Karamzalis v TAC

[2010] VCC 879

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-09-04506

ATHANASIOS KARAMZALIS	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	9, 10 and 11 June 2010
DATE OF JUDGMENT:	6 July 2010
CASE MAY BE CITED AS:	Karamzalis v TAC
MEDIUM NEUTRAL CITATION:	[2010] VCC 0879

REASONS FOR JUDGMENT

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Catchwords: TRANSPORT ACCIDENT – Application pursuant to s.93(17) Transport Accident Act 1986 – injury to spine – psychiatric injury – whether either impairment satisfies the definition of serious injury under the Act.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms K A Galpin	Zaparas Lawyers
For the Defendant	Ms A M Magee	Solicitor to the Transport Accident Commission
HIS HONOUR:

1          In this application, the plaintiff seeks leave to commence a proceeding claiming damages for injuries suffered by him by reason of a transport accident in which he was involved on 18 February 2006.

2          In support of the application, the plaintiff relies upon two affidavits sworn by him on 31 August 2009 and 3 June 2010 respectively, together with a number of medical reports and other documents which were tendered by him.

3          In opposing the application, the defendant relies upon a number of medical reports and documents tendered by it. In addition, the defendant required Dr I Alekozoglou and Dr A Abraham to attend the proceeding for the purpose of cross-examination.

The Plaintiff’s Affidavit Evidence

4          In his first affidavit, the plaintiff deposed as follows:

• He was born on 11 March 1952 in Greece and migrated to Australia when he was eighteen years of age. For much of his time in Australia, the plaintiff conducted a clothing business, which he sold in 2002. After selling his business, due to the ill health of his mother, the plaintiff became his mother’s carer, although he expected at some point in time to return to the workforce.

• His general health prior to the motorcar accident was good. Although he had been treated for symptoms of stress associated with his divorce, in the course of which he was prescribed Zoloft, he described this condition as being “very mild”.

• Following the accident, he attended his general practitioner, Dr Alekozoglou, on 20 February 2006, who referred him for x-rays of his neck and back. Thereafter, he attended Dr Alekozoglou –

“… on several occasions. I was having ongoing pain, mainly in my neck. I was also having intrusive thoughts and flashbacks about the accident. I became very upset when thinking about the accident, and stopped driving.”

• He attended Dr Markov, a chiropractor, in September 2006 and also in 2007 and 2008, and also attended Dr Alekozoglou from time to time. He deposed:

“Looking back, I do not think I had enough treatment early on and I am not sure that the seriousness of my condition was identified by my doctor. I am disappointed in this.”

•

During 2008, the plaintiff decided to obtain a second opinion and attended a general practitioner, Dr Abraham. Dr Abraham referred the plaintiff for a CT scan of his neck and, subsequently, to a neurosurgeon, Dr Bittar, who referred the plaintiff for an MRI scan of his neck and back. Dr Bittar subsequently recommended that the plaintiff undergo regular physiotherapy.

•

The plaintiff described suffering from the following consequences of the accident as at 31 August 2009:

(i)	his pain interrupted his sleep and was aggravated by the cooking and cleaning he undertook in caring for his mother;
(ii)	he had difficulty holding his neck in one position for too long or twisting and turning his neck;
(iii)	he suffered from pain in his back if he sat or stood for too long;
(iv)	his pain caused him to be less sociable, whereas before the accident, he attended Greek functions and played social golf and socialised with his friends, following the accident, he rarely went out at night and his social, sporting and recreational activities were restricted;
(v)	whilst he had initially given up driving, he had resumed driving his motorcar but he was more vigilant when driving, he now confined himself to shorter trips and he avoided driving on a freeway.

5          In his second affidavit, the plaintiff deposed as follows:

• His main physical problems involved neck pain, headaches, dizziness, back and leg pain and numbness in his hand. He described psychological issues as affecting him greatly. He said that he continued to be managed by Dr Abrahams who he attended mainly when his neck was playing up more than usual. He said that since Christmas last year, Dr Abrahams had prescribed Digesic for pain relief and that he presently took Digesic three times a day. The plaintiff said that he had generally managed his pain with the use of Panadol but that prior to Christmas 2009, he consulted Dr Abrahams when he found that Panadol did not adequately control his symptoms.

• He had symptoms of numbness in his hands, particularly when he lay down, put his hands across his chest, or kept his hands still. He had been referred by Dr Bittar to a neurologist, Mr Evans, in the management of this condition, who had trialled Lyrica without effect.

•  He had been referred to Dr Clayton Thomas, consultant in rehabilitation and pain medicine, who had arranged for him to attend a pain management program at the Dorset Hospital. This program had commenced in February 2010 and involved hydrotherapy, physiotherapy, exercises and psychological treatment. The plaintiff said that the program was due to end in four weeks and that he had not felt much improvement from the course.

•  His emotional state was being managed by a psychiatrist, Dr Piperoglou. The plaintiff consulted Dr Piperoglou every two months or so, and was prescribed medication in the form of Paxam and Escitalopram. The plaintiff said that:

“Although I find the psychiatric treatment helpful, I have not improved a lot and still have a lot of psychological issues which interfere with my ability to go out and particularly to drive. I shake when I get in the car. I hate driving on my own. I haven’t driven any long distances in the past three-and-a-half years.”

6          The plaintiff listed the following consequences being associated with his injury:

• His neck pain seemed to be getting worse rather than improving. He described his neck pain as always being there, notwithstanding his use of Digesic. He described the presence of headaches associated with neck pain and said that the pain might be aggravated by activity but might also increase without apparent cause. He said that the need to hold his head in a fixed position while watching television or whilst reading increased his pain and headache, and that whilst he was able to:

“do a few things around the house”

his neck pain was:

“aggravated by many activities. If I bend over I get dizziness and neck pain so this makes it difficult to do most tasks for more than a very short time.”

• He said that his sister assisted him in undertaking the domestic tasks he was required to perform for his mother, that his mother undertook simple cooking tasks, and that he would have trouble cooking as the requirement to look down as he prepared food increased his symptoms. He said his brother attended the house every day and helped with the heavier tasks, and that his sister-in-law also attended the house to help clean and to cook.

• He said that his back pain was a problem, that at times it could be worse than his neck pain but this was not usually the case. He said that his back pain would restrict him in engaging in any activity which required him to bend or place strain on his back and that if he stood for too long the symptoms in his back and legs were aggravated.

• He said that his symptoms would restrict him from returning to work in the business which he had previously undertaken which involved a lot of manual work. He said that he had planned, when he was no longer required to care for his mother, to return to some form of work which would have involved the necessity to undertake manual work of some type. He said:

“Before the car accident I used to go out with friends to restaurants and play golf about once a month. I also went fishing at times. I do not feel able to play golf or go fishing because of my neck and back pain. I hardly ever go to any social event or a dinner unless it is something like a wedding. This is for several reasons; driving is difficult for me as I am fearful of driving, particularly at night. In addition, if I am out for long period (sic) my neck pain gets really bad and I just don’t enjoy myself.”

• He said that his sleep was interrupted regularly by both back and neck pain, that he felt depressed most of the time, that he had lost confidence and that he felt frustrated and bored.

The Plaintiff’s Viva Voce Evidence

7          In cross-examination, the plaintiff said:

•  That he had a poor recollection of the extent of any anxiety or depression from which he suffered prior to the motorcar accident but that as far as he could recall, he was not suffering in 2003 from any emotional problems. He did not recall being certified as being unfit for work by reason of depression in 2004 or 2005. He accepted however, that he had had trouble sleeping and that Dr Alekozoglou had prescribed some medication to assist him with his sleep. Whilst the plaintiff accepted that his emotional state made him unable to work for a period of six months in 2004 and 2005, he agreed that he did not tell Dr Piperoglou about those problems, nor did he discuss with Dr Piperoglou the fact that he had had treatment for stress and emotional problems following his divorce or the sale of his business. He accepted however, that in late 2004 and 2005, he was unable to work by reason of symptoms of depression.

•  The plaintiff described himself as being the full-time carer for his mother, which was a role that he had committed himself to. He said that his mother could not be left alone at night and that whilst she was able to attend to some cooking and was able to dress and shower herself, the management of the household principally fell on his shoulders. He described the cooking activities within the household as being managed between his mother and himself, and said that he would undertake the heavier activities, such as moving a heavy pot, that he would set the table, clear it and wash dishes and that he would manage his mother’s medication and medical appointments. He said that after the accident however, he could not do as much in the management of his mother as before the accident and that he obtained the assistance of his brother and sister-in-law to undertake the things that were most difficult for him, such as vacuum cleaning or changing sheets. He said his sister-in-law attended the household once or twice a week to do some cleaning and prepare meals, and that his brother came to the house every day. He said that he had committed himself to his role managing his mother and that he would continue in that role for as long as he was required.

•  He said that Dr Abraham had been his general practitioner since 2002 but that by reason of the fact that Dr Alekozoglou was managing the injuries associated with the transport accident, he did not speak to Dr Abraham about the injuries suffered by him in the motorcar accident until a date possibly as late as 2009. He agreed that up until late 2009, he had employed Panadol in the management of his pain, and accepted that Digesic was first prescribed for him in November last year. He agreed that he had been referred to the Dorset Rehabilitation Hospital for a rehabilitation program and that the program was a multi-disciplinary program involving physiotherapy, hydrotherapy and management by a psychologist. He agreed that in the course of the program, he had been encouraged to socialise more, to be more active and to attempt to drive at night.

•  He said that his driving was presently limited to travelling within the local area within a distance of approximately 20 kilometres and agreed that he had received four or five speeding fines in the last three or four years. He said that he had also received a fine for driving whilst using a mobile telephone.

•  He said that he had a long-term relationship with his girlfriend, Christine, which had persisted for approximately twenty years, that they were on good terms and that they would go out to restaurants for lunch, but that they did not go out for dinner. He qualified this evidence by saying that generally when they went out for lunch they would get take-away food which they would eat in the car.

•  He said that he no longer suffered from nightmares about the transport accident but said:

“I have sleepless nights; I don’t know why.”

• He said that before the accident, he did not have a serious back problem but that since the accident, he had suffered from spinal pain in both his back and his neck. When asked to describe the way his neck restricted his ability to move, he responded:

“There are many days when my restrictions, I’m very restricted, I can’t move my neck very well at all. There are other days when I am better but what’s a little better and what’s a lot, I don’t know.”

• He said that exacerbations which occurred in his symptoms were generally not associated with specific activity, but said that activities such as reading a book caused neck pain after five or ten minutes.

• He said that he attended the “pokies” and that:

“I might go every day. I might go every second day” –

“if Christine comes, I’ll go with her, or I might go on my own.”

• He described attending the pokies as one of the main social functions in which he would engage with Christine but that when he was in pain he did not play the pokies. He accepted however, that when he was not in pain:

“Well, I don’t know whether I go every day, but I’ll go – maybe I’ll

go every day or maybe every second day.”

• He said that following his mother’s stroke, he had played golf rarely “or maybe not even at all”; that he had stopped fishing when his mother had had the stroke; he had attended the soccer perhaps only once or twice.

8          In re-examination, the plaintiff said:

• That he had been restricted in undertaking the exercises recommended by the physiotherapists in the course of his pain management program by the presence of symptoms of neck pain, and that whilst he had been encouraged to drive at night, he had felt so nervous whilst sitting in his car, as it was parked outside his house at night, that he had attempted that activity only on one occasion and had abandoned it. He said that after five or ten minutes of driving, his neck became stiff and he would then get dizzy and that he attempted to manage this by massaging his neck and telling himself that nothing was going to happen. He also said that if he became scared driving his car, he had been advised to stop and take deep breaths and that this happened to him three or four times a week. He said that perhaps four or five times a week the symptoms in his neck were so severe that they restricted him from driving. He said that he was motivated to go to the pokies –

“I feel as if there’s a heaviness inside me and I need to get out of

the house; I need to do something.”

• He said that when he had a lot of pain he stayed at home and that this might happen three or four days a week, but that when he was not in pain he did whatever he needed to do. This included going to the doctor, seeing a friend and having a coffee, and that the days when he could do those sorts of things occurred “probably five or seven days in a month”.

• He said that his brother attended the house every day and would do what was required, such as fixing the bed, assisting with cooking, or cleaning the carpet. He said that following the accident, all the activities involved in managing the household, including shopping, were more difficult for him, that he did those activities slowly and that they aggravated his headaches. He said that activities requiring him to lift his hands up for a while aggravated the symptoms in his neck, as did cooking for long periods of time, and that he could not undertake these activities. He contrasted this position with that which pertained before the accident, in which he said he had an ability to do everything.

• He said that he would go out with Christine between five and six times a month. That he had not been out for a meal with her at night for more than three-and-a-half years and that he had not, since the accident, driven to Christine’s house because she lived in Sunshine. He said that before the accident, he would visit Christine twice a week.

• He said that he was presently taking Digesic three or four times a week and that he was supplementing this in between with the use of Panadol and that he was also taking the medication prescribed by Dr Piperoglou, namely Paxam and Esipram.

The Evidence of Dr Alekozoglou

9          In a report dated 6 March 2007, the plaintiff’s general practitioner, Dr Alekozoglou, stated that the plaintiff had a past history of anxiety phobia and depression which had been aggravated by his motorcar accident. He described the plaintiff as presenting to his surgery on 20 February 2006 with a history of being involved in a car accident two days earlier and complaining of dizziness, phobia, an inability to drive at night and of symptoms of right-sided neck pain and lower back pain. He described the plaintiff as presenting clinically as being anxious, depressed and in mild distress. He opined that as the result of the motorcar accident, the plaintiff felt anxious and suffered from poor sleep; that he lacked motivation and suffered from low self-esteem and that his main problem related to a fear of driving in motorcars, especially at night.

The Viva Voce Evidence of Dr Alekozoglou

10        In the course of cross-examination, Dr Alekozoglou gave evidence that:

• Throughout 2004, the plaintiff consulted him on a number of occasions, who presented with anxiety, depression and abdominal tightness by reason of somatisation of his anxiety, and that he identified stress regarding the plaintiff’s divorce and the fact that the plaintiff had been unable to do well in business as being responsible for those symptoms. He said that between 28 September 2004 and 15 December 2004, he certified the plaintiff as being unfit for work by reason of depression.

• He said that prior to the transport accident, the plaintiff did not complain to him of any spinal problems and that he had examined the plaintiff four days post the accident, at which time he presented in mild distress. On that occasion, he undertook an examination of the plaintiff, in respect of which a complaint of some tenderness over the right trapezius was the only clinical sign which he detected. Dr Alekozoglou said that at that time he formed the opinion that the plaintiff’s condition could be managed by simple analgesics and that he continued to hold this view throughout his involvement with the plaintiff until the plaintiff left his practice in 2008.

• He said that at the prompting of Dr Kornan, a psychiatrist who had examined the plaintiff for medico-legal purposes, he referred the plaintiff to Dr Piperoglou. He said that apart from providing the plaintiff with one prescription of Xanax in June 2006, he did not provide any further prescriptions for psychiatric-type drugs and said that he had seen the plaintiff only on 20 February 2006 and 22 February 2006 in relation to the whiplash injury he had suffered.

11        In re-examination, Dr Alekozoglou largely contradicted the evidence he had given in cross-examination. He agreed that on 21 July 2006, the plaintiff had presented to him with agitation and poor sleep, which symptoms were due to the motorcar accident. He said that on 8 August 2007, the plaintiff presented to him with neck pain, stiffness and reduced mobility associated with pain and that a similar presentation occurred on 20 March 2008. He agreed that he had referred the plaintiff to Dr Piperoglou for management of a Post-Traumatic Stress Disorder and a Panic Disorder associated with the motorcar accident, and expressed the opinion that the motorcar accident had aggravated the plaintiff’s anxiety state.

12        I found Dr Alekozoglou to be a totally unsatisfactory witness. Whilst the inconsistencies in his evidence as to the times at which the plaintiff presented to him might be explained by reason of the failure of Dr Alekozoglou to consider his medical records before giving evidence, his adamant statement that he had seen the plaintiff only on two occasions with respect to transport accident related matters, demonstrated him to be a witness liable to make ill- considered statements notwithstanding the significance of the issues involved, and to be, in my opinion, unreliable as a witness. Further, the fact that he required prompting by a medico-legal consultant to refer the plaintiff for management of his psychiatric condition does nothing to influence me in a positive way as to his competence as a medical practitioner.

The Evidence of Dr Abraham

13        In a report dated 10 September 2009, Dr A Abraham, another of the plaintiff’s treating general practitioners, said that the plaintiff had been a regular patient of his since 14 October 2002 and that the plaintiff first presented to him with symptoms attributed to the motorcar accident on 14 May 2009, when he presented with pain “all over the back”. On that occasion, an examination by Dr Abraham revealed the plaintiff’s lumbar spinal movements to exhibit mild limitation of extension and all of the plaintiff’s cervical spine movements to be mildly limited.

14        Dr Abraham said that in August 2009, his records revealed that the plaintiff had complained of pain throughout his spine, which was worse in his lower back, that he experienced “an unrefreshed sleep pattern, waking up stiff and sore in the morning”. Dr Abraham said that at that time he referred the plaintiff to a rehabilitation specialist, Dr Clayton Thomas, who had suggested the plaintiff undergo a rehabilitation course at the Dorset Rehabilitation Centre.

15        Dr Abraham expressed the opinion that the plaintiff suffered a post-traumatic fibromyalgic muscle injury by reason of the accident which affected his whole back. He opined that the plaintiff suffered from a Chronic Pain Syndrome, being a long-term disabling problem requiring treatment in the form of physiotherapy, acupuncture, psychological and psychiatric counselling. He described the plaintiff as being an earnest man who was prepared to improve, but opined that, considering the steady deterioration in his condition, the plaintiff might reach a stage where he would be unable to undertake his daily activities, including supporting his mother. He further opined that the plaintiff required long-term ongoing psychological and psychiatric support from Dr Piperoglou.

The Viva Voce Evidence of Dr Abraham

16        Dr Abraham gave evidence that the plaintiff first attended his practice on 26 March 2006 with respect to the subject accident, complaining of dizziness and head spinning. He said that from that time until March 2009, the plaintiff attended the practice on approximately twenty occasions and made no complaint of accident-related symptoms, but that in March 2009, he complained of pain over the thoracic spine, radiating into both buttocks, and that, on 13 May 2009, the plaintiff attended with chronic neck pain which he attributed to a transport accident in which he had been involved.

17        Dr Abraham said that for the purposes of investigating his condition, he referred the plaintiff to Dr Bittar, a neurosurgeon; Mr Symington, a neurosurgeon; and Dr Thomas, a rehabilitation specialist.

18        Dr Abraham said that the plaintiff’s pain was appropriately described at its highest as being “annoying”, that he had left the plaintiff’s psychiatric management to Dr Piperoglou, and that although he had not managed this aspect of the plaintiff’s condition, it was possible that the plaintiff’s presentation with lethargy in 2007 and 2008 was related to that condition.

19        Dr Abraham expressed the opinion –

•  that the plaintiff was becoming more depressed as time went on. He contrasted the plaintiff’s early presentation to him in which he was proud of his children and spoke about his family, with that which had developed over time, about which he commented:

“Talking about his, whatever they call it, pleasurable things in his life, he used to talk about his kids and his family, now these things went down.”

• that the plaintiff was capable of remaining the carer for his mother but that:

“He cannot hold her; he cannot shower her, these things.”

20        He said that he had prescribed Digesic for the purpose of dealing with flare- ups of pain in the plaintiff’s neck and that the use of this medication was for episodic intermittent flare-ups. He commented that whilst it was necessary to await the final report at the completion of the plaintiff’s rehabilitation program before he commented upon the outcome of that program, he did not consider the outlook to be promising so far, and he was satisfied that the plaintiff would not achieve a complete cure.

21        In re-examination, Dr Abraham commented that to date there had been little improvement in the plaintiff’s condition in association with his rehabilitation program, that the plaintiff’s “neck pain is the most annoying for him”; that he was unable to assist his mother physically because to do so would exacerbate his cervical, lumbar and fibromyalgic pain, and that both his anxiety and depressive condition could be implicated in causing the dizziness with which he presented.

The Medical Reports Relied upon by the Parties

1     The Organic Injury

22        In a report dated 27 November 2008, Dr J Markov, a chiropractor, said that he treated the plaintiff twice in 2006, once in 2007 and in the year of 2008, eleven times, up until 11 June. He said that no further appointment was made with him as the plaintiff reported no longer experiencing any pain[1].

[1]             Although this evidence was denied by the plaintiff no reason was advanced on the plaintiff’s behalf that I should not accept it and I do.

23        In a report dated 19 July 2009, Dr Richard Bittar, a neurosurgeon, who examined the plaintiff on 19 June 2009, had diagnosed the plaintiff as suffering from a cervical whiplash injury with aggravation of pre-existing cervical spondylosis, cervicogenic headaches and lower back pain of an unclear pathological basis. He opined that the plaintiff’s neck and lower back conditions were a direct result of the motorcar accident and that the plaintiff’s prognosis was relatively poor in that, having injured himself three years ago and continuing to suffer from significant degrees of pain and disability, it is likely that the plaintiff would suffer from ongoing symptoms in the foreseeable future. He described the plaintiff’s injury as being largely stabilised and said that the plaintiff suffered from a significant degree of disability, in that he suffered from constant pain and functional limitation.

24        In a report dated 25 November 2005, Mr Clayton Thomas described the plaintiff as presenting to him on 24 August 2009 with a complaint of pain throughout his spine which was worse in his lower back than in his upper back. He expressed the opinion that the plaintiff’s overriding problem was “one of a diffuse and widespread Pain Syndrome” and that the plaintiff may have been suffering from some exit foraminal stenosis. He commented:

“He struck me as an earnest man who was prepared to improve and I recommended that he attend the Dorset Rehabilitation Centre for consideration of a rehabilitation/pain management program.”

25        He opined that given the fact that the plaintiff had been involved in a motorcar accident in 2006, and that he presented with diffuse and widespread pain, that it would be reasonable to indicate that the plaintiff would have ongoing pain going forward irrespective of treatment. He described the plaintiff’s incapacity as stemming from both organic and non-organic components.

26        In a report dated 10 August 2007, Mr Charles Flanc, a vascular and general surgeon, expressed the opinion that the plaintiff had suffered a whiplash-type injury to his neck which had involved an aggravation of pre-existing disc degeneration and a similar injury to his lumbar spine. He opined that the plaintiff presented with a disability of moderate severity which necessitated the use of analgesic tablets intermittently and recourse to therapy from time to time. He opined that the plaintiff would have difficulty coping with any work which involved frequent bending or heavy lifting.

27        In a report dated 26 May 2009, Mr Gary Grossbard, an orthopaedic surgeon, stated that as the result of his examination of the plaintiff on 19 May 2009, he formed the opinion that the plaintiff had suffered injuries to his cervical and lumbar spines in the presence of pre-existing degenerative change and that the plaintiff’s symptoms and signs were consistent with such an injury. He opined that the plaintiff would have difficulty turning his head for activities such as driving and would have difficulty undertaking activities at or above shoulder height, that these restrictions would affect the plaintiff’s capacity for employment to some extent, and that whilst the plaintiff would have some fluctuation in the level of his symptoms, it was likely that he would always have a level of pain.

28        In a report dated 29 May 2009, Mr Peter Mangos, a general surgeon, opined that as a consequence of the motorcar accident, the plaintiff had suffered severe injuries which were persisting and involved a partial permanent incapacity of his cervical and lumbar spines. He opined that the plaintiff would have difficulty working in any activity which involved long intervals of standing, bending or constant bending of his neck, that the plaintiff’s disability was wholly related to his motorcar accident and that his injury had stabilised.

29        In a report dated 28 January 2010, Dr Andrew Evans described the plaintiff as suffering from chronic lower back pain as the result of a motorcar accident which has been present for three years. He commented that the plaintiff presented with mild to moderate restriction in neck and spine movements and that the plaintiff was unable to carry out the full range of normal activity. He expressed the opinion that the degenerative changes present in the plaintiff’s cervical spine contributed only to a small degree to his disability, that his injuries would prevent him from finding new employment and that it was likely that his condition had stabilised. Mr Evans records that in the course of his examination of the plaintiff, the plaintiff had completed a neck disability index which revealed moderately severe disability due to neck pain. He opined:

“Mr Athanasios Karamzalis suffers neck pain, high levels of negative emotions including surrounding the circumstances of the accident in which he told me he was not at fault and fault was attributed to the other driver. His symptoms of paresthesia in the hands, feelings of weakness in the legs and lower back pain are likely to be substantially exacerbated by the psychiatric disturbance that he has experienced as a result of the motor vehicle accident.

The disabling neck and lower back pain, depression, anxiety and phobic travel anxiety are certainly consistent with the motor vehicle accident. I am not sure about the mechanism of injury in relation to the motor vehicle accident but I note that Mr Athanasios Karamzalis reports that his symptoms of ulnar neuropathy developed at the time of the motor vehicle accident.”

30        Mr Rodney Simm, orthopaedic surgeon, in a report dated 1 July 2009, commented that the plaintiff presented in a straightforward and cooperative manner and opined that the accident had resulted in a soft-tissue injury to the plaintiff’s entire spine and that the plaintiff’s protracted symptoms related to an unresolved aggravation of underlying pre-existing advanced multi-level degenerative spinal pathology. He opined that the plaintiff’s injuries were consistent with the accident, and that his pre-existing multi-level degenerative spinal pathology had been responsible for his chronic pain response to his injury.

31        In a report dated 22 October 2009, Dr Graeme Symington, a neurologist, excluded the presence of motor neurone disease in the plaintiff’s presentation and opined that there was a high level of anxiety which may be relevant to his current symptoms. He noted, however, that, in his opinion, the plaintiff presented with no objective neurologic abnormality.

2 The Psychiatric Injury

32        Dr Paul Kornan, psychiatrist, described the plaintiff as presenting to him in May 2007 with a Post-Traumatic Stress Disorder, a Panic Disorder with agoraphobia, and with depression. He commented that the plaintiff’s prognosis at that stage was uncertain as he had not received specialist psychiatric treatment and a better prognosis could be given once that treatment had been administered.

33        Dr Kornan re-examined the plaintiff on 12 February 2008. He opined that the plaintiff presented at that time with:

(i)	a Post-Traumatic Stress Disorder;
(ii)	a Panic Disorder with some agoraphobia, including a specific phobia of travelling in a motorcar;
(iii)	ongoing depression.

34        He opined that the plaintiff’s psychiatric state was probably marginally better than when he had been previously seen and that it was probable that the plaintiff would remain at his current level, which was such that it incapacitated him from employment. He said that the plaintiff had suffered a significant aggravation of “pre-existing mild psychiatric health” and expressed the opinion that whilst it would be prudent to await the results of any psychiatric treatment before expressing a final conclusion, he considered that the plaintiff’s incapacity from a psychiatric viewpoint would persist.

35        Dr M Piperoglou, psychiatrist, in a report dated 20 March 2009, described the plaintiff as presenting in February 2008 with “anxiety and tension more than depression”. He expressed the opinion that the plaintiff was suffering from anxiety and residual effects of a Post-Traumatic Stress Disorder, and commented:

“(i)	the condition is consistent with the stated cause from the motor vehicle accident injuries, being mainly a primary psychiatric impairment although there is also part of his psychiatric impairment which is a consequence of and secondary to the transport accident related physical injuries. From the report of Dr Kornan, there is a small pre-existing psychiatric impairment also.
(ii)	his main incapacity for work would be the physical consequences of his injuries rather than the psychiatric reaction per se. The psychiatric reaction would however be worsening any incapacity he has from the physical point of view.
(iii)	he requires ongoing psychiatric treatment as he is receiving. He is being seen at approximately two-monthly intervals for supportive psychotherapy/counselling, as well as prescription and review of his psychotropic medication. He is currently taking Lexapro, 15 milligrams daily, and Paxam, 1 milligram daily, for his anxiety and post-traumatic symptoms.”

36        He concluded his report, expressing the opinion that the plaintiff would be left with residual post-traumatic stress symptoms and anxiety as currently displayed, that most of his disability was related to his motorcar accident and that his condition had substantially stabilised.

37        In a report dated 6 October 2009, Dr Michael Epstein, psychiatrist, opined that the plaintiff had developed a mild Post-Traumatic Stress Disorder by reason of the accident, which had improved, but that the combination of the physical and psychiatric effects of the accident had led to the plaintiff developing a mild Chronic Adjustment Disorder with Depressed Mood. He commented that the plaintiff’s condition appeared to be stable, that his prognosis for improvement was limited, and that the plaintiff’s quality of life “appears to have become more limited, with some reduction in his sexual activity because of lack of libido and pain”.

38        In a report dated 23 June 2009, Dr Nathan Serry, psychiatrist, commented that the plaintiff presented with a mixture of symptoms of stress, anxiety, depression and traumatisation. He opined that the plaintiff appeared to have an entrenched Pain Syndrome with an ongoing nexus between the physical and psychiatric aspects of his presentation, and that the effect of his anxiety condition had been to limit his mobility and to have altered his personal relationships with some reduction in his level of socialisation.

39        In a further report dated 15 September 2009, Dr Serry effectively adopted the comments made in his earlier report. However, he assigned a small responsibility for the plaintiff’s presentation to his pre-existing condition.

Findings

40        In this proceeding, the defendant takes issue as to the reliability of the plaintiff as an historian. In this respect, the defendant points to the conflict between the plaintiff’s viva voce evidence as to the influence of the accident in his ability to engage in a number of sporting and recreational activities and that set out in his affidavit on this issue. In addition, the defendant points to the relatively modest levels of medical treatment which the plaintiff has required in relation to his physical injuries, and to the evidence of both Dr Alekozoglou and Dr Markov, that at various times the plaintiff made no complaint to them of ongoing symptoms of pain in association with the injuries suffered.

41        It is put on behalf of the defendant that in the circumstances of this case, the plaintiff’s reliability as a witness and an historian is of critical significance, having regard to the fact that the opinions expressed by the various consultants in the case, which are generally supportive of the plaintiff’s position, are based largely upon the acceptance by those witnesses of the plaintiff’s subjective complaints.

42        My impression of the plaintiff was that he presented as an honest witness. Generally I formed the view that any discrepancy which arose between the plaintiff’s viva voce evidence and that contained in his affidavits arose in circumstances in which the plaintiff volunteered information in the course of his viva voce evidence rather than in circumstances in which he was specifically challenged upon the issue.[2] It is clear, however, that there was a discrepancy between the plaintiff’s viva voce evidence and his affidavit evidence, particularly with respect to the consequences of the accident upon his ability to socialise and to engage in a number of recreational activities. Further, the reason for this discrepancy was never explained. In these circumstances, I accept the defendant’s submission that this discrepancy does call into account, to some degree, the plaintiff’s reliability as a witness.

[2]             See, for example, the plaintiff’s evidence at Transcript (“T”) 65-66; T 70-71

43        In deciding the issue as to whether the plaintiff has established that he has suffered a serious physical injury or a severe psychiatric injury, I am required to focus my attention upon the consequences associated with the relevant impairment. In assessing the pain and suffering consequences of the relevant impairment, I am satisfied that the level of pain and restriction of movement caused to the plaintiff by reason of the injury he has sustained to his spine, whilst not being the only relevant consideration, constitute the most significant aspect of those consequences.

44        Pain invariably involves the idiosyncratic reaction of an individual to the sensation he or she experiences. In assessing the subjective effect of the plaintiff’s reported symptoms of pain upon him, I accept the position put by the defendant that I should take into account not only the plaintiff’s evidence, but also the treatment required by the plaintiff in the management of his condition which may provide objective guidance as to the level of that pain.

45        Whilst I have commented as to the unfavourable impression which Dr Alekozoglou made upon me both as a witness and as a doctor charged with the management of the plaintiff’s condition, I do take into account the fact that on a number of occasions Dr Alekozoglou noted that the plaintiff presented to him with no symptoms of neck pain.[3]

[3]             See, for example, the plaintiff’s presentation on 1 June 2007 and 14 June 2007

46 I further take into account the evidence of Dr Markov that by June 2008, the plaintiff reported to Dr Markov that he was “no longer experiencing any pain”,[4] and further, that between the occasion of the plaintiff’s last attendance upon Dr Markov, the plaintiff sought no treatment for his condition for a period in the vicinity of twelve months.

[4]             Plaintiff’s Court Book (“PCB”) 22

47        When this evidence is considered in the context of the evidence given by Dr Abraham that it was his assessment at all material times that the plaintiff’s physical condition, in terms of the pain associated with that condition, was appropriately described as “annoying” at its highest,[5] I am satisfied that the description employed by Dr Abraham is apt in describing the level of pain to which the plaintiff has been exposed by reason of his injury. The fact that the plaintiff has recently been prescribed Digesic in management of his symptoms, and that this medication is designed for episodic intermittent flare- ups in the plaintiff’s level of pain,[6] further reinforces my finding in this regard.

[5]             T 119

[6]             T 145

48        The findings which I have made as to the level of pain from which the plaintiff suffers cause me to question the opinions expressed by a number of the consultants who opined in this proceeding both as to the consequences to the plaintiff of his injury and severity of the plaintiff’s disability . These opinions have generally been expressed on the basis of an acceptance of the plaintiff’s history as to the level of his symptoms and disability, this history in turn being out of proportion with the level of symptomology which I have found to be present. In the absence of findings on examination which support these opinions[7], I do not consider that the medical reports which have been tendered by the parties provide me with much assistance in the task I am required to undertake other than to satisfy me –

[7]             The examination findings of Mr Bittar are not described in his report; the examination findings of Dr Thomas are described as involving diffuse and widespread tenderness with mild limitation of lumbar spine and cervical spine movements (PCB 33); the examination findings of Mr Flanc are described as involving movement of the cervical spine which was easily performed but was associated with pain and as involving restriction of flexion and extension of the lumbar spine (PCB 57); the examination findings of Mr Grossbard were described as involving some tenderness on palpation in the interscapular area on the right side and a restriction of neck movement in the presence of no muscle wasting; the examination findings of Mr Mangos were described as including increased tone and tenderness bilaterally in the cervical spine with restriction of movement in the cervical spine with slight restriction in the shoulders and restriction of movement in the lumbar spine; the examination findings of Dr Andrew Evans reveal the presence of focal tenderness at the base of the neck bilaterally and as involving a mild to moderate restriction of movement in the neck and spine (PCB 44 and 46).

(i)	that an aggravation of the plaintiff’s underlying degenerative condition could explain the complaints made by him of pain and restriction of movement;
(ii)	that the plaintiff’s condition is largely stabilized and that any symptoms from which he suffers, or restrictions which that condition imposes on his life, are most probably permanent.

49        I then focus my attention upon the consequences other than pain which the plaintiff gave evidence were associated with his physical injury. Those consequences include:

(i)	that he is less sociable;
(ii)	that he suffers from dizziness;
(iii)	that he is restricted in his ability to undertake domestic tasks;
(iv)	that his symptoms would restrict him in his ability to return to unrestricted work;
(v)	that he suffers from a restriction of movement in his neck and back.

50        In considering that evidence, I take into account that:

(i)	the plaintiff has been able to maintain his relationship with his longstanding girlfriend;
(ii)	that whilst the plaintiff suffers from interrupted sleep the cause of that problem is not identified by him as being related to the motor car accident;
(iii)	that independently of the accident, the plaintiff has not undertaken paid employment for approximately eight years and when and if he may seek to return to work in the future, is largely a matter of speculation;
(iv)	the plaintiff’s physical condition is such as to enable him to regularly attend various venues where he spends considerable periods of time engaging in the activity described by him as “playing the pokies”;
(v)	that the plaintiff is able to drive a vehicle within a 20-kilometre radius of

his home;[8]

(vi)     that the plaintiff is able to socialise with friends by way of meeting them for coffee on a regular basis;

(vii)    that the plaintiff is largely independent in the activities involved in day-to- day life;

(viii)  that the plaintiff’s lifestyle which, before the accident, was restricted by reason of the commitment he had made to the care of his mother, has been further restricted by the accident but not to the extent that the plaintiff has been able to demonstrate very significant changes in that

lifestyle.

[8]             Upon this issue, the evidence generally satisfies me that any restriction which exists as to the plaintiff’s ability to drive a car is related principally to his primary psychiatric injury and not his organic injury.

51 In assessing whether the consequences associated with the plaintiff’s injury are such that they are appropriately described as being more than significant or marked, and at least very considerable, I am required to assess the consequences which the plaintiff’s injury has occasioned to him and determine where the facts of the case sit in the broad spectrum of cases. The task which I am required to undertake has been described as one which involves “a value judgment in which matters of fact and degree and of impression are operative”,[9] and one in which I am required to take into account “not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained”.[10]

[9]             Stijepic v One Force Group Aust Pty Ltd and Anor [2009] VSCA 181

[10]           Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260

52        In assessing the consequences to the plaintiff of his physical injury and, in so far as I am required to do so his emotional reaction to that physical injury, I am not satisfied, when account is taken of all the matters to which I have referred, that the plaintiff has established that the organic injury suffered by him by reason of the transport accident is appropriately described as being a “serious injury” pursuant to the provisions of the Transport Accident Act 1986 (“the Act”).

The Plaintiff’s Psychiatric Injury

53        The consequences associated with the plaintiff’s psychiatric injury may be listed as follows:

(i)	The plaintiff will not drive or travel in a motorcar after dark. During the day, his driving of a motorcar is restricted generally to travelling within approximately 20 kilometres of his home. In addition, the plaintiff will not drive on freeways;
(ii)	The plaintiff has been less inclined to socialise. He has suffered from symptoms which he has described as involving depression and a restricted ability to socialise;
(iii)	The plaintiff’s ability to sleep has been impacted upon in an adverse way by that condition in that he may wake “a couple of times a week”[11] because of nightmares;
(iv)	The plaintiff has been required to make use of moderate levels of prescribed medication to manage his condition.

[11]           PCB 11E

54        Generally the tenor of the medical assessments of the plaintiff’s accident related psychiatric injury is that it is appropriately described as influencing his life, at its highest, to a moderate degree.[12] The fact that the plaintiff retains the ability to socialize as I have previously described; that he has maintained his relationship with his long term girlfriend; that he no longer suffers from nightmares; that he has resumed driving his car albeit on a restricted basis; and that his present psychiatric impairment is contributed to in a minor degree by his pre-existing psychiatric condition; are all matters which I consider support this description of the severity of plaintiff’s accident related psychiatric condition.

[12]           The assessments of the psychiatrists who have opined as to the level of the plaintiff’s psychiatric impairment as calculated pursuant to the AMA Guidelines (PCB 86; 93; 110), whilst not being in any way determinative on this issue, are nevertheless instructive in that they are consistent with this description of the level of the plaintiff’s psychiatric injury.

55        Taking into account the consequences of the plaintiff’s psychiatric injury upon him in the context of the medical evidence, I accept that it is generally appropriate to employ the adjective “moderate” to describe the level of the plaintiff’s psychiatric impairment associated with the injury, and that in these circumstances, the plaintiff has not met the high threshold established by the Act.

56        For the reasons set out above, I am not satisfied that the plaintiff has established that the consequences suffered by him, by reason of both the organic injury and the psychiatric injury suffered by him by reason of the subject transport accident, meet the threshold imposed by the Act for the purpose of justifying a finding that the transport accident of 18 February 2006 has occasioned to the plaintiff either a serious organic or psychiatric injury.

57        In the circumstances, I will make an order dismissing the plaintiff’s application and I will hear the parties as to the issue of costs.

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