghanistan in 1986. She is now thirty-four years of age.[4] The plaintiff came to Australia in 2005.[5]
[4]PCB 9
[5]PCB 10
15The plaintiff has been a married woman, but her husband returned to Afghanistan and she is now a single parent.[6]
[6]PCB 11
16The plaintiff has three children, aged thirteen, twelve and nine years of age. The youngest child has been diagnosed with autism.[7]
[7]PCB 9
17The plaintiff, since coming to Australia, has educated herself. She has obtained her Year 11 and Year 12 education. She has subsequently gone on to undertake a Certificate III in Business Administration, a Certificate III in Early Childhood Education and subsequently, a Diploma in Early Childhood Education.[8]
[8]PCB 10
18The plaintiff can speak five or six different languages.[9]
[9]T4, Lines (“L”) 15 to 16
19The plaintiff has conducted her own child day-care business. She has worked as an administrative staff member for a childcare business. She had registered her disability services business subsequent to the transport accident in this case.
20The plaintiff’s evidence was, at the time of the transport accident, that she had just commenced a job as an administrative assistant at Green Cartridges Australia Pty Ltd (“Green Cartridges Australia”). As a result of the transport accident, she was unable to resume her work and now claims a pecuniary disadvantage due to her injuries.
The transport accident
21The plaintiff described the circumstances of the transport accident in her affidavit dated 12 March 2019. The plaintiff described the accident in the following terms:
“On or about 11 August 2016 at approximately 8.30am, I turned onto Hickory Drive, from Greaves Road in Narre Warren South.
I was travelling along Hickory Drive, when a car on the side street on my left, failed to give way and pulled out in front of me. I understand that the driver was attempting to travel in the opposite direction down Hickory Drive.
The other car collided with the front and right hand side of my car. I was unable to open my door. I therefore had to be helped out of the car, through the left hand side of my car.”[10]
[10]PCB 11, paragraphs 11-13
22The plaintiff has, in histories to other doctors, given a different description of how the transport accident occurred, including that the vehicle she was driving had been overtaken by another vehicle, causing the accident. The defendant does not take any issue that there was a transport accident in this case and consequently, there is no need to make any determination of the exact mechanism of the transport accident or the injuries to the plaintiff.
Medical treatment of the Plaintiff as a result of the transport accident
23The plaintiff was driven home by a witness to the collision. The plaintiff requested her uncle come to see her. The plaintiff was taken to see a general practitioner, Dr Fazel Musaddiq, at the Narregate Medical Centre.[11]
[11]PCB 11
24Dr Musaddiq took a history from the plaintiff in the following terms:
“Left sided Neck pain radiating to her left shoulder and arm
Left sided lower back pain after being involved in a MVA while driving at 50km zone … .”[12]
[12]DCB 243
25On examination, Dr Musaddiq found that the plaintiff was very tender in the lower cervical spine, with left-sided trapezius-region tenderness, left shoulder tenderness and a moderate restriction of neck movement.[13]
[13]DCB 243
26The plaintiff then attended at the Casey Hospital. She remained there for two days. At the end of the two days, the plaintiff was then referred to Monash Health at Dandenong Hospital. The Monash Health Discharge Summary dated 16 August 2016, stated the following in respect to the investigations and the results that were performed on the plaintiff while in Monash Health’s care:
“MRI cervical spine (14/8): No evidence for (sic) an acute neurological or ligamentous injury within the cervical spine. No cause for symptoms is detected.
CT cervical spine (12/8): No fracture or significant abnormality demonstrated in the cervical spine.
Chest X-ray (12/8): Lungs clear. Cardiac and mediastinal contours are normal.
Cervical spine X-ray (12/8): Heights of vertebral bodies in the cervical spine are within normal limits with no fracture or bony destructive lesion demonstrated. No spondylolisthesis or prevertebral soft tissue swelling. No significant degenerative change. Oblique views demonstrate satisfactory alignment of the facet joints and no bony foraminal stenosis.
Thoracic spine X-ray (12/8): Heights of vertebral bodies in the thoracic spine are within normal limits with no fracture or bond destructive lesion demonstrated. No spondylolisthesis or paravertebral soft tissue swelling. No significant degenerative change.
Left shoulder X-ray (12/8): Left shoulder is enlocated. No fracture or bony destructive lesion demonstrated. No degenerative change. AC joint enlocated.”[14]
[14]PCB 33
27The plaintiff then attended upon her general practitioner, Dr Anna Lu, on 15 November 2016. Dr Lu referred the plaintiff for a CT examination of her spine and chest, and an ultrasound of her left shoulder.[15] The examination of the plaintiff for an ultrasound of the left shoulder and CT scan to her cervical spine was conducted on 22 November 2016. The results of the ultrasound to the left shoulder are as follows:
“Findings: Long head of biceps is adequately within its groove. Trace of fluid within the biceps tendon sheath.
Subscapularis is intact. Supraspinatus is thickened and hypoechoic in keeping with tendinosis. There is a partial thickness insertional tear at the mid-tendon measuring 8 x 15 x 2mm. Infraspinatus is intact. There is thickening of the subacromial-subdeltoid bursa in keeping with associated bursitis. The bursa bunches.
Conclusion: Insertional partial thickness tear supraspinatus tendon. Background supraspinatus tendinosis. Associated subacromial-subdeltoid bursal effusion – bursitis.”[16]
[15]PCB 139
[16]PCB 139
28The ultrasound of the left shoulder indicated that there was an insertional partial thickness tear of the supraspinatus tendon on the left side.[17]
[17] PCB 139
29The plaintiff was referred to the pain specialist, Dr Oliva Ong. The plaintiff has been treated with pain management programs and an injection to her left shoulder on 13 March 2018.[18] The plaintiff has also been referred for a further left shoulder cortisone injection on 16 April 2021.[19] The plaintiff, at this stage, has not had that procedure performed.
[18]PCB 143
[19]PCB 178
30The plaintiff has engaged in two pain management programs: In April 2019, the plaintiff attended The Victorian Rehabilitation Centre and participated in a pain management program. In June 2019, the plaintiff also participated in a Network Pain Management Program.
31The plaintiff also attended for physiotherapy in 2017 at the Narre Warren South Physiotherapy Sports Injury Clinic until the middle of July 2018.
32The plaintiff was referred to Professor Ton Tran, orthopaedic surgeon, for examination and review. Professor Tran reported to Dr Lu in a report dated 10 April 2018. Professor Tran had taken a history from the plaintiff that she had problems relating to her spine and neck, as well as her left shoulder. He noted that the plaintiff complained of pain in her neck, the trapezial area on the left side and the pectoral region, as well as the thoracic and lumbar spine. She further referred to pain to her left leg. The plaintiff also complained of pain in her neck at rest, and it was worse when she read a book. The plaintiff also complained of right shoulder pain as symptomatic, especially with movement.
33Professor Tran, on examination, noted that there was very little voluntary movement of the plaintiff’s neck, but she had a good range of movement with assistance.
34In respect of the left shoulder, Professor Tran’s opinion was that surgery would not benefit the plaintiff and was more likely to make it more painful. Professor Tran’s recommendation was for a generalised pain management program to assist the plaintiff with health support.[20]
[20]DCB 235
35The plaintiff underwent a further MRI scan of the cervical spine on 20 June 2018. The conclusion in respect to that radiological examination was:
“Degenerative changes are present with some subtle nerve root deformations as described but no true impingement.”[21]
[21]PCB 144
36On 10 March 2020, the plaintiff received ultrasound therapy to her neck and shoulder blade for three minutes and five minutes respectively. This treatment was administered by Mrs Cherith Whittle.[22] The plaintiff has received ultrasound therapy to her neck on further occasions: 3 August 2020 and 7 August 2020.
[22]PCB 170
37On 30 July 2020, the plaintiff yet again attended at Monash Health, complaining of cervical spine and left shoulder pain. It was noted in that history that the plaintiff had had a fall in the last year while taking opioids.[23] The plaintiff was discharged on the same day, with a referral to physiotherapy treatment.
[23]PCB 35
38The plaintiff attended for further ultrasound therapy treatment on 18 March 2021. I note that this is the day the surveillance film was taken of the plaintiff and I refer to it more particularly in the credit of the plaintiff section.
39Dr Lu referred the plaintiff for a CT cervical spine examination and an ultrasound of her left shoulder, which was performed on 13 April 2021. The report of that finding was as follows:
“CT CERVICAL SPINE
…
FINDINGS:
No fracture. No destructive osseous lesion. No bony narrowing of the neural foramen. Normal facet joints.
Impression:
Normal CT examination. Disc herniation cannot be excluded on CT, MRI is recommended as it is a more sensitive test.
XRAY AND ULTRASOUND LEFT SHOULDER
…
FINDINGS:
X-ray
Normal glenohumeral joint and AC joint. No evidence of fracture. No destructive osseous lesion.
Ultrasound
Partial thickness (less than 50% thickness) bursal surface tear measuring 7 x 6 x 4 mm in the supraspinatous (sic) tendon.Background supraspinatous (sic) tendon is thickened suggestive of tendinopathy.
Other rotator cuff tendons are normal.
Subacromial bursa is thickened with impingement on shoulder abduction suggestive of bursitis.
Impression:
1. Supraspinatous (sic) tendinopathy with focal partial thickness bursal surface tear.
2. Subacromial bursitis.”[24]
[24]PCB 145-146
40The last physical treatment the plaintiff has sought was a referral from Dr Lu for an ultrasound-guided left shoulder cortisone injection on 16 April 2021. This treatment was ordered after the findings of the ultrasound performed on 13 April 2021. The evidence was that at this stage, the plaintiff has not undergone that treatment.
41In respect of the plaintiff’s treatment for depression and anxiety, it was not until the case had commenced that the plaintiff stated she was receiving psychological treatment from Shagufta Riaz, psychologist. There was no report from Ms Riaz in this proceeding. The visit notes dated 19 March 2021 and 23 April 2021 were tendered as part of the Plaintiff’s Court Book.[25] A fair reading of those notes clearly indicates that the plaintiff’s main psychological problems relate to family pressures and matters not generally related to the transport accident, the subject of this proceeding. The plaintiff conceded in her evidence that the main basis for her depression was due to the family violence perpetrated by her husband.[26]
[25]PCB 184-186
[26]T27
42The plaintiff’s treatment from the time of the transport accident to the date of the hearing of this proceeding relating to psychological and psychiatric conditions is very limited. I am not satisfied that any of the treatment is related to the transport accident.
43The plaintiff complains that she is incapacitated from engaging in any employment and is seriously debilitated in terms of her ability to manage domestic matters at home, and her pain, as a result of the injuries to her neck and left shoulder.
44The plaintiff gave evidence that she currently takes the following medications:
· Panadeine Forte, four to six tablets per day
· Neurontin (Gabapentin tablets), up to three tablets a day
· Nexium, 40 milligrams, one tablet per day
· Deralin, one tablet morning and night
· Duloxetine, 60 milligrams per day; and
· Tramal, 100 milligrams per day.[27]
[27]PCB 24-25
45Despite taking these medications, the plaintiff states that she continues to experience pain constantly.
The Plaintiff’s medical complaints prior to the transport accident
46The plaintiff had a history of multifaceted medical conditions prior to the transport accident, the subject of this proceeding.
47While the plaintiff lived in Afghanistan, she had injections for “joint pains” for a period of five years. This is prior to 2005, when she had come to Australia. The evidence about what was injected was vague, but in a referral by Dr Rawson to Dr Maria Feleter, rheumatologist, dated 31 January 2008, the injections are referred to as penicillin injections.[28]
[28]DCB 52
48Dr Rawson also wrote to the Department of Housing in March 2007, seeking more appropriate accommodation for the plaintiff because she was being treated for rheumatological problems at the Monash Medical Centre.[29] There was no report from the Monash Medical Centre referring to the rheumatological problems the plaintiff was being treated for at that time.
[29]DCB 51
49In 2008, the plaintiff went to Afghanistan for a return to her treatment for joint pains from a specialist.[30] In the medical reports of Dr Rawson, there are numerous attendances by the plaintiff for complaints of pain to her spine and joints, including her shoulders, and depressive symptoms. The plaintiff’s last consultation with Dr Rawson was on 21 January 2012.
[30]DCB 90
50The plaintiff gave evidence that her general practitioner from January 2012 onwards to the present time is Dr Lu. The records of Dr Lu indicate that the plaintiff first attended at the Raymond McMahon Medical Centre (Dr Lu’s clinic) on 23 February 2013. At that initial consultation, the plaintiff complained of headaches and body aches that had persisted over a period of eight to nine months. Among the numerous pathology tests requested by Dr Lu was a rheumatoid factor test.[31] On 15 January 2014, the plaintiff attended Dr Lu complaining of depressive symptoms. She was prescribed Temaze medication.[32]
[31]DCB 151
[32]DCB 152
51The plaintiff also attended at Dr Musaddiq’s practice at Narregate Medical and Dental Centre between December 2011 and July 2019. Dr Musaddiq was the first general practitioner the plaintiff attended on the day of the transport accident.[33] The plaintiff had attended Dr Musaddiq’s clinic on 7 June 2016 (three months prior to the transport accident) complaining of joint pains and other symptoms.
[33]DCB 243
52Prior to the transport accident the subject of this application, the plaintiff had a history of persistent joint pains and depression. While the plaintiff had been a patient at Monash Medical Centre for rheumatological problems prior to the transport accident, there was no report tendered by either party in respect of that treatment.
53The plaintiff had been referred to Dr Feleter in 2008 for a complicated history of joint pain. There was no report from De Feleter. The plaintiff’s evidence was that she did not recall the history outlined in the referral letter or being referred to Dr Feleter by Dr Rawson.[34]
[34]T28-29
54The plaintiff was evasive in her answers to questions about her prior medical condition, both in respect of the physical symptoms and in her treatment for depression. The application in this proceeding clearly raises the issue of aggravation of pre-existing conditions and the onus is upon the plaintiff to establish that the consequences arising from the transport accident are “serious”, as defined in the Act.
Credit of the Plaintiff
55In the conduct of this proceeding, the plaintiff’s credit was challenged by the defendant. The attack on the plaintiff’s credit was directed at her prior physical and mental health treatment in comparison to her histories to doctors in this case. Further, the plaintiff’s evidence of her employment immediately prior to the transport accident was challenged as an attempt by her to bolster her claim for pecuniary disadvantage of loss of earning consequences. The plaintiff’s evidence was that she was employed by Green Cartridges Australia at the time of her transport accident on 11 August 2016. In her affidavit dated 3 May 2021, the plaintiff stated she commenced employment as an administrative assistant with Green Cartridges Australia on 8 August 2016.[35] The plaintiff stated she was to earn $1,200 gross per week. Exhibited to the same affidavit was a letter dated 21 February 2019 and signed by Irfan Laghmani, which was relied upon by the plaintiff as proof of her employment.
[35]PCB 23
56I note two things about the letter signed by Irfan Laghmani. The first is that it has the wrong date for the transport accident. The second matter is that while the letter is dated 21 February 2019, it does not become part of this proceeding as a piece of evidence until it is exhibited to an affidavit dated 3 May 2021. There was no explanation given by the plaintiff for the delay in the circumstances where she had sworn two previous affidavits dated 12 March 2019 and 21 January 2021. Both of those affidavits post-dated the exhibited letter.
57The plaintiff’s sister, Aseah Laghmani, affirmed an affidavit on 21 January 2021 in support of the plaintiff’s application.[36] In that affidavit, Ms Laghmani does not make any statements in support of the plaintiff’s employment with Green Cartridges Australia prior to the transport accident. When the plaintiff was challenged on this omission while giving her evidence, her response was “I don’t know”.[37] This response in evidence is unsatisfactory, as the letter in confirmation of the plaintiff’s employment was by the plaintiff’s brother who, of course, is the brother of the deponent, Aseah Laghmani. In this case, there was no affidavit from Irfan Laghmani confirming the plaintiff’s employment by Green Cartridges Australia. This gap in the evidence is a significant omission in the plaintiff’s case.
[36]PCB 29-32
[37]T24
58In the presentation of her case, the plaintiff did not state that her “employer” at Green Cartridges Australia was her brother. It was only in cross-examination that the plaintiff admitted the author of the exhibited letter was her brother.[38] The plaintiff then stated she was paid for the two days of work prior to the transport accident.[39] When cross-examined about the payment for the two days of work by Green Cartridges Australia, the plaintiff agreed that payment did not appear in her taxation return for the year 2016-2017.[40]
[38]T19
[39]T19, L30
[40]DCB 262 and T20
59The plaintiff was examined by Dr Andrew Firestone, psychiatrist, on behalf of the defendant for the purposes of this application. The plaintiff stated the following on 3 March 2021, as part of her history to Dr Firestone:
“… She said she did resume working, not long before the accident. She said she was doing administrative work three days weekly for an acquaintance at the time; but did not resume it after the accident.”[41]
[41]DCB 9
60The plaintiff was cross-examined about her history of her employment with Green Cartridges Australia to Dr Firestone. The evidence was as follows:
Q:“This is at p.9 of the defendant’s court book, Your Honour. See, what I’m suggesting to you is you’re making this up, this work. You told Dr Firestone in March of this year that you were doing – at the time of the accident – administrative work three days weekly for an acquaintance?---
A:No, no.
Q:He wasn’t an acquaintance. He was your brother?---
A:The – uh, I didn’t, um, I didn’t say that my – ‘oh he’s my relative’, but I said for the person that I was working. It was one week before that actual, you know, paid job starts to they – I was on trial there.
Q:You were on trial? So you didn’t have the job?---
A:No, no. I had the job one week after the first trial. So I started as a trial, uh, before 8 August. For one week I was on trial.
Q:Let’s slow down a bit. You started on 8 August according to some material that you’ve provided, but do you say you worked there for the week before?---
A:Yeah, but I worked a week before on a trial. So they wanted to see my work. Yeah.”
HIS HONOUR:
Q:“Your brother wanted to see your work?---
A:Not only my brother, because he has a partner.”
MR RATTRAY:
Q: “Who’s the partner?---
A: Um, his partner was Zabi.
Q: S-a-f-i?---
A: Sorry?
Q: Is that spelt S-a-f-i?---
A: No. Z-a-b-i.
Q: Z-a-b-i, okay. And did you get paid for that week?---
A:Uh, for that one week before? No. Because it was a trial I didn’t get paid. But only for those two days that I worked before the accident I paid.”[42]
[42]T47, L4 – T48, L1
61The plaintiff’s evidence continued on to state that the partner in the business was a relative of her former husband.
62On 13 August 2016, the plaintiff signed a Transport Accident Commission hospital claim for compensation form. In that form is a section headed “Loss of Earnings”. In the box numbered 20, is the following question: “What is your employment status?” The only box ticked below that question is “Unemployed”.[43]
[43]DCB 231
63The plaintiff was cross-examined about this document, and her evidence was as follows:
Q: “And if you go over the page to p.231?---
A: 231. Yeah.
Q:You’ve signed that document in answer to question 20 that you’re unemployed. So there’s now (sic) mention of Green Cartridges, brother or anyone?---
A:I don’t know.
Q: Correct?---
A: Yeah, in here it’s - - -
Q: And – just a sec – is that wrong?---
A: Yeah. This is wrong.
Q:Despite the fact that you’ve signed it. And it asks, at question 25, who you work for. And that’s not filled out either.”
HIS HONOUR:
Q: “Do you agree with that?---
A: Sorry?
Q: Do you agree with that?---
A: With what, sorry?
Q: Okay. Look at p.231?---
A: Yeah.
Q: In the bottom right corner?---
A: At p.231, yeah?
Q:Yes. You’ll see there question 25, just above the number?---
A:Yeah. It’s not filled.
Q: Yes. Okay.”
MR RATTRAY:
Q:“And question 24, ‘which days of the week would you usually work’, you haven’t filled that out either?---
A:Yeah. It’s blank.
Q:Because you’ve marked it unemployed. And that was the situation, wasn’t it?---
A:No. That wasn’t the situation.
Q:No. All right. So do you have any documentation, apart from the letter from your brother in 2019 to support the fact that you were actually working?---
A:I – I don’t have any other documents.”[44]
[44]T23, T3-28
64I do not accept the plaintiff’s evidence that she was employed by Green Cartridges Australia prior to the transport accident. The plaintiff’s credibility on this issue is not supported by other evidence from her brother or sister in affidavit form. The contemporaneous documentation in the form of the Transport Accident Claim Form and taxation returns contained contrary proof of any employment by Green Cartridges Australia for the plaintiff immediately prior to the transport accident. As late as March 2021, when the plaintiff attended Dr Firestone, she is speaking about three days a week employment with an acquaintance, who turns out to be her brother. Her report to Dr Firestone is three days a week, not full-time employment as stated in her evidence.
65The plaintiff, in her affidavit sworn on 12 March 2019, [45] set out her experience of pain prior to the transport accident. The plaintiff deposed to experiencing some back, shoulder and knee pain, and tenderness in her body. The plaintiff also spoke of periods of anxiety in response to experiencing abuse at the hands of her former husband and the death of family members due to the Taliban in Afghanistan.
[45]PCB 10-11, paragraphs 8-9
66In her Claim Form to the Transport Accident Commission, which she signed on 13 August 2016, the plaintiff answered “No” to the question: “Prior to your accident, did you have any pre-existing injuries or conditions?” The plaintiff agreed in her evidence that that answer was wrong.[46]
[46]T22
67In April 2007, a Carer’s Pension application was made in respect of the plaintiff. The plaintiff attended upon Dr Meredith Wilson, general practitioner, on 5 April 2007, complaining of pain in her shoulders and upper back and difficulty getting dressed and undressed, with a need to get up at night to go to the toilet.[47] The plaintiff stated in her evidence that the application was probably for her husband to look after her, but she could not recall.[48]
[47]DCB 134
[48]T40
68On 28 December 2008, the plaintiff attended Dr Rawson to make a sickness benefit application based on her complaint of pain in her joints. At that time, the plaintiff had attended Monash Medical Centre and Rheumatology Outpatients and had a long history of long-term penicillin injections overseas. The plaintiff complained that she can only walk for five minutes, struggled with cooking and cleaning and needed help showering.[49] In her evidence, the plaintiff stated she did not remember, but “probably … my husband did”.[50]
[49]DCB 137
[50]T41
69In May 2008, Dr Rawson wrote to Centrelink on behalf of the plaintiff to advise that the plaintiff was travelling overseas for a prolonged period to get treatment from a specialist who had treated her in Afghanistan when she was younger.[51] The plaintiff was unable to remember her trip to Afghanistan, or whether she had received treatment or not when she was there in 2008.[52] The plaintiff gave evidence that she was in Afghanistan between about June and September 2008 for about one-and-a-half months.[53]
[51]DCB 53
[52]T30-31
[53]T31
70The trip to Afghanistan was after Dr Wilson had referred the plaintiff to Dr Feleter, rheumatologist, on 31 January 2008.[54] The history given to Dr Feleter by Dr Rawson was that the plaintiff had had five years of injections while she was younger in Afghanistan. The plaintiff stated in her evidence that she did not remember five years of injections which were referred to by Dr Rawson.[55]
[54]DCB 52
[55]T25
71The plaintiff has had a number of housing issues and applications due to her ongoing rheumatological complaints. In March 2007, Dr Rawson wrote to the Department of Housing seeking ground-floor accommodation for the plaintiff due to her condition.[56] In her evidence, the plaintiff could not remember the housing applications, saying “but we did go to doctors”.[57]
[56]DCB 51
[57]T27
72In September 2010, Dr Anne Davies wrote to Human Services on behalf of the plaintiff seeking a change to her accommodation to assist with the plaintiff’s migraines and fibromyalgia.[58] The plaintiff, in her evidence, agreed with the accommodation request being made on her behalf.[59]
[58]DCB 54
[59]T33
73The plaintiff’s last consultation with Dr Rawson was on 21 January 2012.[60] The plaintiff gave a history of going to another doctor with increasing back pain that was radiating down her right leg to the knee. The plaintiff agreed with the record on this occasion.[61]
[60]DCB 150
[61]T41
74The plaintiff, in her affidavit sworn on 21 January 2021, stated she had put on a lot of weight since the transport accident. She stated that before the accident, she was 56 kilograms and now weighed 72 kilograms.[62] In her evidence, the plaintiff conceded that the Monash Health admission notes recorded her weight on the day of admission, that is 13 August 2016, as 68 kilograms.[63] This is an example of the plaintiff’s willingness to exaggerate the evidence in order to advance her prospects of success in this application. Another example is the history given to Professor Teddy on 25 October 2017, when the plaintiff stated she had no past history of back or neck pain.[64] The history given to Professor Teddy, as reported by the plaintiff, is plainly wrong.
[62]PCB 19
[63]T51
[64]DCB 40
Surveillance of the Plaintiff
75The plaintiff was subjected to surveillance. A summary of surveillance was provided to the Court. The surveillance of the plaintiff was conducted over eight separate dates between 17 November 2020 and 24 March 2021. The plaintiff was filmed on three of those days. The total hours of surveillance was fifty. The total of the film time was 21 minutes and 47 seconds. The film of the plaintiff is less than one per cent of the time that she was under surveillance. The USB of the surveillance film was Exhibit 2. I have watched the film closely on a number of occasions, including the time it was shown to the plaintiff while she was giving evidence in Court. The plaintiff stated she had taken medications before she went shopping on 18 March 2021. The plaintiff said she went to her general practitioner after she had been shopping on that day due to the pain she was suffering from the activities shown in the film. The film clearly shows the plaintiff was able to bend to inspect items on low shelves, lift items from above head-height shelves and push a shopping trolley and a pram at different times. I conclude that to a casual observer the plaintiff could perform all the physical tasks involved in shopping at a gift store, that is, bending, lifting, walking and pushing a trolley or a pram. The plaintiff denied she was aware she was being filmed.[65] At the conclusion of the film, the plaintiff turned and looked very carefully in the direction of the camara recording her movements. It was a considered move on her part. The evidence did not disclose the time the plaintiff made her appointment to see her general practitioner on that day.
[65]T67
76I am mindful of the Court of Appeal’s announcements about drawing conclusions about a person’s credibility or ability to perform tasks on the basis of limited surveillance footage.[66]
[66]Church v Echuca Regional Health (2008) 20 VR 566
77In this case, I find the film confirms that the plaintiff can go about her life in a normal fashion in terms of movement and interacting with people on a shopping trip. The vision in the film is an example of the difference between what the plaintiff complains about to others and what she in fact can do.
78In conclusion, I found the plaintiff to be an unreliable witness and she was prepared to say things to advance her cause in this application that did not fit the known facts. I have observed the plaintiff giving her evidence carefully in the witness box and I have not arrived at this conclusion lightly.
Psychiatric injury to the Plaintiff
79The plaintiff relies on psychological disturbance arising from the transport accident to establish a serious injury pursuant to s93(17)(c) of the Act. The diagnosed conditions relied upon are Major Depression, Post-Traumatic Stress Disorder and a Chronic Pain Syndrome.[67] The plaintiff was not, prior to this application, being treated by a psychiatrist for any of the conditions. The plaintiff has been prescribed Duloxetine by her general practitioner, Dr Lu. The plaintiff also has consulted with a psychologist, Shagufta Riaz, on two occasions: 19 March 2021 and 23 April 2021.[68] I note that the attendances on Ms Riaz by the plaintiff were not known to her legal advisors until after the case was opened before me on the first day of the hearing.[69] A scramble was on to obtain the notes of Ms Riaz, the treating psychologist, to be included in the Plaintiff’s Court Book.[70]
[67]T2
[68]PCB 184 and 186
[69]T13
[70]Those notes appear at PCB 184-186
80I have read the two entries in the clinical notes of Ms Riaz. The notes predominantly deal with and refer to the problems the plaintiff is having with bringing up three boys between the ages of fourteen and nineteen years old on her own. The plaintiff refers to the oldest boy bullying the younger two sons. The plaintiff complains of physical pain and receiving help with her boys from her sister and her mother. The only possible reference to any ongoing problems from the transport accident is:
“She said she had night mirrors [I assume this was meant to be nightmares] frequently sometimes every night or a few times a night she would wake up anxious and feeling very upset … .”[71]
[71]PCB 185
81This statement appears after an account of the plaintiff’s former husband’s abuse of her and her children. I also note the plaintiff gave a history of going from a size 8 to a size 14 because of the transport accident. I have dealt with this part of the plaintiff’s case in the credibility section.
82The notations from Ms Riaz’s clinical notes do not support her claim for a serious injury arising from the transport accident. The notes refer to internal family issues as the main generator of concern for the plaintiff.
83Ms Pilipasidis, counsel for the plaintiff, relied on a report from Dr Andrew Firestone, psychiatrist, dated 3 March 2021. This report was part of Exhibit 1. Dr Firestone’s diagnosis was:
“Diagnosis is of a chronic pain syndrome which, in the DSM V system is diagnosed as a somatic symptom disorder with predominant pain that is persistent and of mild to moderate severity.”[72]
(emphasis in original).
[72]DCB 12
84Dr Firestone noted that it was possible the plaintiff’s symptoms would improve following the settlement of her claim.[73] He went on to note that the plaintiff’s pre-existing temperament has, of course, contributed to the development of her Chronic Pain Syndrome since the accident.[74] Dr Firestone noted a history from the plaintiff that she had never seen a psychiatrist. However, the plaintiff had taken a variety of antidepressant medications prior to the accident. Her medications include Effexor, Lexapro and propranolol.
[73]DCB 12
[74]DCB 12
85The plaintiff also relied upon two reports by Dr Nicholas Ingram, psychiatrist, dated 27 October 2020 and 22 April 2021 to support her claim for serious injury on the basis of psychological or psychiatric disorder. Dr Ingram took a history from the plaintiff that she had “just started a two-week trial in a job in business administration”[75] at the time of the accident. The plaintiff told Dr Ingram that due to her pain, she had psychological problems and felt depressed. The plaintiff denied any previous history of psychiatric problems and said her previous physical health had been good. The history to Dr Ingram was plainly wrong. Dr Ingram reported the plaintiff stated her main problem was chronic pain.[76] He diagnosed the plaintiff as suffering from major depressive illness and Post-Traumatic Stress Disorder. His opinion was that depression was secondary to the physical limitations and pain, and Post-Traumatic Stress Disorder was a direct consequence of the transport accident.[77]
[75]PCB 94
[76]PCB 96
[77]PCB 96
86Dr Ingram’s second report, dated 22 April 2021, is directed to his commentary on the surveillance videos taken of the plaintiff on 17 November 2020 and 18 March 2021. He accepts the reports from Dr Lu and Monash Health that the plaintiff attended each place after experiencing pain while shopping with her sisters. The videos did not change his opinion.
87Dr Ingram does not diagnose the plaintiff as suffering from Chronic Pain Syndrome. The psychiatric history given to him by the plaintiff is at best incomplete and could be described as misleading. I do not accept the opinion of Dr Ingram in respect of the plaintiff’s psychological condition because his diagnosis relies on a history given to him by the plaintiff.
88The plaintiff has failed to establish that the psychological and psychiatric conditions claimed reach the standard of being “severe”, as required under the legislation. I find that the psychological problems she is complaining about relate to her social and family situation arising from the illness to her younger child following upon a violent marriage which ended by the husband leaving the family.
Medical opinions
The Plaintiff’s medical opinions
Monash Health/Casey Hospital and Dandenong Hospital
89The plaintiff initially attended at the Casey Hospital and was subsequently taken to the Dandenong Hospital. A report from the Dandenong Hospital, referred to as a Discharge Summary, appeared at Plaintiff’s Court Book page 33. The Monash Health Discharge Summary fully sets out the number and results of radiological examinations taken of the plaintiff as a result of the transport accident. They are as follows:
“MRI cervical spine (14/8). No evidence for an acute neurological or ligamentous injury within the cervical spine. No cause for symptoms is detected.
CT cervical spine (12/8): No fracture or significant abnormality demonstrated in the cervical spine.
Chest X-ray (12/8): Lungs clear. Cardiac and mediastinal contours are normal.
Cervical spine X-ray (12/8): Heights of vertebral bodies in the cervical spine are within normal limits with no fracture or bony destructive lesion demonstrated. No spondylolisthesis or prevertebral soft tissue swelling. No significant degenerative change. Oblique views demonstrate satisfactory alignment of the facet joints and no bony foraminal stenosis.
Thoracic spine X-ray (12/8): Heights of vertebral bodies in the thoracic spine are within normal limits with no fracture or bony destructive lesion demonstrated. No spondylolisthesis or paravertebral soft tissue swelling. No significant degenerative change.
Left shoulder X-ray (12/8): Left shoulder is enlocated. No fracture or bony destructive lesion demonstrated. No degenerative change. AC joint enlocated.”[78]
[78]PCB 33
90The plaintiff was placed on paracetamol and ibuprofen upon release from hospital. The plaintiff was also given oxycodone.
91The plaintiff more recently attended at Monash Health on 30 July 2020, complaining of exacerbation of cervical spine and left shoulder pains as a result of a motor vehicle accident which occurred four years prior. In the history of that report, the Monash Health report states that the plaintiff gave a history of a number of falls in the last year. These falls were as a result of dizziness due to opioids. On this return to the Monash Casey Hospital, the plaintiff was complaining of increased pain to the cervical spine and her left shoulder.[79]
[79]PCB 35-37
92A written report dated 25 August 2017 from Monash Health to the plaintiff’s solicitors stated that there were no abnormalities detected on the imaging and that the plaintiff had been discharged to the care of her general practitioner.[80]
[80]PCB 39
Dr Anna Lu – Raymond McMahon Medical Centre
93Dr Lu prepared a report dated 29 September 2017 in respect of this matter. In that report, Dr Lu noted that the plaintiff first attended before her on 15 November 2017. I think this is an error in the report and the year should be 2016. Dr Lu ordered a cervical spine and chest CT scan, together with an ultrasound of the left shoulder. On 22 November 2016, those radiological examinations took place. The results are recorded at Plaintiff’s Court Book page 139.
94In respect of the left shoulder, the conclusion was:
“Insertional partial thickness tear supraspinatus tendon. Background of supraspinatus tendinosis. Associated subacromial-subdeltoid bursal effusion – bursitis.”[81]
[81]PCB 139
95The findings of the CT scan of the cervical spine of that date were normal.[82]
[82]PCB 139
96In the first of her three reports, Dr Lu noted that the plaintiff had been a patient in her clinic since 2013. The history given by the plaintiff was she had no past history of shoulder, neck or lower back problems until after the motor vehicle accident.[83] The history given to the general practitioner at that time was wrong.
[83]PCB 41
97In a later report by Dr Lu dated 2 December 2018, Dr Lu noted that she had ordered local anaesthetic injections for the plaintiff’s left shoulder on 17 July 2017. The plaintiff had not had that procedure performed by 23 November 2017.[84] The reason given by the plaintiff was that she was too busy to do it.
[84]PCB 44
98The plaintiff had been referred to Mr Craig Timms, spinal surgeon, and Professor Ton Tran, a shoulder specialist.
99The plaintiff also gave a history of being very depressed because of her chronic pain, but also because of personal issues. The plaintiff had been referred to the psychologist, Shagufta Riaz.[85] I note the plaintiff did not attend the psychologist, Ms Riaz, until 2021, some four years after being referred there.
[85]PCB 44
100Dr Lu also prepared a report dated 28 July 2019. In that report, Dr Lu stated that the plaintiff had a good prognosis and should be able to return to her job within the next twelve months, after the plaintiff had received treatment for a Chronic Pain syndrome.[86]
[86]PCB 46
101Dr Lu’s final report is dated 1 January 2021. Dr Lu’s diagnosis is that the plaintiff suffers from a Chronic Pain Syndrome with secondary Anxiety and Depression started by her motor vehicle accident. In that report, Dr Lu notes that the plaintiff’s condition is a direct result of her motor vehicle accident. Dr Lu states:
“… Prior to the car accident she was working as a child carer. Since then she has not been able to work due to her chronic pain.”[87]
[87]PCB 54
102By the time this report was prepared, Dr Lu’s opinion was that the plaintiff’s prognosis for a full recovery was poor. Dr Lu’s medical reports do not assist the Court in assessing the level of aggravation between the plaintiff’s condition prior to the transport accident and the current medical condition and consequences for the plaintiff. The reason for this is that the plaintiff has simply given a wrong history to the general practitioner about her prior injuries and complaints, both physical and psychological.
The Victorian Rehabilitation Centre
103A report described as an Interdisciplinary Assessment Report dated 8 April 2019 was prepared by The Victorian Rehabilitation Centre. At that stage, on the plaintiff’s report, she was receiving 70 milligrams of oral morphine equivalent daily. The plan was to reduce the plaintiff’s intake of pain medication.[88] It was noted in that report that the plaintiff reported depressive and anxiety symptoms secondary to her pain as a result of the injuries from the transport accident. It was noted that the plaintiff was unable to demonstrate any meaningful neck or left shoulder active range of movement.[89]
[88]PCB 50
[89]PCB 51
Luan Viegas, physiotherapist
104The plaintiff was referred to Narre Warren Physiotherapy Injury Clinic and she attended on 4 October 2017. The plaintiff gave a history to the physiotherapist that she had started experiencing pain through the neck, shoulder and lower back since her accident.[90] The plaintiff also stated that she had been experiencing her symptoms since her accident in 2016. Prior to the accident, she was symptom free.[91] The physiotherapist noted that it was his understanding that the plaintiff was not employed prior to the occurrence of the accident.[92] The opinion of the physiotherapist was that the plaintiff would benefit from pain management delivered by a multidisciplinary team.[93]
[90]PCB 59
[91]PCB 59
[92]PCB 60
[93]PCB 61
105Again, the history given by the plaintiff to the physiotherapist is inaccurate and the opinion based on that inaccurate history is not helpful to the determination of this application.
Dr Olivia Ong, pain and rehabilitation specialist
106Dr Ong prepared a report dated 20 February 2019 and sent it to the referring doctor, Dr Lu.
107In that report, Dr Ong took a history from the plaintiff that her pain commenced after the transport accident.[94] The plaintiff was complaining to Dr Ong of sharp stabbing pain in her neck, trapezium on both sides, worse on the left, and the pectoral region, as well as thoracic and lumbar spine pain.[95] Dr Ong noted the medical treatment that the plaintiff had been advised to undertake, including the radiological examinations. Dr Ong noted that the plaintiff had been to see Mr Tran, orthopaedic surgeon, and that she had been told that surgery was not appropriate for her shoulder.
[94]PCB 63
[95]PCB 63
108The plaintiff had told Dr Ong that she did not have any mental health difficulties prior to her motor vehicle accident. That history does not accord with the recorded medical attendances on doctors in the past.
109Dr Ong prepared a second report on 28 May 2019. She noted that the plaintiff showed evidence of severe fear of movement. Dr Ong’s opinion was that the plaintiff showed global guarding behaviour present. Dr Ong prescribed gabapentin for the plaintiff.[96]
[96]PCB 66
Professor Stephen Davis, neurologist
110Professor Davis was engaged to prepare a medico-legal report on behalf of the plaintiff. The report was dated 15 November 2017. The plaintiff did not rely upon this report, but the defendant tendered it as Exhibit 3 in this proceeding.
111In the clinical history given to Professor Davis, the plaintiff stated she was in generally good health prior to the collision. She occasionally had some back pain and some heartburn. The plaintiff stated she had not been working for a year prior to the transport accident because one of her children was autistic and she had to attend a lot of medical appointments.[97]
[97]PCB 79
112Professor Davis noted a history from the plaintiff that there were no similar problems in the past and the sequelae of this accident included a Chronic Pain Syndrome involving the neck and lower back and rotator cuff injuries to her left shoulder. The plaintiff told Professor Davis that she had been referred for a steroid injection but was concerned about the potential side effects of that procedure.[98]
[98]PCB 80
113On examination, Professor Davis found as follows:
“… She complained of pain to gentle palpation of the cervical and lumbosacral regions. There were no neurological signs. She did have pain with any left shoulder movement and apparently restricted movements of the left shoulder. There was no convincing weakness in any of the myotomes of the left arm with perfectly symmetrical reflexes in upper and lower limbs. There were no long tract signs.
…
… Her symptoms in the left arm suggest brachial neuralgia due to cervical nerve root rotation but the MRI scan performed shortly after this accident of the cervical spine was normal. She has had demonstrable pathology in the left shoulder region on ultrasound. She does have some spondylosis with disc bulges in the low back.”[99]
[99]PCB 81
114Professor Davis’ conclusion is that there was no indication for any intervention for the plaintiff but that she might benefit from a steroid injection to the left shoulder region.
115By way of completeness, in his report, Professor Davis noted that the plaintiff had not been working for a year prior to the transport accident because she was looking after her autistic son. He noted that the plaintiff was actually looking for part-time work at the time of the accident.
116Professor Davis’ prognosis was:
“She has a chronic pain syndrome which should be conservatively managed but it is difficult to comment on prognosis. Psychological factors are also likely to be playing a significant role.”[100]
[100]PCB 82
Professor Peter Teddy, neurosurgeon
117The plaintiff was sent to Professor Teddy for medico-legal assessment. Professor Teddy prepared a report dated 29 January 2018. Professor Teddy’s diagnosis was a soft-tissue injury to the neck and lower back.[101] He noted that the plaintiff did not have any neurological abnormality and her objective clinical signs are somewhat disproportionate to the level of incapacity described. This relates to her neck and back complaints. He noted that the plaintiff was on large amounts of analgesia and she exhibited some features of a Chronic Pain Syndrome.[102]
[101]PCB 86
[102]PCB 86
118Professor Teddy noted objective clinical evidence of left shoulder pathology and stated this required the opinion of an experienced orthopaedic surgeon. Professor Teddy noted as follows:
“On the objective neurological point of view, there is nothing other than the pain as described to suggest that Mrs Husseinkhill (sic) is unable to return to some form of sedentary occupation. This is dependent upon the review of her left shoulder as outlined above.”[103]
[103]PCB 87
Dr Graeme Doig, orthopaedic surgeon
119The plaintiff was medically examined for the purposes of preparation of a medico-legal report by Dr Doig. The report was dated 13 January 2021. Dr Doig had a full set of radiology examinations of the plaintiff between the years of 2007 and 2018. In the history taken from the plaintiff, Dr Doig reported:
“Ms Husseinkhil denied any previous problems or injuries to the neck or left shoulder. She did suffer from long-standing lower-back problems with a CT scan of the lumbo-sacral spine in January 2012 revealing facet-joint degeneration at the L5/S1 level on a background of congenitally short pedicles.”[104]
[104]PCB 102
120In his opinion, Dr Doig thought the plaintiff was suffering a pain-type of picture with the constant left-sided neck and shoulder discomfort described by the plaintiff.[105]
[105]PCB 102
121Dr Doig diagnosed the plaintiff as follows:
“i.Soft-tissue injury to the left shoulder with rotator-cuff tendinopathy, sub-acromial bursitis and a possible, partial tear of the supra-spinatus tendon on her medical imaging.
ii. Soft-tissue injury to the cervical spine including the trapezius muscles.
iii. Soft-tissue injury and symptomatic exacerbation of a pre-existing lower-back condition. Ms Husseinkhil stated that her back condition had settled in the past with no on-going problems. This needs clarification with the treating practitioners. Medical imaging in 2012 revealed facet-joint degeneration particularly at the L5/S1 level.
iv. Ms Husseinkhil is now presenting with a chronic-pain type of picture with a degree of functional overlay.”[106]
[106]PCB 103
122Dr Doig’s prognosis for the plaintiff was poor. He noted the plaintiff is now suffering from a chronic pain condition with secondary psychiatric problems which are out of his area of expertise.[107]
[107]PCB 104
Dr Meena Mittal, pain physician and specialist anaesthetist
123Dr Mittal examined the plaintiff and prepared a report dated 5 November 2020 for the purposes of this litigation. Dr Mittal took a history from the plaintiff where she reported a previous history of back pain and shoulder pain, ankle and knee pain. The plaintiff stated that she had undergone investigations in 2012. Dr Mittal noted the medications the plaintiff was taking.[108]
[108]PCB 109
124On examination, Dr Mittal noted the plaintiff had marked restricted range of movement in respect of her cervical spine and generalised tenderness in respect to light palpation throughout her left shoulder.[109]
[109]PCB 110
125Dr Mittal stated that in respect to the neck pain, the plaintiff had suffered a significant whiplash injury.
126In respect of the left shoulder complaint, the plaintiff had radiological evidence of an insertional tear of the supraspinatus tendon, as well as subacromial and subdeltoid bursitis. Dr Mittal stated that the left shoulder injury required further elucidation and assessment. Dr Mittal further stated that the plaintiff has symptoms that were consistent with Post-Traumatic Stress Disorder, Depression, Anxiety and panic attacks.[110]
[110]PCB 112
127In her diagnosis section of the report, Dr Mittal stated the diagnosis of injuries or aggravation of injuries in respect to her spine and left shoulder caused by the motor vehicle accident have been outlined in the body of the report. Dr Mittal noted that it was difficult to confirm the diagnosis without further investigations.[111] In Dr Mittal’s opinion, the plaintiff has a guarded prognosis. Dr Mittal noted that the plaintiff was likely to suffer from a degree of chronic pain and its associated dysfunction well into the foreseeable future.
[111]PCB 113
Dr James Rowe, occupational physician
128Dr Rowe prepared two reports dated 10 March 2021 and 26 April 2021 for the purposes of this litigation.
129Dr Rowe took a past medical history from the plaintiff inclusive of minor joint pain, which was not severe and did not impede her daily activities, as well as abdominal problems, menstrual problems and anxiety related to an abusive relationship and her upbringing in Afghanistan.[112]
[112]PCB 119
130Dr Rowe’s diagnosis was as follows:
“The diagnoses are:
- Persistent neck pain caused by aggravation of degenerative changes, mostly at the lower cervical levels;
- Insertional partial thickness tear of the mid-supraspinatus tendon of the left shoulder;
- Mild subacromial, subdeltoid effusion/bursitis of the left shoulder;
- Mild AC joint arthropathy of the left shoulder.”[113]
[113]PCB 121
131In Dr Rowe’s opinion, there was an organic basis for both the neck and left shoulder complaints made by the plaintiff. Dr Rowe refers to a thousand pages of referral material in the latter part of his report. He stated that, on his assessment, the plaintiff had not shown any evidence of exaggeration or functional overlay while he was examining her. He also stated that the plaintiff had not undertaken a pain management program to assist her with her difficulties. This is clearly not correct. At the time of that report, the plaintiff had engaged in two separate pain management programs.
132In the second report dated 26 April 2021, Dr Rowe had the advantage of seeing the surveillance material, together with a report from the general practitioner relating to the attendance on 18 March 2021 (the day of surveillance). The surveillance did not change the opinion of Dr Rowe. He repeated his opinion that there was no evidence of exaggeration or illness behaviour by the plaintiff during the course of his interview with her. Again, he reiterated his opinion that the plaintiff should be referred for a pain management program.
Radiological reports
133The plaintiff has had numerous CT scans and MRI scans of her cervical spine. The general conclusion of all of those scans is that there is no abnormality noted.
Left shoulder ultrasounds
134The plaintiff has had three separate ultrasounds of her left shoulder. On the first occasion, 22 November 2016, the conclusion was:
“Insertional partial thickness tear supraspinatus tendon. Background supraspinatus tendinosis. Associated subacromial-subdeltoid bursal effusion – bursitis.”[114]
[114]PCB 139
135The results of the report performed on 8 June 2017 were:
“1. Insertional partial thickness tear mid-supraspinatus tendon.
2. Mild subacromial – subdeltoid bursal effusion/bursitis.
3. Mild AC joint arthropathy.”[115]
[115]PCB 142
136The final ultrasound report in respect to the plaintiff’s left shoulder was as follows:
“Partial thickness (less than 50% thickness) bursal surface tear measuring 7 x 6 x 4 mm in the supraspinatous (sic) tendon.
Background supraspinatous (sic) tendon is thickened suggestive of tendinopathy.
Other rotator cuff tendons are normal.
Subacromial bursa is thickened with impingement on the shoulder abduction suggestive of bursitis.
No shoulder joint effusion.
Impression:
1. Supraspinatus tendinopathy with focal partial thickness bursal surface tear.
2. Subacromial bursitis.”[116]
[116]PCB 145-146
Professor Ton Tran, orthopaedic surgeon
137The plaintiff was referred to Professor Ton Tran by the general practitioner, Dr Lu. The purpose of this referral was for him to examine the plaintiff’s left shoulder. At the time of Professor Tran’s examination of the plaintiff’s left shoulder, she had undergone two of the ultrasound examinations and a steroid injection approximately two weeks prior to his examination. He noted that the right shoulder was also symptomatic, especially with movement. Professor Tran had the advantage of the ultrasound of June 2017, confirming a rotator cuff finding of her shoulder. He stated that the plaintiff’s problem is not due to her shoulder. In his opinion, any surgical intervention to the left shoulder would, at best, not be beneficial and, at worst, it was likely to make the situation worse for the plaintiff. He recommended a general pain management program.[117]
The Defendant’s medical opinions
[117]PCB 235
Dr John Owen, orthopaedic surgeon
138Dr Owen prepared two reports dated 27 January 2021 and 15 April 2021. These reports were prepared for the purpose of this litigation. Dr Owen’s first report was done by means of Telehealth from New Zealand. He took a history from the plaintiff that any movement causes pain in her left shoulder, neck, lower back and the area of her shoulder blades. She also has very strong headaches. She found that the use of her left arm causes her pain to flare up. The plaintiff gave a history that breathing can cause her pain and for her neck to flare up.[118] He also noted the plaintiff stated she could not use her arm to do overhead tasks such as hanging out the washing or attending to high shelves. She cannot lift anything, only very light material.[119] The plaintiff gave a medical history that she did not have any severe illnesses and that she does have some problems with asthma, but did not have any previous spine or shoulder problems.[120]
[118]DCB 26
[119]DCB 26
[120]DCB 27
139Dr Owen sets out in his second report, all the imaging that the plaintiff has undertaken, including a CT scan of the lumbar spine in 2012.[121] Dr Owen also noted the medical notes from general practitioners, Dr Rawson and Dr Anne Davies.
[121] DCB 28
140Dr Owen further noted that Professor Tran, orthopaedic surgeon, cleared the plaintiff of any significant injury to her left shoulder and it was Professor Tran’s opinion that the pain is related to her neck.[122]
[122]DCB 30
141Dr Owen sets out his diagnosis as follows:
“The diagnosis of these conditions have been elusive and which have defied clarification.”[123]
[123]DCB 31
142Dr Owen notes his comments in relation to letters to Dr Rawson in December 2008, and states the following:
“Basically, Ms Husseinkhil had multiple musculoskeletal complaints that no organic cause could be found for dating back to her time in Afghanistan, investigated apparently at Monash MC Rheumatiology (sic) Outpatient service.
Dr Ong comes closest to articulating the physical and presumably her pain problems have a psychological origin.”[124]
[124]DCB 31
143Dr Owen further stated:
“The physical injuries caused by Ms Husseinkhil’s transport accident are ill-defined but are likely to be minor.
…
My conclusion is that this ongoing problem that she has had is not related to a transport accident but related to her psychological issues.”[125]
[125]DCB 32
144Dr Owen then went on to state:
“There is no radiological support for Ms Husseinkhil’s current complaints and disability.
The findings on x-ray of her cervical spine, lumbar spine and shoulder are all mild degenerative changes and certainly do not support her current complaints and disability.”[126]
[126]DCB 33
145Dr Owen concluded:
“This claimant has in my opinion been subject to quite significant psychosocial stress and has now somatic manifestations of it which are not supported by any evidence of underlying organic pathology. Her accident was a relatively minor accident and I find it hard to accept that she suffered from any significant organic injury, however in such an individual the psychosocial problems have led her to develop this chronic state of disability.
A report from a psychologist would be helpful.”[127]
[127]DCB 34
146Dr Owen was then provided with the reports of Dr Anna Lu dated January 2021 and Dr Mittal dated 5 November 2020.
147Dr Owen stated as follows in respect of the multiple investigations undertaken by the plaintiff:
“The obsession with investigations, and the danger that that poses for patients, is quite evident in this lady. She has had an ultrasound of her left shoulder, which showed some abnormalities in her rotator cuff. As a result of that, she was convinced that there was a problem in her shoulder and she has been referred and had treatment for it.
Rotator cuff problems are common and abnormal findings on ultrasounds are also common. The diagnosis of a rotator cuff problem relies on an accurate history and specific points of examination. For example, in a patient like this with some bursitis, apparently, and a small insertional problem in her supraspinatus tendon, one would expect the range of movement of her shoulder to be virtually normal but to have some points on specific tests that would elicit pain. It would also, if there was a steroid injection directed into the bursa, be likely that her symptoms and signs would disappear. This is called the impingement test.
It is quite obviously not the case with this claimant and I would strongly disagree with Dr Mittal’s recommendations, except to say that her recommendation that a psychiatrist be involved is reasonable.”[128]
[128]DCB 19
148Dr Owen was later shown the surveillance film of the plaintiff. His report dated 4 May 2021 stated that, in his opinion, “the disability complained of and shown is more of a psychosocial problem rather than a structural organic one”[129] for the plaintiff. The footage did not change his opinion of the plaintiff’s inability as a result of the transport accident. He noted that the –
“… surveillance footage shows a person moving almost normally and certainly it does not cause me to alter my opinion about her capacity to work and participate in domestic, social and leisure activities. The surveillance footage shows a person going about their life in a relatively normal way, which is not the history I took from the claimant.”[130]
[129]DCB 270
[130]DCB 270
The cervical spine
149The plaintiff, in this application, made a claim for serious injury to her spine. The medical evidence in this case does not indicate or establish a significant injury to the plaintiff’s spine. In particular, the cervical spine, as the case went on, became more of the focus of the plaintiff’s claim. The radiological examinations of the plaintiff are all normal. The combined medical opinions on examination of the plaintiff could find no objective basis for her pain and complaints in respect of her cervical spine.
150Further, the plaintiff had a history of seeking treatment for spinal pain problems, including the cervical spine. I am unable, on the present medical evidence, to assess what level of aggravation, if any, was caused to the plaintiff’s cervical spine as a result of the transport accident. I also find that the plaintiff’s reaction or illness behaviour, as it is referred to by some medical examiners, is consistent with the plaintiff’s previous history of seeking medical intervention for pain that she has suffered since coming to Australia and before.
Left shoulder injury
151There is some radiological proof of an injury to the plaintiff’s left shoulder. The balance of the orthopaedic medical opinion is that the injury to the shoulder is not of any substantial significance. There has been no recommendation for surgery in respect to the left shoulder. The medical practitioners have recommended injections to deal with the localised pain area in the left shoulder. The plaintiff has had one of those procedures undertaken with little or no benefit.
152I am not satisfied that the plaintiff has established that the disability attributed to the left shoulder injury is of the level that she complains about. Again, the plaintiff’s illness behaviour, as noted by some medical examiners, makes it almost impossible to have some objective assessment of the consequences of any injury to the plaintiff’s left shoulder as a result of the transport accident.
Consequences to the Plaintiff of the transport accident
153The plaintiff has complained of pain in her neck, left shoulder, lower back, shoulder blades, left hand, pins and needles in the left hand and pain in her left leg.[131] She also complains of headaches at the back of her head and restricted movement and pain upon movement of her body and left arm.[132]
[131]PCB 13
[132]PCB 13
154The history from the plaintiff’s medical records prior to the transport accident also had the same symptoms and complaints from the plaintiff. I am not satisfied that the plaintiff has established, on the balance of probabilities, that she now suffers a greater level of pain than she had previously complained about to her medical practitioners prior to the transport accident.
155The plaintiff has also complained of difficulty with sleeping.[133] In her previous medical history, the plaintiff made complaints of being unable to sleep or remain asleep due to pain. The interruption to the plaintiff’s sleep has been a constant theme throughout her time here in Australia since 2005.
[133]PCB 14
156The plaintiff also takes substantial amounts of medication. Her general practitioner prescribes the medication. The general practitioner clearly accepts the plaintiff’s complaints of pain and consequently seeks to treat the plaintiff for that pain. The plaintiff has previously taken numerous medications to alleviate her pain symptoms at a time prior to the transport accident. The plaintiff has undertaken pain management programs, but is unsuccessful in managing the pain. I do not accept that the plaintiff’s complaints of pain, comparing pre-accident complaints with post-accident complaints, realistically amounts to being more than “significant or marked” and “at least very considerable”. The plaintiff is pain focused.
157In terms of the plaintiff’s inability to undergo or perform grocery shopping, housework, looking after children, cooking or attending to the mosque, as set out in her affidavit, it is clear the plaintiff does all of those tasks now. The surveillance film clearly shows the plaintiff is able to go to the shops.[134]
[134]PCB 14-15
158The plaintiff also claims that she is unable to work due to her injuries. I note that the plaintiff has registered a business described as SS Connect. This business was registered in September 2019 and the registration is current. The plaintiff was asked about this company or business, and the following was stated:
Q:“And who are SS Connects?‑‑‑
A:SS Connect was also, ah, with a friend of mine. We wanted to, because there’s a lot of people that have, you know, language issues and they cannot find jobs and stuff, they cannot ‑ also, you know, there are people that need therapists, like physiotherapists or speech therapists and other things, so we were kind of like we can open our own company and then we are going to try to help them to find the right therapist for the right person.
Q: Okay. And you opened that ‑ ‑ ‑?‑‑‑
A: No.
Q: Sorry, you registered that business?‑‑‑
A: M’hmm.
Q:On 4 September ‑ this is on p.182, Your Honour ‑ 4 September 2019?‑‑‑
A: Ah, I don’t remember the year but, yeah, probably.
Q: After the accident, anyway?‑‑‑
A: Yeah, it was after the accident.
Q:And SS Connects was going to be what, an interpreting style of business, talk to the people and ‑ ‑ ‑?‑‑‑
A:No, no, it wasn’t interpreting. It was, ah, NDIS, NDIS provider, so in India it’s like people who has, like, mental issues or they have any sort of disability, so you just direct them to the right therapist.
…
Q:That’s not the type of job that involves lifting or doing anything ‑ ‑ ‑?‑‑‑
A:No, for us, no, it wasn’t. For us, it wasn’t.
Q: So it’s very light work that you could do?‑‑‑
A: M’hmm, so we were like ‑ ‑ ‑
Q: Did you say ‘yes’?‑‑‑
A: What, sorry?
Q: It’s very light work that you could do?‑‑‑
A: Sorry, I didn’t understand. What do you mean light work you can do?
Q:Well, it’s not going to hurt your shoulder, your back or your neck, is it?‑‑‑
A:No, it was ‑ a kind of a job where you just, you know, find a therapist. It’s not like lifting or pushing or anything.
Q: Yes?‑‑‑
A:It was that sort of job but because I couldn’t, you know, I already had an agreement with my, you know, my partners if I ‑ and somehow if I couldn’t, then I’ll give up, then they want to, you know, take over. So I couldn’t because I was so stressed I couldn’t, there was a time frame for us given that you had to provide everything and so we have to give everything, upload and also there was a lot of other things and then I couldn’t continue because of my health issues, I couldn’t continue and because time expired.
Q:So it was the stress more than anything else?‑‑‑
A:Sorry?
Q:It was the fact that you were stressed more than anything else?‑‑‑
A:Yeah, it was a stress, it was also my, you know, pain and everything because I couldn’t ‑ I couldn’t finish everything in the time, I couldn’t provide them everything because there was, I think, two months’ time was given to us.”[135]
[135]T59, L8 – T61, L10
159I do not accept the plaintiff’s explanation about this business. It was clear that she had intended to conduct this business with her partners and thought at the time she was able to do so. This is contrary to any indication by her that she was unable to perform any employment, as she has stated to all of the medical practitioners who have examined her for this case.
160The plaintiff also complained of putting on a large amount of weight as a result of the transport accident. I have previously dealt with this issue in the course of these reasons and, in simple terms, the plaintiff has only marginally increased her weight since the time of the accident.
Conclusion
161On the basis of the medical evidence in this case and my findings about the evidence of the plaintiff, she has failed to satisfy the statutory test that the consequences arising from the physical injury to her spine and, in particular, her cervical spine or her left shoulder, are “at least very considerable” and “more than significant or marked”. The application by the plaintiff pursuant to s93(17)(a) of the Act to bring proceedings for damages in respect of a physical injury to the plaintiff’s spine and, in particular, her cervical spine and her left shoulder, suffered as a result of a transport accident on 11 August 2016, is dismissed.
162The application by the plaintiff pursuant to s93(17)(c) of the Act to bring proceedings for damages in respect of a psychological or psychiatric condition arising from the transport accident on 11 August 2016 is dismissed.
163I will hear the parties on costs.
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