Ilic v Transport Accident Commission
[2014] VCC 347
•1 April 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-06004
| IVICA ILIC | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24, 25, 26 and 27 March 2014 | |
DATE OF JUDGMENT: | 1 April 2014 | |
CASE MAY BE CITED AS: | Ilic v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 347 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the spine – injury to both shoulders – pain syndrome – adjustment disorder – pain and suffering – pecuniary loss damages – credit of the plaintiff
Legislation Cited: Transport Accident Act 1986, s93(4)
Cases Cited:R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Acir v Frosster Pty Ltd [2009] VSC 454; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Richards v Wylie (2000) 1 VR 79; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Leave granted to the plaintiff to bring proceedings for the recovery of damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with Mr G Worth | Nowicki Carbone |
| For the Defendant | Mr G Lewis SC with Ms J Frederico | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 In this application, pursuant to s93(4) of the Transport Accident Act 1986 (“the Act”), leave is sought for both paragraph (a) injuries as well as a paragraph (c) condition.
2 Arising from a transport accident that occurred on 18 September 2009 (the transport accident), the plaintiff relies on injuries at several levels of the spine that amount to an impairment of the function of the spine under paragraph (a).[1] In addition, an injury to the dominant right shoulder, being a full-thickness tear of the supraspinatus tendon, as well as other pathology, is relied on as an organic injury. Similarly, an injury to the left shoulder with virtually identical pathology is relied on as a further paragraph (a) impairment.
[1]Transcript (“T”) T22
3 On enquiry, counsel for the plaintiff also relied on a further paragraph (a) injury, being a chronic pain syndrome said to be based on the organic pain. It was said that the totality of the physical injuries was the basis of that pain and the pain syndrome encompassed all those physical injuries and this resulted in a further paragraph (a) injury.[2] I raised with counsel whether this was a permissible aggregation of the physical injuries that could be thus translated into a paragraph (a) injury rather than a paragraph (c) condition.[3] Ultimately, I do not have to determine this issue.
[2]T2-3, T212 -213
[3]T3, T196-203
4 The plaintiff also relied on a paragraph (c) injury of psychiatrically-based diffuse pain syndrome, together with an adjustment disorder.[4]
[4]T3
5 Accordingly, as I understand it, the plaintiff is pursuing, in effect, four paragraph (a) injuries for which he seeks leave as separate identifiable impairments, as well as a paragraph (c) mental or behavioural condition.
6 The consequences are said to be effectively disablement from work, in that the plaintiff has been unable to return to work. In addition, a myriad of interferences with domestic, social and recreational activities are relied on in terms of pain and suffering consequences.[5]
[5]T18
7 The issues for my determination have been described by the defendant as a failure to meet the bar of “serious” in terms of any of the paragraph (a) injuries. With respect to the paragraph (c) condition, the defendant says it does not meet the test of “severe”. In addition, the defendant indicated that causation was in issue in relation to the injuries to the shoulders but not with respect to the spinal injury. Credit was also in issue.[6]
[6]T20
8 This case raises facts that require analysis of whether more than one injury has caused the same “serious” consequences. Clearly this can occur. In other words, a consequence may have a multiplicity of causes. Two or more injuries can cause a “serious” incapacity for work for example.[7]
[7]R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386 at paragraph 27; Grech v Orica Australia Pty Ltd & Ors (2006) 14 VR 602 at paragraphs [57]-[58]
9 The relevance of a later supervening event that leads a plaintiff for other reasons to be unable to work is also raised. The plaintiff has commendably chosen to look after his seriously ill wife. He has not been a candidate for employment since three or four months after the transport accident, having made that choice. For the purpose of assessing whether there is an impairment of earning capacity caused by the transport accident, the supervening event, the plaintiff’s choice to care for his wife, should not be taken into account.[8] It is clearly relevant however at a common law trial on the question of damages.
[8]Acir v Frosster Pty Ltd [2009] VSC 454 at paragraphs [169]-[178]
10 The plaintiff is a man aged sixty-seven years who has been looking after his wife as a full time carer.[9] She unfortunately has been diagnosed with cancer[10] and requires his daily assistance. He then suffered some aggravation of his injuries in a second transport accident on 4 December 2011 (“the second accident”).
[9]T27
[10]Plaintiff’s Court Book (“PCB”) 21 and 17A and B; T27
11 I accept that the transport accident was an extremely violent collision that necessitated the plaintiff being conveyed by ambulance to The Alfred hospital. The vehicles “T boned”, one at 70 kilometres per hour and the other 100 kilometres per hour. The driver’s pillar was pushed 10 to 15 centimetres into the cabin. It goes without saying the plaintiff’s right shoulder/neck area must have been subject to very violent forces, if not the whole body.[11] Not surprisingly, grazes and bruises were recorded over the right shoulder as well as pain.[12] It is clear from The Alfred hospital records that a number of investigations were carried out of the head and upper body and different medications were given to him prior to his discharge on the following day.[13]
[11]PCB 78A1, 78N
[12]PCB 78N and 78Q
[13]PCB 11
12 Five days later, the plaintiff then came under the care of his local doctor, Dr E Hamidi, who he attended until early 2010. At that stage, he did not feel the doctor was offering him any effective treatment so he commenced attending Dr E Sleaby, who he still sees to the present time.
13 In the early weeks and months following the accident, investigations were carried out principally to the spine and right shoulder, although within two months, a CT scan of the left shoulder was also necessitated. The lumbar spine was also the subject of radiology within about two months of the transport accident.[14] In addition, the radiology reports indicate that the plaintiff required a CT-guided right shoulder injection on 22 October 2009. He was unable to return to work. All this occurred before the need to care for his wife arose.
[14]PCB 35-40
14 Some comments have to be directed to the way this case was put. The first affidavit sworn by the plaintiff in August of 2010 does not assist in any way in delineating the consequences from the various paragraph (a) injuries. While the affidavit sets out the course of treatment, including a series of injections to both shoulders and ongoing pain, the pain is persistently described in an inclusive sense. The expression “my neck, back, shoulders and legs” as being the source of pain is found throughout this affidavit.[15] No attempt is really made in that affidavit to describe which paragraph (a) bodily impairment or impairments standing alone lead to consequences such as pain. Rather, all the physical injuries are just lumped together. Certain consequences are set out as flowing from those paragraph (a) injuries but in their totality.
[15]PCB 12-16
15 The further affidavit sworn this month attempts to delineate, to some extent, the spinal pain at both the neck and lower back levels from other injuries. The pain in the legs is described as coming from the lower back.[16] The shoulders are also treated separately, at least with respect to some descriptions of pain. For example when performing strenuous or awkward lifting, that can be read as essentially an arm function distinguished from spinal pain.[17]
[16]PCB 18-20
[17]PCB 20
16 I accept this very simple, unsophisticated man who needed an interpreter even after being in this country for forty five years did not draft these affidavits. Even with the interpreter, he struggled to follow questions at times. The plaintiff gave oral evidence before me and very extensive video surveillance comprising a number of dates was shown to the Court.
17 Firstly, dealing with the admitted spinal injury, in the early weeks and months following the accident it is worth noting where the initial treatment was focussed. What is clear throughout the ambulance notes and The Alfred hospital records on the day of the accident is that the spine, together with the right shoulder, were of most immediate concern.[18] Both these injuries required same day radiological investigation.[19] The plaintiff was kept overnight and medication, as strong as morphine, was administered.[20] From the records, I conclude that narcotic medication was required for both the neck and right shoulder taken together and standing alone.
[18]PCB 78N, 78P, 78Q, 78R, 78AB, 78AE, 78AI and 78AK
[19]PCB 35-36
[20]PCB 78AG
18 When he attended his first general practitioner, Dr E Hamidi, five days later, the plaintiff’s right shoulder and spine were the subject of complaints. Tenderness was noted by the doctor. Further radiology followed, focussing on the areas of the spine and shoulders.
19 I will deal in more detail with the medical opinions later, but suffice to say that complaints, treatment and radiological investigations have continued with respect to his spinal injuries right up to the present time. The same applies to his shoulders.
20 The plaintiff is a man who has an exemplary work record. After arriving in this country, he immediately obtained work with National Forge, who later became CMI Forge, as a die setter. He worked in that job for close to forty years and was formally terminated on 1 May 2012. The business later shut down. He worked approximately twelve hours per day, six to seven days a week.[21] His earnings indicate he was a very industrious worker who consistently was earning good wages.[22] His average income in the five financial years prior to 2009-2010 was $57,039 gross per annum. Since being injured in the accident, the plaintiff has been unable to return to his work because of the heavy and repetitive nature of the manual work.[23] As indicated, three or four months later, he had to start caring for his wife and paid work has been out of the question ever since.
[21]PCB 16
[22]PCB 145A-B
[23]PCB 16
21 While the plaintiff’s affidavit material speaks of pain in a general sense, it is clear from a man working those hours in the heavy metal industry, that problems with his spine would impact on his capacity for work. I accept his affidavit and oral evidence with respect to his spinal impairment being a cause or materially contributing to his inability to return to work. In addition, his comments on his spinal pain, which included his referred symptoms into his legs from the low back, as well as the shoulder pain, are both individual causes of the interference that he described in his affidavit with aspects of his personal, home and recreational life.
22 Credit was put in issue in this case. The plaintiff was cross-examined at great length. This traversed his conduct at medical examinations and about the second accident. Several hours of video film was shown to him. It did not impact in any significant way on his credit which I found was essentially unimpeached. The plaintiff is a man who I found was a reliable and honest witness who was battling with the problems he had with respect to pain and his disabilities, especially since having the principal responsibility to run the household and look after his wife full time.
23 While I accept he may have overreacted with some doctors,[24] there was no exaggeration in evidence before me. In fact, he was rather matter of fact and stoical about symptoms and his lot in life generally. Stoicism cannot hide the fact that pain plays a large part in the plaintiff’s life.[25] I find that the plaintiff is still suffering spinal pain with some symptomology into his legs and this is in spite of a great deal of different medications, physiotherapy treatment and injection treatment. There has been little or no relief. Powerful narcotic medication is also required for shoulder symptoms but is also needed for the spinal complaints on their own.
[24]Defendant’s Court Book (“DCB”) 7, 29; PCB 62 and 67
[25]Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 at paragraphs [80]-[81]
24 It has been said on occasions that the endurance of daily pain requiring frequent medication raises a real prospect in these applications of a very considerable consequence for the plaintiff to endure.[26] The types and dosage of medication required for pain over the last four and a half years are very extensive.[27] Some medical concern about the narcotic medication was apparent.[28]
[26]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at paragraphs [91] and [199]
[27]Exhibit ‘A’, PCB 11, 12 and 18
[28]PCB 84
25 By the time of the second accident, the plaintiff’s spinal injuries and shoulder problems were well established. Extensive treatment, investigations and referrals had taken place. Treatment was still ongoing. I accept his evidence that there has been an increase in his pain following that of “maybe 20 to 25 per cent”.[29] He did not specify what particular pain. The notes of his general practitioner record the second accident on 6 December 2011 but little changes in the way of treatment. On 3 December 2011, the day before the second accident, he was presenting to his doctor with spinal and shoulder symptoms.[30] Tenderness was noted in all these areas on that day and he was given two prescriptions.
[29]T112
[30]DCB 27
26 On all the evidence I find that his symptoms have largely settled to more or less the level, with some increase, that he had prior to the transport accident in 2009. I accept that the second accident plays a minor part in his current symptomology and spinal impairment, as with his shoulders.[31] His doctors’ notes support the second accident not altering much, if at all, the spinal and shoulder symptoms he had been receiving treatment for over the previous two years and two months. The long term impairments he has are principally caused by the transport accident on 18 September 2009.
[31]PCB 19-20
27 Mention must be made of exhibits 1 to 7, which encompassed a great deal of video surveillance of the plaintiff going about his daily duties of driving his wife around and attending to the household shopping. I was told surveillance totalled over 78 hours. He has described that he has to do a good deal of the housework and grocery shopping and he is the only driver in the home. His wife finds these activities difficult because of her own medical condition and he has little choice but to perform them himself.[32] He faces up to them stoically.
[32]PCB 21-22
28 There were a great number of unexplained breaks in the film. Looking at the video material overall, it showed the plaintiff attending to the shopping but in circumstances where he rarely was using a very loaded trolley or carried anything of great weight. They were basically household objects, such as food and the like, that he shopped for and carried to his car in relatively small loads. In exhibit 7, the plaintiff did lift two bags of potting mix fertiliser a very short distance into the car boot. They were not of great size. I accept he lifted them with pain.[33]
[33]T118
29 Looking at all of this film, there was nothing that was particularly heavy, repetitive or strenuous in the activities that the plaintiff was seen to be carrying out over many dates and several years. Indeed, there was an absence of anything that could be fairly described as inconsistent with a man who needs to take daily painkillers and puts up with spinal and shoulder symptoms. In short, those exhibits did not detract from the genuineness of a plaintiff whose demeanour and presentation in the witness box was one of general reliability and underplaying the problems.
30 His cross-examination ranged over three days. It was a considerable advantage to be able to see and hear him over that length of time. Some doctors have seen him without an interpreter and I take this into account in assessing him overall when challenged about histories given to doctors. He at times barely understood questions, even when translated into his own language. When documents were shown to him in the witness box, even with an interpreter helping, he was having trouble following questions and at times court staff had to direct him to the correct documents he had in the witness box that counsel was taking him to.
31 Dealing now with the dominant right arm of this manual worker, references to the right shoulder are littered throughout the ambulance and The Alfred hospital records on the day of the accident. This is consistent with the very forceful collision resulting in the driver’s cabin pillar being pushed inwards. Clearly, the right shoulder was the subject of a lot of early medical attention.[34]
[34]PCB 78N-R; DCB 141-143, 145, 147 and 149
32 Radiology was required on the same day to investigate the right shoulder and pathology was found.[35] Within a month, radiological investigation had gone from plain x-ray to ultrasound. It showed widespread pathology, which included a full thickness tear of the right supraspinatus, tendonosis, bursitis and bursal impingement.[36] A week later, a radiologically-guided injection was administered.[37] It is worth mentioning that at a later stage, one doctor recorded that some sixteen injections into the shoulders had occurred.[38] Whether this is accurate or not, there have been a number that the notes show were at least a dozen. At another part of the evidence, six in each shoulder is reported. This is treatment independent of spinal pain.
[35]PCB 36
[36]PCB 37
[37]PCB 38
[38]PCB 72A
33 I will deal with the medical evidence in more detail later, but I find the transport accident was a cause of the right shoulder injury and the consequential impairment of function of the right dominant arm. I accept it is still causing symptoms and the impairment, in spite of specialist treatment, has really not altered. I accept the plaintiff’s evidence that the right shoulder is still causing constant pain. He has been sent to a specialist, Mr S Jensen, musculoskeletal specialist, and his injection treatment has led to little or no relief.[39] Many activities in daily life are impacted by pain from the use of the dominant right shoulder and arm.
[39]PCB 12
34 The dominant arm needs to be put in the context of it being the essential limb for a myriad of activities in daily life. A moment’s reflection indicates that the use of the dominant arm is something that is probably taken for granted in terms of countless tasks each day.
35 I accept the evidence that the impairment of function of the right shoulder requires the plaintiff to avoid lifting heavy items. As with the spine, the extensive video that was shown did not indicate any unduly heavy lifting, repetitive activity, overhead or strenuous activity that impacted on his complaint of dominant arm pain. In fact, he carried more shopping bags with his left arm, and they rarely looked very loaded.
36 Household chores are impacted on by the impairment of function of the dominant right shoulder and the pain I accept this man suffers in that limb. Particularly given that the plaintiff is the carer and the main worker in the household, this limitation is important and no doubt impacts on his emotional wellbeing and self-esteem.[40]
[40]PCB 14
37 Recreational activities such as swimming I accept are limited by the right arm impairment on its own, as well as by the left shoulder problem and the spinal symptoms.[41]
[41]PCB 15
38 The plaintiff has required a lot of medication for the right shoulder symptoms, as well as the other physical injuries. This requirement continues to the present time and has been there for some four and a half years now.[42] A list of medications over the last two years is formidable in terms of pain relief. It has been paid for by the Transport Accident Commission.[43] True it is there has been the second accident, but the medication evidence prior to it is equally indicative of great pain. That pain includes right shoulder pain for which multiple injections have occurred quite independent of any left shoulder and spinal problems.
[42]PCB 18
[43]Exhibit ‘A’
39 A referral to a second specialist, Mr Bonomo, orthopaedic surgeon, as well as to physiotherapy have occurred.[44] These are before the second accident. Mr Bonomo only alluded specifically to the left shoulder. The plaintiff’s evidence was that the referral was for both but the left was Mr Bonomo’s focus.[45]
[44]PCB 19
[45]PCB 19
40 On all the evidence, I accept the plaintiff has constant pain in the right shoulder which is increased by lifting and generally by activity.[46] He now has six grandchildren and the dominant arm limitations standing alone impact on his ability to be able to pick them up and play with them in the way that any grandfather who is a family man would look forward to immensely in terms of enjoyment of life.[47]
[46]PCB 20
[47]PCB 21
41 The relevance of constant pain in these applications has been commented upon often. Enduring daily pain that requires frequent medication has been said to raise a very real prospect of very considerable consequences.[48] The unfortunate fact that the plaintiff also suffers pain in several other areas of his body does not diminish the significance of constant pain in the right dominant arm.
[48]Kelso v Tatiara Meat Co Pty Ltd (supra) at paragraph 199 and Sutton v Laminex Group Pty Ltd (supra) at paragraph [91]
42 The affidavit of the plaintiff’s wife of some forty-eight years supports his application in some material ways. Firstly, it described how he cares for her, in that he is the driver, the shopper and essentially the person who does household tasks.[49] Put simply, he has to. I accept he provides this care with the help of a lot of drugs. She noticed apparent pain that he suffers when he performed activities like bending or lifting and such activities are consistent with an impairment of both the spine and the dominant arm. She uses descriptions of pain in a quite general sense as encompassing both shoulders and the spine. However, her comments that repetitive, awkward, sustained or strenuous bending, twisting or lifting generally increased his pain I take as supporting his complaints of pain caused by his spinal condition, as well as his shoulders, especially the dominant one. The plaintiff’s wife supports him in the impact of pain in the general sense on his recreational activities, including fishing and the sorts of things he liked to do with his grandchildren.[50]
[49]PCB 17A-17D
[50]PCB 17C
43 I do not accept the defendant’s argument that because he now cares for his wife, his injuries are not serious. He performs the necessary tasks aided by medication and stoicism.
44 The plaintiff’s wife supported the fact that her husband had worked since coming to this country for the one employer over a period of forty or so years. He had worked long hours in work that was physical. She noted how he enjoyed his work and had no difficulty in undertaking it. This is consistent with what Dr Hamidi said in oral evidence before me about the absence of any pre-existing medical conditions that were relevant to this man’s spine and shoulders before the transport accident on 18 September 2009. This evidence flies in the face of the defendant’s argument that the shoulder conditions are just age related.
45 Dealing with what the doctors say in relation to his spinal impairment and that of his right dominant arm, it is not necessary to quote them in great detail.
46 Dr Hamidi, general practitioner, gave oral evidence and last saw the plaintiff in March 2010. Over some twelve visits pre-accident, there were no relevant health issues. In particular, no spinal or shoulder references appear in his notes until 23 September 2009, five days after the transport accident. The complaints then, in order, included right shoulder/scapular/anterior chest wall and back.[51] The pain did not improve in spite of narcotic medication, physiotherapy and injection treatment.
[51]PCB 46A
47 In spite of persistent cross-examination, Dr Hamidi did not accept the defendant’s argument that the shoulder pathology was just age related. He thought the bilateral shoulder, low-back and neck injuries were caused by the transport accident.[52] I accept that opinion. The cross-examination where he said it was difficult to find causes was in a context of a difficulty finding a cure for the pathology that he accepted, rather than any doubt about whether or not the plaintiff had sustained physical injuries in the transport accident.
[52]T80, T96
48 There were many visits to Dr Hamidi between the accident and 2 March 2010 when he last saw the plaintiff. His notes repeatedly refer to shoulder and spinal problems. He expressed some uncertainty as to what was the best direction to go in terms of treatment. Not surprisingly, he noted by 2 March 2010 that the plaintiff was stressed and psychological issues were manifest. The plaintiff was concerned that he was no better at all after all this time and Dr Hamidi thought he might need medical help psychiatrically.[53] This was a man who was not improving in spite of various treatments including drugs.
[53]PCB 46B; DCB 45
49 The second general practitioner, Dr E Sleaby, first saw the plaintiff on 12 March 2010, about ten days after the last visit to Dr Hamidi.[54] He recorded the injuries as right and left shoulders, neck and low back.[55]
[54]DCB 49
[55]PCB 47
50 On the basis of the ambulance, hospital and the notes of the first two general practitioners to see the plaintiff, I reject the defendant’s argument that the transport accident was not a cause of the shoulder injuries. In view of the absence of any pre-existing shoulder injury history, the evidence is overwhelming, contemporaneous and consistent with a very violent impact. It forced the driver’s side pillar to intrude into the cabin and caused injury to the shoulders, particularly the dominant right shoulder closest to that pillar.
51 Dr Sleaby has seen the plaintiff now for some four years. His last report pointed to symptomless degeneration in the back, neck and shoulders pre accident. He said:
“This patient has a Chronic Pain Syndrome now that I would read as being at least partly a psychiatric or emotional reaction. The condition is stable and the prognosis poor.”[56]
[56]PCB 54
52 The doctor’s materials support the impairment of body function of the spine and the dominant right shoulder being organically based in my opinion. An expected psychiatric condition has later developed.
53 For a hardworking man who has been unable to return to a job he has enjoyed for nearly forty years and who has had chronic pain in his spine and shoulders, it is to be expected that there would be a mental response. His emotional or mental response is a consequence of the organic injuries that are ongoing to the present time.[57]
[57]Richards v Wylie (2000) 1 VR 79 at paragraph [17]
54 On all the early treaters’ evidence, I accept that the physical injury to the spine is causing its impaired function. Similarly, the impairment of the right shoulder has its cause in the clear pathology demonstrating organic damage. The mental response is to the chronicity of the pain and what it has done to this man’s life.
55 Mr S Jensen, musculoskeletal specialist, wrote back to Dr Hamidi in May 2010 after referral. The plaintiff told Mr Jensen that his worst pain was in the shoulder girdles and neck, together with mid-thoracic problems.[58] The lumbar spine scans showed changes that Mr Jensen thought were over reported.[59]
[58]PCB 58A
[59]PCB 58A
56 I must judge the plaintiff in March 2014. In a very up to date report of 24 March 2014, Dr Jensen spoke of the organic dysfunction of the lumbar and cervical spines and intrinsic shoulder pathology.[60] Together with the psychosocial factors, it was a chronic widespread pain syndrome with clinical depression that the doctor was describing.[61] The prognosis overall was poor.
[60]PCB 65A
[61]PCB 65B
57 I accept this treater’s opinion about ongoing physically based pain in the spine and the shoulders, as well as what I find is a perfectly reasonable psychological reaction to his injuries and their impact.
58 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, also treated the plaintiff in November 2010 in a pain management context. He saw psychosocial factors and was not optimistic about this very distressed individual. He referred him off to the Dorset Rehabilitation Centre.[62]
[62]PCB 67
59 The last treater was Mr A Bonomo, orthopaedic surgeon, who saw the plaintiff in August 2011 on referral from Dr Sleaby. The non-dominant shoulder was the focus of his treatment, although he did note injuries to both shoulders, neck, back and ribs.[63]
[63]PCB 69
60 Mr Bonomo’s recent report of March 2014 really just referred to the left shoulder condition, about which he had written to the Transport Accident Commission in 2011 seeking approval for surgery. The Transport Accident Commission had apparently not responded. He did not comment on the spine or the dominant right shoulder problem.[64]
[64]PCB 72A-B
61 It is worth noting that all of these doctors and the treatment described thus far, predated the second accident. I reject the argument that the second accident has played a role of any significance in terms of the impairments the plaintiff presently suffers from in regard to his spine or either shoulder. The die was well and truly cast by the time the second accident came around, looking at the medical evidence overall.
62 It is interesting to note that the Transport Accident Commission has not even had the plaintiff medically examined by any physical doctor, as opposed to a psychiatrist, since the second accident occurred.
63 Mr R Mohammad, psychologist, started seeing the plaintiff in February 2013 for psychological treatment at the referral of Dr Sleaby. Although he recorded the physical injuries and their impact on the plaintiff’s life, it is recorded that the plaintiff’s realisation that his health conditions were chronic and long-lasting led to the need for counselling.[65] His opinion was that the plaintiff had a genuine injury directly resulting from the transport accident that was both physically and psychologically manifest. He said the plaintiff had been affected physically and emotionally by a chronic situation and there was a guarded prognosis. The plaintiff required more counselling.[66]
[65]PCB 75
[66]PCB 76
64 This report does not advance the matter very far, save to say that the need for counselling due to the chronicity of this man’s physical problems is consistent with the finding that the impairment of body function is organically based. Unfortunately, and not surprisingly, it has led to a mental response for which professional assistance was required in 2013.
65 Turning to the medico-legal reports, Dr J Davis, consultant in occupational medicine, saw the plaintiff once. This report is really too early to assist much in terms of consequences in 2014. It preceded quite a lot of treatment, even though by that time he recorded six shoulder injections had been administered on each side.[67]
[67]PCB 81
66 Dr Davis accepted there had been wrenching trauma to both shoulders, as well as the ribs, where the side of the car caved in on the plaintiff.[68] The spinal injuries were an aggravation of pre-existing degenerative changes in the upper and lower spines with injury to facet joints, discs, including an annular tear. He suffered bilateral full thickness tear of the supraspinati and tendonitis, as well as bursitis and impingement.[69] All the injuries were consistent with the stated mechanism of trauma. He dealt with age-related shoulder degeneration but pointed to the obvious lack of symptoms pre accident and the fact he could carry on his manual work.
[68]PCB 83
[69]PCB 84
67 There was an adjustment disorder with anxiety and depression which would certainly not be unexpected as a result of the accident. He was concerned about the potential harm from the level of medication.[70] He thought there would be no significant alteration as maximal medical improvement had occurred.[71]
[70]PCB 84
[71]PCB 85
68 This report is, of course, some sixteen months before the second accident had even occurred. It is well argued and easy to follow. It supported organic injury to both the spine and the shoulders and the onset of the psychiatric condition. It also supported ongoing pain caused by the spinal condition, as well as the bilateral shoulder injuries, but it was written in very early days.
69 The defendant argued the plaintiff’s failure to mention his caring for his wife and the fact that DVDs have not been sent diminishes the force of Dr Davis’ opinion. I do not agree. In fact, he recorded the plaintiff as doing as much as possible around the house but in short bursts.[72]
[72]PCB 83
70 I accept this doctor’s opinion that the transport accident was a cause of the right shoulder injury. I also accept it in regard to there being no real prospect of any improvement in his symptoms with regard to both spinal and shoulder conditions.[73] His prognosis has proved accurate and is consistent with what I find has been the case up to the present time, namely, constant pain from the spine and both shoulders, each in their own right, requiring daily medication.
[73]PCB 84
71 Mr P Kudelka, orthopaedic surgeon, also only saw the plaintiff once and it was before the second accident. In May 2011, he saw the plaintiff in company with a professional interpreter and diagnosed aggravation of degenerative changes in the cervical and lumbar spines and in the right and left shoulders as a result of the accident.[74] There may have been some improvements expected but the conditions were essentially stable. At that stage, he doubted the diagnosis of a chronic pain syndrome.
[74]PCB 115
72 Mr Kudelka lumped the spinal and both shoulder impairments together as a “condition”. He considered the condition would preclude the plaintiff and restrict him in relation to social, domestic, recreational activities and prevent him returning to his work.[75] I read this report as supporting the view that the spinal condition at its two levels has caused those consequential restrictions. Similarly, I accept the shoulder problem especially in the dominant right arm also is a cause of these consequences in his opinion.
[75]PCB 116
73 Mr Kevin King, orthopaedic surgeon, had a considerable advantage over all the other medico-legal doctors in this case. He saw the plaintiff three times, both before and after the second accidents and always with an interpreter. He also listed the extensive enclosures he was sent from other doctors. His examinations and reports are the most comprehensive. His history of the mechanics of the trauma is thorough.[76]
[76]PCB 89
74 Mr King went in to a detailed analysis of the plaintiff as an historian. He found the plaintiff genuine but noted:
“… his slow, halting but clear and detailed history (with the aid of an excellent interpreter)”.[77]
The plaintiff presented in court the same way. Mr King was surprised to learn at the 2013 consultation about the second accident but had no qualms about the honesty of the plaintiff and explained why he thought the plaintiff had made that omission.[78]
[77]PCB 94
[78]PCB 107, 110
75 I agree with Mr King’s view about the plaintiff as a witness and his honesty in spite of any omissions or errors made. When other doctors saw him without an interpreter it makes absences and errors in histories even more understandable.
76 Even in court he was clearly unable to remember certain things such as not seeing Dr Hamidi before the 2009 transport accident. He was clearly wrong about this. He had at least twelve attendances on that doctor before September 2009. They did not contain one reference to spinal or shoulder problems. There was nothing to hide. The plaintiff was just wrong.
77 Over the three visits in 2011, 2013 and February 2014, Mr King has consistently described organic injuries to the spine at several levels and to each shoulder. When he first saw the plaintiff in January 2011, ten months before the second accident, he diagnosed:
“The severe generalised trauma to the whole spine would have caused some damage to cervical, thoracic and lumbar discs and associated ligamentous structures at multiple levels, this trauma being superimposed upon long standing, moderately severe, hyperostotic degenerative changes throughout the spine. Such changes are quite a common radiological finding in heavy manual workers of this age and in the majority of such heavy manual workers of this age and in the majority of such heavy manual workers are not associated with any symptoms or any clinical problems – consistent with his own statement that he had never suffered from neck or back pain prior to the car accident”.[79]
I accept that evidence.
[79]PCB 94
78 He went on to comment on the shoulders:
“Heavy jolting blows to both shoulders would have caused damage to the rotator cuff of tendons and ligaments surrounding both shoulders, probably superimposed on mild, pre-existing but symptomless degenerative changes (which are common without symptoms in this age group) and I would attribute his persistent problems with pain and stiffness in both shoulders entirely to the effects of trauma to both shoulder joints at the time of the car accident (accepting his clear statement that the shoulders had never worried him at any time in the past).[80]
I also accept this opinion as to the shoulders.
[80]PCB 95
79 When Mr King reported in 2013, he delineated the spinal pain. He said the damage to the spine adequately explained the onset of:
“… quite significant, pain and spasm in the neck and back at the time and the persistence of these symptoms ever since … .”[81]
He later described it as “chronic”. I accept the evidence supporting a very considerable consequence in the form of constant spinal pain requiring narcotic medication independent of the shoulder injuries.
[81]PCB 103
80 I also accept the surgeon’s opinion that:
“… he is certainly unfit, because of organic injuries to the neck and back, to return to his old, moderately heavy jobs … which he had done for 41 years as a machine and press operator, and his condition has stabilised.”[82]
This is a very considerable consequence in terms of impairment or loss of earning capacity for this man due to the spinal injuries alone, quite apart from any shoulder problems.
[82]PCB 103
81 Mr King noted also the direct trauma to both shoulders as adequately explaining the bilateral shoulder pain and stiffness and the persistence of the symptoms until now.[83]
[83]PCB 103
82 Independent of the spine, I accept this constant pain and stiffness in each of the shoulders, taken individually and especially in the dominant one, are very considerable consequences for the plaintiff. It puts him out of his old job, as well as impacting on his enjoyment of life in ways that are “serious”.
83 In his February 2014 report, with the additional information about the second accident, he did not change his opinion.[84] He noted the description of 25 per cent worsening of symptoms in the neck and back. This is consistent with what the plaintiff said in court. He said that the transport accident led to a chronic disability that permanently made him unfit for work as a result of the spinal disability.[85] I accept that view.
[84]PCB 111
[85]PCB 111
84 Apart from a psychiatrist, the defendant has not had a doctor examine the plaintiff since September 2011. This is, of course, before the second accident. Perhaps more surprisingly in a spinal and shoulder case, where pathology is recorded radiologically, no examination by an orthopaedic surgeon was organised by the defendant. It relied on two rheumatologists.[86]
[86]DCB 1, 27
85 Mr G Littlejohn, rheumatologist, saw the plaintiff for the defendant once in the very early days, 13 May 2010. It is of limited use in judging the consequences now. He did not take a very detailed history of the violence of the impact on the plaintiff’s vehicle.[87] This doctor thought the plaintiff winced and grimaced at examination and he thought the plaintiff’s predominant problem was a chronic pain syndrome which prevented him from working.
[87]DCB 3
86 He thought it possible the shoulder degenerative disease had been made symptomatic by the transport accident.[88] I assume he meant in both shoulders. Under the heading of ‘Opinion’ and ‘Work Capacity’, he does not even provide a comment about the neck and low back, even though complaints were made about them, spinal radiology was recorded at both levels together with treatment for the spinal condition. The omission is hard to explain.
[88]DCB 8
87 This early report does not assist in determining the relevant issues in this case. Whether “the predominant problem”,[89] being chronic pain syndrome, means there are other organic problems the transport accident caused and if so what they are, is just not made clear.
[89]DCB 8
88 Mr T Kostos, rheumatologist, saw the plaintiff once in September 2011. His report is very deficient. He noted documents sent to him but did not list what they were.[90] He did not note any interpreter being present. He took a very scant history of the collision with no detail of the speed, violence or trauma.[91] The list of complaints is less than any other doctor recorded.[92]
[90]DCB 27
[91]DCB 28
[92]DCB 28
89 Mr Kostos reached several conclusions but some of the reasoning behind them is hard to follow. After referring to radiology that on any view shows spinal degeneration, whether it be age related or otherwise, he simply said:
“I don’t believe that he suffered any injuries to his spine.”[93]
[93]DCB 31
90 He seemed to seize on one comment from Dr Hamidi on 27 October 2009 that “…psychological issues are more significant at this stage” and then concluded it is quite apparent that non-physical presentation had dominated right from the outset.[94] Mr Kostos seemed to completely ignore the first nine or ten paragraphs of the report of Dr Hamidi about a number of physical complaints and findings.[95]
[94]DCB 31
[95]PCB 46A and B
91 Mr Kostos then stated all the evidence suggested “… original problems were on the right side where he complained of right sided rib pain” and “today it is quite apparent that this man’s shoulder problem is on the left side”.[96]
[96]PCB 31
92 The evidence is quite at odds with this. The original ambulance and The Alfred hospital documents point mostly to the head, spine and right shoulder.[97] The Alfred hospital notes did include a record of “shoulder pain bilaterally” on the same evening he was admitted.[98] It is the evening of the transport accident. Nevertheless, Mr Kostos inexplicably thought the left shoulder problem had somehow come on later and developed subsequently.[99]
[97]PCB 35, 36, 78P, 78Q, 78R, 78T, 78AB, 78AC, 78AE
[98]PCB 78AI
[99]DCB 31
93 I reject Mr Kostos’s views as being unsubstantiated, not adequately explained and not comprehensible. In fact, they fly against uncontested primary evidence. Why he then goes on to give a right shoulder AMA percentage impairment at all is not clear in view of his earlier comments. [100]
[100]DCB 33
94 The letter from this rheumatologist to the Transport Accident Commission regarding an orthopaedic surgeon’s request for shoulder surgery approval takes the matter no further. He seemed highly critical of this request and yet Mr Kostos admitted he could himself make no real diagnosis of objective problems at all.[101] Did he mean by ‘real’ it was difficult, uncertain or not even possible?
[101]DCB 35
95 He commented then on the DVD video evidence. This was done without any apparent request of the need to see the plaintiff again in order to update the situation given it was then 2013 and he had seen the plaintiff only once and back in 2011. Having seen the same DVD’s I do not accept Mr Kostos’ comments on them.
96 The weight of the evidence overall, from both the treaters and medico-legal doctors, supports a finding that the plaintiff’s spinal impairment taken alone has rendered the plaintiff incapable long term of performing his job. For a man who had done that job for some forty or so years and it is really the only job he has had in his life, this is a very considerable consequence.
97 Similarly, the impairment of his right dominant shoulder taken alone, for a die setter in the metal industry, has resulted in his long term incapacity for his job.
98 In terms of loss of enjoyment of life in a general sense, his constant spinal pain, of itself, with the need to keep medicating impacts on his household, recreational and family life in ways that are very considerable.
99 Just to take one specific example, I accept the evidence about his neck pain interrupting his sleep every night and his frequently feeling exhausted during the day.[102] This is a very considerable consequence of the impairment of the spine taken alone.[103]
[102]PCB 20
[103]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraph [45]
100 I find also the impairment of his dominant right arm, of itself, with its constant pain, has consequences in terms of loss of enjoyment of life in many ways as he goes through the multitude of tasks of daily life around the household he must now run. Other examples are driving long distances and fishing that, of necessity, involve the right arm.[104]
[104]PCB 21-22
101 In view of my findings above, it is not necessary to deal with the other paragraph (a) injuries that leave is sought for, nor the paragraph (c) condition. Accordingly, there is no useful purpose served in detailing the opinion of the medico-legal psychiatrists, Dr D Weissman and Dr J King.
102 I grant leave to the plaintiff to bring proceedings for the recovery of damages and I will hear the parties as to costs.
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