Kaselias v Transport Accident Commission
[2022] VCC 2133
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-20-03236
| NALI KASELIAS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 18 August 2022 | |
DATE OF JUDGMENT: | 9 December 2022 | |
CASE MAY BE CITED AS: | Kaselias v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2133 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – s93 of the Transport Accident Act 1986 – injury to cervical spine and shoulder – previous work injury
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Kaselias v Metcash Trading Limited [2007] VCC 1795; Johns v Oaktech Pty Ltd [2020] VSCA 10; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Humphries and Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Richards & Anor v Wylie (2001) 1 VR 79; Transport Accident Commission v Garcia[2015] VSCA 225
Judgment: Leave refused to commence a proceeding for common law damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person | - |
| For the Defendant | Mr S Pinkstone | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1On 17 August 2013, the plaintiff, Nali Kaselias, was involved in a transport accident at the corner of King and Dudley Streets, Melbourne. He brings this application pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), seeking leave to commence a proceeding for common law damages in respect of injuries he alleges that he suffered in the transport accident.
2He relies on paragraphs (a) and (c) of the definition of “serious injury” in s93(17) of the Act in relation to:
(a) a serious long-term impairment or loss of a body function, namely, a right shoulder injury and/or an injury to the cervical spine; and/or
(b) a severe long-term mental or severe long-term behavioural disturbance or disorder.
3The Transport Accident Commission (“TAC”) disputes that the claimed injuries are serious, and submitted that the credit of the plaintiff, in the sense of the reliability of his evidence, was relevant to the Court’s assessment of the consequences of any transport-accident-related injury.
4The claim is made in the context of a significant pre-existing back injury in 2003 resulting in total and permanent disablement for employment, including a significant psychological response requiring treatment from a psychologist and psychiatrist, and prescription of Xanax. The plaintiff has not worked since 2004, and from that date onwards – including since his transport accident – has occupied much of his time playing poker at Crown Casino on a weekly, sometimes daily, basis.
5For the reasons set out below, I accept that the plaintiff sustained soft tissue injuries to his cervical spine and right shoulder in the transport accident.
6The difficulty with the plaintiff’s claim, though, is that while there is some evidence of symptoms of pain and impairment of function in the neck and right shoulder as a result of the transport accident in 2013:
(a) the limited treatment or symptoms in the years that followed the transport accident is not consistent with a serious injury or impairment of the neck and/or right shoulder;
(b) I have significant reservations about the plaintiff’s credit in terms of his account of his pre-transport accident level of capacity;
(c) the plaintiff may suffer from a pain syndrome. This was first identified in September 2016 by medico-legal consultant orthopaedic surgeon, Mr Russell Miller. It is unclear the extent to which this pain syndrome relates to the transport accident. In the absence of appropriate medical evidence as to the organic basis of his pain, the plaintiff is not able to rely on his subjective experience of pain in a claim under paragraph (a) in relation to his physical injuries. In any event, I do not accept his evidence as to his subjective complaints of pain, having regard to my findings as to credit;
(d) there is insufficient evidence linking two potentially significant consequences ꟷ loss of sleep and a recent increase in prescription pain medication ꟷ to the transport accident;
(e) the plaintiff’s only pre-transport accident pastime of playing poker at Crown Casino has not been impacted at all by any injury he sustained in the transport accident; and
(f) there is no medical evidence to support a claim under paragraph (c) that the plaintiff suffered a severe psychological injury in the transport accident.
7In those circumstances, the application must fail.
The evidence
8The plaintiff relied upon his affidavit sworn 11 November 2019 (prepared by his previous solicitors, Slater and Gordon) and a supplementary affidavit sworn 19 August 2021 (prepared by the plaintiff) which also included exhibits. By joint tender, a number of medical reports and other relevant documents were tendered, including a serious injury application form; the Particulars of Injury dated 19 August 2021; relevant radiology; clinical notes; financial material by way of an ATO Record of Summary, and a decision of this Court, Kaselias v Metcash Trading Limited,[1] all of which form part of the Joint Court Book (“JCB”). The plaintiff also tendered a brief medical report from his treating psychiatrist, Dr Samir Ibrahim, dated 16 August 2022.
[1][2007] VCC 1795
9The application proceeded with the plaintiff’s oral evidence, assisted by the Court. He was cross-examined about the contents of the affidavits sworn by him, and other relevant issues, including as to the reliability of his evidence.
10I have considered all of the material tendered by the parties, together with the oral evidence of the plaintiff, and I will refer to that evidence to the extent necessary in the course of these Reasons.
Credit
11The TAC submitted that little reliance could be placed on the plaintiff’s evidence as to the extent of the consequences of any transport-accident-related injury, particularly in light of his previous work injury. I find that parts of the plaintiff’s affidavit sworn 19 August 2021 grossly exaggerate his pre-transport accident level of function and, further, that some of the plaintiff’s oral evidence was inconsistent with his affidavit evidence and documentary evidence, such as clinical records. Accordingly, his credit was properly put in issue.
12Credit of the plaintiff is a relevant issue in determining the seriousness of the injuries relied upon by him.[2]
[2]Johns v Oaktech Pty Ltd [2020] VSCA 10
13In Haden Engineering Pty Ltd v McKinnon,[3] the Court reviewed a number of decisions concerning the pain and suffering consequence of particular injuries and, in particular, the consideration of the plaintiff’s experience of pain. The Court stated:[4]
[3](2010) 31 VR 1
[4](Ibid) at paragraphs [10]-[12]
“10.As to the experience of pain as such, the Court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale ‘mild/moderate/severe’. Unless the pain is constant, the Court will need also to assess the frequency and duration of the pain episodes.
11.The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a)what the plaintiff says about the pain (both in court and to doctors);
(b)what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c)what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d)what the objective evidence shows about the disabling effect of the pain.
12.As to (a), 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. The Court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.”
14In addition to exaggerating the extent of his pre-transport accident capacity in his supplementary affidavit, the plaintiff also described the pain following the transport accident as “unbearable”, and confirmed in cross-examination that this was an accurate description of his pain,[5] and I accept the TAC’s submission that this is a gross exaggeration. I do not accept the plaintiff’s characterisation of his pain, even though he attended his general practitioner on a few occasions in 2013, was referred for physiotherapy, x-ray and, later, a CT scan when the pain did not resolve. His explanation in final submissions that “sometimes when you are suffering, you cannot really give an accurate description of how much suffering you are going through”[6] did not reassure me that I am able to rely upon his subjective reports as to his level of pain.
[5] Transcript (“T”) 50 ꟷ T51
[6] T120, L30 ꟷ T121, L1
15While I accept there is an issue of credit, and that part of the plaintiff’s evidence (to which I will refer further below) is unreliable, I do not consider him to have been an artful witness, or that any unreliability arises out of any attempt on his behalf to be dishonest. Giving evidence was a difficult experience for him, but he generally gave reasonable explanations of the context for histories given to doctors at various times, and in relation to other issues.
16Nevertheless, his evidence of impairment and impairment consequences must be considered carefully by reference to the objective evidence in respect to each claimed serious injury.
Relevant principles
17The plaintiff must establish that, by reference to the consequences to him, he has suffered a serious long-term impairment or loss of function of his neck and/or right shoulder within the meaning of s93(17) of the Act.
18The seriousness of an impairment is determined by whether the pain and suffering and loss of enjoyment of life consequence, including any pecuniary disadvantage consequence, “when judged by comparison with other cases in the range of possible impairments or losses, [can] be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”.[7]
[7] Humphries and Anor v Poljak [1992] 2 VR 129 at 140
19The severity of a mental or behavioural disturbance or disorder is determined by whether the consequences to the plaintiff, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, are fairly described as being more than serious to the extent of being severe in accordance with the principles in Mobilio v Balliotis.[8]
[8][1998] 3 VR 833
20To the extent there are psychological factors that amplify the plaintiff’s symptoms, for example in relation to his neck injury, that amplification may not be considered as part of the physical injury.[9]
[9]Richards & Anor v Wylie (2001) 1 VR 79
21A mental response, however, to an impairment or loss of a body function, may be taken into account in determining whether the loss or impairment of a body function can be fairly described as “serious”.
22In Richards & Anor v Wylie,[10] Winneke P said:
“… If, as a result of an injury, a person loses a limb, it will, no doubt, often occur that one of the consequences of such a loss or impairment will be the development of a mental response to that impairment or loss. That is one of the consequences which, along with others, the Court will need to evaluate in determining whether the loss or impairment of a body function, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as ‘serious’ ... Such a response, as I see it, would be an expected consequence of an impairment or loss of a body function of the sort to which I have referred ... Thus, the ‘serious injury’ defined by sub-paragraph (a) of sub-s.(17) can, I think, have its seriousness measured in part by a mental response to a physical impairment. What it will not recognize is that the mental disorder can itself constitute or be the producer of the impairment of a body function.”[11]
[10]Ibid
[11](Ibid) at 87-88. See also Buchanan JA at 90. See also Transport Accident Commission v Garcia [2015] VSCA 225 at paragraph [27]
23The TAC accepts that the plaintiff can rely on any psychiatric response to any organic injury in accordance with the principles of Richards & Anor v Wylie.[12]
[12]Supra
Background
24Now fifty years of age, the plaintiff was born in December 1971 in Northern Iraq. He currently resides with his brother and sister in Epping, and is unmarried.
25Upon completion of his secondary schooling in Iraq, the plaintiff obtained a Civil Engineering degree at university, and was employed as an engineer. As a Christian, he found himself on the wrong side of Northern Iraq politics and religion and so left his country in 1997.After travelling to Turkey and living in Greece for two years, he migrated to Australia as a refugee in 1999.
26Unable to have his qualifications recognised in Australia, the plaintiff worked in various positions, including as a storeman and fine gold jewellery polisher, before he commenced work as a storeman with Metcash Trading Limited (“Metcash Trading”) in July 2001.
27In the course of that employment, the plaintiff suffered a spinal injury on 14 May 2003. His duties with Metcash Trading came to an end in mid 2004, when his position was terminated, and he has not worked since. He was performing restricted duties at the time. Compensation proceedings ensued. Then, as now, the plaintiff was required to establish serious injury in order to obtain leave to bring a proceeding for recovery of damages in respect of his work injuries, and the trial of that application was conducted before Judge Campbell of this Court on 14 and 15 November 2007, with judgment being delivered on 19 December 2007 (“first serious injury application”).[13] The plaintiff obtained leave to commence proceedings against his employer for the recovery of damages for pain and suffering only, having abandoned his claim in relation to pecuniary loss.
[13]Kaselias v Metcash Trading Limited [2007] VCC 1795
28The injury relied upon was to the lower lumbar back, sustained in the course of lifting heavy cartons of groceries, where he was required to perform lifting and twisting actions with considerable weight on his arms. He had physiotherapy and was referred to a neurosurgeon, Mr Jensen, who arranged for an MRI scan of his lumbar spine, which was performed on 13 January 2004. The conclusion at the time of examination was that there was:
“Mild degenerative changes at the L4-5 level without evidence of internal disc destruction, neural impingement or significant canal stenosis. The findings, however, include the observation that there was mild desiccation of the L4-5 disc associated with a mild posterior disc bulge and mild facet joint arthropathy which caused a minor narrowing of the central canal and lateral recesses without nerve root impingement.”[14]
[14](Ibid) at paragraph [22]
29Surgery was not indicated. In light of his mental response to the effects of his injury upon himself and his future, the plaintiff saw a psychologist in 2003, and was diagnosed as suffering from an Adjustment Disorder. Prior to determination of the first serious injury application, the plaintiff was seen by a number of psychiatrists who were generally in agreement as to his condition from a psychiatric perspective.
30After consideration of a number of reports, many of which form part of the evidence in this proceeding, the Court found that:
§ “The plaintiff has sustained an injury to his low back with evidence of right-sided radiculopathy which amounts to a permanent impairment of his lumbar spine.
§ He is now permanently unfit for manual work of any significance.
§ He has and will continue to have low back pain which precludes him from sporting, domestic and social activities in which he was wont to participate in the past.
§ The evidence as to his Casino attendances does not induce in me any serious doubts about the reality of his disability.
§ That notwithstanding his educated status in his country of origin, attempts in this country to ameliorate that position have not met with success, at least in part, because of the consequences of his injuries. Accordingly, his worth on the open labour market was that of heavy manual work and that is now denied of him.
§ I am satisfied that he has sustained a serious injury to his lower back and that the consequences to him when viewed by comparison to other cases in the range of possible impairments or losses of body function are at least ‘very considerable’. He is still a relatively young man.”[15]
[15](Ibid) at paragraph [84]
31During the course of the hearing of the first serious injury application, the plaintiff was cross-examined at length about his attendances at Crown Casino, including by reference to a list of attendances then current for the period from 1999, before his lower back injury, and 2007, being the date of the trial:
·1999 ꟷ 39 days
·2000 ꟷ 50 days
·2001 ꟷ 76 days
·2002 – 49 days
·2003 – 141 days
·2004 – 138 days
·2005 – 228 days
·2006 – 131 days
·2007 – 111 days.
32The plaintiff agreed with these figures.
33The plaintiff also apparently asserted he had gone to the Casino before his injury in 2003 for entertainment, and the reason for not going more regularly than the figures as at 2007 showed, was because he was working.
34During his oral evidence in this proceeding, the plaintiff frankly conceded that, while he could not recall a precise number of days he attended the Casino in more recent times, he would have attended at least as frequently both before and after his transport accident in 2013. He has never denied attending Crown Casino very regularly at times, nor that he has won significant amounts of money from time to time over the years from this endeavour. He evidently enjoys it, and is skilled in the art. I accept his evidence that then, as now, his attendance at Crown Casino to play poker is part of his therapy, in that it is the only place left for him to go for recreation. His oral evidence was that his treating doctors support him in going there.[16]
[16] T23
35I do not consider the serious injury test in the Act requires that the plaintiff lead a life without any form of recreation. Nevertheless, prior to the transport accident, the plaintiff was not engaged in any other activity, recreational or otherwise, and he apparently attended the Casino on multiple occasions on a weekly, sometimes daily, basis. If, as a consequence of impairment as a result of the transport accident he was unable to engage in this activity, I would be more inclined to find for the plaintiff.
36The plaintiff, however, does not rely upon any inability to play poker as part of this application. The TAC, in turn, suggests that his weekly poker-playing regime is “completely inconsistent with a serious injury” because the transport accident has had no effect whatsoever on his only hobby and chosen pastime. In context, his evidence that he is able to enjoy his only pre-accident hobby and pastime in an uninterrupted fashion despite his injuries, is important, and I place appropriate weight on it accordingly.
37The plaintiff accepts that, as a consequence of his work injury in 2003, he was essentially totally and permanently incapacitated for all but the most modest of employment tasks, involving minimal hours. He agreed, in cross-examination, that he had chosen not to exercise that work capacity at any time prior to the transport accident.
The transport accident
38The subject transport accident occurred at around 5.00pm on 17 August 2013. The plaintiff was travelling north along King Street, Melbourne on his way home to Epping after visiting friends. He alleges that, on a green light, he was travelling through the intersection at Dudley Street, West Melbourne, when another vehicle, which had been travelling south along King Street towards the city, executed a right-hand turn across the path of his vehicle, striking it on the driver’s-side door.[17]
[17]First affidavit of the plaintiff sworn 11 November 2019, paragraph 7 at JCB 23
39The plaintiff was immediately aware of pain in his chest, right shoulder and neck regions, but was able to return home by taxi.
Attendances on general practitioners
40The plaintiff did not present to a medical practitioner until eleven days after the accident, on 28 August 2013, reporting neck pain. When cross-examined about the delay, the plaintiff gave evidence that immediately after the accident, he thought he could treat the pain with painkillers.[18] It was only when his pain levels started increasing that he decided to consult a doctor. The general practitioner advised the plaintiff the clinic was not taking new TAC patients.[19]
[18] T42, L17-21
[19] JCB 444
41The next day, the plaintiff presented to his local general practitioner, Dr Omar Wafek, at Lyndarum Family Clinic in Epping. He reported to Dr Wafek that he was suffering right-sided neck pain, with radiation of pain to his right shoulder and upper arm.[20] On examination, he was tender along the cervical spine, reporting a grinding noise when moving his neck, but had a full range of motion.[21] Dr Wafek referred him for diagnostic imaging, being an x-ray of the cervical spine, and told the plaintiff that he would review him after results, but if his symptoms got any worse he was to “call back early”.
[20]JCB 210
[21] Ibid
42There is no record of the plaintiff being prescribed any medication for pain at the time. When cross-examined on the lack of pain medication prescribed to him post-accident, the plaintiff gave evidence that, as a result of his previous work injury, he was taking Panadol and using Voltaren Gel to control back pain at the time of the transport accident, and thereafter for his arm and neck.[22] His evidence included that Dr Wafek refused to prescribe him medication, and told him not to return unless the pain was “unbearable”.[23] In his supplementary affidavit, the plaintiff describes feeling like he had to “prove his pain” to Dr Wafek.[24] The clinical notes do not record any requests for pain medication being denied by Dr Wafek. I do not accept that the plaintiff requested Dr Wafek to prescribe him medication for his pain, much less that Dr Wafek refused to do so.
[22] T43, L4-5
[23] JCB 208-210
[24] JCB 649
43The plaintiff attended on Dr Wafek again on 10 September 2013, reporting that he was “still having pain”.[25] Dr Wafek referred him for a CT scan, but did not prescribe any pain medication.
[25]JCB 210
44The plaintiff did not attend upon Dr Wafek again until a “general health check” on 27 October 2013. No history of pain is recorded.
45The plaintiff did not attend on any doctor, including Dr Wafek, between December 2013 and February 2015.
46In 2015, the plaintiff attended on Dr Wafek on six occasions, reporting right neck and shoulder pain radiating to his arm, as well as intermittent right arm numbness.[26] On 5 March 2015, Dr Wafek noted:
“… Has been resting right shoulder for over a year now and is no better.”[27]
[26] JCB 206-208
[27] JCB 208
47In 2016, the plaintiff attended on Dr Wafek on two occasions for neck pain. In the latter half of 2016, he attended twice more, complaining only of lower back pain. Despite the plaintiff having suffered a serious low back injury while employed at Metcash Trading in 2003, Dr Wafek noted that there was no history of injury to the lower back.[28] In October 2016, he attended on Dr Vivek Patel at Northend Medical Centre, reporting severe lower back pain.[29]
[28] JCB 205-206
[29] JCB 217
48In 2017, the plaintiff began attending on Dr Faisal Akram for “chronic neck pain”.[30] He consulted Dr Akram three times, reporting ongoing shoulder and neck pain, despite Dr Akram advising the plaintiff that he should continue to consult Dr Wafek for his TAC-related symptoms. Dr Akram did not prescribe the plaintiff medication on any of these three occasions, but recorded that the plaintiff uses analgesics as needed.[31]
[30] JCB 202
[31] JCB 203
49In 2018, the plaintiff attended on Dr Akram twice.[32]
[32] JCB 201-202
50Since January 2019, the plaintiff’s usual general practitioner has been Dr Hany Hanna. Dr Hanna’s clinical records detail the plaintiff’s presentations for chronic neck and shoulder pain. On his initial presentation in January 2019, Dr Hanna notes that the plaintiff was not on any prescription medication, but has been accessing physiotherapy and using Panadol, Nurofen and Voltaren Gel.[33] Dr Hanna prescribed the plaintiff Panadeine Forte and Lyrica. On 10 July 2019, Dr Hanna increased the plaintiff’s dosage of Lyrica from 75 milligrams to 150 milligrams.
[33] JCB 216
51Between January 2019 and November 2021, the plaintiff saw Dr Hanna for his neck and shoulder pain 111 times.[34]
[34] JCB 211-217, 247-341
Radiological investigation
Spine
52An x-ray of the cervical spine taken 31 August 2013 revealed no fracture or malalignment, with spondylotic (age-related) changes at C5-6, with narrowing of the intervertebral disc and marginal endplate osteophyte formation, and narrowing of the right neural exit foramen at C3-4.[35] A later CT scan of his cervical spine conducted on 9 October 2013 revealed:
(a) minor vertebral lipping changes slightly impressing on the thecal sac at the C3-4 level, with slight narrowing of the right neural exit foramen, without disc herniation;
(b) a C4-5 level minimal diffuse disc herniation slightly impressing on the thecal sac;
(c) at the C5-6 level, disc space narrowing and lipping change, with minimal diffuse herniation, slightly impressing on the thecal sac.[36]
[35]JCB 77
[36]JCB 78
53Dr Wafek’s notes record advice to the plaintiff that the results of the CT scan showed “degenerative changes” in the cervical spine.[37]
[37] JCB 210
54On 20 February 2015, Dr Wafek referred the plaintiff for an MRI scan of his cervical spine in the context of ongoing pain and disability in his neck. This procedure demonstrated degenerative changes at a number of levels, but most pronounced at the C5-6 level, where there was a moderately-sized broad disc osteophyte complex resulting in other changes in moderate to severe right-sided and moderate left-sided foraminal stenosis.[38] There was bilateral uncovertebral joint degenerative changes at C5-6 and right-sided degenerative change at C3-4.
[38]JCB 80
55On 17 April 2019, the plaintiff underwent a further MRI scan of his cervical spine which, again, showed multilevel chronic degenerative discs involving mild disc bulge at C3-4, C4-5, C5-6 and C6-7 levels. At the C5-6 level, the findings included a disc bulge osteophyte complex producing some indentation of the anterior aspect of the theca.[39]
[39]JCB 84
Shoulder
56On 10 February 2015, some 18 months after the transport accident, Dr Wafek referred the plaintiff for an ultrasound of his right shoulder. The records of Dr Wafek record full range of movement in both shoulders as at 10 February 2015, with tenderness just below the tip of the right shoulder,[40] which apparently resulted in the referral. The ultrasound conducted on 26 February 2015[41] demonstrated a moderate partial-thickness tear to the fibres of the supraspinatus tendon.[42]
[40] JCB 117
[41]JCB 82
[42]Ibid
57That scan was obtained in the absence of any other reported complaint by the plaintiff of right shoulder pain prior to the transport accident. There is no evidence of any other incident or injury which may have produced the pathology in the right shoulder. Despite limited complaints to his general practitioners, and no other treatment of right shoulder pain between September 2013 and February 2015, I accept that the initial pathology in the right shoulder was accident related.
58The most recent examination was on 17 April 2019, when the plaintiff underwent an ultrasound of the right shoulder. This demonstrated a full-thickness tear within the supraspinatus tendon, a partial-thickness tear in the subscapularis tendon, subacromial bursitis and degenerative acromioclavicular joint arthropathy.[43]
[43]JCB 24
Medical reports
Dr Omar Wafek, general practitioner
59Dr Wafek’s report dated 17 June 2016 records a diagnosis of “degenerative changes in the cervical spine causing chronic neck pain with radiation to right upper limb” based on history and findings on MRI scan of the cervical spine.[44] There is no finding in relation to causation or reference to the transport accident in Dr Wafek’s report; however, he notes the initial relevant consultation was on 29 August 2013. The progress notes in relation to that consultation record that the plaintiff was involved in a road traffic accident on 17 August 2013.[45]
[44]JCB 118
[45] JCB 210
Mr David Brownbill, consultant neurosurgeon
60Mr Brownbill, in his report of 17 August 2016, recorded a history of immediate neck and right shoulder pain following a transport accident. As at the date of his examination on 17 August 2016, there was some slight improvement in the neck and shoulder. There was some restriction in cervical spine movement. The right shoulder pain was located outside the tip, being present all the time, worse with sleeping on the right or with any local pressure. Active right shoulder movements were reduced, but full power, and equal in all muscle groups, long and short. He considered that the plaintiff had sustained aggravation of degenerative changes of the cervical spine at C5-6 level in association with soft-tissue damage as a result of the transport accident, giving rise to pain, but without objective neurological normality.[46]
[46]JCB 173-174
61Mr Brownbill also recorded that ongoing symptoms in the right shoulder were likely to be, in part, referred from the cervical spine, and also likely to be due to rotator cuff dysfunction capsulitis and probable impingement. On the basis of the information available to Mr Brownbill, he believed the right shoulder symptoms were related to the transport accident.
Mr Russell Miller, orthopaedic surgeon
62Mr Russell Miller assessed the plaintiff on 14 September 2016, providing a report dated 26 September 2016.[47] He recorded neck pain and discomfort radiating into the shoulders and occasionally, further down into the right arm, with some vague feelings of numbness and tingling, but no specific weakness; and discomfort and pain in the right shoulder, worse with repetitive and overhead activities. The history taken included that the plaintiff had declined to have an injection into the shoulder to relieve his symptoms. In addition to findings in relation to the pre-existing disease and symptoms in the lumbar spine, his diagnosis included musculoligamentous strain to the cervical spine and aggravation of degenerative disease of the cervical spine, with radiation into the shoulders and right upper extremity.
[47]JCB 178
63As at the date of his report, Mr Miller’s opinion was that requirement for treatment for the cervical spine and right shoulder were accident related.[48] Based on the restricted range of motion, he assessed the plaintiff as having a total upper extremity impairment of the right shoulder of 11 per cent. Mr Miller also recorded an adverse mental state reaction, with problems with anxiety and depression and probable development of a Chronic Pain Syndrome.[49]
[48]JCB 184
[49]JCB 183-184
Mr Devinder Garewal, orthopaedic surgeon
64Upon referral from the plaintiff’ current general practitioner, Dr Hanna, orthopaedic surgeon, Mr Garewal, examined the plaintiff on about 14 October 2019. In a report to the plaintiff’s previous lawyers dated 20 November 2019, Mr Garewal recorded a history and diagnosis as follows:
“… He sustained a motor vehicle accident in 2013 injuring his right shoulder. He had a documented supraspinatus tendon tear at the time which was treated non operatively and over the last 6 years has not healed and he has had ongoing issues, pain and discomfort, loss of range of movement and subsequent weakness.
…
The diagnosis is a full thickness supraspinatus tendon tear given the clinical and radiological findings.”[50]
[50] JCB 123
65Upon examination, he found the plaintiff had very poor active range of movement in his right shoulder and was essentially pseudo paralytic, with extreme weakness, consistent with his cuff tear. Further, that he requires right shoulder arthroscopic shoulder surgery. He noted, while the plaintiff’s current capacity for work is limited, given his pain and reduction in function, in the future the prognosis was good, assuming successful surgery and rehabilitation.[51]
[51]JCB 123-124
66Although Mr Garewal recommended surgery, due to the plaintiff’s subjective concerns about the risks of the proposed procedure, it did not proceed.
Dr Hany Hanna, general practitioner
67Dr Hanna, in his report dated 16 June 2020, records a diagnosis of right shoulder supraspinatus tendinopathy, ligament tear and bursitis, but does not express a view in relation to causation. He also records chronic neck pain with cervical spondylosis, right-sided cervical radiculopathy, and chronic pain syndrome; chronic anxiety/depression, adjustment disorder and sexual dysfunction.[52] Dr Hanna’s notes record the following:
· The plaintiff might need steroid injection or further treatment conducted by pain management. He might also need surgery.[53]
· The plaintiff’s prognosis is uncertain due to continuing attendance with pain management and pending neurosurgeon review. However, prognosis is not favourable, and Dr Hanna opined that he has a serious disability.[54]
· The plaintiff had no capacity to work at the time of the report and future capacity will depend on further reports of pain management specialists and neurosurgeon.[55]
[52]JCB 125
[53] JCB 127
[54] JCB 128
[55] JCB 128
68In his later report dated 18 February 2021 to the TAC,[56] Dr Hanna records the right shoulder and cervical spine in the list of the injuries/conditions suffered by the plaintiff in the transport accident.
[56]JCB 134
69Dr Hanna’s clinical notes record a history of neck and referred pain in the right arm, however upon examination found there was no joint swelling or tenderness, no restricted movement in the right shoulder and only mild neck stiffness on the right side. He found no sensation loss or motor weakness. The principal management identified was listening, counselling, relaxation techniques and shoulder exercises, noting the plaintiff needed physiotherapy and a psychologist.[57]
[57] JCB 391
Mr Michael Dooley, orthopaedic surgeon
70Mr Dooley’s report dated 11 April 2022[58] is the most recent medico-legal report by a factor of some four years. It includes a history taken on 22 March 2022 as follows:
“Mr Kaselias said that he notes ongoing cervical spine pain and pain in the right shoulder girdle region. Currently he takes Panadeine Forte and Lyrica for his pain. He is on sedative medication and he takes medication to assist his sleep. He said that he sleeps poorly. Mr Kaselias said that in time he has become depressed and he has become angry about his situation. He said that he spends most of his time at home. He said that his younger brother and older sister carry out the household chores and that he struggles in this regard. Mr Kaselias said that he gets nightmares about his accident. He said that he has seen a Psychiatrist in this regard.
Mr Kaselias said that he sustained an injury to his lower back when he was working as a storeman in 2003. He said that he was unable to work after this. Mr Kaselias said that he was advised to exercise. He said that in time he got very fit. He said that he did a Certificate IV in Building. Mr Kaselias said that by the time of the motor vehicle accident of August 2013, in his view, he was very fit and capable. He said that after his back injury, he had suffered from mild depression. He feels that he has become much worse after the motor vehicle accident. Mr Kaselias said that he had an injection into his neck in 2020 and that in the process of this, his right leg jumped. He said that his neck and shoulder pain were much worse after the injection.”[59]
[58]JCB 190
[59] JCB 191
71At the time of his assessment, Mr Dooley recorded a history that the plaintiff had been advised that he needed to undergo surgery on both the neck and the right shoulder. He records that the plaintiff’s was fearful of undergoing surgery because, in particular, if he had surgery on his neck there would be a 50 per cent chance of improving his condition and a one per cent chance of him becoming paralysed. At the time, he was then taking Panadeine Forte and Lyrica for his pain, was on sedative medication, and also took medication to assist his sleep. He was sleeping poorly.
72Mr Dooley recorded a diagnosis of a soft-tissue injury to the cervical spine region and that this was consistent with the transport accident. He opined that the injury involved some musculoligamentous damage in addition to some age-related degenerative disc change, which is naturally occurring in nature. He recorded that there was moderate restriction in cervical spine motion at the time of examination.
73In relation to the right shoulder, Mr Dooley recorded tenderness of the scapular region, with significant restriction in range of motion. In Mr Dooley’s opinion, the plaintiff suffered a possible soft-tissue injury to the right shoulder region in the transport accident. He recorded that, in his opinion, it is possible that some of the right shoulder pain is referred from the cervical spine, but believed that much of the plaintiff’s right shoulder pain reflects his psychological reaction to “his situation”. He did not believe that the plaintiff required surgery on the right shoulder. He did not believe that an injury occurred to the glenohumeral joint or rotator cuff region in the transport accident, but that the pathology was related to naturally-occurring, age-related underlying degeneration involving the supraspinatus tendon, with some partial thickness tearing, which “is a very common finding on radiological investigation of the shoulder in patients in their 40’s and 50’s [sic]”.[60]
[60]JCB 193
74It is difficult to know what to make of this high-level comment based on unidentified patients in their forties and fifties. I find it has little probative value.
75Ultimately, I accept that the plaintiff sustained soft tissue injuries to his cervical spine and right shoulder in the transport accident.
Psychological reaction
76A further consequence has been a secondary psychological reaction.
77There is no medical evidence to support a finding of serious injury under paragraph (c) of the relevant definition. The plaintiff has not established his case in this regard.
78There is, however, evidence from the plaintiff’s treating psychiatrist of a psychological reaction to the motor vehicle accident. The plaintiff has been under the care of Dr Ibrahim since April 2020. In a brief report, dated 16 August 2022, Dr Ibrahim states as follows:
“He suffers the sequela of a Motor Vehicle Accident, with injuries, and the resultant pain, relative immobility and he lost his independence, as the activities of daily living are affected.
He described Adjustment Disorder; Depressive symptoms, with Anxiety symptoms.
He is prescribed an Antidepressant (Escitalopram) and attends a Psychologist. He is prescribed Melatonin to help with sleep.”[61]
[61]Exhibit 2, report of Dr Samir Ibrahim dated 16 August 2022
79In his report dated 11 April 2022, the most current medico-legal opinion in evidence, Mr Dooley records the following history:
“… he takes medication to assist his sleep. He said that he sleeps poorly. Mr Kaselias said that in time he has become depressed and he has become angry about his situation. He said that he spends most of his time at home. He said that his younger brother and older sister carry out the household chores and that he struggles in this regard. Mr Kaselias said that he gets nightmares about his accident. He said that he has seen a Psychiatrist in this regard.”[62]
and expresses the opinion that:
“I believe that he has had a psychological reaction to his situation.”[63]
[62] JCB 191
[63] JCB 193
80The treating physiotherapist, Laurie McCormack, also identified that the plaintiff presented with a “high risk of long-term disability due to psychosocial factors”,[64] acknowledging that this is outside his area of expertise.
[64] JCB 136
81On the whole of the evidence, I find that the plaintiff has established that he suffers from some form of psychological reaction to the effects of injury to his cervical spine related to the transport accident, over and above the pre-existing depression and anxiety experienced as a consequence of the 2003 back injury and its sequelae. I am prepared to infer that this condition is permanent and therefore may be taken into account in the assessment of whether he meets the narrative test. I do not place very great reliance upon this condition, however, it is one of the factors that might support a finding of serious injury.
Submissions of the parties
82The TAC submitted that:
(a) the Court should not accept the plaintiff’s subjective complaints of pain having regard to its concerns as to the reliability of his evidence;
(b) there is very little, if anything, in the way of objective evidence to corroborate or support the plaintiff’s subjective complaints of pain;
(c) the plaintiff had little, if any, pain after the accident in either his neck or his right shoulder and, in particular, did not seek medication for any such pain from his treating general practitioner;
(d) while the plaintiff may have suffered a soft-tissue injury to the right shoulder in the accident, pathology in the form of a partial-thickness tear of the supraspinatus tendon had nothing to do with the transport accident;
(e) the soft-tissue injury to the cervical spine has not produced any ongoing impairment from an organic point of view, and that a significant portion of the plaintiff’s presentation is attributable to psychological factors;
(f) there is no medical evidence in this case linking the prescription of current medication to any injury which results from the transport accident;
(g) although the plaintiff has problems with his sleep, these pre-dated the transport accident; and
(h) the Court must identify and consider any transport-accident-related impairment consequences, having regard to the pre-existing impairment of the spine.
83For his part, the plaintiff accepted that he suffered from some physical and mental problems before the transport accident in 2013. He specifically conceded that, while his mental health went “pear shaped”, he “had something similar before the accident”.[65] He submitted that:
(a) he suffered discrete injuries to his neck and/or right shoulder with associated mental consequences in the transport accident that did not exist prior to it;
(b) before the accident, he was still able to care for his father, despite his pre-existing injuries. His father lived in Australia until he passed away in 2021, but after the transport accident, the plaintiff was not able to look after him and care for him as he used to, which was distressing for him. I infer that his chronic neck pain and restriction of movement in his neck affects some tasks that he would previously perform to assist his father, although he did not specify those tasks, nor the particular loss of function that prevented him from doing so;
(c) the absence of medication in the period immediately after the transport accident could be explained by his state of depression at the time, and that he did not “believe in any medication”.[66] I do not accept this submission, having regard to his oral evidence that he needed medication at the time, but that his general practitioner refused to prescribe it. There is no evidence to support this submission;
(d) although he obtained an online diploma in Building, it was “difficult or impossible for [him] to work in this field as a result of [his] limited ability, physical ability, after the accident”,[67] and that, if not for the transport accident, he might have had a better chance of obtaining employment using this qualification;
(e) while neurosurgeon and spinal surgeon, Dr Ales Aliashkevich, recommended consideration be given to diagnostic/therapeutic nerve root or facet joint blocks to treat left C4-5 and right C7-T1 facet arthropathy; and Dr Garewal arthroscopic surgery to the right shoulder, the plaintiff refused such treatment on the basis of the risks associated with these procedures;
(f) he can only use his right arm for small tasks which do not require much strength, and is forced to use his left arm to perform his tasks of daily living;
(g) his sleep was interrupted compared to his pre-accident condition. The pain in the right arm, and in the neck, prevents him from getting enough sleep, and causes him to wake a number of times during the night, despite taking medication to assist his sleep;
(h) his current level of medication ꟷ Pregabalin or Lyrica, 150 milligrams, three times a day; antidepressant, Citalopram, 20 milligrams, two tablets a day, along with codeine, 500 milligrams, three times a day; and Melatonin, 2 milligrams – which he may need to take for the rest of his life, is consistent with serious injury.
[65]T114, L19-20
[66]T110, L16-17
[67]T113, L7-8
Employment consequences
84Orthopaedic surgeon, Mr Dooley, accepts that the plaintiff suffers from some ongoing intermittent neck and shoulder region pain, however he “would not expect his orthopaedic condition to deteriorate in time, over and above the natural evolution of his underlying degenerative disc change”.[68] He also accepts that as a consequence of the cervical spine injury, that the plaintiff would have some difficulty carrying out regular heavy physical work and work that involves a lot of activity at and above head level.[69]
[68] JCB 194
[69] Report dated 11 April 2022 at JCB 194
85In terms of the effect on his income, the plaintiff’ first affidavit states:
“Although I had been out of the workforce for a number of years due to my lower back injury, I still did plan to update my qualifications to Australian Civil Engineering Standard and to become regularly involved in the building industry in this country and I believe that that opportunity has now been entirely lost to me.”[70]
[70]First affidavit of the plaintiff sworn 11 November 2019, paragraph 20, at JCB 26
86the plaintiff also relies on his supplementary affidavit sworn 19 August 2021 prepared by him, which adopted his first affidavit and added certain further evidence. That evidence included:
“4. As I was well and truly on the road of recovery, feeling healthy, fit, and like a rehabilitated individual, I was more than content with where I was with my recovery, until the unfortunate accident in August 2013. My life was turned upside down, inside out due to the horrific vehicle accident that occurred that day. The months that followed was such an unbearable feeling of unrest, pain, and psychological unrest, not knowing if I could recover again from this unbearable pain even though I knew I did it before but did not know if l can do it again. Until this day, I still feel the effects of that day, whether it is pain, a cramp or a nightmare, there are days that I re-live the moment of impact and not being able to feel what once was normal.”
87This evidence exaggerates his pre-accident condition, the circumstances of the transport accident and the consequences which flowed from it, at least to the extent that the plaintiff complains of “unbearable pain” in the months that followed.
88Allowing for the fact that the supplementary affidavit was not prepared with the assistance of lawyers, I do not accept that, by the time of the transport accident, the plaintiff had overcome his injury at work in 2003. His later statement that:
“… Even though the [2003] injury at time[s] limited me to certain tasks, which at times strained my back muscles, I persevered followed the doctor[’]s/therapist instructions which resulted in a noticeable improvement ….”[71]
is closer to the true position, but does not reflect the reality of the plaintiff’s total and permanent disability for employment, ongoing episodes of severe pain and restriction requiring medication and treatment, demonstrated by his attendances on doctors in the period leading up to the transport accident.
[71]Supplementary affidavit of the plaintiff sworn 19 August 2021, paragraph 1, at JCB 647
89Although I accept that hydrotherapy and physiotherapy had resulted in gradual improvement, and his condition fluctuated, I find that, at the time of the transport injury, the plaintiff was totally and permanently disabled for employment in Australia for which he was suited. Neither injury to his neck, nor right shoulder, considered in isolation, have been productive of any relevant incapacity for employment.
Pain and suffering consequences
90As at the time of swearing his first affidavit in support of this application on 11 November 2019, the plaintiff complained of persisting neck pain, and referred right shoulder pain and right upper limb pain, on an ongoing basis since the transport accident.[72] He also refers to persisting lower back pain.
[72] First affidavit of the plaintiff sworn 11 November 2019, paragraph 15
91He does not differentiate between the pain referable to his back, neck or shoulder, for which he now uses a variety of medications and creams in an attempt to relieve his symptoms, including Lyrica, Panadeine Forte, Panadol, Nurofen, Voltaren gel and an antidepressant, Lovan (150 milligrams per day). He finds his medication assists in taking the edge of his symptoms, but has not led to any lasting resolution in the level of those symptoms.[73]
[73] (Ibid) at paragraph 16
92I accept that the plaintiff continues to suffer from some pain emanating from his neck and shoulder region.
93In adjudging the consequences to the plaintiff of his transport accident, I take into account his condition immediately prior to the accident, including that he was at that time totally and permanently disabled from employment.
94In that context, the medical evidence establishes that he has sustained a soft-tissue injury to his cervical spine, with associated restriction of cervical spine motion, and referred pain into his right upper limb without radiculopathy; and a soft-tissue injury to his right shoulder.
95When compared with his condition prior to the transport accident, although the plaintiff finds himself taking increased medication, this has not been sufficiently disentangled from the consequences of his back injury.
96Initially taking over-the-counter analgesics and using Voltaren gel, in 2019 his current general practitioner, Dr Hanna, prescribed the plaintiff Panadeine Forte and Lyrica. On 10 July 2019, Dr Hanna increased the plaintiff’s dosage of Lyrica from 75 milligrams to 150 milligrams. His report of 18 February 2021 to the TAC states that the medication prescribed relates to the transport accident. Dr Hanna’s report, dated 21 January 2020, however, makes it clear that he did not have the benefit of the plaintiff providing to him any history of the 2003 work injury to his lower back.[74]
[74] JCB 130
97He has some loss of function,[75] with an associated psychological reaction, but this is not sufficient to satisfy the narrative test.
[75]Described as any activity requiring him to twist or turn his neck, causing an increase in the level of symptoms: first affidavit of the plaintiff at paragraph 18
98He has received regular physiotherapy, but only since late 2015.[76]
[76] Report of Laurie McCormack, physiotherapist, dated 30 June 2019 at JCB 136
99His sleep is interrupted by pain, however the clinical notes clearly record such interruption prior to his transport accident. In May 2010, and again in April 2011, his GP recorded the existence of sleep problems because of his lower back pain and depression.[77] He also suffers pain when driving because of the turning of the neck required, however this is not to the extent that it prevents him from driving, sometimes daily, to and from Crown Casino; nor from recently exploring employment as a commercial driver. Activity requiring him to twist or turn his neck is liable to cause an increase in his level of symptoms, however he does not identify how this impacts in any significant way upon his daily activities.
[77] JCB 671
100In his supplementary affidavit, sworn 19 August 2021, the plaintiff deposes to his condition prior to the transport accident:
“A. My life before the accident on the 17-08-2013:
9. Before the 2013 accident, I learnt to be strong, to become confident, overcome my fear and learn many new aspects about body strength, building muscle, feeling strong. I enjoyed the company relatives, friends, past and new that I made with my new confidence at hand. I would not be afraid of being out late at night, meeting new people, trying new places and venues, having the freedom of doing what I want when I [sic]. I felt good, I looked good, and I was the healthiest I had ever been. In my mind, I knew following the instructions of the therapists training schedules, diet and knowledge had all paid off.
10. I was a confident, young man who was always happy, always ready for any new experience. From bars to clubs, hiking to tracking, jogging, or running, if someone want to do it, I was in on it without a care in the world, I was known in my circle of friends that if anyone needed a companion, I was ready for it.
11. Before the injury encountered, I was able to freely move my neck and shoulders in all directions and participate in any social events ten pin bowling to playing a game of cricket in the backyard, I was socially active with the community, and I was able to help and support my fragile father when in need. I was able to go swimming and exercise to support my lower back and felt it [sic].
12. I was always improving. I was confident, felt positive and was looking forward to the challenges the future held for me. I was planning to start a relationship and possibility start my own family and looking for employment options. I was not limited to any movement and was able to come and go where I pleased. I felt strong and movement on my upper body was well maintained being able to go hiking, play sports and travel with comfort and participate with no restrictions.”
101I do not accept the evidence in paragraphs 9 and 10. The plaintiff, himself, conceded, under cross-examination, that paragraph 10 reflects only “some sort of truth”.[78] The truth is that these paragraphs represent a gross exaggeration of his pre-transport accident capacity. His explanation given in re-examination was that his earlier back injury in 2003:
“…had significant impact but I was able to live with the pain and with the result of the accident and I was getting the treatment, I was doing everything I can to live with the pain and manage but all my attempt to overcome the pain I was suffering of were demolished, basically, after the [transport] accident. The physical strength in me were weaken significantly after the [transport] accident. … .”[79]
[78]T40, L13-14
[79]T59, L18-24
102I do not accept his evidence ꟷ in the context of his total and permanent disability resulting from his pre-existing lumbar spine condition ꟷ that, before his transport accident, “[he] was the healthiest [he] had ever been”. I find that this statement expresses a very unrealistic enthusiasm for his progress and prospects generally in relation to the limited improvement he might have achieved in the context of a chronic disabling spinal injury.
103The plaintiff frankly conceded under cross examination that he suffered from a psychological reaction to his pre-existing injury to the lumbar spine, and that, in 2010, he was prescribed Xanax for depression and anxiety in connection with being unable to work by reason of back pain.[80] A mental health care plan was in place, and the plaintiff had a treating psychiatrist and psychologist.
[80] T32
104While there may have been some improvement in his symptoms of low back pain, and also with his depression and anxiety due to his prescription medication during 2010 and 2011, the evidence in his second affidavit does not reflect the true position in relation to his level of restrictions prior to the transport accident.
105It is probable that the plaintiff was receiving treatment, including by way of medication, for a psychological condition up to the date of his transport accident, however the extent of such treatment is unclear. Handwritten notes from the Lyndarum Family Clinic of Dr Wafek do not extend beyond the entry of 6 September 2011, which records conditions of lumbar spine, depression and anxiety at that time. Upon his attendance on Dr Wafek on 29 August 2013,[81] there is no record of any current psychological condition, nor any prescription of medication for either physical or psychological injury. He was certainly compromised by his back injury in 2003, which is not recorded in the history to Dr Wafek either.
[81] JCB 210
106Family is important to the plaintiff. His evidence in relation to his father included:
(a) “I was not able to provide for him and care for him the way I would if I was in an earning capacity or if I was able to do that from any other sources and particularly because of my health, that was not as well that allows me to earn income”;[82] and
(b) “I was not able to provide for my father as a son should and especially in my father's - late father final days, because since 2013, when the accident happened, my health was not helping me much to be able to do so and that has a significant impact on me for many years to come.”[83]
[82]T9, L20-24
[83]T9, L26-31
107On 4 February 2021, Dr Hanna certified that the plaintiff had multiple medical conditions and that he was not able to care for his father due to his disabilities.[84] An earlier certificate states that he has a medical condition preventing him from caring for someone else due to his inability to use his right shoulder in full capacity and due to “other medical conditions”.[85] At the time, Dr Hanna was prescribing pain medication for the plaintiff’s degenerative disease at multiple levels of his spine, as well as his neck and shoulder symptoms, and antidepressants.
[84] JCB 423
[85] JCB 394
108On the evidence before me, I am not able to make a finding that the plaintiff’s inability to care for his father is sufficiently connected to any specific impairment or loss of function of his right shoulder or neck.
109In the end, I am left with the plaintiff’s evidence that, immediately prior to the transport accident he was able to move his neck and shoulders freely, enjoy social games of sport in a limited capacity, remain socially active, and engage in swimming occasionally, in accordance with advice from his GP. Leaving aside any doubts as to the reliability of this evidence, in my view, it is a borderline “range” case. The consequences, while significant, are not “very considerable”, and probably do not satisfy the narrative test. In any event, I do have reservations about the reliability of this evidence. His social capacity, for example, is demonstrated by his daily/weekly attendances at Crown Casino, and I am unable to accept that the plaintiff had the level of pre-accident function that he relies upon in order to establish his case.
Conclusion
110The plaintiff has not established serious injury under either paragraph (a) or (c) of the definition of “serious injury” for any of the alleged injuries sustained in the transport accident on 17 August 2013.
111The plaintiff’s application is dismissed.
112I will hear the parties with respect to costs.
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