Janbakhsh v Transport Accident Commission
[2022] VCC 2206
•13 December 2022
| IN THE COUNTY COURT OF VICTORIA AT Sale COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-05218
| AMIR JANBAKHSH | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Sale | |
DATE OF HEARING: | 21 and 21 November 2022 | |
DATE OF JUDGMENT: | 13 December 2022 | |
CASE MAY BE CITED AS: | Janbakhsh v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2206 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – psychiatric impairment – range – spinal impairment – credit
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Transport Accident Commission v Kamel [2011] VSCA 110; Richards & Anor v Wylie (2000) 1 VR 79; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Victorian WorkCover Authority v Kalenjuk [2017] VSCA 17; Transport Accident Commission v Katanas [2017] HCA 32
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P F O’Dwyer SC with Ms J Frederico | Slater and Gordon Ltd |
| For the Defendant | Mr A Macnab SC with Mr S Scully | Solicitor to the Transport Accident Commission |
HER HONOUR:
Introduction
1This is an application brought by an Originating Motion for leave pursuant to s93(4)(b) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by the plaintiff arising out of a transport accident which occurred on 7 January 2017 (“the accident”).
2The application is brought pursuant to s93(4)(d) of the Act. Sub-section (6) provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3The definition of “serious injury” primarily relied upon by the plaintiff[1] was under s93(17)(c):
“Severe long-term mental or severe long-term behavioural disturbance or disorder.”
[1]Transcript (“T”) 91
4There was also an application under s93(17)(a) for a spinal impairment.
5In forming a judgment as to whether the consequences of an injury are “serious”, “the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described as at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked”.[2]
[2]Humphries and Anor v Poljak [1992] 2 VR 129 at 140-1
6The word “severe” has been held to have a more significant meaning than the word “serious”.[3]
[3]Mobilio v Balliotis [1998] 3 VR 833
7The enquiry under (a) focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then, by reference to the consequences of that impairment, to determine whether it is serious and long term.
8The injury will be considered a physical injury under the Act if it is predominantly the product of an organic physical condition.[4]
[4] Transport Accident Commission v Kamel [2011] VSCA 110; Richards & Anor v Wylie [2000] 1 VR 79
9The plaintiff relied on four affidavits and gave viva voce evidence. He was cross-examined. He also relied on three affidavits sworn by his partner, Amber Wade, on 19 May 2020, 18 August and 21 November 2022. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material. There was also surveillance footage of the plaintiff shown in Court.
The Plaintiff’s evidence
10The plaintiff is presently aged forty-five, having been born in August 1997 in Iran. He is in receipt of a disability support pension.
11He arrived in Australia in about August 2010, having fled Iran three years earlier, and then moved to Turkey as a refugee.
12Soon after arriving, he found some work as a painter in 2011, and continued that role over the next five or six years. In about 2013, he started working for Camberwell Painting Company as a subcontractor. In late 2015, he was doing some importing of fibreglass sheets for home renovations, and started a business, Three Dimensional Walls. In 2016, he did a little bit of casual work building up the business, but it was still in its infancy.
13Prior to the accident, he considered himself to be in good health and could work full time as a painter without any issues, and was able to build up his own importing business on the side. He enjoyed playing with his young children, going to the gym most days and fishing on the bay.
14He had experienced some brief issues with depression, which were mainly in the context of some relationship difficulties with Amber. He could recall attending his general practitioner (“GP”) on a couple of occasions in 2016, and was referred to a psychologist, Ms Johannessen.[5]
[5] The plaintiff first saw her on 20 January 2017, after the accident
15Before the accident, he and his wife “had a little bit issues, and it wasn’t any mental health. [He] would put it that way, because [we] were in the two different communities, two different cultures.” He had not had any mental issues, but they had a problem. His GP referred him to psychologist, Ms Johannessen, because of difficulties with Amber. These were not causing him any anxiety or depression.[6]
[6]T28
16The plaintiff was shown the GP’s questionnaire in December 2016. He could not remember filling it out, but apparently he did.[7] If he had filled it out, he would have done his best to fill it out accurately.[8] He could not remember how he was feeling at that time.[9]
[7]T29
[8]T30
[9]T32
17He explained he spoke to the doctor because:
“Me and wife – she talk and she said if we get in a session of psychology through the GP it would be – we got like three or four session[s] a year, we can get it through the GP, like out of medical and that will be free and that’s why we went to Dr Mousaddiq … to help us to get the psychologist to sort out our problem.”[10]
(sic)
[10]T31
18He agreed he was referred to Ms Johannessen before the accident, but the first time he saw her was in late January 2017, after the accident.
The accident
19On the said date, the plaintiff was the driver of a car that was stationary waiting for the lights to change, when another driver turned left in front of him. That vehicle was travelling too quickly to take the turn safely, lost control and skidded as it came around the corner, and collided heavily into the rear driver’s side of the plaintiff’s car, forcing it to spin around (“the accident”).
20Immediately after the accident, the plaintiff was in a state of shock, noticing significant pain in his neck, right hip and pelvic regions. He also had a significant headache and took some Panadeine Extra at the scene.
21He was taken by ambulance to Casey Hospital, where he had a CT scan of his head and neck, and also an x-ray of his pelvis. He was discharged, as he understood these investigations failed to reveal any fractures.
22He rested at home over the following days, feeling very stiff and sore, and troubled by pain in his neck, back and hip. He also had frequent headaches and a pounding sensation in his forehead.
23As a result of his persisting symptoms, he attended Narregate Medical Centre on 14 January, where he consulted GP, Dr Warnakulasuriya. Panadeine Forte and Voltaren were prescribed, and the plaintiff was advised to go to Casey Hospital if the symptoms persisted.
24Dr Warnakulasuriya noted the plaintiff had been involved in a car accident when stationary. He had an ongoing severe headache. His mother had died of a head injury after an initial investigation missed a bleed. The plaintiff was worried and wanted to investigate further for ongoing headache.[11]
[11] Narregate clinical notes – 14 January 2017
25On 16 January, he returned to Casey Emergency for significant headaches and neck and lower back pain, and was assessed and discharged with medication.
26Soon after the accident, he began to struggle with his mental health and became depressed and frustrated by his pain, and increasingly anxious and worried. As a result, he was referred to Ms Johannessen.[12]
[12] Second referral, after the accident
27The plaintiff denied that, immediately after the accident, he was experiencing psychological symptoms because of the accident.[13] He could not remember how long after the accident he started to have nightmares, flashbacks and bad thoughts about it. Straight away he was working, and he could not remember the onset of nightmares.[14]
[13]T32
[14]T33
28He could not remember what he told Ms Johannessen when he first saw her in late January 2017. He could not remember talking to her about the accident. When it was suggested he never advised her, in that early period of treatment, he was experiencing psychological problems because of the accident, he said he could not remember.[15]
[15]T34
29Initially, he tried to battle on at work as a painter, but struggled with neck and back pain and overhead duties. He was prescribed Endone in January 2017, which helped take the edge off his pain, but never completely removed it.
30On 22 February 2017, he had an x-ray of his neck and back, and also a CT scan of his neck.
31In the months after the accident, he began physiotherapy with Michael Shilson-Josling. He continued to take pain medication, but struggled to stay at work and eventually could not continue, ceasing in May 2017. He has not worked since.
32On 18 May 2017, he had an MRI scan of his neck, back and left shoulder. After that scan, his GP at the time, Dr Mousaddiq, referred him to neurosurgeon, Gerald Quan. In the meantime, the plaintiff had been prescribed Lyrica to help with some nerve pain that he had recently developed, radiating from his neck into his left arm and hands.
33On 14 June 2017, he saw Mr Quan for the first time. Mr Quan diagnosed whiplash and recommended an injection into the plaintiff’s neck to see if it would help settle his symptoms. On 4 July that year, the plaintiff had a left sided C5-6 foraminal cortisone injection into his neck, which unfortunately did not provide him with much relief and seemed to trigger some worsening of pain in his left arm.
34When seen again by Mr Quan on 22 August 2017, the plaintiff was told he should continue with physiotherapy and conservative treatment. By that time, the plaintiff was taking Targin. He was becoming increasingly worried about his ability to return to work. As a result, he decided to seek a second opinion.
35On 3 October 2017, he saw another neurosurgeon, Mr Michael Wong, who recommended he begin wearing a lumbar brace for support and continue with physiotherapy and hydrotherapy, and also have pain management.
36By late 2017, the plaintiff was really struggling, not only from neck and back pain, but his left hip was becoming increasingly painful. He had difficulty walking without a limp and was struggling with postures. These problems, and his ongoing pain, were weighing heavily on his mind, and he was prescribed some antidepressant medication and prescribed Lovan for a while.
37On 30 November 2017, he underwent a further MRI scan of his back. A week later, he attended pain medicine physician, Dr Barry Sion, who recommended lumbar diagnostic block injections, for which the defendant later provided funding.[16]
[16] Letter from TAC dated 5 December 2017
38The plaintiff had an MRI scan of his left hip, on 9 February 2018. After that scan, his GP referred him to an orthopaedic specialist for further review. Later that month, he saw Mr Rodda, who explained the MRI scan results, and recommended the plaintiff have an ultrasound guided intraarticular steroid injection into his hip, which was undertaken on 26 March 2018. That injection did not give him any significant relief. He decided not to have the lumbar diagnostic block injections.
39In June 2018, he had a standing MRI scan of his lower back after he developed numbness in his left leg.
40As at 13 July 2018, when he initially swore his first affidavit, he had been unable to work since May 2017 and continued to be troubled by chronic pain in his neck, back and hip.
41Ever since the accident, his neck and back had been his major problems, experiencing a constant heavy aching pain in his lower back each day. He had also developed intermittent numbness in his left leg, which caused him to fall over. He now used a crutch if he needed to walk long distances. Pins and needles in his toes tended to come and go.
42He had a burning pain in his left hip which had been increasingly worse over the last year.
43Since the accident, his neck had also been a significant problem, with a dull aching pain in the back and left side. He experienced a burning pain that radiated into his left upper arm and shoulder. His neck felt stiff and most of the time, he had difficulty fully twisting or rotating it. The pain was generally not too bad first thing in the morning, but got worse as the day progressed. When the pain was really flaring up, he had headaches. Associated with his neck pain was persisting discomfort in the left shoulder.
44The persistence of pain in those areas had caused him to become quite grumpy and irritable and he suffered frequent mood swings, and often felt down and upset. He was frustrated beyond words and his self-confidence and self-esteem had been shattered by his inability to keep working.
45He had difficulties with sleep, because his mind tended to race when he was in bed, and he was awoken multiple times by pain.
46In order to help manage pain, he regularly wore a lumbar brace. He tried to get by without it at home, but when he left home, he generally wore it for support. When his neck pain was flaring up, he sometimes still needed the help of a neck collar. He did not need it all the time, however when the pain in his neck became bad, he wore it for additional support.
47He then required large doses of painkillers to help each day. He was taking Tramadol, 200 milligrams twice a day; Allegron, 10 milligrams twice a day; and Panadeine Forte daily. He typically took between four and eight tablets of Panadeine Forte each day. In addition, he took 300 milligrams of Lyrica twice a day. He also took Meloxicam, 15 milligrams at night. Although he got some help, he felt his pain began to escalate when the tablets started to wear off, so he was in a cycle of constantly taking tablets to just stay on top of his pain.
48He remained under the care of Dr Musaddiq. He was having physiotherapy most weeks and seeing Ms Johannessen roughly once a fortnight, and was also having hydrotherapy twice a week.
49As a result of his spinal injuries, his level of activity had been significantly reduced. He struggled with heavy lifting, bending and twisting, and reaching tasks were all very difficult. His mobility had been significantly affected. In particular, his left hip problems caused him to walk with a limp and altered gait which, in turn, placed further stress and pressure on his back. He struggled to walk over uneven ground for much more than a few hundred metres before an escalation in pain. He had difficulty with crouching, squatting, kneeling and prolonged postures.
50Since the accident, he had not been able to return to fishing, which he previously enjoyed once a week with a friend on his boat out on the bay.
51Before the accident, he also enjoyed going to the gym most days, but cancelled his membership and no longer went. Accordingly, he had lost fitness and gained weight, which then impacted on his mood and self-esteem.
52Frustratingly, his injury also limited his ability to play with his children. At home, Amber, had to shoulder a much heavier burden, as he was restricted in household duties.
53Most concerning for him, however, had been the impact his injury had had on his ability to work and provide for his family. Since arriving in Australia, he had prided himself on working hard, and full time. He was earning between $42,000 and $45,000 in the two years before the accident. Not being able to work at all caused financial strain. He could not think of any job he could currently perform on a consistent and reliable basis unless there was a significant improvement in his symptoms.
54When he initially swore his second affidavit on 17 December 2019, the plaintiff was in receipt of weekly payments from the TAC.
55His lower back remained a significant problem for him, and he continued to wear a back brace. He continued to experience significant pain, stiffness and discomfort in his neck, as well as headaches. Left hip and left shoulder pain remained the same.
56Problems with sleeping and prolonged postures continued. He stopped taking Allegron in late 2018, but continued to take Lyrica, Panadeine Forte and Tramadol daily, and also used a Voltaren Gel on his neck and back.
57His treatment regime continued. He was due to start pain management in mid-January 2020.
58He had since attempted to return to fishing and occasionally went off a pier, but could not go in a boat, which is what he enjoyed most.
59He continued to be very restricted in his ability to play with his kids, and it was very upsetting that he was limited in his ability to care for his new baby. He remained very limited in household tasks.
60He travelled overseas in October 2019 after his father died. The flight there and back was particularly uncomfortable due to lower back pain, and he had to get up and walk around the plane.
61In his affidavit, originally sworn on 5 May 2020, he described how, since his 2018 and 2019 affidavits, his mental health had deteriorated significantly. He had had a rough time over the past few months and required periods of hospitalisation as an inpatient due to periods of depression and anxiety. During that time, he also struggled with chronic neck, back and left leg pain.
62He was then living in a rental property in Orbost with Amber and their three children, who were then aged six, five and eight months. As a result of his psychiatric condition and ongoing spinal problems, he had been unable to return to any work and remained in receipt of TAC benefits until January 2020. Since then, he had been in receipt of Newstart.
63The persistence of back and neck pain, and the lack of any improvement in his condition and his in ability to return to work, all continued to impact heavily on his mental health. Over time, he had become increasingly flat, despondent and overwhelmed, frequently tearful and sad, and felt very low in mood. His persistent pain had left him feeling frustrated and irritable much of the time and during early 2020, his depression intensified to worrying levels. The financial pressures associated with being off work had also caused severe anxiety.
64In January 2020, he and his family moved out of the rental property in Narre Warren to Orbost, because the rent was cheaper, and also because Amber had some family in the area who could help out.
65Unfortunately, not long after the move, their relationship became strained, to the point where she told him she wanted to separate. Before that, she regularly said she was frustrated at him not being able to help more around the home, and that he was not able to provide financially for her and the kids.
66After they separated, he moved to Melbourne and lived in his car for a week or two. During that time, he felt severely depressed with a sense of helplessness. He felt like the accident had already taken his work and his health away from him, now it had taken his family and children. It was a devastating realisation and one that saw his life spiral out of control.
67His self-esteem and sense of worth reached such a low point that he felt he had nothing to live for. Suicidal thoughts began to dominate his mind and in February 2020 he attempted self-harm by cutting his wrists. The attempt was unsuccessful, but he was left an emotional wreck and eventually mustered enough courage to see his GP in February 2020, who recommended he go to hospital.
68On 21 February 2020, he was admitted to Monash Medical Centre as a voluntary psychiatric inpatient, and kept under observation for the next five days, had some counselling and was prescribed Venlafaxine, an antidepressant. Despite this, he continued to feel useless, sad and disgruntled.
69On 26 February 2020, he was transferred to Pine Lodge Clinic in Dandenong, where he was an inpatient for the next twenty-four days. He remained troubled by frequent dark thoughts and feeling like he had failed like a father, because his injuries had stopped him from working. He struggled sleeping, felt anxious and constantly battled low moods.
70By the end of the inpatient stay, he began to feel a little bit better. His suicidal thoughts had lessened, and he felt his mood had stabilised, however his emotional state remained quite fragile, and he remained troubled by chronic spinal pain, which had not abated while in hospital.
71Following discharge on 21 March 2020, Amber agreed to try and reconcile, and he moved back to Orbost to live with the family. His relationship with her remained strained and they had a long road ahead of them at that time.
72As at May 2020, he continued to struggle with profound depression and anxiety. He remained emotionally fragile. He had mood swings and felt pretty flat much of the time. He frequently felt tired and fatigued. His self-esteem and confidence remained poor. He remained stressed and highly anxious, and worried about whether he would actually ever get back to feeling like his old self.
73He was also quite anxious when travelling on the road and remained fearful about being in another accident.
74In recent times, he had also noticed becoming increasingly forgetful. He did not think as clearly as he once did and felt his mind was in a fog.
75Since his earlier affidavits, his spinal pain had remained much the same. His back caused considerable pain and discomfort every day. He continued to experience frequent episodes of much sharper burning pain and, also, he continued to suffer referred pain and numbness into his leg on a regular basis. The combination of his back and leg pain continued to significantly impact on his mobility and physical activity.
76He also continued to experience persistent burning pain in the back of his neck on a frequent basis. His neck also felt stiff, and he had restricted range of movement. When the neck pain flared up he also had quite intense headaches.
77Spinal pain seemed to be worse during the cold weather or after physical exertion. Back pain was aggravated by prolonged postures, particularly when driving.
78As a result of back pain, he continued to wear a lumbar brace most days for additional support. Additionally, when back and leg pain were flaring up, he still required the assistance of a walking crutch. While he tried not to use the crutch every day, he often needed it if he had to walk long distances, or if he was on his feet for extended periods. When back and leg pain was troubling him, he tended to develop a limp and felt a little unsteady on his feet, he found that the crutch helped support and keep him upright.
79In recent times, his sleep had remained poor. He typically was woken in the middle of the night by pain in his spine.
80Until February 2020, he continued to see his GP about every two weeks, and his psychologist each month until late 2019.
81Since moving to Orbost, he began seeing a new GP at the Orbost Medical Centre, where he had gone a handful of times over the past couple of months and was currently awaiting a referral to a new psychologist in the area.
82Since his inpatient stay, he had required the use of antidepressants each day to help control his mood and anxiety. He was being prescribed Paroxetine, 20 milligrams, and Alprax, 2 milligrams, which he took twice a day, and also took a sleeping tablet most nights.
83For his spinal and left leg pain, he was taking Lyrica, 300 milligrams and Tramal SR, 200 milligrams twice a day. On average, he took six tablets of Panadeine Forte as well, and used Voltaren cream most evenings. The medication helped a little bit, but only helped dull the pain, not remove it. It tended to leave him feeling drowsy and clouded his concentration and focus.
84His ability to undertake domestic and recreational and social activities remained heavily restricted.
85He had stopped fishing, even off the pier, and let his fishing licence lapse, as he could not see himself returning to it anytime soon.
86As a result of the accident, his future remains uncertain. His inability to work has caused significant financial hardship, as his tax returns indicate. Had he not been injured, he believed he would be capable of earning well over $50,000 per year by now. Unfortunately, with his back and neck pain the way they are, he does not believe he would be able to handle the physical aspects of painting. His severe psychiatric issues would also make dealing with a return to work in that role impossible. He would love to be back at work and providing for his family, but in his current state, he is not sure what job he could realistically do on a consistent and reliable basis.
87As at October 2022,[17] he had completed a pain management program at Traralgon and presently sees Dr Anis once a month. He attends psychologist, Ms Phillips, but has limited sessions left. From time to time, he attends Emergency at Orbost, when his headaches are particularly severe.
[17]Most recent affidavit
88He is presently taking Baclofen, Duloxetine, Paroxetine, Tramadol, Valproate and Tapentadol. He also takes Panamax for his headaches.
89He performs daily exercises taught to him in the pain management program for his spine. Sometimes, he uses a below elbow crutch when his pain is particularly bad, and also uses a lumbar brace most days. He needs to lie down each day to manage back pain.
90He drives only short distances and is restricted in his ability to do head checks. He sometimes pushes his three year old in a pram for a short distance.
91Though he remains independent in activities of daily living, his wife sometimes helps him with his shoes and drying his legs after the shower.
92He continues to suffer the symptoms as set out in his May 2020 affidavit.
93Lower back pain is constant and aggravated when he is active. Accordingly, he needs to pace himself when doing activities and he moves slowly. The pain is worse in the cold weather. It radiates down into his left leg behind the knee, and he has numbness in his two little toes of the left foot. Pain and numbness are more frequent during the cold weather.
94He suffers from pain in the left side of his neck. It is stiff and he also gets headaches and associated nausea. Left shoulder pain has improved.
95When his wife is at work, he is responsible for looking after the children. He makes the school lunches. He can do some grocery shopping and some of the cooking, but needs to rest.
96He is trying to do more to look after the children, and more of the housework and gardening, to support Amber and his family. He does these tasks at his own pace, and needs to lie down and rest, particularly after doing some physical activity.
97His mood remains affected, and he continues to suffer with depression and anxiety, feeling low most of the time. He has had his quality of life reduced and has poor sleep. Self-esteem and confidence remain low, and he feels hopeless and helpless. He is quick to anger and frequently gets cross with his family. He still has thoughts of the accident and regular flashbacks.
98He continues to suffer constant pain as a result of his accident injury(s)? and continues to believe he will not be able to work. He would also struggle from a mental health perspective to cope with the demands of attending a workplace. There are very few jobs in this area around Orbost.
99Cross-examination was largely a lead up to a number of surveillance films of the plaintiff taken in 2022.
100The plaintiff has worn a neck brace since about nine months after the accident, recommended by Dr Musaddiq. He wore it for about a year, but stopped using it because he was “a bit ashamed in public”.[18]
[18]T17
101In that period, he would wear it when he was “really under pain”. He did not put it on all the time. He would wear it about two days a week for two hours. He no longer wears it.[19]
[19]T16
102He continues to wear a back brace for support. He was wearing it in Court, but not every day, but he wore it to Court because he knew it was going to be a long day and he needed support. He did not know whether he started to wear the back brace around the same time as his neck brace. Sometimes, he would wear them both at the same time. Dr Musaddiq recommended he wear it.[20] As of 2022, he uses the back brace two or three days a week for part of the day.[21]
[20]T19
[21]T20
103He has also used a crutch, since perhaps after a year/eighteen months after the accident. It should be in Dr Musaddiq’s records as he recommended the plaintiff use it. He is still using the same crutch. From 2018 to 2020, when he moved to Orbost, he was using the crutch every day, pretty much all of the time. He did not use it at home. It was a half crutch which would be attached to his arm with a handle. He had the crutch in the car with him today. He did not use it at Orbost, because there was a small community there and he was embarrassed walking in the community with a crutch, and he hardly goes out of the house at Orbost.[22]
[22]T22
104When he was in Melbourne, he was quite dependent on the crutch when he was “getting tired”. He agreed he put a fair bit of weight through the crutch. He had fallen over and talked to his GP, who suggested he started using a crutch for support for long distances. His left foot went numb, causing him to fall over. That had happened three times.[23]
[23]T23
105In Orbost, he does not go out that often, but he uses the pram for support. Most of the time, when he goes to the supermarket in town, he uses the trolley. There is a time he goes into town without the pram. He is usually driving when not pushing the pram and just, then, walks short distances.[24]
[24]T25
106The crutch is always in his car. He walked from the car to the Court without the crutch.[25] His physiotherapist instructed him how to use the crutch. His difficulty is in his left leg, “it is coming from his back”.[26]
[25]T25
[26]T26
107He is using the same crutch that he purchased in 2018. He has not made any changes to it or replaced any part of it.[27] He got the crutch from his car and showed the rubber stopper, which appeared to be in good condition.[28]
[27]T27
[28]T43
Activities
108The plaintiff cannot sit for long, perhaps fifteen minutes, then wriggles around to just try and change his position.[29]
[29]T36
109He had stopped teaching his son, Oliver, how to play the piano four and a half years ago. He needed to be really calm when he taught someone music, and that is why he is not even playing anymore.[30]
[30]T37
110The plaintiff still goes fishing on the jetty hardly ever now, but he did surf fishing with his family a couple of years ago on Christmas Eve in Orbost. He has not been fishing since then. He has forty to fifty rods stored in the shed. He has never had a boat. Before the accident, one of his mates in Melbourne would take him out regularly fishing.[31]
[31]T38
111His pain and his emotional situation are so bad he cannot go fishing now. He agreed there is a combination of both pain and psychological aspects to his injury.[32]
[32]T39
112He agreed he was not working, both because of the pain and also because of psychological factors, and “we suggest that Amber started working and I would stay at home”.[33] Amber finished with the Royal Flying Doctor two months ago, having worked there on a twelve month contract. She would leave for work early on those days and he had to get the children breakfast. Two days a week he cares for the three year old, Harrison during the day, and the other days he goes to childcare.[34]
[33]T39
[34]T40
113The plaintiff could mow the front lawn at the Salisbury Street House in Orbost, but he would get his older boy to do the front most of the time.[35]
[35]T41
Video surveillance
114The plaintiff was shown a number of surveillance DVDs filmed in 2022.[36]
[36]T43
115On 15 September, the front of the plaintiff’s Orbost house was shown. The shade remains on the car, although the family had not been camping for two years, when they went to the Slips in Orbost.[37]
[37]T45
116The plaintiff was shown attaching a black bag to his son’s bike. While he did not agree there was no obvious sign of him being in pain, he was in pain.
117The plaintiff was shown bending at various times and denied it was a full bend. He was in pain, but could not point to something in the film to show he was in pain. He could not possibly get to 90 degrees bending and it would cause too much pain, and he would never do it.[38]
[38]T48
118The plaintiff was shown on 3 October 2022 before seeing Professor Doherty. That was a really big day. He flew from Orbost to Moorabbin where a taxi was organised to take him to the appointment in Richmond. That was an exhausting day for him. He agreed he was resting heavily on the crutch. He does so when he has had a really big day. He has that level of pain when he is in Orbost but just stays in bed.[39]
[39]T53
119Having noted the plaintiff did not move his neck when answering my questions, when asked whether he was having any problem moving his neck in any of the film, he responded “Mostly, there were signs of pain in [his] back” on those occasions. He did not agree the video showed him having no neck movement. He cannot move his neck fully to the side, “because usually you can touch your shoulder with your chin,”[40] but he would not be able to do that.[41]
[40]T54
[41]T55
120On 30 September 2022, the plaintiff was with Harrison. They went to Lakes Entrance for a drive, because Harrison loves to go to the playground. The plaintiff would also do a bit of shopping at Aldi because it is cheaper than Orbost. It is not something he does regularly, but every now and then.[42]
[42]T58
121On 10 October 2022, the plaintiff attending the community gardens with Harrison. The plaintiff was carrying a bucket of milk to feed the calf they had there.[43] He was then shown going to an op shop carrying bags full of clothes from their recent house move. He was walking with a limp when he went into the pharmacy, without the assistance of a crutch. He was not using a pram, because when he drives into town it is just a short distance, but when he walks from home he will push a pram.[44]
[43]T64
[44]T66
122At 10.49am, he was shown at the Orbost playground bending to do up Harrison’s shoelace. Minutes later, he put his hand to his left lumbar spine as if he was in pain.[45]
[45]T68
123On 11 October 2022 at 12.47pm, the plaintiff was shown pushing a lawn mower back and forth, on his front lawn, not exerting much force. The mower is self-propelled and was provided by the TAC.[46]
[46]T75
124The plaintiff confirmed he never used crutches in public in Orbost and that his affidavit made no mention of this.[47] His neck and back movement has got more restricted as time has gone on. When he is examined, he does his best.[48]
[47]T70
[48]T71
125The plaintiff was taken to photos taken by Dr Aliashkevich on examination in January 2020 showing the limited extent of the plaintiff’s neck and back movement on that visit. The plaintiff confirmed he was then demonstrating his maximum effort. He denied he was exaggerating.[49]
[49]T72
126He agreed there were parts of the video where he was a lot more active and mobile than he had been when examined for medico-legal purposes, but denied there was less movement on those examinations because he wanted to exaggerate the extent of his symptoms.[50]
[50]T73
127He explained, when seen by Dr Aliashkevich, the family had moved the house to Orbost from Melbourne, which was a really big move. That was a week or so before and that made all the pain “really horrible”. They hired people to help with the move but, of course, he did some jobs around the house helping with packing, and that is why he was in really bad pain. He drove from Orbost to Surrey Hills and that made him exhausted.[51]
[51]T74
128When asked about the varying level of restriction shown on film, and on other occasions, the plaintiff said that his neck pain is not the same all the time. It depends on the movement, especially in the night time and how he sleeps. Sometimes he wakes up with a really bad pain in his neck. It all depends on the kind of movement he has done the previous day.[52]
[52]T75
129He explained he hardly moved his neck when answering my questions because he “had two days from (indistinct)” and it was a two-hour drive from Orbost to Sale.[53]
[53]T75
130His neck pain , like his back pain, is not at the same level all the time. His capacity to bend changes, at the moment he is not able to bend his back pretty much.[54]
[54]T75
Income
131In the 2012 to 2014 financial years, the plaintiff’s income was as follows:
· 2012, taxable income of $15,3033, being $7,200 from Magic Carpets and the balance from Centrelink.
· 2013, taxable income of $30,888, being $27,956 from Magic Carpets (less deductions) and $7,622 from Centrelink.
· 2014, taxable income of $35,321 (less deductions) and $3,596 from Centrelink.
132The taxable income from Magic Carpets in 2014 was $45,383, in 2015, $42,202 and in 2017, 39,380.
133In the following years, the plaintiff received TAC benefits until commencing on Centrelink in the 2020 financial year.
Lay evidence
Amber Wade – the Plaintiff’s partner
134Ms Wade and the plaintiff had been together then for nine years and had three children. She was a self-employed hairdresser, currently on maternity leave.[55]
[55] First affidavit sworn May 2020
135Before the accident, the plaintiff was very fit and active, working full time as a painter and regularly going to the gym, and enjoyed fishing. They enjoyed many activities together. He helped with household tasks.
136They briefly attended marriage counselling before the accident. She had suggested they attend so they could communicate better. She found, at that time, that she was snapping at him occasionally, and hoped marriage counselling would assist them to communicate better. They attended counselling a handful of times and found it helpful for their relationship.
137Pre accident, she and the plaintiff were building a great life together, he was earning a good income and they were saving to buy a house.
138Since the accident, she had observed a significant change in his life. He complained of ongoing pain, mostly in his neck and back, which affected nearly everything they did, and his lifestyle had changed dramatically. She had observed him experiencing a significant amount of physical pain and he complained of frequent spinal pain, the main issue being his lower back. She has seen his restricted movement and function, and also using heat packs.
139He had good and bad days, but told her he is never pain free. His mobility had been impacted and his walking tolerance was restricted. On a bad day, he required the use of a walking stick for long distances as a result of lower back pain.
140The plaintiff took medication to try and manage his pain and his sleep had been affected since the accident.
141The plaintiff had difficulty going back to work and despite his attempts on painkillers, it became too much for him. His inability to work had significantly impacted on the family financially and also on his self-esteem and confidence. They could not afford to keep paying rent in Melbourne, so in January 2020, moved to Orbost.
142Post-accident, the plaintiff had been restricted in his ability to help around the house. He no longer went to the gym. He continued to fish a bit, but not to the same extent, and only did so off the pier. They had not had much of a social life, as the plaintiff tended to withdraw from people.
143She always considered him to be a strong person, but the accident and his injuries seemed to significantly affect him emotionally, with him being sad and down most of the time.
144There was no doubt their relationship had been under significant strain since the accident, with the increased load she had to take on with household duties. It all become too much for her and in February 2020 they separated for a short time. The plaintiff’s mental state further deteriorated after that, and he attempted self-harm. Although they were then back together, she could tell he was still fragile emotionally. She was worried about his future, noting he was a shadow of the person he used to be.
145As at October 2022, she was employed as a youth resilience worker with Moogji Aboriginal Council.
146The plaintiff’s symptoms remained much the same. Despite attending pain management, his pain levels did not seem to have changed much.
147He continued to complain of spinal pain and take a range of prescribed medication. His mobility remained very impacted. He was able to walk short distances, but struggled with long ones and then would use a crutch. He would get a limp if he walked for too long. Sometimes he used Harrison’s pram to lean on.
148His pain continued to impact on his ability to do things around the house and also interact with the children.
149Although his emotional and mental state had improved since her earlier affidavit, it remained poor.
150He had not been able to return to work and was in receipt of Centrelink benefits.
151In her most recent affidavit sworn on 21 November 2022, having been shown various Facebook entries, she explained the plaintiff set up the business, Three Dimensional Walls, before the accident. She assisted in opening a Facebook page. The business was a failure.
Treatment
Hospital attendances
152Following the accident, the plaintiff attended Casey Hospital, having been conveyed by ambulance.
153On arrival, he complained of pain in his head that was worsening. He had some right hip pain and left-sided neck pain. A haematoma was noted to the top right side of his head.
154A CT scan of his brain and pelvic x‑ray were reported as normal, and he was discharged with a diagnosis of soft tissue injury with advice to return if his symptoms worsened.
155On 16 January, he represented at Emergency with two days of lower back pain, headaches, bad memories and difficulty sleeping – symptoms he felt related to the accident. He described taking pain relief with some effect, but he was worried given his mother passed away due to a head injury. His vital signs and observations were normal.
156A lumbar x‑ray was taken demonstrating no spinal/back fracture. The plaintiff was diagnosed with a concussion, reassured and prescribed a muscle relaxant, and was advised to rest and seek review from his general practitioner.
Dr Musaddiq general practitioner, Narregate Medical Centre
157Dr Musaddiq has provided a number of reports, the most recent in March 2020.
158He first saw the plaintiff for his accident-related injuries on 22 February 2017. The plaintiff then reported headache, neck pain, and lower back pain radiating down to the right thigh since the accident.
159Dr Musaddiq referred the plaintiff to the pain management unit at Melbourne Pain Group in November 2017.
160He advised that the plaintiff then presented with neck and lower back pain after the accident. The neck pain radiated down to his left arm and hand with pins needles. Muscle power was reduced in left upper limb. He was hardly able to move his neck due to pain. The CT‑guided epidural injection in the cervical spine was without any benefit. He had had 300 milligrams of Lyrica without pain relief, and could not tolerate narcotic analgesics. He was also suffering lower back pain since the accident.
161In his March 2020 report, Dr Musaddiq noted that on examinations, there had always been reduced range of motion of the neck, left shoulder and lumbar spine, and the plaintiff had a mentally depressed mood.
162He diagnosed degenerative cervical spine disease with mild to moderate foraminal narrowing at several levels, most prominent at C5-6 on the left, where there was an abutment of the left C6 nerve root with compression of it, degenerative changes with foraminal narrowings at L3-4 to the right and L4-5 to both sides, migraine and aggravation of his depression.
163As at March 2020, the plaintiff was taking Pregabalin, 75 milligram capsules, 300 milligrams twice daily; Panadeine Forte, 500 milligrams – 30 milligrams, one to two tablets three times a day, if needed; Tramadol SR tablets, 200 milligrams twice daily, and Voltaren Gel.
164He had then not clinically seen any improvement in the plaintiff’s medical condition. However, the plaintiff had a mental breakdown recently due to his chronic pain condition affecting his social life and family disruption. He had suicidal ideation and suicidal attempt. He was referred to Casey Emergency, where he was admitted to Dandenong Psychiatric Ward, then transferred to Pine Lodge Clinic Inpatients. The plaintiff had had depression for some time which had been gradually getting worse.
165For future treatment, Dr Musaddiq suggested continuing with pain management, active exercise, physiotherapy, hydrotherapy, psychological counselling and anti-depressant medication.
166The plaintiff’s prognosis looked poor, and he needed to be helped with his current treatment in order to continue his daily life independently. The plaintiff would not be able to perform any productive job in the long term, if not long life. The plaintiff did not have a capacity to work, and did not think he would be able to be in gainful employment for a long time, if not long life.
Gladys Johannessen, clinical psychologist
167Dr Musaddiq referred the plaintiff to Gladys Johannessen, psychologist, in August 2017 for his anxiety and depression in the context of a spinal injury sustained in a motor vehicle accident. Medication was then Lyrica.
168In her December 2017 report, she advised Dr Musaddiq that the accident had resulted in persistent pain in the neck and back. The plaintiff had been reporting nightmares for the last couple of moths almost every night. She suggested referral to a psychiatrist, psychologist and sleep specialist.
169In her February 2018 report, she noted the plaintiff reported he thought about the accident at least a few nights a week, had nightmares and was vigilant when driving, felt worried about his physical health and future, felt depressed about his inability to do most things, felt tired from poor sleep and was irritable at times.
170The plaintiff did not appear to have prior mental health problems.
171Psychological therapy ended when the plaintiff moved to Orbost in January 2020.
172In the last few sessions, the plaintiff was severely depressed and anxious as his pain worsened and he ran into financial difficulties due to a decrease or cessation of Workcover payments.
173In February 2020, she had contact with the plaintiff and a social worker from Slater and Gordon about his mental health. The plaintiff had then been admitted to hospital due to mental health reasons following the breakdown of his relationship. Based on the criteria of public hospital admission, the plaintiff had probably reached a crisis point.
174She thought the plaintiff’s physical and psychological symptoms had been persistent and deteriorating since their emergence in 2017.
175She diagnosed a Major Depressive Disorder based on depressed mood for most days, or more days than not, negative thinking, sleep disturbance, lack of concentration, loss of interest in previously enjoyed activities – for example, playing piano and socialising – and recurrent suicidal ideation, the symptoms of being present for more than two years.
176He also had PTSD based on the following symptoms – nightmares about the accident, physical reaction when reminded of the accident, avoidance of related distressing thoughts about the accident, negative outlook, hypervigilance while driving, as well as worrying about bad things happening to his family, sleep disturbance and anxiety.
177These symptoms appeared to have started after the accident and continued to be experienced.
178The plaintiff also had a Generalised Anxiety Disorder based on excessive worrying, inability to control the amount of worry, and the worrying causing sleep disturbance, decreased concentration and irritability.
179The plaintiff had no capacity to work due to his lack of concentration, persistent sleep disturbance and anxiety. His severe chronic pain and associated medication also impacted greatly on his ability to work.
180After three years of active treatment, his psychological and physical symptoms had not improved at all. In fact, they had worsened greatly over time. His psychological symptoms worsened as his physical pain and symptoms increased.
181His current quality of life was very poor, as evidenced by his poor mental state and physical health and persistent psychosocial stresses. He was very limited in his ability to participate in normal family and social life, could not engage in any leisure activities for sustained periods, and had no ability to work. In the absence of new and effective treatment for his pain, she did not believe he would change and improve much in the future.
Dr Quan, spinal and orthopaedic surgeon
182Dr Quan saw the plaintiff on referral from Dr Musaddiq in June 2017.
183The plaintiff’s main issue then was posterior neck pain and stiffness, consistent with post-whiplash syndrome. He also had a lot of thoracic and lumbar pain, but it actually was neck and left arm bothering him most.
184The plaintiff, to his credit, had been able to continue working as a painter, albeit requiring regular high dose analgesia.
185The plaintiff’s neck was very still throughout the consultation and examination, although actively he had almost full functional range of movement of the neck in all directions. Forward and lateral flexion to the left did trigger his left arm pain. He had preserved motor power in all major muscle groups. He felt an area of altered subjective sensation affecting the entire lateral aspect of his left arm and thumb compared to the right.
186Dr Quan agreed with the radiologist’s report of the spinal MRI scan that the C5 disc protrusion with associated collapse was causing a degree of exiting neuroforaminal narrowing on the left side and maybe contributing to a lot of the plaintiff’s intractable symptomatology. There did not look like anything majorly acute and no fracture or instability. Overall, he tried to reassure the plaintiff that radiologically his findings were not as bad as what was often seen.
187As a next step, it was suggested the plaintiff concentrate very hard on physiotherapy and rehabilitation. As a further step, he was offered the option of a CT-guided left C5-6 foraminal cortisone injection to help him break his pain cycle which the plaintiff would keep this up his sleeve for the time being.
188He thought the plaintiff’s spine was structurally sound for him to continue his normal painting activities.
Dr Wong, neurosurgeon and spinal surgeon
189Dr Musaddiq referred the plaintiff to Dr Wong in October 2017.
190On examination, the plaintiff had normal tone, strength reflexes and sensation in his upper and lower limbs. Straight leg raise was to 60 degrees equal both sides, and examination was otherwise unremarkable.
191Dr Wong mentioned the findings on the 2017 MRIS and the subsequent left sided C5/5 transforaminal injection which had given the plaintiff partial relief of left arm pain. Given these findings, he recommended non-surgical treatment and referral to Dr Christine Wong a chronic pain physician for further medical management.
Dr Sion, pain medicine physician
192Dr Musaddiq referred the plaintiff to Dr Sion, in December 2017.
193The plaintiff was then complaining of left-sided cervicogenic type headache, as well as pain radiating into the lateral neck. This was confirmed when he was shown a diagram of current facet referral pain zones.
194On examination, the plaintiff was a well-muscled man in good condition, wearing a neck and lumbar brace. He seemed to be ambulating with difficulty. Examination of the upper limbs showed him to have normal power throughout and reflexes were normal and vibration sense well-preserved. Pinprick and light touch were also preserved in all dermatomes. Full strength was demonstrable in all myotomes in the lower limbs. The plaintiff was very tender in the left lumbar area, which was fairly widespread.
195Noting the spinal MRIs and the fact the plaintiff had had a left-sided C5-6 transforaminal injection in July 2017 which had given him partial relief of his left arm pain, he did not recommend any spinal surgery, but suggested physiotherapy, hydrotherapy, and to wear a lumbar brace for a period of time. He also intended to refer the plaintiff to Dr Wong, a chronic pain physician, for further medical management of his chronic pain.
196The lumbar MRI scan demonstrated the plaintiff had an abnormality of the left side of the lower-most facet joint, but Dr Sion could not discern any neuro-compressive lesions or other sinister features.
197The plaintiff had left upper cervical facet arthropathy in the whiplash pattern as well as left lumbar facet arthropathy, fairly widespread after the accident. He was having great difficulty ambulating, with pain radiating from the back into the buttock on the left and partially down the leg, with a strong degree of muscle spasm associated.
198His overall impression was a man that would be quite difficult to treat due to his difficulty with English. He believed the plaintiff had a mechanical back syndrome with a strong degree of muscle spasm, and his economic disadvantage was obvious.
199He advised he would be writing to the TAC seeking approval, initially to do lumbar diagnostic blocks as well as cervical, and if appropriate proceed from there.
Dr Gassin, musculoskeletal and interventional pain management physician
200Dr Gassin saw the plaintiff on referral from Dr Musaddiq in April 2019.
201On examination, the plaintiff was a fit looking man who presented as very distressed. He had a limited range of lumbar spine and neck movements. He wore a back brace and ambulated with a single elbow crutch held in the left hand. Neurological examination of the upper limbs revealed decreased sensation of distribution of the C8 nerve bilaterally, but was otherwise normal.
202Neurological examination of the lower limbs was normal. There was evidence of fear avoidance behaviour on neurological examination and also on the range of movement examination in both lower limbs. There was some tenderness to palpation of the lower back centrally at L5-S1, and also palpation of the neck posteriorly.
203He suspected the plaintiff had suffered soft tissues and possible injuries to some of his spinal structure at the time of the accident. His current symptoms suggested his pain was amplified by anxiety and fear avoidance behaviour.
204He had referred the plaintiff to Mr Moar, a physiotherapist, and also Ms Ahmet, a pain psychologist, to try and deal with the psychological sequalae of chronic pain.
205Dr Gassin also prescribed a course of oral anti-inflammatories, namely Naprosyn 500 milligrams. The plaintiff was to remain on his other pain medication to try and minimise his use of Mersyndol Forte. A review was suggested in two months to monitor his progress and it would then be decided whether interventional pain management strategies were warranted.
206On examination in June 2019, Dr Gassin noted that the plaintiff’s pain had not been relieved by Naprosyn, and he suggested its discontinuance. He suggested the plaintiff persevere with his other pain medication including Lyrica, Tramal and Mersyndol Forte.
207The plaintiff reported that since last seen, he had had two severe episodes of headaches, both lasting about 90 minutes. They started in bed at night and were associated with nausea and vomiting, and relieved with strong analgesia.
208The plaintiff was not keen to consider injection techniques. Therefore, he was referred to Precision Ascend Multi-disciplinary Pain Management Program. Dr Gassin intended to review him after the completion of that program if the plaintiff remained significantly distressed by his ongoing symptoms. In the meantime, the plaintiff was to persevere under the care of his physiotherapist and psychologists
Monash Health
209The plaintiff was admitted to Monash Health on 21 February 2020 with worsening depressive symptoms in the context of a relationship breakdown, loss of accommodation and unemployment.
210He had separated from his wife a week earlier and had been sleeping in his car. Low mood since the accident but significant deterioration over past week. Expressed feelings of guilt over inability to provide financially for his children. Feels no reason to live as had lost his health, now his family. Suicide plan to cut his wrists last week but not cut deep enough as was not brave enough… Feels useless.
211“Past psychiatric history” was low mood since the accident, following which he had sustained a back injury, mobilised with a stick and had been unable to work.
212There was a risk of suicide or self-harm, and the plan was to be discharged to Pine Lodge, a private facility, for ongoing treatment.
Dr Talluri, psychiatrist, Pine Lodge
213The plaintiff was an inpatient at Pine Lodge Clinic from 26 February to 21 March 2020. Dr Talluri wrote to the TAC during the plaintiff’s inpatient stay.
214He advised that the plaintiff continued to be very depressed and suicidal in his mental state, and had spoken about constant thoughts of self-harm and having no purpose and meaning to life, and he constantly ruminated about his failure as a father. He also reported severe neurovegetative symptoms of loss of appetite, early morning insomnia, loss of weight and early morning wakening.
215He anticipated the symptoms would respond to the change of anti-depressant treatment, which he had previously done.
216The plaintiff was then not able to have either ECT or rTMS treatment. Dr Talluri requested a further two-week extension to the inpatient admission to address his risks and manage the plaintiff’s depression, noting he was currently approved for admission until 11 March 2020.
Dr Anis, Orbost Medical Centre
217Dr Anis has been involved in the medical management of the plaintiff since 31 March 2020.
218When first seen, the plaintiff was very distressed emotionally. Physical examination was inconclusive. He had been seen most for a mental health review and prescription renewal. He was referred to a psychiatrist and was reviewed. He was also referred to the Latrobe Regional Hospital Pain Clinic.
219As of July 2020, Dr Anis thought the plaintiff had severe depression and anxiety following the accident. He had severe degenerative disc arthropathy. Since the accident, he was having chronic pain, also having severe anxiety, depression and nightmares. He had symptoms of PTSD and was still very vulnerable with suicide thoughts.
220Dr Anis then recommended continuing pain management and ongoing psychiatric team input, noting the prognosis was uncertain.
221The plaintiff was then not capable of continuing any job for his physical psychological impairment, and Dr Anis was uncertain about his future work capacity.
222In his July 2022 report, he noted the plaintiff was not able to function normally for his physical and mental trauma since the accident.
223Following the accident, the plaintiff had developed chronic pain in the cervical and lower back, and since then was having anxiety and PTSD symptoms. He was very depressed and was having nightmares about his accident. He had had suicidal thoughts and intent in the past, but at present had none. He had chronic neck and back pain from the accident, with the pain radiating to his legs. He also had tingling in his hands. He was under a pain team for pain management.
224The plaintiff is unable to function normally for his physical and mental trauma since the accident.
Dr Tennent Tampiyappa, psychiatrist
225Dr Anis referred the plaintiff to Dr Tampiyappa in Clarinda in June 2020.
226When examined on one occasion that month,[56] Dr Tampiyappa noted the plaintiff’s life had been really blighted by the accident and prior thereto he was very energetic, all action man, whose main purpose was to provide for his family. The accident had resulted in having a number of disc problems and chronic pain, so that he spent a lot of the day killing time.
[56]Examination on Zoom; T88
227Pre-accident, having left Iran and when in Australia, to his great credit, the plaintiff had built himself up getting an export business as well as being a house painter. He had married and had three children. However, since the accident, he felt completely hopeless as a man and was fearful about his future.
228As well as chronic pain, Dr Tampiyappa thought it clear the plaintiff had a PTSD characterised by frequent nightmares and flashbacks, hyperarousal, avoidant contact with outside world, decreased motivation, anxiety and depression. His impression was chronic pain and PTSD.
229It would be very important for the plaintiff to be linked with a psychologist experienced in PTSD and he found TAC approved psychology when he lived in Melbourne extremely helpful. He was glad to hear the plaintiff had been referred to a pain management clinic.
230In terms of his medication for particularly nightmares, he wondered if Dr Anis should start the plaintiff at one milligram of Prazosin to see if it would help and another intervention would be to increase his Paroxetine.
231He made no further plans to see the plaintiff.
Latrobe Regional Hospital Pain Clinic
232Dr Anis referred the plaintiff to the Pain Clinic in December 2020 where he was seen by specialist physician, Dr Swaminathan.
233The issues were then chronic cervical and lumbar back pain with mixed nociceptive and neuropathic descriptor associated with significant muscle stiffness at the left paraspinal level and with somatic referred pain to the left upper limb. There was no clinical evidence of motor radiculopathy. Secondly, there was major depressive illness following the accident with a history of suicidal attempts and constant rumination requiring urgent psychiatric review.
234Dr Swaminathan noted the imaging revealed only minor degenerative changes and minor nerve impingements at the cervical spine level, but the plaintiff continued to develop significant pain in the cervical spine region, subsequently at the lumbar level as well.
235The plaintiff was not making any eye contact during the interview and ruminating, worrying that a similar accident might happen again.
236On examination, there was significant muscular stiffness associated with sensitisation in the left paraspinal and trapezius region. There was reduced range of motion at the cervical and lumbar levels. He had midline as well as left-sided paraspinal tenderness in both levels. There was no motor radiculopathy elicited in either upper or lower limbs.
237Addressing the plaintiff’s mood was pivotal for the management of pain and therefore recommended an urgent psychiatric review. He made some alteration to the plaintiff’s medication.
238When reviewed by phone in April 2021, the plaintiff had seen a psychiatrist and was continued on Quetiapine and his antidepressant had been changed.
239The plaintiff reported a significant improvement in his mood. However, he had ongoing cervical and lumbar back pain. Dr Swaminathan understood the plaintiff’s analgesics had been upgraded and he was currently on Tramadol, 200 milligrams; Tapentadol, 100 milligrams; and Pregabalin.
240The plaintiff expressed interest in self-management and Dr Swaminathan recommended him to undergo a program offered at the pain clinic in Bairnsdale, but would accommodate him in his program if that was not available.
241On further phone review in February 2022, the plaintiff reported improvement of cervical and lumbar spine pain with warm weather. He continued on pain relief. He was suffering from major depression, for which he was currently seeing a psychologist/ psychiatrist fortnightly. His medications had been modified. He was currently on Paroxetine, 20 milligrams daily, Sodium Valproate, 200 milligrams in the morning and 600 milligrams at night, and some other medication. A review in six months was suggested.
Latrobe Regional Hospital
242The transfer summary from Latrobe Regional Hospital on 30 July 2021 set out that the plaintiff suffered from Severe Depression and chronic pain since accident. He had five suicide attempts since 2017 by overdosing and cutting wrists, most recently on 19 July 2021.
243The diagnosis was Depressive Disorder and Mental Disorder due to chronic pain.
Jo Phillips, psychologist, Marlo
244Ms Phillips has been working with the plaintiff since 21 October 2021.
245During the intake process, it was established he met the DSM‑5 criteria for PTSD and Major Depressive Disorder severe with anxious distress, both as a result of the accident.
246He presented with high levels of pain, sadness, loss of quality of life and poor sleep. In the past, he had had suicidal thoughts and attempts, but that had not occurred for some months.
247Strategies for depression had been discussed and practised, also for having better relationships with his children. Treatment for anger, anxiety and PTSD had included mindfulness meditation.
248During each session, the plaintiff had been in pain due to his spinal injuries. He had never been able to sit comfortably in a chair and moved continually, and became distressed when too hot. He had to reschedule at times due to headaches and having slept badly.
249As at October 2021, he continued to meet the criteria for PTSD and depression which were linked to memories of the accident, continual pain and not being able to lead a fulfilling, active life and his unfortunate change of circumstances.
250In October 2021, testing showed depression and stress extremely severe and anxiety severe. In January 2021, depression, stress and anxiety were all extremely severe. In May 2022, depression and anxiety were extremely severe and stress was severe.
251Symptoms met the criteria for PTSD in October 2021.
Orbost Regional Health
252The plaintiff attended Orbost Regional Health in April 2022, having woken with a headache. A history of chronic back pain.
253The plaintiff had a Telehealth appointment with an emergency doctor on 20 April 2022. The history of presenting illness was severe headache since 5.00am, similar headaches three weeks earlier. The past history was an MVA two years ago, cervical disc injury.
254The clinical impression was headache, acute, poorly resolving in the context of regular severe headache syndrome. A single dose of Oxycodone 5-milligram was to be given.
The Plaintiff’s medico-legal evidence
Mr John O’Brien, orthopaedic surgeon
255Mr O’Brien saw the plaintiff in January 2018.
256On examination, the plaintiff reported constant left-sided neck pain and constant low back pain. He had a flat affect, moved slowly and demonstrated an unusual gait.
257The current physical signs were in fact quite subjective. There was significant restriction of movement in the cervical and lumbar spine on formal examination, but observation would suggest that there was some variability in the range of movement. There was certainly no current evidence to suggest any form of nerve root compromise, either in relationship to the cervical or lumbar spine.
258He would therefore conclude the plaintiff now presented with chronic non‑specific pain in the cervical and lumbar spine. Indeed, the clinical and radiological signs did not allow a definition of more specific pathology underlying pain generation. The injuries were consistent with the stated cause.
259The clinical course of the plaintiff’s symptoms unfortunately suggested a somewhat poor prognosis. He had now certainly reported significant disability associated with chronic pain.
Dr Ales Aliashkevich, neurosurgeon and spinal surgeon
260The plaintiff was examined by Dr Aliashkevich in January 2020.
261The plaintiff then complained of left-sided neck pain of 6 out of 10, left more than right sided, lower back pain with the same intensity, left occipital area pain 10 out of 10 and right knee pain 4 to 5 out of 10. He also suffered from numbness on the ring finger and the small finger on both hands, as well as numbness in the two small toes of both feet, which started in about 2018.
262On examination, the plaintiff had a very slow and antalgic gait, using a crutch in his right hand and having his left leg outstretched. His posture was scoliotic, with neck and lower back curvature concave to the left. He refused to stand on his heels and toes because of increasing pain, and was unable to squat more than a third. The strength in his arms was physiological. The range of voluntary cervical and lumbar spine movements was generally restricted. There was significant muscular tenderness, triggerpoints and guarding found on palpation of the left trapezius and in the left, more than right, lumbosacral area.
263Dr Aliashkevich’s diagnosis included – Chronic left dominant neck/back pain, chronic headache, Chronic Pain Syndrome, chronic central sensitisation, Whiplash Associated Disorder, suspected Myofascial Pain Syndrome, multilevel cervical and lumbar spondylosis, multilevel mild cervical and lumbar facet arthropathy and depression.
264Based on the character of the plaintiff’s symptoms with widespread pain distribution and presence of muscular trigger points, Dr Aliashkevich had the impression the injuries had started a cascade of Chronic Pain Syndrome typical for central sensitisation and likely subsequent evolution of a myofascial pain syndrome. The plaintiff was experiencing the pain amplification/distortion from the development of central sensitisation on a background of maladaptive nociceptive response to the musculoskeletal injury, which was outside of Dr Aliashkevich’s neurosurgical expertise.
265The prognosis was poor. The plaintiff’s total incapacity for employment was likely to continue indefinitely.
Dr Clayton Thomas, consultant rehabilitation and pain medicine specialist
266Dr Clayton Thomas saw the plaintiff on Zoom in July 2022.
267The plaintiff then described lower back pain radiating into the left lower limb and numbness in two toes of the foot. Back pain was worse than leg pain. He also had left-sided neck pain, headaches and associated nausea.[57]
[57] There was no mention of the plaintiff using a brace or crutch during the examination
268Physical examination was impossible, but the plaintiff presented himself well and earnestly over Zoom.
269He thought the plaintiff had had a significant accident and had developed a Chronic Pain Syndrome. It appeared on the history and background records that there was an organic Chronic Pain Syndrome. Therefore, it was more likely than not to represent significant central sensitisation. There may also be a mechanical component to the plaintiff’s presentation, which can co-exist with central sensitisation. Dr Sion had suggested blocks.
270As the problems had been present for more than five years, the prognosis was for ongoing pain and disability.
271He certainly believed the chronic pain was organic. The nature of the plaintiff’s condition was such he could not return to his previous work as a painter. He accepted that the nature of the plaintiff’s chronic pain syndrome had had a profound impact on his ability to function vocationally, domestically and socially.
272Having been forwarded surveillance footage, he noted he had not examined the plaintiff face to face, but on Zoom. Notwithstanding that, the evidence outlined in the video material did not lead him to conclude the plaintiff did not have a physical problem, or to alter his opinion.
273The plaintiff was walking with what appeared to be his young daughter. There was an antalgic gait when he was walking unaided. One of the videos seemed to be showing him attending a medical appointment and using a single forearm crutch. Not uncommonly, patients, if they are in unfamiliar territory or going for walks where they are not sure of the length they will be and up and about, they will take a gait aid. Not uncommonly, on shorter walks, or well-known walks with which they are familiar, they will not take that aid. Dr Thomas had no concern about the use of the aid on one occasion, where the plaintiff was not using it on other occasions.
Associate Professor Barry Rawicki, physician in rehabilitation medicine
274Associate Professor Rawicki examined the plaintiff on 5 February 2020.
275The plaintiff reported constant pain in his neck, back and right knee. Neck pain was usually around 7 out of 10.
276On examination, there was a full range of cervical movements in all directions, although neck movements were antalgic. The plaintiff wore a back brace and had limited back movements in all directions, Waddell’s signs for non-organic pain were all strongly positive, confirming a non-organic and psychogenic reaction to his chronic pain, which was also confirmed in various psychiatric reports.
277The plaintiff had chronic soft tissue pain without radiological or clinical evidence of bone ligament or neurological injury. He had developed serious chronic pain behaviours. Prognosis for recovery was poor, given it was now three years since the injury, and the plaintiff remained with significant disability associated with his chronic pain.
278There was no realistic prospect of the plaintiff returning to work in the immediate or foreseeable future, unless issues of pain, both physical and psychological, resolved.
279On re-examination in August 2022, the plaintiff had not really changed from the previous medico-legal examination. The diagnosis was the same. The plaintiff remained with significant disability associated with his chronic pain. Although undertaking a formal pain management and rehabilitation program, that was not of great benefit to him, and it had not resulted in any significant change in his levels of pain or function.
280There was no evidence of organic damage, either musculoskeletal or neurological. However, there was a clear temporal relationship between the onset of the plaintiff’s pain and disability and the accident and, therefore, it was a significant contributing factor to it.
281The plaintiff had clear impairment of his spine, but the nature of the injury was unclear.
282In the five years since the injury, the plaintiff had had significant physical restrictions, and it was likely impairments of the spine, including the neck, would persist for the foreseeable future.
283Given the plaintiff’s current impairment, it was inconceivable he would be able to return to his pre-injury employment. It had not been possible to find organic causes for his impairments, but they certainly exist and, as a consequence of his injury and impairment on his spine, and/or left shoulder and his psychological condition, he was precluded from performing his pre-injury duties now, and for the future, and currently precluded from performing suitable employment for the foreseeable future.
284Associate Professor Rawicki was provided with four surveillance videos.
285At least once, the plaintiff bent down into the car to take something out of it and that most of the flexion was done at the hip, not the lumbar spine. When, with his children in the playground, his gait remained antalgic. When seen walking in the street, he continued to use the single right forearm crutch.
286On another occasion, the plaintiff did not use the crutch when walking with his child and mostly walked holding the child’s hand with his right hand. His gait remained antalgic.
287Overall, he was generally comfortable with the nature of his report. In the videos, the plaintiff was seen to continue to have an antalgic gait with limited function on his left side. He assumed the plaintiff was unaware he was being videoed, and he indicates someone who does have ongoing back and left sided pain. He thought the plaintiff had a chronic pain syndrome without organic cause. On the basis of the provided videos, he did not believe the plaintiff was malingering or faking his symptoms.
Dr Nathan Serry, consultant psychiatrist
288The plaintiff was first examined in January 2018.
289The plaintiff was slowly walking with an awkward gait and appeared to be in discomfort throughout the assessment.
290On examination, the plaintiff maintained eye contact and developed adequate rapport. He had a reduced affective range and appeared depressed and downcast. He was also anxious and apprehensive, and he described considerable frustration, which he said he internalised.
291There were prominent post-traumatic anxiety features regarding the accident circumstances. There was no abnormality of thought, stream or form, but content appeared a marked pre occupation with the accident, its impact, anxious concerns and pleading negative themes.
292There were no psychotic features or hallucinations, but the plaintiff did report trigger sensitive flashbacks when on the road. There were subjective complaints regarding impaired concentration, although not memory. Insight was very much coloured by anxious concerns.
364He could not realistically determine whether, and if so, to what extent the alleged injuries and disability affected domestic activities of daily living.
365On mental state examination, when reviewed in April 2020, the plaintiff carried an elbow crutch, walking gingerly into the interview room as if in pain. He walked with a widespread gait. He was well dressed. He tended to keep his head down and looked away when talking to him, and eye contact was variable. Rapport was difficult to establish. There were no tears, distress, perturbation or anguish displayed during the course of the interview and exam. He was slow to answer questions.
366The plaintiff quantified his current level of pain at 7 out of 10 and mood as 3 to 4 out of 10. His predominant complaint was pain. His mood was not happy, and he became angry most of the time. His affect at interview was flat in reactivity, and subdued and reduced in quality. It was appropriate to the circumstances and congruent with his thoughts and feelings. His thoughts centred around pain and functional limitations, with an emphasis on pain. He commented on mood changes.
367There were no spontaneous reports of traumatisation but, when asked, the plaintiff said he had nightmares, relived the accident, re-experienced it, and was cautious and vigilant when driving. There were no psychotic features. Perception appeared normal and there was no evidence of hyperarousal or hypervigilance. He was alert, aware, orientated and in clear consciousness. There appeared to be no cognitive impairments. The plaintiff’s insights were unimpaired by a psychiatric cause, his judgement may be.
368The plaintiff then presented with a predominant problem of pain and a picture at interview of pain-related behaviours. It appeared there was no sufficient or insufficient physical reason for the pain and functional limitations when examined by a neurosurgeon. In January 2020, Dr Aliashkevich diagnosed a Chronic Pain Syndrome, and that the plaintiff was experiencing pain amplification – distortion and the development of central sensitisation.
369Professor Doherty thought the clinical picture was that of a Somatic Symptom Disorder with predominant pain persisting. There was an obvious pre-occupation with pain and functional limitations. That presentation persisted and was disproportionate to the known physical pathology. It was unclear to him whether the clinical presentation was typical of the plaintiff’s day-to-day functional capacity.
370The plaintiff advised he was admitted to Pine Lodge in 2020, following deliberate self-harm. He had earlier been admitted to Monash Medical Centre and transferred to Pine Lodge. At that stage, these records were not available.
371The plaintiff also reported he had symptoms of traumatisation, but they were not spontaneously reported, and had to be asked for, and were not features of the clinical session with the psychologist.
372The plaintiff reported a change in mood with anger predominant, and some anxiety symptoms. Putting that together, there was a diagnosable Adjustment Disorder with associated depression, anxiousness and features of traumatisation. The clinical presentation and the intensity of symptoms of traumatisation did not suggest that a separate diagnosis of PTSD was justifiable.
373There still remained a problem with the reliability of the information provided by the plaintiff, having claimed, on two occasions, there was no pre-existing psychiatric problem, and he told that to another psychiatrist, yet there was the December 2016 attendance a month before the accident where he self-reported symptoms suggestive of a severe mental disorder.
374There continued to be an accentuation and emphasis on pain and functional loss, making reliable and valid assessment of the plaintiff’s mental state difficult. It was also made more difficult, as he said he had been commenced on antidepressant and anxiolytic medication recently, yet did not know the names of that medication and was not on it when previously seen.
375There had been a deterioration in functional capacity since the accident, with displays of pain. There was acknowledgement of symptoms of traumatisation. The plaintiff was not then having treatment, but was taking the unnamed medication.
376Professor Doherty concluded the plaintiff was depressed before the accident, as documented in the GP’s December 2016 note. The plaintiff’s denial and maintaining he was in good mental health made his history unreliable. If there was depression before the accident, it would be reasonable to assume there would have been an aggravation of that depression caused by the accident, but the plaintiff did not acknowledge that.
377When the plaintiff’s presentation was taken at face value, there was a diagnosable pain-related psychiatric condition titled a Somatic Symptom Disorder with predominant pain. It was unclear why the plaintiff was admitted to Monash Medical Centre and Pine Lodge.
378He confirmed the reported mood and anxiety symptoms were consistent with a diagnosis of an Adjustment Disorder associated with depressive, anxious and traumatisation features.
379The presentation of psychiatric issues and pain behaviours had not resolved, and the clinical presentation was that of a man troubled by pain with significant functional limitations. The plaintiff’s presentation of pain was unlikely to change, and it would not do so until the completion of legal proceedings.
380He suggested a review of Pine Lodge and Monash Medical Centre reports.
381On a further re-examination in October 2022, the plaintiff advised of treatment with psychologist, Jo Phillips in Marlo, every fortnight. The plaintiff told him that, in the past two and a half years, his life had been pretty much the same. There had been marital issues, and he had separated, and reunited with Amber because of the children.
382There had been admissions to Monash Medical Centre and Pine Lodge. There had been arguments with Amber over the fact of her sister’s suicide. They had arguments after that over his overdose, as to why he did that, and what will happen, and how it will affect the children.
383The plaintiff reported difficulty sleeping, mainly because of neck pain and, on direct questioning, that the nightmares and dreams at night were getting a bit better.
384He said he usually got up at 7.00am or 7.30am and got the children up before school. Most of the time, he might sit and watch television and push a pram as a form of exercise. He had no hobbies then, just watching television. He was at home and hardly ever went out.
385He had pain in his neck and down the left side to his lower back, which he rated as 6 to 7 out of 10.
386When asked about walking, he said he needed to stop after five minutes and used a right-sided crutch when he went for long distances. He did not get pain walking around the house. He was not going out in Orbost, and hardly went out, except to the doctor. When sitting there was a problem along the left side of his lower back. He could lift only light stuff.
387The plaintiff rated his mood as 2 to 3 out of 0. He said he was tired all the time and flat and low. He felt tension and nervousness, his memory was not good, and his concentration did not last for very long.
388On examination, the plaintiff had a walking stick and hobbled into the office. Though he had an elbow crutch, he carried an overnight bag. He spoke without any eye contact, looking away. He was softly spoken and somewhat subdued. Rapport was impossible to establish. He was co-operative and attentive. There was not much expression of emotion. He did not appear suspicious, mistrustful or guarded in his answers. There were no abnormal movements. There were obvious pain-related behaviours.
389The plaintiff’s focus was on pain, functional limitations and change in lifestyle There appeared to be no cognitive impairments or impairment of insight or judgement.
390The plaintiff presented in a way not dissimilar to how he presented in 2020. There was a demonstration of pain with obvious pain-related behaviours. Though carrying an overnight bag, he walked with a crutch, using it on his right. His chief complaint was of pain, and very little had changed since the previous examination.
391The plaintiff again claimed a few symptoms of traumatisation and Professor Doherty confirmed there was no diagnosable PTSD.
392His views had not changed diagnostically from when he examined the plaintiff in 2020. There was a show then of pain, and that continued, and reports of symptoms of mild severity, which continued. There was entrenchment and fixity in the plaintiff’s view of impairment and incapacity.
393The prognosis should be considered to be guarded, with the plaintiff being entrenched in his view of incapacity and impairment. He had been granted a disability support pension and was seeking NDIS funding and making no progress.
394As the years had gone by since the accident, there had been a deterioration in the plaintiff’s relationship with Amber and there had been deliberate self-harm, an overdose, and suicidal thinking. At times, the plaintiff would appear to have been suggestive of an Adjustment Disorder related to issues not directly linked to the accident. Mood and anxiety symptoms reported now were largely unrelated to the accident. The plaintiff presented as if he had a Somatic Symptom Disorder with predominant pain persisting, which is a pain-related psychiatric condition, but the unreliability of his presentation questioned the validity of such a diagnosis.
395Dr Nathan Serry diagnosed a pain-related psychiatric condition in January 2020, but not in July 2022. There was no physical explanation for the widespread pain-related to any injury, with a pain specialist thinking there was central sensitisation causing a Chronic Pain Syndrome.
396He did not think there was a diagnosable PTSD condition and no Major Depressive Disorder. There had been mood deterioration relevant to periods of deterioration in the plaintiff’s relationship, and the accident and its consequences play a part in the maintenance, and in the exacerbation of pre-existing mood and anxiety problems.
397Finalisation of the legal proceeding should allow the plaintiff to move forward.
398The issue is the extent there is a reliably diagnosable pain-related psychiatric condition. It cannot be reliably diagnosed. It is the reported pain problems that limit his capacity for domestic employment and leisure activities. PTSD and Adjustment Disorder do not cause significant limitation of impairment in these activities. It is unlikely any further treatment would be of significant assistance, as the plaintiff is entrenched in his sense of incapacity and the show of pain and functional impairment will tend to continue.
399Professor Doherty most recently reported in November 2022, having been shown the surveillances film of August and October 2022.
400The plaintiff was seen to undertake a range of activities at varying levels of length. When presenting to him, on examination on 3 October 2022, the plaintiff relied very, very heavily on a crutch, walking very slowly, and that was inconsistent with the plaintiff’s presentation on surveillance footage two days earlier, one on 1 October 2022, and how he appeared a week later, on 10 October 2022.
401That material did not cause him to alter his position and confirmed his view of inconsistency. There was a significant inconsistency in the plaintiff’s presentation on 1 October and 10 October 2022, compared to the presentation to him on 3 October 2022. Such inconsistency, and what he had commented on in his reports, makes any psychiatric diagnosis unreliable.
402There was a demonstration of pain put on for the purposes of the examination on 3 October 2022. His opinion was not altered, rather, it was confirmed regarding inconsistency and the unreliable history and presentation and, thus, the consequential problem in the validity of any diagnosable psychiatric condition.
Overview
403Counsel for the plaintiff submitted “the obvious case was (c) and the more controversial case was (a), but the plaintiff did not resile from the fact there is an (a) case. The (c) case was a strong one.”[59]
[59]T91
404As the plaintiff’s focus was on the application under clause (c), I propose to deal with that psychiatric impairment first.
Credit
405As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[60]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[60](2010) 31 VR 1 at paragraph [12]
406Counsel for the defendant submitted the plaintiff was an unreliable witness, with the attack on his credit largely based on the surveillance film.
407The defendant’s case was the plaintiff exaggerated his level of disability when seen by doctors and that when filmed, had a greater level of movement. Further, when he attended Professor Doherty on 3 October 2022, he was more disabled than on the other occasions when filmed. The more pronounced limp on that date, compared to other occasions, raised the question of the plaintiff’s reliability throughout every medico-legal examination.[61]
[61] T79
408The plaintiff’s presentation to examiners in a much more disabled manner than what he said he did in his everyday life, then, raised questions as to the reliability of the opinions of medico-legal doctors and the Court should be very cautious in accepting their evidence.[62]
[62]T79
409It was submitted the plaintiff’s pain was feigned and exaggerated. He was an unreliable witness who had been unreliable in his presentation to doctors. Once the plaintiff overstated his symptoms, his case started falling apart and he failed to discharge the onus in both applications.[63]
[63]T84
410Counsel for the plaintiff submitted the plaintiff was a person of credit, who was doing his best and who had been confronted with a lot of film. He was never aware he was being observed. His level of limping, in many ways, supported his case, as clearly he had a significant limp.[64] He was making a significant effort to do the best he could. He was a credible witness as to what he had suffered, and his various problems.[65]
[64]T94
[65] T95
411It was submitted the plaintiff could explain his very restricted neck movement during the hearing as it was “a big problem” for him to come from Orbost to Sale for the hearing. Going to Melbourne for medical appointments was also a big problem.[66] He was not saying his neck was that bad all the time.[67] His neck was particularly bad during the hearing as he was stressed and attending Court were “big days” for him. In those circumstances, the Court should be cautious about his presentation before drawing an adverse inference.[68]
[66]T91
[67]T95
[68]T96
412It was submitted the plaintiff answered the defendant’s counsel directly; there was “no fencing” going on. His presentation was of a man doing his very best to tell it as it is, or certainly as he saw it. It is not the picture of a man who was trying to “pump up his own case”.[69]
[69]T96
413Finally, it was submitted:
“This is nonsense that somehow or other this man’s contriving all of this for the benefit of taking on the TAC. It’s just preposterous.”[70]
[70]T87
414The surveillance film did not cause me any real concern as the plaintiff was consistently shown moving with an antalgic gait/limping. While he bent his back at various times, he did not undertake any unusual or heavy activities, and it is not surprising he would bend to do up his son’s shoelace when they were at the playground. In any event, he was shown to hold his back soon thereafter.
415Given my view of the surveillance film, the absence of comment by his treaters on the film is of no particular relevance.
416While the plaintiff was in the witness box, I gave him an opportunity to explain his apparent inability to move his neck while in Court, which was not shown on any of the surveillance film. I accept his explanation that his neck movement is variable, and there is not significant restriction all the time. The days he was shown to be most restricted were after a lot of travel – when seen by Professor Doherty, having recently moved house when seen by Dr Aliashkevich and after a two-hour drive from Orbost to attend Court to give evidence.
417In general terms, the plaintiff was a credible witness who had worked hard for his family and at work pre accident and tried to battle on after the accident until he could no longer continue because of pain.
Pre-accident mental state
418The defendant relied, to a large degree, on the plaintiff’s attendance with Dr Musaddiq on 15 December 2016 as establishing a pre-accident history of depression.
419It was submitted that the plaintiff’s explanation that he attended his GP in December 2016 to get funding for matrimonial counselling “fed into the unreliability of the plaintiff” and his credit.[71] The defendant did not accept this explanation, submitting that as at December 2016, the plaintiff was suffering from Severe Depression.[72]
[71] T78-79
[72]T81
420I indicated during the hearing that I did not consider, on the basis of this GP attendance, there was a pre-existing Severe Depression.[73] While counsel for the plaintiff “did not want to push through an open door”, he submitted, pre accident, there was no depression. Ms Johannessen was dealing with matrimonial problems.[74]
[73] T82
[74]T85
421I do not accept the plaintiff was suffering Severe Depression in the month before the accident. There was no mention in Dr Musaddiq’s note of the prescription of anti-depressants at that time, as Professor Doherty had reported was the case.
422I accept the plaintiff’s explanation that he and Amber were seeking marital counselling and that they proposed to do so through a mental health plan with Dr Musaddiq. Further, the plaintiff’s answers to the questionnaire in relation thereto – which he could not recall completing – were based on his desire to obtain access to psychological treatment.
423The plaintiff’s explanation was confirmed by Amber, whose evidence was not challenged.
424Ms Johannessen’s notes of the attendances during early 2017 all focused on matrimonial issues, making no mention of any pre-accident depression, noting specifically the plaintiff was not distressed at that time, but concerned about the arguments with his wife. He acknowledged their conflict, putting it down to cultural differences and his wife’s personality.
425In those circumstances, the basis of Professor Doherty’s view of the unreliability of the plaintiff falls away to a large extent. I do not accept that a single GP attendance was evidence of Severe Depression a month before the accident, as Professor Doherty concluded, nor is there any evidence of prescription of anti-depressants at that time.
426Professor Doherty’s attack on Ms Johannesen’s views was unwarranted. She is in the unique position of treating the plaintiff very soon after the accident with the pre-accident referral and then later, in 2017, for his accident-related issues.
427In those circumstances, I do not consider this is an aggravation case.
428I am satisfied the plaintiff has a psychiatric impairment as a result of the accident. It has been variously diagnosed and, in my view, has severe consequences.
429The focus of psychiatric diagnoses since the accident has been depression and anxiety related to the plaintiff’s changed circumstances as a result of the accident. There have also been findings of PTSD or symptoms thereof and, to a lesser extent, a Somatoform Pain Disorder by Dr Serry in 2020 but not recently. Professor Doherty also considered this diagnosis but was of the view it was feigned. He is an outlier in this regard, and I do not share his view.
430In early 2020, then treating psychologist, Ms Johannessen, diagnosed Major Depressive Disorder, PTSD and a Generalised Anxiety Disorder based on excessive worrying, inability to control the amount of worry, and the worrying causing sleep disturbance, decreased concentration and irritability.
431In March 2020, Dr Talluri at Pine Lodge thought the plaintiff continued to be very depressed and suicidal in his mental state, and had spoken about constant thoughts of self-harm and having no purpose and meaning to life, and he constantly ruminated about his failure as a father. He also reported severe neurovegetative symptoms of loss of appetite, early morning insomnia, loss of weight and early morning wakening.
432In June 2020, in addition to chronic pain, Dr Tampiyappa thought it clear the plaintiff had a PTSD characterised by frequent nightmares and flashbacks, hyperarousal, avoidant contact with the outside world, decreased motivation, anxiety and depression. His impression was chronic pain and PTSD.
433In a transfer summary from Latrobe Regional Hospital on 30 July 2021, it was noted that the plaintiff suffered from Severe Depression and chronic pain since accident. The diagnosis was Depressive Disorder and Mental Disorder due to chronic pain.
434In July 2022, psychologist, Jo Phillips, reported the plaintiff continued to meet the criteria for PTSD and depression which were linked to memories of the accident, continual pain and not being able to lead a fulfilling, active life and his unfortunate change of circumstances.
435As Santamaria and Beach JJA said in Victorian WorkCover Authority v Kalenjuk,[75] there was much to be said for a judge’s conclusion that the evidence of the plaintiff’s treater, in that case his general practitioner, who had seen the plaintiff many times on multiple occasions over a period of years, is better placed to provide a complete picture and more accurate diagnosis than specialists (however eminent) who may only examine a plaintiff once or twice.
[75] [2017] VSCA 17 at paragraph [56]
436In terms of the medico-legal evidence, I prefer the opinion of Dr Serry to Professor Doherty, who really based his whole view on there being a severe pre-existing depressive condition and that the plaintiff was unreliable, as he denied this was the case. Further, Professor Doherty considered the film in a very limited sense, not acknowledging the plaintiff was shown limping at all times when filmed, albeit his level of restriction varied.
437From the outset, Professor Doherty seemed somewhat suspicious of the plaintiff’s bona fides, suggesting further investigation into his functional capacity to assist to clarify a more comprehensive assessment of impairment and functional capacity. By this suggestion, Professor Doherty became somewhat of an advocate, stepping outside his proper role as an independent medical examiner.
438When finally provided with the documents relating to the plaintiff’s 2020 and 2021 psychiatric inpatient stays, Professor Doherty did not give proper consideration to the role played by the transport accident in the need for those admissions.
439I prefer the more balanced approach of Dr Serry, who most recently in June this year, diagnosed partially resolved chronic PTSD and moderately severe Chronic Adjustment Disorder with Anxious and Depressed Mood.
440There was nothing shown on the surveillance film that changed my view as to the genuineness of the plaintiff’s psychiatric complaints, and I can find no basis for Professor Doherty’s view that the plaintiff was “putting it on” for the purposes of this litigation.
Consequences
441The plaintiff’s evidence as to the consequences of his psychiatric impairment was largely unchallenged, including, in particular, the reasons for his voluntary admissions and attempted suicide in recent years.
442Pre accident, the plaintiff was working full time in a job he had held for four years since arriving as a refugee from Turkey. He was also in the process of setting up his own business and supporting a wife and three young children.
443He has gone from that pre-accident high level of functioning and enjoying a range of activities, to not working now for over five years and leading a very isolated life, considerably restricted by psychiatric condition.
444As counsel for the plaintiff submitted, the plaintiff’s accident-related psychiatric condition has affected his family life and capacity to earn money, and made him live in a far-flung place, where treatment is difficult, and work is impossible.[76]
[76]T93
445As his psychiatrist, Dr Tampiyappa, commented in June 2020, the plaintiff’s life had been really blighted by the accident and prior thereto he was a very energetic, all action man, whose main purpose was to provide for his family.
446Since the accident, the plaintiff has continued to struggle mentally, feeling low in mood most of the time, the worse being 2 to 3 out of 10. He continues to suffer from anxiety and depression. His motivation had been worn down and his energy was low. His quality of life had been reduced and he has poor sleep. He feels helpless and hopeless. He has problems with concentration and memory. Confidence and self-esteem remained very much eroded. He is quick to anger and frequently gets cross with his family. While accident-related nightmares had settled and had not been present for some time, flashbacks still occurred.
447His partner, Amber, confirmed the significant emotional toll the plaintiff’s accident-related psychiatric condition has had on him.
448He has lost interest in activities he used to enjoy pre accident such as fishing, playing the piano and socialising.
Treatment
449As the High Court held in Transport Accident Commission vKatanas,[77] while the extent of treatment made necessary by a psychiatric disorder may cast light on whether the disorder should be classified as severe, it is only one of a range of considerations that needs to be taken. In each case, the court must take into account the relevant circumstances personal to the plaintiff and then apply the statutory test making a value judgment as described in Humphries and Anor v Poljak.[78]
[77][2017] 161 CLR 550
[78]Supra
450I accept, as the plaintiff’s pain and restrictions increased, his psychiatric condition deteriorated, as noted first by Ms Johannessen in late 2017 when she commenced treating him for his accident-related problems.[79]
[79]T86
451Since then, the plaintiff has undergone significant psychiatric treatment which I accept related to his accident-related psychiatric condition – not his matrimonial issues as counsel for the defendant submitted was the case.[80] Treatment plateaued in 2020-2021, with inpatient attendances following suicide attempts.
[80]T81
452The plaintiff was admitted to Monash Health on 21 February 2020 and then transferred to Pinelodge for nearly a month under the care of Dr Talluri. He saw another psychiatrist, Dr Tampiyappa, on 20 June 2020.
453There was a further episode of self harm in July 2021 when the plaintiff was seen in the Flynn Unit at Latrobe Regional Hospital.
454Since then, access to psychiatric treatment has been limited, given the plaintiff’s place of residence.[81] He continues to see psychologist, Ms Phillips, who reported in July 2022 that her testing indicated a Major Depressive Disorder and PTSD and the high levels of pain and sadness, and mentions the suicidal thoughts.[82]
[81]T88
[82]T92
455The plaintiff was not cross-examined about his reasons for these attempts at self harm and subsequent hospitalisation.
456There was no significant mention of matrimonial issues in his treaters’ notes at the time of these admissions, save for in the context of his post-accident condition. His treaters’ notes include numerous references to the plaintiff’s depression and feelings of hopelessness on his part, being unable to work and provide for his family due to his accident-related psychiatric condition.
457While Professor Doherty did not comment at any length on the reasons for the attempts at self harm and resultant inpatient stays, he did note there had been mood deterioration relevant to periods of deterioration in the plaintiff’s relationship, and the accident and its consequences play a part in the maintenance, and in the exacerbation of pre-existing mood and anxiety problems.
458The plaintiff has been on significant medication for years[83] and currently takes Duloxetine, Pregabalin for Generalised Anxiety Disorder, and Valproate.
[83]T92
Work
459I accept, as counsel for the plaintiff submitted, “it was plain the plaintiff went from a good work record and, indeed, continued struggling to work after the accident. As he told the psychologist, he slowly got worse, until he had to stop work.”[84]
[84]T86
460I reject the defendant’s submission that the plaintiff is currently not working because he prefers to be a house husband while his wife continues to work.[85]
[85]T85
461In my view, the plaintiff is a motivated man with a good work ethic who would be working if he was not psychiatrically ill.
462Despite some marginal improvement, as noted by Dr Serry, I accept it is unlikely that the plaintiff will return to work in the foreseeable future.
463Taking into account all of the evidence, I am satisfied the plaintiff has a severe psychiatric impairment in relation to the accident.
464I am also satisfied, as there has been no significant improvement since the accident nearly five years ago and despite treatment, the condition is long term.
465Accordingly, I grant leave to bring proceedings for damages in relation to the transport accident.
Spinal impairment
466Having found a severe psychiatric impairment, I am not required to consider the application under clause (a) for a spinal impairment.
467In any event, taking into account all the orthopaedic evidence, I am not satisfied that any accident-related spinal problem has a predominant organic basis.
468This issue was not really addressed in submissions by counsel for the plaintiff save for reference to the fact the plaintiff had a lot of treatment in 2017, going twice to hospital, having physiotherapy, two neurological referrals, further MRI scans and pain management.[86]
[86]T86
469Counsel for the defendant paid more attention to the clause (a) application in addresses, submitting that the plaintiff’s condition does not have a substantial organic basis and that there were also difficulties disentangling the paragraph (a) and (c) claim, with the (c) being premised on the basis of pain, in part.[87]
[87]T77
470It was submitted the accident injury at best was a soft tissue one, and the impact of that had well and truly disappeared, and any suggestion of pain has been driven by some sort of psychiatric disorder.[88]
[88]T78
471Despite extensive treatment at an early stage, I am not satisfied any spinal impairment as at the date of hearing is predominantly organically based.
472Little has been found of any significance on numerous investigations, and treatment has been conservative. At most, there appears to have been a soft tissue injury, but I am not satisfied on the totality of medical evidence that this is the cause of the plaintiff’s reported level of pain which, in my view, is predominantly psychiatrically based.
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