Ilic v Transport Accident Commission
[2023] VCC 1550
•5 September 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-00017
| GORAN ILIC | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 August 2023 | |
DATE OF JUDGMENT: | 5 September 2023 | |
CASE MAY BE CITED AS: | Ilic v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1550 | |
REASONS FOR JUDGMENT
---
Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – injury of the spine – injury to the knee – impairment consequences – previous injuries
Legislation Cited: Transport Accident Act 1986
Judgment: Application granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell KC with Ms A Bannon | Zaparas Lawyers |
| For the Defendant | Mr C Blanden KC with Ms E Golshtein | HWL Ebsworth Lawyers |
HIS HONOUR:
1This is a serious injury application brought pursuant to the Transport Accident Act 1986 (“the Act”).
2The issues for determination in this proceeding involve questions of causation and whether the plaintiff has established a “very considerable” consequence.
3To understand the issues for determination, it is necessary to set out relevant matters of background history, the circumstances of injury and claimed impairment consequences. But, before doing so, I note that, in this proceeding, Goran Ilic (“the plaintiff’), claims to have suffered a serious physical injury, either by way of injury to the right knee or the spine, noting that those injuries cannot be combined for “serious injury” purposes. The plaintiff relies upon claimed pain and suffering consequences in respect to each injury.
4The proceeding was conducted in the usual manner. The plaintiff tendered a Court book that comprised relevant affidavits, medical reports, and other documents. The defendant similarly tendered documents from a Court book that included medical reports and documents from previous claims made by the plaintiff. The plaintiff gave oral evidence. I have considered the tendered documents, the plaintiff’s evidence, and the parties’ submissions.
Background
5The plaintiff was born in Serbia in 1965 and migrated to Australia in 1987. He has a history of manual work.
6This proceeding arises out of the transport accident that occurred on 17 May 2018 (“the accident”). On that day, the plaintiff was driving his car when it was “t-boned” by another vehicle at an intersection. The plaintiff was driving a Holden Commodore that was extensively damaged. He tendered photographs depicting the damage.[1]
[1]Plaintiff’s Amended Court Book (“PACB”) 161.
7At the happening of the accident, the plaintiff was not working. The plaintiff set out his background work history and previous medical and claims history in an affidavit sworn by him on 21 October 2020[2] as follows:
[2]PACB 11.
“I am married and have 2 adult children.
I have 2 grand-children aged 1 year and 3 years old.
I emigrated to Australia from Serbia in 1987.
I am a qualified fitter and turner by trade, but whilst in Australia I worked mostly in the plastics industry.
I was made redundant in 2014, and at the time of the transport accident, I was not working.
I am right-handed.
Medical and Claims History
Prior to the transport accident I was in good psychological health.
I had right biceps tendon surgery in 2003.
I had some difficulties with neck and shoulder pain in 2011 and 2012, and saw Mr D’Urso, a surgeon, but did not have any surgery. I recall having radiology and physiotherapy.
I suffered a work injury to my left ankle on 13 October 2014, before I was made redundant. After finishing work, I had an operation to my left ankle by Mr William Edwards on 16 June 2015.
The left ankle injury was the subject of a WorkCover claim and the surgery was funded.
I do not recollect making a prior TAC claim.
Transport Accident
On 17 May 2018 was injured in a transport accident.”[3]
[3]PACB 12, paragraphs [2]-[14].
8It became clear during his oral evidence and from documents tendered by the defendant, that the plaintiff’s background and medical and claims history in his first affidavit, was a very concise description of a more significant history.
9The plaintiff in fact injured his right shoulder/arm in approximately March 2003, when working for National Can Australia Pty Ltd. In respect to that injury, he swore an affidavit on 30 May 2009,[4] presumably in support of a “serious injury” application in respect to that injury. That affidavit described how he had suffered a ruptured biceps tendon which required surgery on 1 April 2003. That affidavit described ongoing consequences, including pain and a restriction for both work and social activity.
[4]Defendant’s Court Book (“DCB”) 129.
10Next, the plaintiff had the misfortune to suffer a further injury, this time to the left ankle, when working for a company called NCI Holdings Pty Ltd, on 13 October 2013. That injury was also the subject of a serious injury application for which the plaintiff swore affidavits and, in fact, gave evidence in this Court as part of that application.
11In an affidavit sworn 7 June 2016,[5] the plaintiff described the circumstances of the ankle injury and subsequent surgery performed by Mr William Edwards. He described ongoing pain in the left ankle, the use of various medications, the need to wear an ankle brace, and restrictions for a range of domestic, social and recreational activities. He swore a further affidavit on 29 May 2017,[6] essentially repeating the restrictions but, among other things, describing an interference with sleep because of ankle pain. He said, in that affidavit, that his left ankle continued to be a source of severe pain and discomfort, especially when performing “what would otherwise be day to day tasks”.[7] Then he swore a further second affidavit on 29 November 2017,[8] again setting out the consequences from his left ankle injury. In that affidavit, he said:
“Despite the Pain Management Program, I continue to consume:
• Panadol Osteo, two tablets, three times a day.
• Gabepentin 100mg capsules, four times a day. One in the morning and another after lunch and two after dinner.
• Allegran 10mg tablets. I consume one tablet most nights to help combat the difficulties I face with sleep.
• Pristiq 50mg tablets. I consume one tablet in the morning.
• 50mg immediate-release Palexia. I take one tablet at a time. I use this for breakthrough pain. I find that I take this medication once every two days, depending on the Pain. Sometimes I take this medication a few days in a row.
I continue to consult with Dr. Reddy for management of my condition. I have been advised that there is nothing more that can be done to treat my pain, other than consuming the above medication. I continue to pursue active treatment for my work-related injuries, being hydrotherapy and physiotherapy. Despite my requests for funding for physiotherapy treatment, the WorkCover Agent refuses to fund physiotherapy treatment.”[9]
[5]DCB 145.
[6]DCB 156.
[7]DCB 160.
[8]DCB 163.
[9]DCB 164-165.
12He also swore a third further affidavit on 4 April 2018[10] which essentially repeated those restrictions.
[10]DCB 166.
13Obviously, the third further affidavit sworn 4 April 2018 was provided approximately six weeks before the accident, the subject of this proceeding.
14Further, the plaintiff in fact gave evidence in this Court on 13 April 2018. The defendant tendered transcript of that hearing[11] and highlighted aspects of his evidence in that proceeding, including his evidence that the left ankle pain was worse after the operation.[12]
[11]DCB 168.
[12]DCB 212.
15In short, the defendant relied upon the earlier affidavits and the plaintiff’s previous oral evidence to highlight significant interference with work, domestic, social, and recreational activities before the accident.
Credit
16As has been said many times, in assessing the “seriousness” of the claimed consequences from an injury, the credit of the plaintiff is critically important. In this proceeding, the plaintiff’s affidavits referred to previous injuries, but perhaps did not paint the full picture. Nevertheless, during his oral evidence, the plaintiff gave what I consider to be candid, straightforward, and reliable evidence. He did not obfuscate or attempt to backtrack from the evidence in his previous affidavits and in this Court regarding his previous injuries. In final submission, the defendant did not raise, as an issue, the credit of the plaintiff. Overall, I consider that he was an honest and reliable witness.
Causation
17As mentioned, in this proceeding the plaintiff relied separately upon injury to the right knee and injury to the spine.
18In respect to the right knee injury, the defendant accepts that it is causally related to the accident. It accepts that the plaintiff suffered a bucket-handle tear of his right meniscus which required surgery. It disputes that any ongoing impairment consequences from that injury are “serious”.
19However, in respect to the claimed injury to the spine, the defendant raised, as an issue, whether any injury to the spine is related to the accident. The defendant submitted that the first attendance and mention of back pain to a general practitioner on 20 May 2018[13] was “a bit of a dog’s breakfast of a note and it certainly doesn’t go into any detail about the accident or other matters of that ilk.”[14] The defendant then highlighted the lack of any further mention of back pain to a general practitioner until 10 December 2018, when the plaintiff attended Dr Peter Andrianakis.[15] In the context of limited contemporaneous complaints of back pain, it relied on the medical opinion from Mr Kevin Siu, neurosurgeon, in reports dated 3 February 2022[16] and 2 August 2023,[17] to deny that any lower back injury was related to the accident. Further, the defendant contended that, regardless, any claimed consequences from an injury to the back were not “serious” in the context of the plaintiff’s significant pre-accident medical history and impairment.
[13]PACB 36.
[14]Transcript (“T”) 10, Lines (“L”) 11-14.
[15]DCB 25.
[16]DCB 64.
[17]DCB 71.
Medical evidence
20It is convenient, now, to turn to consider the medical evidence, both in the context of causation (for the back) and consequences.
21Before doing so, I note that when the proceeding was opened, senior counsel for the plaintiff indicated that, in response to a question from the Court as to whether one injury was preferred to the other as being “serious”, that:
“… the preference is for the back. The preference for the back is for this reason: his treating neurosurgeon has advised him he should probably consider a fusion and the medicolegal surgeon seems to suggest that that is an option if his pain can’t be controlled, and we say that is a measure of the nature of the plaintiff’s back condition.”[18]
[18]T8, L13-19.
Dr Peter Andrianakis
22Dr Andrianakis is in practice at the 151 Medical Clinic. The first document from that clinic is a handwritten document dated 20 May 2018[19] that the defendant described as a “dog’s breakfast”. To some extent, that is not an unreasonable description of it. It records a range of issues, including the previous left ankle injury, the motorcar accident and the plaintiff’s blood pressure, noting that he had been seen at the same clinic on 13 May 2018[20] for an assessment of his blood pressure. But, within the “dog’s breakfast”, there is a history of “also c/o lower back pains since accident grabbed & braced self with steering wheel [right] knee pains since accident”.[21]
[19]PACB 36.
[20]DCB 26.
[21]PACB 36.
23Pausing, the defendant takes no issue that the right knee was injured, although it did put the Ambulance Victoria Patient Care Record[22] to the plaintiff during cross-examination for the proposition that the plaintiff denied having any pain immediately after the accident.
[22]DCB 9.
24In any event, ultimately the defendant did not suggest to the plaintiff that the note of the 151 Medical Clinic of 20 August 2018 was wrong, to the extent that it recorded back pain.
25The next attendance on Dr Andrianakis for back pain was 10 December 2018. Dr Andrianakis described the history provided to him and the treatment thereafter in a report to the plaintiff’s solicitors dated 15 January 2023.[23] In summary, Dr Andrianakis then described the plaintiff as continuing to struggle with neck pains and stiffness related to the motor vehicle accident. He described lower back pain as persisting and ongoing pain into the right knee. He said, “[f]rom the history given these injuries ae (sic) all related to the MVA as described by [the plaintiff]”.[24]
[23]PACB 37.
[24]PACB 40.
Associate Professor Marinis Pirpiris
26Associate Professor Pirpiris is an orthopaedic surgeon to whom the plaintiff was referred by Dr Adrianakis. Mr Pirpiris first consulted with the plaintiff on 25 July 2019. He wrote back to Dr Adrianakis that day.[25] He obtained a history that the plaintiff did not feel anything right away after the accident, “but the following day he had pain. He had pain in his knee and since then he has also had pain in the right shoulder and pain in the back”.[26] In respect to the knee, Associate Professor Pirpiris diagnosed a bucket-handle tear of the meniscus, and that arthroscopy was appropriate.[27]
[25]PACB 47.
[26]Ibid.
[27]PACB 48.
27Associate Professor Pirpiris wrote to the defendant on 18 June 2020 for approval of an ultrasound-guided right knee injection.[28] Associate Professor Pirpiris then performed a right knee arthroscopy and debridement of the medial meniscal tear. There is no report from Associate Professor Pirpiris since that surgery. The only evidence is his operation note.[29]
[28]PACB 49.
[29]PACB 57.
Professor Richard Bittar
28Professor Bittar is a neurosurgeon and spinal surgeon to whom the plaintiff was referred by Dr Andrianakis. He consulted with the plaintiff on 27 June 2017 and wrote back to Dr Andrianakis.[30] He obtained a history that the plaintiff presented with lower back pain and right sciatica which came on following a motor vehicle accident on 20 May 2018. He had a history that, before the accident, the plaintiff experienced episodic lower back pain which would occur once or twice a year. Professor Bittar had available an MRI scan performed 17 June 2019, which apparently demonstrated disc bulging and compression of the L5 nerve roots. Professor Bittar recommended a right L5 nerve sheath injection, review by other practitioners and right lower limb nerve conduction studies.
[30]PACB 50.
Dr Symon McCallum
29Dr McCallum is a pain physician and specialist anaesthetist. He reviewed the plaintiff after he had undergone a right-sided L5 nerve root injection on 26 November 2019. He then wrote to Dr Andrianakis on 16 December 2019, noting the plaintiff was nervous about injections and recommended a follow-up consultation with Professor Bittar for consideration of surgery.[31]
[31]PACB 52.
Dr Hazem Akil
30Dr Akil is a neurosurgeon to whom the plaintiff was referred for assessment. Apparently, that referral came about when Professor Bittar was unavailable. Dr Akil examined the plaintiff on 2 January 2020 and then wrote back to Dr McCallum.[32] He obtained a history of the accident and then “[a] few days later, he started having lower back pain that radiates towards his right buttock and the hamstring region and sometimes this goes all the way towards the right calf region”.[33] Dr Akil reviewed the MRI scan and then diagnosed discogenic back pain caused by an L5-S1 disc degeneration, as well as a right L5 and right S1 radiculopathy. He said “[t]he ideal treatment for this condition is performing a fusion involving L4/5 and L4/S1 region”.[34]
[32]PACB 53.
[33]Ibid.
[34]PACB 54.
Dr Shahram Sadeghi
31Dr Sadeghi is a rehabilitation medicine specialist who has treated the plaintiff. By letter dated 24 September 2020,[35] he wrote to Dr Andrianakis and said that the plaintiff’s “low back and both buttocks pain have mildly reduced with stopping Targin and tramadol and being commenced on Palexia sustained release, 50 mg twice a day”.[36] He recommended referral to a psychiatrist, ongoing physical therapy and hydrotherapy.
The plaintiff’s medico-legal reports
[35]PACB 55.
[36]Ibid.
Mr Russell Miller
32Mr Miller is an orthopaedic surgeon who examined the plaintiff for the purpose of a joint independent medical examination and provided a report dated 6 July 2020.[37]
[37]PACB 99.
33Mr Miller obtained a history that the plaintiff developed problems with his right shoulder, lower back and right knee following the accident. He recorded that the plaintiff had noticed the gradual onset of right shoulder, lower back and right knee symptoms over the subsequent days after the accident and attended his general practitioner some days later.[38]
[38]PACB 101.
34Mr Miller then obtained a history, conducted a physical examination and reviewed various investigations, including the report of the MRI scan of the lumbar spine undertaken 17 June 2019. Mr Miller then diagnosed the lumbar spine injury as follows:
“There has been an injury to the lumbar spine, which includes musculo-ligamentous strain and aggravation of degenerative disease. There is no evidence of radiculopathy, neurological deficit, or structural injury.
The described injury is associated with the development of a chronic pain syndrome, which influences the current clinical presentation and contributes to the overall poor prognosis.”[39]
[39]PACB 105.
35Mr Miller then described the relationship between the injuries and the accident as complex and multifactorial. He went on to say the current clinical status is regarded as being substantially accident related. In respect to ongoing treatment, he described the current conservative regime as appropriate. Regarding the back, he said “the [plaintiff] is unlikely to benefit from any form of spinal surgery. I note there has been no such recommendation to date”.[40] He went on to say that the plaintiff may benefit from further investigation of the right knee.[41]
[40]PACB 106.
[41]Ibid.
Professor Peter Teddy
36Professor Teddy is a neurosurgeon who provided a report to the plaintiff’s solicitors dated 26 July 2020.[42] In respect to the lower back pain, he obtained a history that it had been a problem in the two years before the accident, described by him as a “slight problem of a similar nature”, but that the pain had become again more severe “over the past few weeks”.[43]
[42]PACB 116.
[43]PACB 117.
37Professor Teddy also obtained a history that “[a] few days after the accident, he developed pain in his knee, neck, and right shoulder. He saw his GP, but he gradually became worse and worse”.[44]
[44]PACB 117.
38Professor Teddy then conducted an examination and reviewed various relevant medical reports. In respect to a diagnosis, he said:
“[The plaintiff] has low back pain and predominantly right-sided leg pains with a sciatic distribution. These, on the balance of probabilities, relate to an aggravation of pre-existing lumbar spondylosis notably at the L4/5 and L5/S1 levels with some scan-defined compromise of the L5 and S1 nerve roots on that side.
He had a known pre-existing injury to the left ankle treated surgically. He had been previously investigated for a right shoulder injury (2012 by Mr Paul D'Urso). He was noted at that time to be suffering from a combination of cervical spondylosis and radicular pain with a supraspinatus tear and to have had a previous bicipital tendon injury.
The records of Dr Andrianakis indicate that [the plaintiff] was complaining of neck and right shoulder pains prior to his road accident, but subsequently had neck pains and stiffness on the right side and some months later, low back pains and stiffness that progressively increased. He complained about further pain and clicking in the right knee and eventually underwent arthroscopy that helped with his knee clicking but not with the pain. Any knee-related injury must be the comment of expert opinion in orthopaedics.
…
It seemed likely that (judging by his MRI appearances and the notes as recorded) he had pre-existing lumbar spondylosis that was rendered symptomatic and aggravated by the material accident. He complains of right leg pain that correlates with anatomical boundaries. Although he has no evidence of nerve root tension on examination, he does have sensory symptoms mainly in an L5 dermatomal pattern and bilateral absent ankle jerks. Although this finding could be due to other causes, it could be compatible with S1 nerve root compromise, as suggested by the MRI appearances. On the balance of probabilities, he has L5 and S1 radicular symptomatology.”[45]
[45]PACB 120-121.
39Regarding further treatment, Professor Teddy opined that it was not unreasonable for the plaintiff to be concerned about major surgery by way of a fusion, but that if his symptoms failed to be managed by conservative treatment “then this may become the only viable alternative”.[46] He said that, on balance, a two-level fusion surgery would be the procedure if it was undertaken.[47]
[46]PACB 121.
[47]Ibid.
Dr Graeme Doig
40Dr Doig is another orthopaedic surgeon who provided a report to the plaintiff’s solicitors. In a report dated 18 May 2023,[48] Dr Doig obtained a history of the presenting complaint as that, since the accident, the plaintiff “has been complaining of significant lower-back pain, discomfort within the medial compartment of his right knee and deteriorating function at the right shoulder”.[49]
[48]PACB 123.
[49]PACB 124.
41Dr Doig had available the reports of relevant radiology. He took a history and conducted a physical examination. He then diagnosed the following injuries related to the transport accident:
“[The plaintiff] suffered the following injuries in the transport accident of 17.05.2018:
a) A soft-tissue injury to the lower back with aggravation of pre-existing degenerative change.
b) A soft-tissue injury to the right knee with a medial meniscal tear and articular-cartilage damage with the development of post-traumatic degeneration.
c) Aggravation of a pre-existing, right shoulder condition with a possible rotator-cuff tear. There was an interstitial tear evident within the supra-spinatus tendon on the ultrasound scan of January 2012.”[50]
[50]PACB 126.
42Dr Doig went on to say that, “[u]nless there is evidence available to the contrary, there appears to be a direct relationship between the transport accident and the above, diagnosed conditions”.[51]
[51]Ibid.
43Dr Doig’s report is mostly directed towards the knee injury. However, he described the overall prognosis for the plaintiff’s musculoskeletal injuries as guarded. He then said that:
“[The plaintiff] is at increased risk of developing worsening degeneration at the right knee joint. The lower back was already arthritic. The shoulder injury appears extra-articular in nature and soft tissue in nature, therefore there would be less likelihood of developing gleno-humeral osteoarthritis.
…
No further surgery is necessary at this stage in the short to medium-term. [The plaintiff] may require knee-replacement surgery in the future, although this remains to be seen depending on his pain tolerance.
Further imaging is required on the right shoulder to clarify any underlying pathology which may benefit from operative repair.
No surgery is likely to be helpful on the lower back. Spinal injections would also be of limited value. In the meantime, [the plaintiff] will continue with his analgesics on an ‘as required’ basis and a self-managed exercise programme.I am unable to comment on his psychiatric treatment.”[52]
[52]PACB 127.
The defendant’s medical evidence
Mr William Edwards
44The defendant tendered two reports from Mr William Edwards, foot and ankle surgeon, dated 11 May 2015[53] and 16 November 2015.[54] Those reports were relied on for the history of the left ankle injury and ongoing problems. However, I note that, in the report of 16 November 2015, Mr Edwards described the plaintiff as “doing very well. I think he is likely to do better and better”.[55] It seems that the plaintiff was discharged from Mr Edwards’ care at that time.
[53]DCB 16.
[54]DCB 18.
[55]DCB 18.
45Pausing here, the plaintiff was cross-examined about his left-ankle symptoms, and whether those symptoms had remained at about the level when he gave evidence in this court on 13 April 2018. In re-examination, the plaintiff was asked questions about his left foot pain and his need for ongoing medication as follows:
Q:“You told your GP, Dr Andrianakis, in 2022 that you (sic) left foot pain had ceased. Has it continued to ease?---
A:Time to time, even now a little bit some time, yes.
Q: Is it the same or better than it was before the accident?---
A: It's much better than before the accident because it's - - -
Q: Okay. Because of what?---
A: Because it's pretty much recovered very good now.
Q: So you take Palexia, you said five to six times a week most days?---
A: Yes.
Q: So are you taking it for your back or for your ankle or for what?---
A: Just taking for my back and my knee.
Q: The Allegron, you still take that?---
A: Yes.
Q:Are you taking the same amount now as before the car accident?---
A:I'm just taking two. I been suggest last year to increase to two tablets before the bed.
Q: Two tablets per day or week, or what?---
A: Per day, every night.
Q: Are you ever free of back pain?---
A: Excuse me?
Q: Are you ever free of back pain?---No, it's constantly pain.”[56]
[56]T34, L19-31; T35, L1-7.
46I accept the plaintiff’s evidence that, over time, his left foot symptoms improved. First, the plaintiff gave that evidence in a credible manner. Second, it fits with the evidence from Mr Edwards.
Mr Kevin Siu
47Mr Siu is a neurosurgeon who provided two reports at the request of the defendant.
48Senior counsel for the plaintiff was very critical of Mr Siu, both in opening and closing address. Several typographical errors and claimed inconsistencies were highlighted and it was said, on behalf of the plaintiff, that “Kevin Siu, in our submission, is no more than an advocate for the TAC in this case. It’s quite evident from his reports. They lack objectivity”.[57]
[57]T44, L11-13.
49There is some force in the submission on behalf of the plaintiff regarding Mr Siu’s reports, but I do not accept that he has gone so far to become an advocate on behalf of the TAC.
50In any event, in his report of 3 February 2022, Mr Siu obtained a history of the incident and the plaintiff’s subsequent progress as follows:
“On 17 May 2018, he was the driver, with a lap and sash belt on. He was going through a green light and another car coming from the other side did not give way and hit him. He was able to get out of the car himself. The ambulance checked him over and said he did not need to go to hospital. The police came as well.
Because he was not working at the time, I could not ask whether he was fit enough to work.
He did not feel too bad, in fact, he had some pain in the back, pain in the right knee and pain in the right shoulder.
He saw his GP a few days later and was told ‘we will just watch it’.
He did not submit any claim.
He initially told me it was a year later before his symptoms got worse but later in the examination he indicated it was probably less than a year.
In any event, between six months to one year later, he noticed increasing low back pain. He also had pain in the right shoulder and pain in the right knee.”[58]
[58]DCB 65.
51Mr Siu was then asked a question regarding the diagnosis of any injuries sustained and the relationship of those injuries to the accident. He answered that question as follows:
“In my opinion, it is possible that he could have sustained a soft tissue injury to the lumbar spine as a result of the car accident. In patients secured by lap and sash belts, and he was driving a Holden Commodore at that time, there is reasonable protection to the lumbar spine and I would not have thought the accident would have caused any injury.”[59]
[59]DCB 67.
52Mr Siu went on to say that he did not believe the motor vehicle accident caused axial loading down the spine. He said, in a similar way, the accident had not aggravated or exacerbated a pre-existing degenerative condition, because the mechanism of injury is not there. He said he did not believe the transport accident had caused any symptoms in the plaintiff’s spinal column. He went on to say the proposition that fusing the lumbar spine in the presence of discogenic pain is strongly disputed by a spinal surgeon.[60]
[60]DCB 69.
53I am not sure what evidence Mr Siu relied upon for his comment that fusing the lumbar spine in the presence of the discogenic pain was strongly disputed by a spinal surgeon. It is trite to note that Dr Akil is a neurosurgeon who offered a two-level lumbar fusion to the plaintiff to treat his symptoms.
54In any event, Mr Siu then re-examined the plaintiff and provided a report dated 2 August 2023.[61] It was this report that was lambasted by senior counsel for the plaintiff due to the obvious typographical errors in it, including the reference to a person other than the plaintiff and a date of consultation that was also probably wrong. In the report, Mr Siu referred to the report from Dr Andrianakis, dated 15 January 2023, as follows:
“Allow me to refer to the letter from Dr Peter Andriankis (sic), his treating general practitioner. In his report to the plaintiff’s solicitor, dated 15 January 2023, he did not detail complaints of lower back pain. Mr Ilic complained of pain in the neck, pain in the right shoulder as well as chest pain. The chest pain eased off quickly, however, there was a brief mention that he was prescribed Tramadol for his low back pain.”[62]
[61]DCB 71.
[62]DCB 73.
55Mr Siu then went on to make the following comment regarding imaging:
“The last imaging was in 2019, a year after the accident.
The previous observation is probably correct in that he did not complain much about lower back pain until nearly a year later (accident in 2018, MRI in June 2019). I suspect had he complained of significant back pain, his treating doctor would have organised imaging as the threshold for organising imaging is very low. A CT scan and MRI are readily obtained (and sometimes to the detriment of management as there is too much reliance on imaging and not the clinical history and thorough examination).
I need to quote from the MRI of June 2019, ‘At L5/S1 there is left paracentral broadbased disc bulge displacing the S1 nerve root’. The emphasis is there is more protrusion on the left.
At L4/5 there are also disc bulges and bilateral facet joint disease.
This MRI report was available to me when I last saw the patient and on reviewing this, there is no need for me to change my opinion in that he has significant pre-existing lumbar spondylosis, and we are actually seeing a progression of the natural history of lumbar spondylosis.
Obviously, patients with pain is desirous of amelioration of symptoms but he has never been sent to see another specialist or returned to his previous treaters (spinal neurosurgeon). Let me emphasise I am not advocating intervention. Whether he is reluctant to undergo any intervention is uncertain, but his general practitioner has perhaps come to the conclusion that his pain is not severe enough to warrant reassessment. In the absence of review by his treating specialist may indicate that the level of pain and discomfort is not as bad as it appears.
To conclude this part of the report, I would emphasise that he has significant psychological problems, and an independent psychological and psychiatric assessment is necessary.”[63]
[63]DCB 75.
56Mr Siu went on to say, regarding the diagnosis, that:
“There is a significant time gap between the accident and investigations. I have outlined the reason why I think that time gap points to a progression of the natural history rather than precipitation as a result of the accident.
In my previous report I emphasised that in a collision, with the lumbar spine protected in a buckettype (sic) seat, secured by a lap and sash belt, there is very little axial loading and therefore it is not very likely to injure the lumbar spine.”[64]
[64]Ibid.
Dr Anthony Menz
57Dr Menz is a consultant orthopaedic surgeon who has examined the plaintiff at the request of the defendant. In a report dated 3 March 2022,[65] Dr Menz obtained a history that, following the accident, “over the next two to three days he noticed pain in his right knee, right shoulder and lower back and so he attended his GP who organised physiotherapy for about a month or so”.[66]
[65]DCB 79.
[66]Ibid.
58Dr Menz went on to conduct an examination and review of available radiology. He then expressed his conclusions, commencing by noting that, within two to three days of the accident, the plaintiff had noted right knee pain, right shoulder pain and lower back pain. He then diagnosed a locked bucket-handle tear of the right knee and pre-existing mild degeneration. Regarding the back, he said the plaintiff has “lumbar degeneration in his back and this would be longstanding”.[67] He went on to say he did not think that spinal surgery would be appropriate, the knee pain and back pain was no better, and that made for a poor prognosis for any improvement.[68] He also went on to say that the transport accident caused the bucket-handle tear of the medial meniscus and that he believed “the motor vehicle accident aggravated pre-existing degeneration in his right shoulder and pre-existing lumbar degeneration”.[69]
[67]DCB 85.
[68]DCB 86.
[69]DCB 87.
59Dr Menz re-examined the plaintiff and provided a further report dated 19 July 2023.[70] In that report, he repeated the history, his clinical examination and review of investigations. He noted that, since his previous report, the plaintiff’s symptoms in his right shoulder, lumbar spine and right knee had not altered.[71]
[70]DCB 92.
[71]DCB 96.
60Then, in respect to a diagnosis, Dr Menz said that he believed, in the accident, the plaintiff suffered a bucket-handle tear of the medial meniscus in a knee that had pre-existing degenerative change.[72] He also said that the plaintiff aggravated pre-existing lumbar degeneration.[73] He described the prognosis as poor.
[72]DCB 97.
[73]DCB 98.
Consideration
Right knee
61First, regarding the right knee, there is no doubt on the evidence that in the accident the plaintiff suffered a bucket-handle tear of the meniscus, requiring surgery. That appears to have been in the context of some pre-existing degenerative change in the knee.
62What is more contentious is the extent of ongoing symptoms and whether the plaintiff will ultimately come to knee replacement. At its highest, the suggestion of knee replacement is no more than a possibility. This is not a proceeding in which there is clear evidence of arthritic change, such that knee replacement surgery is a probability.
63In any event, the ongoing symptoms, and consequences from the right knee injury, in my view, can be best described as mild, and must be seen in the context of the plaintiff’s left ankle injury and the recreational and lifestyle restrictions that already existed for weight bearing activity, even if the left ankle has improved over time. On balance, and consistent with how his case was put, I consider that any right knee injury has produced consequences that might be capable of being described as “significant” or even “marked”, but do not meet the test of “very considerable”.
Back injury
64Turning, then, to the back injury, the first question is whether any back condition is causally related to the accident.
65The first thing to note is the consistency of the plaintiff’s evidence that he did not have any immediate back symptoms after the accident, but that those symptoms came on within a few days, as recorded in the attendance on the 151 Medical Clinic on 20 May 2018. I accept that, by 20 May 2018, the plaintiff had symptoms in his back.
66Second, it should be remembered that, at the time of the accident, the plaintiff was already medicated for his left ankle pain in the context of a claim for the left ankle. I accept his affidavit evidence that in the months that followed the accident he tried to get over it and put up with the pain, in the context of having already been through the system and seen a lot for doctors for that claim.[74]
[74] PCB 13
67Third, I accept the plaintiff’s evidence that the lower back symptoms progressed and became problematic for him, to the point where the pain became too much leading up to the attendance on Dr Andrianakis in December 2018.
68Fourth, I accept that his symptoms were sufficiently disabling, such that Dr Andrianakis referred him to an experienced neurosurgeon or spinal surgeon. As a result of that referral, the plaintiff underwent a right-sided L5 nerve root injection, with local anaesthetic and steroid on 26 November 2019.[75] I accept the evidence from Dr Akil that the right L5 nerve-sheath injection gave the plaintiff significant pain relief for about two days. I accept the plaintiff has had ongoing lower back pain since then of sufficient severity, such that Dr Akil opined that the pain and the right-sided radiculopathy would ideally be treated by a two-level lower lumbar fusion.[76]
[75]PACB 59.
[76]PACB 54.
69Next, consistent with the evidence set out, I accept the plaintiff’s evidence that he was unwilling to have such major surgery. I do not consider that any criticism can be made of him about that, particularly in the context where several surgeons have expressed opinions that there is no place for surgery, such as Mr Miller.
70In short, I prefer the majority of the medical opinion that the plaintiff’s lower back condition is causally related to the accident. In that regard, I reject the opinion of Mr Siu. In doing so, to be clear, I do not accept the submission that it should be rejected because he has become an advocate. Rather, I reject it because it is against the weight of the medical evidence.
71The question then becomes one of whether the plaintiff has sufficient pain and suffering consequences from the lower back injury to meet the “very considerable” test.
72Pausing here, and without wishing to “verbal” senior counsel for the defendant, I note that in closing submissions it was said that when:
“… you actually drill down to what the consequences are, yes, we accept that there are complaints of pain in relation to the back and it may be the volume of complaints that led to the offer of a fusion, but the reality is that there hasn’t really been any treatment in relation to the back of any significant sort or to any significant extent, and there’s been no overlay of further and better or more substantial medication in relation to effects.”[77]
[77]T41, L21-29.
73However, senior counsel for the defendant went on to say:
“… If this man's had a fusion I wouldn't be standing here saying he shouldn't get a ticket, subject to a causation argument, but the reality is, he hasn't … .”[78]
[78]T42, L2-5.
74True, it is, that the plaintiff has not had the fusion, but to some extent that is the tail wagging the dog. The reality is it has been recommended and for reasons I consider to be reasonable, the plaintiff has not gone ahead with the surgery.
75Continuing this discussion, I accept that the evidence demonstrates the plaintiff had lost the ability to engage in paid employment before the accident, because of his unrelated medical conditions, mainly the left ankle. I also accept that it had impacted on his social, domestic or recreational activities. While that has the capacity to bear upon the seriousness of the back injury, of course I must consider all the relevant consequences in determining whether the plaintiff has suffered a “very considerable” consequence.
76In that regard, I accept, firstly, that the plaintiff has sufficient lower back pain, such that a two-level spinal surgery is a relevant treatment option.
77Next, I accept that the plaintiff’s lower back pain requires the use of painkilling medication. True, it is, that he was prescribed several medications before the accident, but in the context where I accept his evidence that his left ankle condition was continuing to improve and has significantly improved. On balance, I consider that the strong painkilling medication is now principally prescribed for the back, even if it has a therapeutic benefit for his other conditions, consistent with Dr Sadeghi’s evidence.
78Next, I accept the plaintiff’s affidavit evidence that he continues to have lower back pain that radiates down his right leg, that is constant and varies in severity and can be severe at times.[79]
[79]PACB 15.
79I accept that certain activities aggravate the plaintiff’s back pain, including walking, driving, and sitting. I accept that he has continued to self-fund hydrotherapy.
80I also take into consideration the affidavit from the plaintiff’s wife, Suzana Ilic, sworn 2 August 2023,[80] although that affidavit is limited regarding the lower back.
[80]PACB 25.
81The plaintiff may not have had a completely unrestricted, full, and active lifestyle before the accident. But, equally, he did not have constant, fluctuating and severe lower back pain. Taking him as the defendant found him, I am satisfied that the lower back pain, further interference with domestic, social, and recreational activity, need for medication to manage back pain and the potential for a spinal fusion, are such that the plaintiff has made out a “very considerable” impairment consequence.
82For the reasons given, leave is granted to the plaintiff to commence a common law proceeding.
83I shall hear from the parties as to consequential orders.
---
0
0
0