Iliadis v Transport Accident Commission
[2017] VCC 1354
•22 September 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-02304
| GEORGE ILIADIS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6, 7 and 8 September 2017 | |
DATE OF JUDGMENT: | 22 September 2017 | |
CASE MAY BE CITED AS: | Iliadis v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1354 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to the spine – psychiatric injury – causation – credit
Legislation Cited: Transport Accident Act 1986
Cases Cited:Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317; Woolworths Ltd v Warfe [2013] VSCA 22; Jones v Dunkel [1959] HCA 8; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Philippiadis v Transport Accident Commission [2016] VSCA 1; Humphries v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Acir v Frosster Pty Ltd [2009] VSC 454, The Herald & Weekly Times Ltd and Anor v Jessop [2014] VSCA 292
Judgment: Application successful
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V Morfuni QC with Ms K Galpin | Patrick Robinson & Co Lawyers |
| For the Defendant | Mr R Attiwill QC with Mr P Bourke | Transport Accident Commission |
HER HONOUR:
Preliminary
1 Mr Iliadis is a 49-year-old man who was injured in a transport accident on 7 September 2013, when the car he was driving was side-swiped by a truck as it turned left into the same road. Mr Iliadis claims that he suffered injury to his lower back and neck in this accident. Mr Iliadis continued working until August 2014, at which time he claims he ceased work due to his ongoing pain. Mr Iliadis subsequently become a regular user of ice, and has developed a psychiatric condition, which he claims is consequent upon the transport accident.
2 In order for Mr Iliadis to be entitled to claim common law damages, he must satisfy me that, as a consequence of the transport accident, the impairment of his spine satisfies paragraph (a) of the definition of “serious injury” contained in s93(17) of the Transport Accident Act 1986. In the alternative, Mr Iliadis must satisfy me that he suffers a psychiatric disease or disorder as a consequence of the transport accident, the consequences of which satisfy paragraph (c) of the definition of “serious injury”.
3 The Transport Accident Commission (“the TAC”) accepts that Mr Iliadis suffered an injury to his spine in the transport accident, but denies that its consequences are serious. The TAC denies that the transport accident was a cause of Mr Iliadis’ psychiatric condition.
4 Only Mr Iliadis was called to give evidence, and he was extensively cross-examined. Also in evidence were medical reports, clinical records and other materials. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my judgment.
Mr Iliadis’ life before the transport accident
5 Mr Iliadis was born in Greece and migrated to Australia at the age of seven. He completed Year 12 at Lyndale Secondary College. Upon completion he began a career in sales, and initially worked for Cadbury-Schweppes. He later worked in the telecommunications industry, and was a sales representative for British Telecom and Lucent Technologies. He then had a two-year contract with Sensis.
6 After he finished at Sensis, Mr Iliadis took a one-month break, before subsequently obtaining work through a friend as the general manager for Furnishing International. In this role Mr Iliadis was responsible for selling advertising space for magazines, which required him to visit clients on a daily basis; he drove approximately 40,000 kilometres a year. Mr Iliadis also said that he undertook overseas travel as part of this role, predominantly to Asia. At the time of the transport accident, Mr Iliadis earned $64,999 per annum in this role.
7 Mr Iliadis was previously married, but said that he divorced in 2004. He has no children, and now lives with his mother.
8 In this case, the issue as to whether or not Mr Iliadis had suffered a psychiatric condition prior to the transport accident was of some significance. The TAC tendered an extract of a medical record dated 13 May 2006 that was produced to the court by Monash Health, in response to a subpoena served in relation to Mr Iliadis.
9 The record contained the notes of a consultant psychiatrist, who stated that a 36-year-old Greek man named George was brought to the Emergency Department by police, after his wife had expressed concern regarding bizarre and unpredictable behaviour over a six-month period. It was noted that the patient’s wife was three months pregnant, and that his father had died two years ago. The patient had used ecstasy, speed and ice and was diagnosed as suffering a drug-induced psychosis and depressive illness.
10 Mr Iliadis denied that this medical record belonged to him.
11 There was a sticker on the top right-hand corner of the records which showed Mr Iliadis’ name, date of birth, address and contact details. However, it also stated that Mr Iliadis was 47 years and 11 months of age. Given he was born in April 1968, the sticker on this record must have been produced and placed on the original document in March 2016.
12 Mr Iliadis supported his denial that the record did not belong to him, on the following grounds:
(i) The records referred to the patient as being a 36-year-old man; however, Mr Iliadis said that he was 38 years old in May 2006;
(ii) The records note that the patient was married and that he attended with his wife; however, Mr Iliadis said that he had been divorced since 2004;
(iii) The records note that the patient’s wife was three months pregnant; however, Mr Iliadis said that whilst he had previously impregnated his wife, it was not in 2006, as they were no longer together at that time.
(iv) The records note that the patient’s father died two years ago; however, Mr Iliadis said that his father died in 2002.
(v) The records note that the patient owned a business in biotechnology; however, there was no evidence that Mr Iliadis ever owned such a business.
13 The TAC did not cross-examine Mr Iliadis as to the accuracy of the date he claims to have been divorced or whether he owned a biotechnology business. I also note that this medical record has Mr Iliadis as two years younger than he would have been at the time the records were created, and that the date of his father’s death is inaccurate. It is difficult to reconcile these discrepancies, and I have sufficient doubt as to whether or not the record of 15 May 2006 does in fact belong to Mr Iliadis. In such circumstances, I will disregard this medical record when assessing his claim.
14 To support its claim that Mr Iliadis had pre-existing psychiatric problems, the TAC also relied upon nursing notes following Mr Iliadis’ admission to Monash Medical Centre on 15 March 2015. These notes referred to a history obtained from his sister, that Mr Iliadis’ mental state had declined following his marriage breakdown nine years ago. Mr Iliadis denied the accuracy of this history.
15 The TAC also relied upon medical reports from Mr Iliadis’ treating psychiatrist, Dr Ravi Talluri, who made similar references to a pre-existing psychiatric condition. His first report, dated 23 December 2015, was provided to Mr Iliadis’ solicitors in the current court proceedings, and referred to information that Dr Talluri had obtained from the Monash Health records, as well as his case manager. Dr Talluri understood that Mr Iliadis had experienced a deterioration of his health following the divorce from his wife nine years previously. It was noted that he was using cannabis and was making “bizarre choices”.
16 A further report, dated 30 August 2016, was provided to Mr Iliadis’ criminal lawyers in prior court proceedings. It contained a history that Dr Talluri had obtained from Mr Iliadis’ sister and mother, that there had been “a much longer period of illness with insidious deterioration over several years”. Dr Talluri recorded that there had been a decline in Mr Iliadis’ occupational functioning and that he was experiencing “frequent troubles with employers and being fired often. He was also reportedly using ice heavily at the time.”
17 In cross-examination, Mr Iliadis denied the histories in both of Dr Talluri’s reports. He also said that his sister had provided an email that he subsequently gave to his solicitors, in which she stated that she had never made any such comments to Dr Talluri.
18 Also in issue in the case, was the extent of Mr Iliadis’ prior drug use. In his affidavit, Mr Iliadis said that prior to the transport accident, he used recreational drugs from time to time. In cross-examination, Mr Iliadis initially said that he could remember smoking marijuana after a particular water-skiing incident, and that there may have been “a party or two”, before later stating that he had snorted cocaine about half a dozen times.
19 I am of the opinion that the evidence given by Mr Iliadis in relation to his past drug use is inconsistent with the histories contained within the reports of Dr Talluri and the Monash Medical records of March 2015. I am not satisfied that prior to the transport accident, Mr Iliadis used drugs as infrequently as he claimed.
20 Mr Iliadis said that prior to the transport accident, he played golf twice a week in the summer months at his local golf course. He also used to do boxing in a mate’s garage four times a week, and played regular tennis in the summer.
21 In cross-examination, Mr Iliadis said that he had also cycled prior to the transport accident. I note, however, that he stated subsequently that he had taken it up after the transport accident.
22 Mr Iliadis said that prior to the transport accident, he had an active social life, both in relation to entertaining clients through his work as well as seeing friends. He said that he would often go to parties, go for dinner and go to restaurants.
What Mr Iliadis says about the transport accident, his injuries and their consequences
23 The transport accident occurred on 7 September 2013, when Mr Iliadis was driving towards the T‑intersection of Wickham Road and Cochranes Road, Moorabbin. Mr Iliadis said that as he was turning left into Cochranes Road, a truck started turning left from the right-hand lane, and in so doing, it struck his car, causing it to run into a traffic-light pole.
24 On 13 September 2013, Mr Iliadis attended general practitioner, Dr Trung Ly. In a report dated 2 April 2016, Dr Ly recorded that Mr Iliadis had said that he was not hurt at the time, but that he had suffered lower back pain radiating to the hip over the few days prior to his attendance.
25 Dr Ly arranged for a CT scan to be taken of Mr Iliadis’ lumbar spine, which occurred on 17 September 2013. It demonstrated a broad-based posterior disc bulge at L4/5, contacting the thecal sac, as well as facet joint degenerative change at L5/S1 and slight narrowing of the right L4/5 exit foramen.
26 Dr Ly subsequently referred Mr Iliadis to neurosurgeon, Mr Craig Timms, who performed an examination on 2 December 2013. Mr Timms obtained a history that Mr Iliadis had hurt his neck and back in the transport accident, and that he had been managing his pain with chiropractic and physiotherapy treatment. Mr Timms recommended that an MRI scan be taken of Mr Iliadis’ lumbar and cervical spine.
27 On 13 December 2013, an MRI scan was taken of Mr Iliadis’ lumbar and cervical spine. In relation to the cervical spine, the scan demonstrated mild disc degeneration at multiple levels, with C5/6 affected slightly more so than the others, but with no convincing neural impairment. In relation to the lumbar spine, the scan demonstrated disc desiccation at L3/4 and L4/5 and a small central posterior protrusion with inferior extruded fragment at L4/5. It was further noted that the foraminal component of the disc on the right side was contacting the under surface of the existing L4 nerve root.
28 Mr Timms reviewed the MRI scan and recommended physiotherapy, acupuncture, massage and anti-inflammatory medication in respect of Mr Iliadis’ cervical spine condition. In relation to his lumbar spine, Mr Timms recommended physiotherapy, Pilates and some anti-inflammatory medication. Mr Timms did not recommend surgery and did not see Mr Iliadis after this time.
29 On 3 March 2014, Mr Iliadis was sitting on a chair at work, when one of the feet snapped from underneath him, causing him to be thrown backwards into a brick wall. Mr Iliadis said that he aggravated his back and neck pain, such that he subsequently attended chiropractor, Dr Tonietto, at the Heatherton Road Chiropractic Clinic. Mr Iliadis then lodged a WorkCover claim, which was rejected.
30 Mr Iliadis said that he continued working after this incident. However, Mr Iliadis said that he had time off to attend for chiropractic and other rehabilitative treatment.
31 On 31 March 2014, Mr Iliadis sought to resign from his employment, as he felt the pain he was suffering was too much. Mr Iliadis said that his employer asked him to stay on until they had found a replacement.
32 Mr Iliadis travelled overseas for his work once or twice during this period.
33 Mr Iliadis consulted Dr Ly on several occasions in the first eight months of 2014. He complained of occasional back pain, which was sore “on and off”. Dr Ly noted that Mr Iliadis considered physiotherapy to have helped him, and that he was attending the gym often. Dr Ly prescribed Voltaren on one occasion.
34 On 15 August 2014, Mr Iliadis consulted a new general practitioner, Dr Greg Wyatt, at Shalimar House in Dandenong North. At the time of his first consultation, Mr Iliadis informed Dr Wyatt that he “was about to resign from work as he felt that he could not work at his full capacity due to his chronic pain.” Dr Wyatt noted that it was his intention to take a month off work, before attempting to then return to the workforce. At that time, Dr Wyatt noted that, on examination, straight leg raising was 80 degrees on both sides, and that Mr Iliadis suffered discomfort touching his toes.
35 Mr Iliadis continued in his employment until 22 August 2014, at which time he said he was struggling both physically and mentally, and felt that he could no longer cope. Mr Iliadis has not worked since that time.
36 The TAC disputed that Mr Iliadis ceased his employment for these reasons. It relied upon a history given to Associate Professor Doherty that Mr Iliadis had ceased work due to other commitments, including the development of his property in Doveton. Mr Iliadis denied the accuracy of this history.
37 In his first affidavit, Mr Iliadis said that after ceasing work, he started “hanging around in bad company.” He said that he had “some ice”, but that he also “took marijuana which was my biggest problem”. In his subsequent affidavit, Mr Iliadis confirmed that he associated with the wrong crowd and “fell into drugs.”
38 In cross-examination, Mr Iliadis said that his girlfriend at the time had a brother who was a drug dealer, and that, as a result, he did not have to pay for the drugs he was given. He denied that he took $300 of ice per day, as noted in a hospital record dated March 2015.
39 Mr Iliadis also subsequently claimed that his drug use was solely for pain relief, and that it had been promoted to him as such.
40 In March 2015, Mr Iliadis was admitted to Monash Health Psychiatric Centre for his “bizarre behaviour”. Mr Iliadis said he believed his mental health breakdown had occurred as a result of the car accident.
41 In cross-examination, Mr Iliadis repeatedly said that he had last used ice in early 2015. He also expressly denied having ever used marijuana after the transport accident, notwithstanding statements to the contrary in his affidavit.
42 In June 2015, Dr Wyatt referred Mr Iliadis to psychologist, Mr Mark Salter, whom he consulted on five occasions through to October 2015. Mr Salter obtained a history from Mr Iliadis that his life had “fallen apart” after the transport accident. I note, however, that his report makes no reference to Mr Iliadis’ drug use. Mr Salter noted that Mr Iliadis was not working at that time, and that he spent his days caring for pigeons that he raced, as well as sub-dividing and developing a property he had purchased in Doveton. Mr Salter diagnosed Mr Iliadis with adjustment disorder, with depressed mood. He considered that Mr Iliadis had previously suffered a mood-related psychosis, which was in remission.
43 Mr Iliadis continued under the care of Dr Wyatt for at least a year. He was of the opinion that, in addition to suffering a lumbar disc prolapse, Mr Iliadis suffered a chronic pain syndrome, as well as a mental health issue. Despite the other complications in his “somewhat disorganised” life, Dr Wyatt accepted that Mr Iliadis continued to suffer chronic back pain.
44 At some stage prior to February 2016, Mr Iliadis transferred his care to general practitioner, Dr Onsy Hanna, from the Eastbrooke Family Clinic in Noble Park.
45 In February 2016, Dr Hanna referred Mr Iliadis to orthopaedic surgeon, Mr Peter Wilde. In his report dated 1 March 2016, Mr Wilde noted that Mr Iliadis reported constant pain across his back and into his right leg and toes. He noted that at that time Mr Iliadis took Duloxetine, Endep, Panadol Osteo and Endone on a daily basis.
46 On examination, Mr Wilde did not record any objective neurological signs. Mr Wilde then diagnosed mechanical lumbar back pain secondary to a disc injury. He considered the transport accident to be a contributing factor. Mr Wilde recommended that future treatment remain along conservative lines, and was of the opinion that Mr Iliadis should modify his personal and work activities to accommodate his symptoms. In particular, he recommended that Mr Iliadis undergo vocational retraining into a more sedentary form of work that did not involve significant bending, lifting or twisting.
47 On 16 April 2016, Mr Iliadis attended Dandenong Hospital’s Emergency Department, where he was described as agitated and hostile, following the use of methamphetamines over the previous two days.
48 There were similar attendances on 17, 18 and 20 April 2016. It was considered that Mr Iliadis had poor insight regarding regular ice use, and that he was unmotivated to change his behaviour.
49 Mr Iliadis denied each of these medical attendances and maintained that he had not used ice since 2015.
50 On 11 May 2016, Mr Iliadis was involved in a transport accident, after which he was subsequently told by police that he had tested positive for methamphetamines. Mr Iliadis maintained that he had not taken ice at the time, and attributed the positive test results to the medication he was taking at the time.
51 In mid-2016, Mr Iliadis was charged with numerous driving offences. He spent 35 days in jail and was subsequently convicted. Mr Iliadis received a three-year corrections order, the conditions of which included 400 hours of unpaid community work. As a consequence of these offences, Mr Iliadis lost his driver’s licence. He said the loss of his licence “totally isolates” him and that it has “ruined” his life.
52 On 20 January 2017, Mr Iliadis was taken by police to Dandenong Hospital’s Emergency Department. He was under the impression that people at a shopping centre were intentionally hitting him with trolleys, and he had become paranoid and aggressive as a result. It was noted that he had used ice the previous day. Mr Iliadis denied the accuracy of this history.
53 On 23 February 2017, Mr Iliadis attended Dandenong Hospital, and was accused of having a knife in his possession. It was noted that he demonstrated paranoia, but that he was not aggressive or irritable. The record stated that Mr Iliadis was using “recreational ice” three times a week. Mr Iliadis denied the accuracy of this history.
54 Mr Iliadis remains under the care of Dr Hanna, who provides analgesia, physiotherapy, gym programs, hydrotherapy and muscle massage as required. In addition, Dr Hanna is aware of Mr Iliadis’ ongoing need for anti-psychotic medication.
55 Mr Iliadis said that he suffers pain in his back, “all day, every day”, and that such pain intensifies in the cold weather. He said he has referred pain into his right leg, which then extends into his toes, and that he experiences pins and needles in his right foot and toes from time to time.
56 In addition to his lower back pain, Mr Iliadis said he suffers pain in his mid-back and occasional pain in his neck and shoulders.
57 Mr Iliadis said that he finds it difficult to sit and stand for long periods of time. He said that his back feels better when he is moving, rather than when he is sitting, and that he has difficulty bending over.
58 Mr Iliadis said that he is still able to help his mum with the shopping, but that he finds it difficult to get there without a licence. He said that he is able to mow the lawns at home, but that he has to do it in sections.
59 Mr Iliadis said that he has not played golf or tennis since the transport accident. He also said that he no longer goes to watch the football.
60 Mr Iliadis said that he tries to walk and cycle regularly, as he understands this is good for his lower back. He said that he tries to walk as much as he can and cycles for 40 minutes. In addition, Mr Iliadis said that he attends the hydrotherapy pool every day or every second day, as it also helps with his pain.
61 In his affidavit sworn 26 April 2017, Mr Iliadis said that he took a number of medications to help with his pain. Such medications include Brufen, Celecoxib, Panadol Osteo, Codeine and Lyrica. In cross-examination, Mr Iliadis said that he is currently taking Panadol Osteo on a daily basis.
62 Mr Iliadis has been treated by psychologist, Mark Salter, and psychiatrists, Dr Mahalingam, Dr Morley and Dr Talluri, and is currently under the care of psychiatrist, Dr Shreyus Shivanand. In a report dated 17 July 2017, Dr Shivanand confirmed that Mr Iliadis had a history of schizophrenia/schizoaffective disorder, and noted that he continued to present with ongoing residual symptoms of psychosis with paranoid ideation, persecutory delusions, and that he is disorganised and experiences difficulties in managing his daily living. Dr Shivanand prescribes Mr Iliadis weekly injections of Paliperidone. Mr Iliadis said that these injections have controlled his behaviour since February 2017, and that Dr Shivanand has been slowly reducing the dosage of his medication.
Mr Iliadis’ medico-legal evidence
63 Mr Iliadis’ solicitors arranged for him to be examined by neurosurgeon, Professor Richard Bittar, in January 2016. In his report dated 25 January 2016, Professor Bittar noted that Mr Iliadis complained of constant lower back pain which was exacerbated by inactivity, sitting for more than 20 minutes, standing for more than 15 minutes, bending, twisting or lifting more than two to three kilograms. It was noted that his symptoms improved with gentle bicycle riding.
64 Professor Bittar also noted that Mr Iliadis complained of neck pain, which was exacerbated when he was stressed or uptight. He noted that at that time Mr Iliadis took daily medication including Panadol Osteo, Endep and Temazepam, and that he attended for hydrotherapy several times a week.
65 On examination, Professor Bittar noted moderate restriction of the cervical and lumbar spine, with no evidence of muscle spasm or radiculopathy. Professor Bittar reviewed the CT scan of September 2013, and the MRI scan of December 2013, before expressing his opinion that Mr Iliadis suffered aggravation of cervical and lumbar spondylosis. He was of the opinion that the transport accident had been a significant contributing factor, and that it remained a significant contributing factor to Mr Iliadis’ ongoing pain, disability, and requirement for treatment. In particular, Professor Bittar recommended that Mr Iliadis continue with his current medication schedule and regular hydrotherapy. He also considered Mr Iliadis would benefit from an outpatient pain-management program.
66 Professor Bittar was of the opinion that Mr Iliadis had the capacity to work part-time (four to six hours per day, three days per week) in a sedentary role, with the avoidance of prolonged sitting, bending and twisting or lifting more than four or five kilograms.
67 Mr Iliadis’ solicitors arranged for him to be examined by orthopaedic surgeon, Mr Gerald Moran, in March 2017. In his report dated 24 April 2017, Mr Moran noted that Mr Iliadis complained of constant lower back pain, with pain in the back of his right leg to his toes. It was noted that Mr Iliadis took Panadeine Forte, Endone, Lyrica, Nurofen, Panadol Osteo and Celebrex at that time, and that he walks, rides a bike, and attends a gym and pool three or four times a week.
68 Mr Moran was of the opinion that Mr Iliadis had suffered aggravation of degenerative disease of his lumbosacral spine in the transport accident, and that his complaint of back pain was consistent with that diagnosis. Mr Moran recommended that Mr Iliadis continue taking his medication and continue walking, riding a bike, and attending the gym and pool. He considered that as a consequence of his lower back injury, Mr Iliadis was only fit for part-time, light-duty work, and noted that he would require the flexibility to sit or stand as pain dictated.
69 Mr Moran also considered that Mr Iliadis had suffered aggravation of degenerative disease in his cervical spine, and limited Mr Iliadis to only part-time work.
70 Mr Iliadis’ solicitors arranged for him to be examined by psychiatrist, Dr George Wahr, in March 2016. In his report dated 10 March 2016, Dr Wahr was of the opinion that Mr Iliadis’ present problems were confined to lower back pain and pain in his hamstrings. Dr Wahr obtained a history from Mr Iliadis that he had not suffered psychiatric problems until approximately March 2015. He noted that Mr Iliadis had “touched drugs but nothing has become a problem.” Mr Iliadis said that he could not recall making that particular comment to Dr Wahr.
71 Dr Wahr noted that Mr Iliadis was taking Duloxetine, Endep, Invega, Valproate, Panadol Osteo and Endone at that time.
72 Dr Wahr was aware that Mr Iliadis had suffered a psychosis, which was treated at Dandenong Hospital, but was unable to obtain any further details from Mr Iliadis in relation to such treatment.
73 Dr Wahr noted that Mr Iliadis appeared anxious and depressed, and was of the opinion that he had suffered from well-controlled psychosis and agitated depression.
74 I consider that Dr Wahr obtained an inadequate history from Mr Iliadis as to the true nature and extent of his drug problems. Given the significance of his drug usage in the context of a psychotic condition, in these circumstances, I gain no assistance from Dr Wahr’s report.
75 Mr Iliadis’ solicitors also arranged for him to be examined by psychiatrist, Dr M J Nathar, in March 2017. In his report dated 3 April 2017, Dr Nathar detailed Mr Iliadis’ past history, including that he had “used recreational drugs such as ecstasy and ice on and off but was never a regular taker.”
76 Dr Nathar then noted that, as Mr Iliadis had suffered severe psychiatric problems, he had very poor memory and recall as to events of the previous two years.
77 Dr Nathar referred to the psychological reports with which he had been provided, as well as Mr Iliadis’ first affidavit. He specifically questioned Mr Iliadis about his ice use, in an attempt to establish whether or not it could have precipitated his delusional psychosis. Dr Nathar noted that Mr Iliadis had tried some ice, “but it was not regular”. He did not believe this ice use to have been causative of Mr Iliadis’ mental breakdown.
78 Dr Nathar noted that, at that time, Mr Iliadis was being treated with anti-psychotic injection, and that he was feeling “a bit better”.
79 Dr Nathar diagnosed Mr Iliadis as suffering adjustment disorder with anxious and depressed mood, which he believed was predominantly, if not solely, due to the effect of the transport accident. Dr Nathar then said that he considered the adjustment disorder to have evolved into the development of either a mood congruent psychotic disorder or a bipolar disorder with psychotic symptoms. Dr Nathar said it was difficult to make a precise diagnosis based on one interview and limited documentation. He stated that he was not convinced the illness may have been precipitated by non-accident-related events such as the use of recreational drugs. However, in circumstances where I consider that Dr Nathar was not given a full history from Mr Iliadis as to the true nature and extent of his drug-taking, I gain no assistance from his report.
The TAC’s medico-legal evidence
80 The TAC arranged for Mr Iliadis to be examined by occupational specialist, Dr Chris Baker, in December 2014. Dr Baker noted that Mr Iliadis had “battled through” work for approximately 12 months, until he resigned on 22 August 2014. He further noted that, at this time, Mr Iliadis was struggling to get through from day to day, and that he was of the opinion he needed to get himself better. At that time, he noted that Mr Iliadis was seeing his general practitioner, going to the sauna and undertaking exercises in the hydrotherapy pool. Mr Iliadis was also able to drive a car, but suffered cramping in his back and had to stretch after a long drive.
81 Dr Baker considered that Mr Iliadis had suffered minor soft tissue strain of his neck and persisting right-sided lower back symptoms. He was of the opinion that if Mr Iliadis participated in a functional restoration program he would likely improve, such that he could undertake full-time work as a salesman.
82 The TAC arranged for Mr Iliadis to be examined by orthopaedic surgeon, Dr Peter Boys, in March 2017. In his report dated 8 March 2017, Dr Boys noted that Mr Iliadis complained of neck and lower back discomfort, and considered his neck strain to be postural. Dr Boys noted that Mr Iliadis reported constant lower back pain radiating intermittently into his right calf, foot and toes. He also noted straight leg raising to 70 degrees bilaterally and no neurological impairment.
83 Dr Boys noted that Mr Iliadis was not taking any regular analgesic or anti-inflammatory medication at the time. He obtained a history from Mr Iliadis that smoking methamphetamines in low doses assists him with his symptoms.
84 Dr Boys was of the opinion that the transport accident had caused aggravation of underlying constitutional degenerative change within Mr Iliadis’ lumbar spine. Dr Boys was aware of Mr Iliadis’ psychiatric history, including psychosis which he felt may have impacted upon somatic complaints.
85 Dr Boys was of the opinion that Mr Iliadis had the physical capacity for managerial employment, but thought that he should avoid protracted static positioning of the spine or undue sitting in the course of employment. He considered that Mr Iliadis’ lower back condition would limit his capacity for comfortable long distance travel.
86 The TAC arranged for Mr Iliadis to be examined by psychiatrist, Associate Professor Peter Doherty, in January 2017. In his report dated 4 March 2017, Associate Professor Doherty recorded that, prior to the transport accident, Mr Iliadis’ mental health was good. Associate Professor Doherty then detailed the history he obtained from Mr Iliadis, including that he had ceased work in August 2014 “because he had other commitments”. Associate Professor Doherty recorded that Mr Iliadis was renovating a place in Doveton, and that he “had other work to do and couldn’t handle turning up to a normal job in pain and suffering”.
87 Associate Professor Doherty then detailed Mr Iliadis’ attendance at the Dandenong Hospital Psychiatric Service in 2015, his subsequent incarceration in July 2016, and the treatment he is currently receiving.
88 Associate Professor Doherty obtained a history that Mr Iliadis had last used marijuana “eight months to one year ago”, and that he had previously used marijuana a “bit every day”, but noted that it never muddled his mind or caused any paranoia. In relation to harder illegal substances, Mr Iliadis said that he smoked methamphetamines on a daily basis until a few years back. Mr Iliadis further said that he had last used methamphetamine the previous day and then a week before that. Associate Professor Doherty noted that Mr Iliadis considered it to be “a performance enhancer” and thought that it reduced his pain and increased his mobility.
89 Associate Professor Doherty then recorded Mr Iliadis’ current psychiatric complaint. He noted that Mr Iliadis gets a “good night’s sleep” and that he does not have any nightmares or traumatic recollections of the transport accident. He noted Mr Iliadis’ belief that if he is on ice “I fly and if not I struggle”.
90 Ultimately, Associate Professor Doherty diagnosed Mr Iliadis as suffering a paranoid psychotic condition, which had been precipitated by or made worse by or caused by the use of methamphetamines. Associate Professor Doherty did not consider there had been an adjustment disorder, nor did he consider that Mr Iliadis had suffered a pain-related psychiatric condition.
91 Associate Professor Doherty was of the opinion that Mr Iliadis’ methamphetamines use at the time of the transport accident was of “none or very little” significance. He noted that Mr Iliadis stated that use of methamphetamines improved his flexibility, motivation and energy. Associate Professor Doherty observed that the issue as to whether or not a paranoid psychotic condition is caused by the continued use of methamphetamines, or is a constitutional paranoid psychotic condition that has been made worse by methamphetamines and cannabis, is one of considerable debate.
Mr Iliadis’ credibility and reliability as a witness
92 The TAC ran an effective and sustained attack on Mr Iliadis’ credibility. Throughout his evidence Mr Iliadis gave a multitude of unconvincing answers on a range of different topics, such that by the conclusion of his evidence I had formed the view that he was an entirely unreliable witness. Whilst not intending to provide an exhaustive list of every such example, I consider the following to adequately demonstrate his unreliability:
(i) In his first affidavit, Mr Iliadis said that after the transport accident he had taken some ice, as well as some marijuana, which he claimed was his biggest problem. However, in cross-examination Mr Iliadis repeatedly said that he had never taken marijuana after the accident.
I consider the evidence Mr Iliadis gave in cross-examination to be entirely inconsistent with his first affidavit. Further, I note that the Monash Health records dated 11 March 2015 record that Mr Iliadis was occasionally using cannabis at that time. I also note that Associate Professor Doherty obtained a history in March 2017 that Mr Iliadis had last used marijuana eight months to one year ago.
(ii) Mr Iliadis claimed that he has not used ice since early 2015. This is inconsistent with the Dandenong Hospital records of April 2016, which refer to Mr Iliadis being a long term user of methamphetamines, who had last taken ice on at least 15 and 16 April 2016. When Mr Iliadis was cross-examined about these records he denied that the admissions related to him.
Mr Iliadis admitted that in May 2016 he was told by police that he had tested positive for methamphetamines. Mr Iliadis claimed this was a side‑effect of the medication he was on at the time. I do not accept this explanation.
The hospital record of 20 January 2017 referred to Mr Iliadis taking ice the previous day. I do not accept his denial of this record.
There was also a medical record of 23 February 2017 which stated that Mr Iliadis attended under the influence of ice. Again, I do not accept Mr Iliadis’ denial of this record.
I note that Associate Professor Doherty obtained a history that Mr Iliadis had last used ice the day before his consultation. I do not accept Mr Iliadis’ denial of this record.
(iii) In his first affidavit, Mr Iliadis claimed that he was doing property development at the time of the transport accident, and that he subsequently “tried to continue for a while but stopped due to my injury”.
The TAC tendered land title documents which demonstrated that the title for 1 Cedar Street, Doveton, was transferred to Mr Iliadis’ name on 8 April 2014. In cross-examination, Mr Iliadis conceded that he had purchased this property after the transport accident. In re-examination he later sought to retract this comment, and stated that he could not recall whether he purchased the property before or after the transport accident. I consider a seven-month settlement would be most unusual, and I am satisfied that Mr Iliadis purchased the property after the transport accident.
Mr Iliadis also accepted that, following the settlement of this property, with the assistance of a friend, he applied for a subdivision of the land and subsequently coordinated the building of a unit at the back of his property, as well as minor building works to the existing property.
I consider that Mr Iliadis downplayed his involvement in this project, and am of the opinion that he sought to portray an image in his affidavit that the injuries he sustained in the transport accident prevented him from continuing. In reality, I am satisfied that Mr Iliadis entered into the property development following the transport accident and was able to complete the project.
(iv) Mr Iliadis stated that subsequent to the transport accident he had travelled overseas for work on one or two occasions. Mr Iliadis could recall going to Singapore but was unsure as to whether he had also gone to China during this period. In cross-examination, it was put to Mr Iliadis that he had travelled to China in June 2014. Mr Iliadis repeatedly disputed that he had travelled to China at this time, on the basis that there were no trade shows in China at this time, and that, as such, he had no reason to be there. Mr Iliadis was then shown a letter from his employer’s accountant which stated that he had gone to China in June 2014. He said that it was a mistake. Mr Iliadis was then shown his outgoing and incoming passenger cards, which had been produced under a subpoena from the Department of Immigration. Both cards stated that he was to spend most of his time in China. Notwithstanding these documents, Mr Iliadis again denied that he had gone to China in June 2014.
I consider Mr Iliadis’ emphatic denial of this insignificant matter, in the face of contemporaneous documents, to demonstrate his unreliability as a witness.
93 In view of the above, I consider Mr Iliadis’ unreliability to impinge upon my assessment of the consequences he now claims to suffer as a result of the transport accident. In such circumstances, I have only accepted Mr Iliadis’ evidence where he was not challenged, where he gave concessions against his interest, or where his evidence was corroborated by objective evidence or contemporaneous documents.
Does Mr Iliadis suffer a psychiatric condition as a consequence of the transport accident?
94 Mr Iliadis claims that he was forced to cease work as a consequence of his physical pain. Upon leaving his job, he claims that he began to hang out with a bad group of people who introduced him to ice. In cross-examination, Mr Iliadis said that his use of drugs was solely for pain relief.
95 Mr Iliadis also claimed that he had no prior psychiatric history, and that his past drug use had been occasional and for recreational purposes only. He claimed that turning to drugs for his pain relief resulted in him suffering psychosis and a severe psychiatric condition.
96 To succeed in his application, the transport accident need only be a cause, not the sole cause, of Mr Iliadis’ psychiatric condition. For the reasons which follow, I am not satisfied that the transport accident is a cause of Mr Iliadis’ psychiatric injury.
97 I am satisfied that Mr Iliadis suffered some psychiatric problems prior to the transport accident. In reaching this conclusion, I have referred to the history contained in the nursing notes of May 2015 and the reports of Dr Talluri, both of which refer to Mr Iliadis as suffering some psychiatric problems prior to the transport accident. I have not referred to the Monash Hospital records of 13 May 2006, on the basis of the abovementioned unresolved discrepancies.
98 Mr Iliadis denied the histories in both the nursing note and Dr Talluri’s report, both of which relied upon a history provided by Mr Iliadis’ sister. In cross-examination, Mr Iliadis said that his sister had sent an email to him which he had provided to his solicitors which stated that the history in Dr Talluri’s report was incorrect. Mr Iliadis accepted that he was on good terms with both his sister and mother.
99 Mr Morfuni referred me to the Court of Appeal decision of Franklin v Ubaldi Foods Pty Ltd,[1] in which Ashley JA recommended caution in the reliance on histories contained within medical records, as he observed that there can be inaccuracies in medical records, as:
“[W]hat history was given to a doctor potentially raised questions both as to what the history-giver said, and what the history-taker recorded. To assume an inevitable monopoly of right on one side or the other would run counter to experience.”[2]
[1][2005] VSCA 317
[2]Ibid at footnote [5]
100 Mr Morfuni submitted that I should be cautious of attaching weight to the history contained in those records, especially in circumstances where the history did not appear to have been obtained from Mr Iliadis himself.
101 The TAC submitted that the medical history was clear on those records, and that the failure by Mr Iliadis to produce the alleged email, or to provide affidavits from his mother and sister denying this past psychiatric history, was such that an adverse inference should be drawn.
102 Whilst this is an originating motion and not a trial, the Court of Appeal noted in Woolworths Ltd v Warfe[3] that in circumstances where there was a direct and sustained attack on an important aspect of a plaintiff’s case, it may, in some circumstances, be appropriate to draw a Jones v Dunkel[4] inference.
[3](2013) VSCA 22
[4][1959] HCA 8
103 Upon receipt of Dr Talluri’s first report, I consider it should have been apparent to his solicitors that Mr Iliadis’ past psychiatric history and prior drug use would be a matter of significance in this proceeding. In those circumstances, I would have expected Mr Iliadis to tender rebuttal affidavits from his sister and/or mother, and to exhibit the alleged email to Dr Talluri in which his sister denied providing such a history. Although I cannot speculate as to what the evidence would have been from either his sister or his mother, I can draw an adverse inference that it would not have assisted Mr Iliadis’ claim.
104 Although I am satisfied Mr Iliadis suffered some psychiatric problems prior to the transport accident, I note that at the time of the accident Mr Iliadis appeared to be functioning well, as he was in full-time employment and did not require any psychiatric treatment.
105 In my opinion, the key issue for determination in respect of his claim for psychiatric injury is not whether Mr Iliadis suffered prior psychiatric problems, but whether his drug use can be related to the transport accident. In making this assessment, it is important to review his drug use prior to the transport accident.
106 There was a great deal of conflicting evidence as to the nature and frequency of the drugs that Mr Iliadis used prior to the transport accident. In his first affidavit, Mr Iliadis said that he had previously used recreational drugs from time to time. In cross-examination, he said that such drug use included marijuana on a few occasions, and cocaine half a dozen times.
107 Dr Nathar obtained a history from Mr Iliadis that in the past he had used recreational drugs such as ecstasy and ice on and off, but was never a regular taker. However, Mr Iliadis denied that he had taken ecstasy and denied that he had taken ice prior to the transport accident. Given my reservations as to his reliability, I do not accept that the only drug use Mr Iliadis engaged in prior to the transport accident was a very limited use of marijuana and cocaine. However, notwithstanding his drug use prior to the transport accident, I accept that in 2012 Mr Iliadis was able to hold down full-time employment. I accept that any such drug use was at a recreational level that did not impact upon his capacity to work.
108 The next matter for consideration is the time Mr Iliadis commenced using ice on a regular basis and for what purpose. In his affidavits, Mr Iliadis said that such time was after he had ceased work, when he started hanging around in bad company.
109 However, in cross-examination, Mr Iliadis said “my drug use was solely ... to help pain relief.” He went on to say that it was “promoted” to him in this way. I do not accept this evidence. Mr Iliadis said that his girlfriend’s drug dealer provided him with ice. I do not accept that either his girlfriend or the drug dealer promoted it for pain relief.
110 I do not accept that Mr Iliadis started using ice for self-medication.
111 I am satisfied that he had taken drugs previously, and that after mixing with the wrong crowd Mr Iliadis increased his drug usage, and then continued to take frequent and high doses of ice, up to the value of $300 per day. I do not accept that his use of ice ceased in early 2015. I am satisfied that Mr Iliadis continued to use ice until at least February 2017.
112 I do not accept that Mr Iliadis has not taken marijuana since the transport accident. His oral evidence in relation to marijuana use is in conflict with his previous affidavit and the medical records of March 2015.
113 I am satisfied that the frequency with which he has ingested a cocktail of drugs is such that Mr Iliadis has developed a psychotic condition, which has at times required hospitalisation. For the reasons detailed above, I am not satisfied that the transport accident was a cause of this psychotic condition.
114 I must then consider whether Mr Iliadis suffers a different psychiatric condition, separate to the psychosis, for which the transport accident is a cause.
115 Dr Wahr diagnosed Mr Iliadis as suffering psychosis as well as agitated depression. Dr Nathar considered that Mr Iliadis suffered an adjustment disorder, with anxious and depressed mood. However, neither medico-legal doctor was aware of the true nature and extent of Mr Iliadis’ drug use. I consider it to be of critical importance in the assessment of Mr Iliadis’ mental state that both doctors be in possession of the complete history as to his drug use. In such circumstances, I gain no assistance from either of their reports.
116 Mr Salter also diagnosed Mr Iliadis with adjustment disorder, with depressed mood. However, I note that he too was unaware of Mr Iliadis’ extensive drug use.
117 Associate Professor Doherty was of the opinion that Mr Iliadis did not suffer any psychiatric condition beyond a paranoid psychotic condition and substance use disorder.
118 Dr Wyatt referred to Mr Iliadis suffering a psychosis, and Dr Hanna referred to him suffering psychosis and schizophrenia.
119 Mr Iliadis has been treated by psychiatrists Dr Mahalingam, Dr Morley and Dr Talluri, and is currently under the care of psychiatrist Dr Shreyus Shivanand. Dr Shivanand is of the opinion that Mr Iliadis suffers schizophrenia and psychosis, but does not diagnose any other psychiatric condition.
120 In view of the above, I am not satisfied that Mr Iliadis suffers any psychiatric condition beyond that related to his drug use. As I am satisfied that the transport accident was not a cause of his drug use, I dismiss Mr Iliadis’ application under sub‑s(c).
What are the consequences of Mr Iliadis’ spinal impairment and can they be described as very considerable?
121 To succeed in his application for his physical injury under sub‑s(a), Mr Iliadis must satisfy me, on the balance of probabilities, that the impairment he claims to suffer to his spine is serious and long-term, and that it was caused by the transport accident. The test is subjective, in that it is the effect on the individual plaintiff that must be considered. However, that determination must be made by me objectively, in considering the seriousness of the impairment.[5] In considering whether or not Mr Iliadis’ spinal impairment is “serious”, the consequences must, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described as at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.[6]
[5]Philippiadis v Transport Accident Commission [2016] VSCA 1 at [24]
[6]Humphries v Poljak [1992] 2 VR 129 at [140]
122 In assessing this claim, it is necessary for me to look at the impact the spinal impairment has had upon Mr Iliadis. In so doing, I should consider what Mr Iliadis says and does about the pain, what the doctors say about the extent and intensity of his pain, and what the objective evidence demonstrates in relation to the effect of his pain.[7]
[7]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at [9]-[12]
123 In the Court of Appeal decision of Meadows v Lichmore Pty Ltd,[8] Maxwell ACJ identified a two-step process of analysis for cases in which a physical injury was present, as well as a pain syndrome.
“The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative – and, of course, if the pain and suffering consequences satisfy the statutory criterion – then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.”[9]
[8][2013] VSCA 201
[9]Ibid at [21]
124I am satisfied that there is a substantial organic basis to Mr Iliadis’ lumbar and cervical spine injury.
125 Mr Iliadis was referred to neurosurgeon Mr Timms within a few months of the transport accident, due to ongoing pain and stiffness in his neck and lower back. Mr Timms accepted that Mr Iliadis suffered injuries to his lumber and cervical spine in the transport accident, and recommended physiotherapy, acupuncture, massage and anti-inflammatory medication.
126Although Mr Iliadis continued to work after the accident, he said that he did so with pain, and that he obtained regular chiropractic, physiotherapy and hydrotherapy treatment. On 15 August 2014, Mr Iliadis informed Dr Wyatt that he intended to resign from his employment, as he could no longer work with chronic pain. I prefer the history contained within this contemporaneous medical record to that contained within the report of Associate Professor Doherty.
127Since ceasing work, Mr Iliadis has attended general practitioner Dr Wyatt and, later, Dr Hanna. Both doctors accepted that Mr Iliadis suffered ongoing incapacity as a consequence of his lower back injury.
128Mr Wilde, who assessed Mr Iliadis in February 2016, diagnosed mechanical lumbar back pain. He recommended that Mr Iliadis modify his personal and work activities to accommodate his symptoms. Mr Iliadis further noted that Mr Iliadis should avoid employment that involved significant bending, lifting or twisting.
129Professor Bittar and Mr Moran both diagnosed Mr Iliadis as suffering an ongoing lower back and neck injury as a consequence of the transport accident. It was noted that he required conservative treatment, and that he was restricted to part-time work only.
130 Dr Boys diagnosed Mr Iliadis as suffering aggravation of degenerative changes in his lumbar spine, and accepted that the transport accident was an ongoing cause of his symptoms. However, Dr Boys stated that the degree to which psychological factors were impacting upon Mr Iliadis’ presentation was unknown. In accordance with the authority in Meadows, as I am satisfied there is a substantial organic basis for his consequences, it is not necessary for Mr Iliadis to disentangle the physical contributors from the psychological contributors.
131 All of the orthopaedic/neurosurgeons accepted that Mr Iliadis suffers permanent restrictions as a consequence of his lower back injury. Professor Bittar and Mr Wilde considered Mr Iliadis should avoid prolonged sitting, bending and twisting or lifting. Mr Moran and Dr Boys considered that Mr Iliadis had a limited sitting and standing tolerance, and that his lower back condition limited his capacity for comfortable long-distance travel. I am satisfied these restrictions are likely to cause pecuniary disadvantage to Mr Iliadis.
132 Although I consider that Mr Iliadis’ unrelated drug addiction and psychiatric problems have caused him a prolonged period of incapacity for work since early 2015, I must disregard such incapacity in my assessment of the consequences of Mr Iliadis’ spinal impairment.[10]
[10]Acir v Frosster Pty Ltd [2009] VSC 454, The Herald & Weekly Times Ltd and Anor v Jessop [2014] VSCA 292
133 The TAC’s cross-examination of Mr Iliadis focused almost entirely on his psychiatric condition and drug use. Mr Iliadis was not challenged on the following consequences, which I accept he suffers:
·He takes medication on a daily basis and said that he currently takes Panadol Osteo. He has previously taken Brufen, Celecoxib, Codeine and Lyrica;
·He attends the hydrotherapy pool numerous times a week;
·He no longer plays golf or tennis;
·He can no longer go to watch the football;
·When he mows the lawn, he has to do it in sections.
134I further note that whilst the TAC admitted that it had video surveillance of Mr Iliadis for 69 hours on several days between April 2016 and March 2017, and that it had obtained approximately 30 minutes of footage, it did not tender any such surveillance. I can therefore infer such footage did not assist the TAC’s defence of the claim.
135Considering all of the evidence, I am satisfied that the consequences to Mr Iliadis from his spinal impairment, as detailed above, and when compared to other cases in the range of possible impairments or losses, are at least very considerable.
Conclusion
136 In view of the above, I grant Mr Iliadis leave to commence common law proceedings in respect of his spinal impairment arising as a consequence of the transport accident on 7 September 2013.
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