Khalife v Transport Accident Commission
[2023] VCC 1287
•31 July 2023
| IN THE COUNTY COURT OF VICTORIA AT Geelong COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-00850
| MOHSEN KHALIFE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 27 and 28 March 2023 | |
DATE OF JUDGMENT: | 31 July 2023 | |
CASE MAY BE CITED AS: | Khalife v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1287 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Injury to the spine - paragraphs (a) and (c) of the definition of “serious injury” – thoracic outlet syndrome – whiplash associated disorder –psychiatric condition - impairment consequences
Legislation Cited: Transport Accident Act 1986
Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439; TAC v Murdoch [2020] VSCA 98; Humphries and Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis & Ors [1998] 3 VR 833; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 269; Hettiarachchi v Transport Accident Commission [2023] VSCA 27; Woolworths Limited v Warfe [2013] VSCA 22; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Jayatilake v Toyota Motor Corporation (2008) 20 VR 605; Lexa v Transport Accident Commission [2019] VSCA 123; Richards v Wylie [2000] VSCA 50; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Sutton v Laminex Group Pty Ltd[2011] VSCA 52; Spence v Gomez [2006] VSCA 48
Judgment: Leave granted to commence proceedings for common law damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Macnab SC with Ms S Lean | Arnold Thomas & Becker |
| For the Defendant | Mr R Kumar with Ms J Clark | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1The plaintiff, Dr Mohsen Khalife, was born in Lebanon and is currently aged 60. He emigrated to Australia at the age of 26, having completed a Bachelor of Science and a Bachelor of Engineering (Majoring in Civil Engineering). In Australia he completed a Masters in Civil Engineering, then a PhD in Environmental Engineering. Dr Khalife also completed a Graduate Diploma in Teaching Secondary Education during the course of his work as an academic in higher education. In 2018, he was employed as a Vice Principal at Ashwood High School.
2On 16 February 2018, Dr Khalife was driving from work to Melbourne Airport in order to collect his two daughters. Whilst travelling north on the Tullamarine Freeway, he was rear-ended by another vehicle (“transport accident”).
3Dr Khalife alleges that he suffered the following injuries as a result of the transport accident:
(a) Thoracic Outlet Syndrome;
(b) an injury to the cervical and thoracic spine, in particular a Whiplash Associated Disorder;
(c) a vestibular injury, including endolymphatic hydrops, vertigo and hyperacusis; and
(d) a severe psychiatric injury.
4Dr Khalife seeks leave pursuant to s93 of the Transport Accident Act 1986 (“the Act”) to commence proceedings for common law damages in respect of his injuries under sub-paragraphs (a) and (c) of the relevant definition of “serious injury” in s93(17) of the Act.
5In order to succeed, Dr Khalife must satisfy the Court that he has sustained a serious long-term impairment or loss of a body function within the meaning of sub-paragraph (a) of s93(17) of the Act.
6The credibility of a plaintiff is central to the determination of applications of this type, particularly in relation to consideration of the evidence regarding the seriousness of an injury, and the accuracy of histories given to doctors.[1] Whilst there were issues of credit raised, in the sense of the reliability of Dr Khalife’s evidence, I may put that issue to one side immediately. Dr Khalife impressed me as an intelligent, thoughtful man, who consistently made concessions. He presented as a witness of truth throughout the course of his evidence over two days. No doctor identified any issue of reliability in terms of his presentation; to the contrary his account of his symptoms was not only consistent but was accepted by all of the doctors who examined him. I reject the submission that he sought to exaggerate his symptoms.
[1]Johns v Oaktech Pty Ltd [2020] VSCA 10; Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439 at 488
The plaintiff’s physical injuries
7The emphasis of the claim was on the physical injuries, and the pain suffered by Dr Khalife as a result of those injuries.
8The Transport Accident Commission (“TAC”) identified that the major issue for its part is the identification of any injury sustained by the plaintiff as a result of the transport accident; and then whether the consequences of any impairment from that injury satisfy the narrative test.
9Dr Khalife suffers from a constellation of symptoms which are seemingly referrable to either a Thoracic Outlet Syndrome, or alternatively a Whiplash Associated Disorder, including symptoms in his neck, both arms including shoulders, and numbness in the hands with a sense of heaviness.
10I accept counsel for the plaintiff, Mr Macnab SC’s submission that the relevant body function impaired by Dr Khalife’s injury is the spine, including referred symptoms into both arms.[2]
[2]In TAC v Murdoch [2020] VSCA 98 the Court considered a Thoracic Outlet Syndrome injury, where the relevant body function impaired by the injury was the right arm.
11Dr Khalife’s vestibular disorder manifests in dizziness and hyperacusis. In this respect the body function relied upon is the ear as it relates to hearing and balance.
Principles
12The relevant principles that attach to an application of this kind are not in dispute.
13Dr Khalife cannot recover any damages in respect of injury as a result of a transport accident except in accordance with s93 of the Act. Section 93(4)(d) provides that if the TAC has determined the degree of impairment to be less than 30 per cent, a person who has been injured in a transport accident may not bring proceedings for the recovery of damages (with certain irrelevant exceptions) unless a court gives leave to bring the proceedings. A court must not give leave under s93(4)(d) unless it is satisfied that the injury is a “serious injury”.
14Section 93(17) contains the definition for “serious injury” which relevantly includes (a) “serious long-term impairment or loss of a body function” or (c) “severe long-term mental or severe long-term behavioural disturbance or disorder”.
15In Humphries v Poljak,[3] Crocket and Southwell JJ identified the test to be applied with respect to a claim of “serious injury” under paragraph (a) of the definition:
“To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”[4]
[3] [1992] 2 VR 129
[4] Ibid at 140.
16In order to be granted leave to commence common law damages in relation to his psychiatric injury under paragraph (c), Dr Khalife must satisfy the Court that the consequences to him, when judged by comparison with other cases, in the range of possible mental or behavioural disturbances or disorders, are fairly described as being “stronger in terms of significance or gravity than serious” to the extent of being severe.[5]
[5] Mobilio v Balliotis & Ors [1998] 3 VR 833 at 854
17In determining Dr Khalife’s application, the factors indicative of serious injury identified in Haden Engineering Pty Ltd v McKinnon[6] are relevant. In determining the pain and suffering consequences of any injury, it is necessary to consider not only “what the plaintiff says about the pain (both in court and to doctors)”, but also “what the plaintiff does about the pain (for example medication, rest, seeking medical treatment)”, as well as “what the doctors say about the extent and intensity of the plaintiff’s pain” and “what the objective evidence shows about the disabling effects of the pain”.[7]
[6](2010) 31 VR 1 (“Haden Engineering”)
[7] Ibid at paragraph [11]
18A plaintiff who is “prepared to put up with his pain and suffering and get on with his business as best he can” should not be treated less favourably than a plaintiff who has resigned themselves to injury.[8]
[8] per Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 269 at paragraph [3]
19Caution should be exercised in the consideration of clinical notes, including inconsistencies regarding histories and symptomology described by plaintiffs and recorded in notes or reports of treating practitioners. As the Court of Appeal observed in Hettiarachchi v Transport Accident Commission:[9]
“… a Court needs to be careful in accepting apparent statements of fact made by patients (or plaintiffs in a medico-legal setting) and recorded by medical practitioners and contained in their notes or reports. At times what might appear to be a statement of fact may simply be an observation or impression of the doctor. Or, in some cases, may simply be an incorrect record of what was said during a busy consultation.[10]
Usually, the recording of such statements by the doctor has one purpose: to assist in forming a diagnosis of the patient (or plaintiff’s) condition. They are not intended to form part of the forensic arsenal of the cross-examiner. Caution must be exercised in the use of such material, particularly when the fate of the application or claim may, at least in part, turn upon the accuracy of the asserted admission against interest. This is all the more so when in most serious injury applications and personal injury trials the relevant medical practitioner is not called to give evidence. … .”[11]
[9] [2023] VSCA 27
[10] Ibid at [57]
[11]Ibid at paragraphs [57]-[58]. See also Woolworths Limited v Warfe [2013] VSCA 22 at paragraph [112]
20Finally, the question of the seriousness of an injury is to be resolved upon all the evidence before the court.[12]
[12]Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 at paragraph [35]; confirmed in Jayatilake v Toyota Motor Corporation (2008) 20 VR 605 at paragraph [17]
Thoracic Outlet Syndrome
21Thoracic Outlet Syndrome (“TOS”) is a condition, or group of conditions,[13] that affects the thoracic outlet. There is some controversy within the medical profession regarding both the existence of TOS, and the appropriate diagnostic criteria for the condition. The plaintiff tendered an article authored by Dr Charles O. Brantigan and Dr David B. Roos,[14] American specialists in TOS, which was attached to the report of treating neurosurgeon Mr David Wallace.[15] In the article, the authors defined the thoracic outlet as the area extending:
“from the outer edge of the first rib laterally and to include the mediastinum medially. It continues upward in the neck to the level of the fifth cervical nerve root. This space contains the anterior and middle scalene muscles, the five primary cervical nerves of the brachial plexus, the three trunks, the phrenic nerve, long thoracic, suprascapular, and dorsal scapular nerves, the stellate ganglion, the subclavian artery and vein, the thoracic duct, scalene lymph nodes, and the apex of the lung. Although these structures are well described in anatomy books, clearly there is wide variability in their exact location.” [16]
[13] See report of Associate Professor John Laidlaw dated 22 September 2022, Appendix 3: Literature Reviews, Amended Plaintiff’s Court Book (“PCB”) 270
[14]“Aetiology of neurogenic thoracic outlet syndrome” by Dr Charles O. Brantigan and Dr David B. Roos, PCB 586.
[15] See report of Mr David Wallace dated 31 March 2020, PCB 83
[16] PCB 586
22TOS involves the compression of this area:
[TOS] “occurs because there is insufficient space for the nervous structures.” [17]
[17] PCB 586
23The authors explain:
“There is usually a congenital predisposition to develop TOS symptoms. An injury that may seem minor usually is superimposed on the congenital anomalies and compromises the space further.” [18]
[18] PCB 586
24Whilst the condition enjoys some medical notoriety, I had the benefit of some of the leading experts in the diagnosis of this condition, who happen to be the treating medical practitioners and allied health professionals involved in the care of Dr Khalife since the transport accident.
25Dr Khalife has a genetic predisposition to Thoracic Outlet Syndrome having regard to the enlarged transverse processes in his spine at C7.
Treating doctors
26Dr Khalife has been attending on his general practitioner, Dr Martin Kerr, since 3 March 2018. Dr Kerr is of the opinion that as a result of the accident, the plaintiff has suffered TOS, vestibular migraines, an adjustment disorder with mixed anxiety and depression, temporal mandibular joint dysfunction and a right ulnar nerve injury.
27Dr Kerr did not initially diagnose the plaintiff with TOS, but rather adopted the diagnosis of treating neurosurgeon, Mr David Wallace, in 2019. Dr Kerr explained the process of obtaining the TOS diagnosis as follows:[19]
“Mr Khalife's diagnosis of thoracic outlet syndrome has been difficult. He was seen by multiple specialists … in the 18 months after his accident that did not pick up on his subtle and emerging symptoms of Thoracic Outlet Syndrome. Since Mr Khalife has been diagnosed, he has seen specialists including Vascular Surgeons, Neurosurgeons and a Plastic Surgeon, and undertaken extensive physiotherapist (sic) with Simon Balster.”
[19] PCB 73
28Dr Kerr referred the plaintiff to neurosurgeon, Mr Wallace on 4 October 2019, following a medico-legal consultation with orthopaedic surgeon, Mr Thomas Kossmann, where TOS was first suggested as a diagnosis.[20] Mr Wallace confirmed the diagnosis of TOS, stating:[21]
“He had a very positive “surrender test” (or Roos test, named after Professor David Roos, an American specialist on TOS, who popularized this test), but on Adson’s test on that occasion there was no pulse obliteration and no bruit.
I agreed with Mr Kossmann that this man was suffering from TOS, which in this instance had been triggered off by his car accident.
[20]Joint Medical Examination conducted on behalf of the plaintiff and TAC: report dated 23 September 2019, PCB 149
[21] Report of Mr David Wallace dated 31 March 2020, PCB 83
His CT scan of the cervical spine showed pointy enlarged transverse processes of C7, which have the same significance as incomplete cervical ribs, and which predispose a patient to TOS and which have a fibrous cord running from the tip of the spinous process to attach to the first rib, and this band compresses the neurovascular bundle when the arms are in the elevated or outstretched position.”
29Mr Wallace referred the plaintiff to Mr Simon Balster, physiotherapist at Melbourne Shoulder Group. Mr Wallace described Mr Balster as a “world authority” on the non-surgical treatment of TOS.[22]
[22] PCB 85.
30In his report of 31 May 2020,[23] Mr Balster notes that the plaintiff was lifting his arms without effective use of his scapula muscles or neck stabilising muscles. Mr Balster opined that this upper quadrant dysfunction was consistent with the diagnosis of TOS.
[23] Report of Mr Simon Balster dated 31 May 2020, PCB 87 .
31Mr Balster designed a rehabilitation program for the plaintiff’s TOS, which consisted of at-home exercises. Some of the exercises aggravated the plaintiff’s symptoms and had to be ceased.
32In his report of 30 August 2022, having treated the plaintiff for two years, Mr Balster noted:[24]
“During our final consultations I felt that Mohsen's symptoms were not being improved with rehabilitation; at best they were maintaining some muscle strength and function without reducing symptoms. I felt that Mohsen would need to consider surgery or learn to live with his symptoms going forwards. I was still surprised that he was able to continue to work with the aggravation and significant symptoms that driving and working created.”
[24] Report of Mr Simon Balster dated 30 August 2022, PCB 90.
33Mr Wallace referred the plaintiff to radiologist, Professor Richard O’Sullivan, for an MRI. In his report of 31 March 2020, Mr Wallace notes:
“His MRI scan of the brachial plexuses did not show any alternative explanation for his problem and was quite consistent with TOS. The reporting radiologist, Professor Richard O'Sullivan of Bridge Road Imaging, Richmond, who has a very large experience of TOS, noted the enlarged transverse processes of C7 on the MRI scan.”[25]
[25] PCB 83.
34In 2020, Dr Kerr referred the plaintiff to a plastic and reconstructive surgeon, Associate Professor Scott Ferris, for an opinion on possible surgical intervention.[26] The plaintiff attended on Associate Professor Ferris on 2 July 2020 and again on 12 May 2022,[27] when surgical intervention to treat his TOS, including significant risks, was explained in detail to Dr Khalife. Noting the equivocal testing results, Associate Professor Ferris was supportive of either surgical or conservative treatment for a TOS, and concluded his report as follows:
“I remain willing to see Dr Khalife with regard to surgical intervention for his thoracic outlet syndrome should he wish to pursue this.”[28]
[26] Report of A/P Scott Ferris dated 11 November 2022, PCB 97.
[27] Ibid
[28] PCB 98
35Dr Khalife was anxious about surgery and wanted to discuss this option in greater detail with his general practitioner, Dr Kerr, and his family, and ultimately decided against surgery.
36In July 2021, Dr Kerr referred the plaintiff to Mr Noel Atkinson, endovascular surgeon, again to consider the option of surgical treatment of the TOS. Although cautious about a diagnosis of thoracic outlet compression,[29] Mr Atkinson accepted that there is distortion and compression of the subclavian artery on each side, and reported back to Dr Kerr that:
“My feeling is that he is going to come to thoracic outlet decompression with 1st rib resection on the left side and if that is of benefit, proceeding to the right side after an interval. The issues of not being able to firmly diagnose thoracic outlet compression and not being able to promise a relief of symptoms was all discussed.”[30]
[29] Report dated 11 August 2021, PCB 95
[30] Report dated 27 July 2021, PCB 93
37All of the plaintiff’s treating doctors accept that Dr Khalife suffers from TOS. Those opinions include his general practitioner, neurosurgeon, plastic and reconstructive surgeon, endovascular surgeon and specialist radiologist, Professor O’Sullivan; and also his physiotherapist, Mr Balster. In particular, I consider the opinion of neurosurgeon, Mr Wallace, an expert in the treatment and management of TOS, of significant weight.
38The diagnosis in this case, however, is not without controversy.
Medico-legal evidence
39The TOS was first diagnosed by orthopaedic surgeon, Thomas Kossmann, in 2019. In Mr Kossmann’s opinion, all of the symptoms experienced by Dr Khalife are referrable to this syndrome.
40The plaintiff was first reviewed by Mr Thomas Kossmann for the purposes of providing a joint medical report on 23 September 2019.[31] Mr Kossmann noted the plaintiff’s pain in both shoulder joints, facial numbness, stiff neck, pins and needles radiating through his arms and tingling in his fingers. Mr Kossmann made a diagnosis of TOS on both sides, and lumbar spondylosis in the form of a small disc extrusion at the L1-2 and L5-S1 levels and disc desiccation at the L5-S1 level with moderate loss of height. He opined that the plaintiff’s condition was caused by the transport accident. His opinion on prognosis was guarded, noting that the plaintiff had not yet received any treatment or advice for TOS.
[31] See report of Mr Thomas Kossmann dated 23 September 2019, PCB 149.
41In his supplementary report dated 5 June 2020,[32] Mr Kossmann confirmed the above diagnoses and further diagnosed cervical spondylosis in the form of degenerative changes with inferior osteophytes at the C3, C5 and C6 levels. Mr Kossmann also opined that the plaintiff had no capacity for work.
[32] PCB 160
42Neurologist, Associate Professor Richard Stark, also examined the plaintiff in July 2020 on behalf of the TAC and the plaintiff’s solicitors. In his opinion:
“The question of thoracic outlet syndrome has been raised. I note that there have been a range of investigations undertaken for this. These have not demonstrated any alternative diagnosis but the diagnosis of thoracic outlet syndrome remains essentially a clinical impression and would appear to be supported by some of the clinical findings reported by Mr. Kossmann and Mr. Wallace.
It is plausible that thoracic outlet syndrome may develop after a relatively minor accident. The condition is based on an underlying anatomical predisposition but there may be no symptoms until some provocative event such as a jolting injury.
Thus, I believe that it is plausible that-thoracic outlet syndrome is contributing to this man’s ongoing symptoms.” [33]
[33] Report dated 30 July 2020, PCB 217
43Mr Kossmann produced a third supplementary report on 29 November 2021, where he updated his opinion regarding the plaintiff’s prognosis, noting:
“He requires further treatment for his thoracic outlet syndrome on both sides, which is responsible for all of his symptoms. I recommend that Dr Khalife returns to Mr Scott Ferris to act as the lead surgeon and to have Mr Ferris decide of all required treatment regarding Ms Khalife’s thoracic outlet syndrome. Without any focussed treatment for his thoracic outlet syndrome I fear that Dr Khalife’s condition will deteriorate further.” [34]
[34] Report of Mr Thomas Kossmann dated 29 November 2021, PCB 179
44In his final report dated 11 August 2022, Mr Kossmann again confirmed his established diagnosis of TOS on the left and right side, cervical spine diagnosis and lumbar spondylosis.[35] In his opinion, a TOS can be caused by a traumatic event like a transport accident. Dr Khalife’s symptoms arose after the transport accident, and became worse with time. His careful clinical findings support the diagnosis. As typical symptoms of a TOS were not present prior to the traumatic event, in Mr Kossmann’s opinion the injuries suffered by Dr Khalife in the cervical region at the time of the transport accident are responsible for his symptoms of a TOS.
[35] Report of Mr Thomas Kossmann dated 11 August 2022, PCB 113
45Neurosurgeon Professor Stephen Davis examined Dr Khalife on behalf of the TAC on 8 July 2022 and has produced three reports.[36] Unlike Mr Wallace, who acknowledges a speciality interest in TOS, Professor Davis does not assert a particular interest in the diagnosis and treatment of this syndrome. In his opinion, there was evidence to support the diagnosis of a predominantly vascular Thoracic Outlet Syndrome (“vascular TOS”) rather than neurogenic Thoracic Outlet Syndrome (“neurogenic TOS”), which is not his area of expertise.
[36]Defendant’s Court Book (“DCB”) 45, 54 and 57
46In his report dated 8 July 2022, Professor Davis opined that:
“He … likely has the vascular effects of an accident-provoked thoracic outlet syndrome. There were no signs of wasting of small hand muscles or definite EMG abnormalities in the testing conducted by Associate Professor Tim Day to indicate neurogenic thoracic outlet syndrome, but the results were slightly equivocal and Prof Day does mention a relative abnormality in electrophysiological testing on the left arm consistent with mild involvement of the left lower plexus, although normal on the right side. I thought that there was clinical evidence to support the diagnosis of a predominantly vascular rather than neurogenic thoracic outlet syndrome. Of relevance, the report of Mr Noel Atkinson points out that on elevation of the patient’s hands his fingers become pale and then returned to a normal colour when dependent and that a CT angiogram shows kinking of the subclavian arteries with elevation of the arms.”[37]
[37] DCB 51
47Aside from TOS, Professor Davis diagnosed a vestibular disorder and temporary mandibular joint syndrome that precipitated following the transport accident, and opined that the neck pain and stiffness the plaintiff experiences likely reflect a soft tissue injury to the cervical spine. He also identified psychological issues.
48Professor Davis was unable to explain the numbness over the left face which extends beyond the trigeminal nerve distribution that Dr Khalife experiences. He noted that the ENT specialist has associated this with the temporomandibular joint condition, Costen’s syndrome.
49In his supplementary reports, Professor Davis confirmed his findings in his initial report and concluded that Dr Khalife does not have a high likelihood of benefitting from thoracic outlet decompressive surgery.[38]
[38] Report of Professor Davis dated 3 March 2023, DCB 59
50Those views are attended with some doubt.Professor Davis notes that the diagnostic tests in relation to neurogenic TOS are equivocal. He also acknowledges he is not an expert in vascular TOS, and that he would defer in this regard to a vascular surgeon.
51Vascular surgeon, Dr John Vidovich, examined the plaintiff at the request of the TAC, and provided opinion to the effect that Dr Khalife does not suffer from vascular TOS.
52In his report dated 12 April 2022,[39] Dr Vidovich concluded that Dr Khalife does not suffer from vascular TOS of either the left or right arm. On assessment of the plaintiff’s presentation during the clinical examination, Dr Vidovich found no evidence of compromise of the arterial or venous circulation of the upper limbs. He reported that he also took into account the reports of the CT angiogram performed on 28 May 2021 and the ultrasound performed on 9 June 2021. In his opinion, neither of these investigations demonstrated the presence of the chronic compression or stenosis of the subclavian arteries which is a feature of vascular TOS.[40]
[39] DCB 23
[40] DCB 32
53In his supplementary report dated 13 February 2023,[41] Dr Vidovich maintained the above opinion having considered the results of the radiological and electrophysiological investigations for TOS and the clinical examination reports of specialists. He concluded:
“Thoracic outlet syndrome is generally considered to be one of the most controversial conditions that affect the upper limbs. Whereas the diagnosis of a vascular thoracic outlet syndrome is invariably supported by objective clinical and radiological evidence, and its treatment by surgical procedures usually effective, the diagnosis of neurogenic TOS and disputed TOS is usually not supported by objective clinical and neurological investigations and their treatment outcomes are often less than satisfactory…”[42]
[41] DCB 33
[42] DCB 41
54Dr Khalife was also examined by Associate Professor Carolyn Arnold, a pain medicine and rehabilitation medicine physician, in June 2022. The TAC requested “a clinical opinion to assist in making a decision about diagnosis and liability for Thoracic Outlet Syndrome … and further treatment needs.” Reflecting the complexity of the case, the referral material was over 810 pages.
55Associate Professor Arnold was somewhat equivocal in her opinion,[43] noting that the diagnosis was “disputed [TOS], according to all the various medical opinions offered in the referral documents”, however “no information from [Associate Professor] Ferris was provided.” Finding “no definitive neurological deficit in his upper limbs on examination” (emphasis added), she accepts Dr Khalife’s symptoms; and her opinion included that his condition of “disputed TOS” arose as a consequence of the transport accident. Resolution of the decision regarding treatment of the disputed TOS was not clear to her, and “required further information from Associate Professor Ferris”.
[43] Report of Associate Professor Arnold dated 24 June 2022, PCB 303
56Neurosurgeon, Associate Professor John Laidlaw, also examined Dr Khalife at the request of the TAC, and produced reports dated 22 September 2022 and 27 February 2023. Upon examination in August 2022, he found:[44]
[44] Report of Associate Professor Laidlaw dated 22 September 2022, PCB 221
·Some signs consistent with, but not diagnostic of, neurogenic TOS but with significant inconsistencies:
oSymptomatic upper limb tension test of Elvey on the right; with but with aggravating head /neck movements contradictory to expected positive (positive if peripheral pain or neurological symptoms on canting head away from abducted upper limb; reproduction only with bending elbow may indicate cubital tunnel syndrome).
oSymptomatic EAST (Roo’s) bilaterally (right more than left)
oLeft more than right supraclavicular tenderness, but this was not confined to scalene / posterior triangle but more in lower SCM and also in left deltopectoral groove.
·No signs of venous or arterial TOS.[45]
[45] PCB 248
57Associate Professor Laidlaw found mild degenerative spondylosis and disc disease in the spine, with accident related disc extrusion at L1-2; accepted the diagnosis of accident-related temporomandibular joint dysfunction and endolymphatic hydrops.
58Notwithstanding his findings that:
“Dr Khalife’s symptoms of upper limb discomfort and sensory symptoms when elevating hands (e.g., overhead work and driving), suggest a possible diagnosis of neurogenic TOS (neurogenic TOS).”[46]
and
“… The clinical tests of Adson and EAST tests similarly suggest the possible diagnosis of neurogenic TOS…”[47]
he disagreed with Mr Kossmann and Mr Wallace, and opined that overall the examination findings and investigation results are insufficient to found a diagnosis of TOS.
[46] PCB 260
[47] PCB 260
59In his opinion, whilst neurogenic TOS explains some of the symptoms experienced by the plaintiff, whiplash associated disorder (“WAD”) explains the majority of his symptoms:
“My opinion is that Dr Khalife sustained Whiplash Associated Disorder (WAD) as a result of MVA. This condition persists, and is consistent with the majority of his symptoms.”[48]
[48] PCB 256; see also second report of Professor Laidlaw, PCB 328
60Professor Laidlaw could not, however, exclude a diagnosis of neurogenic TOS:
“My opinion is that this man does not have neurogenic TOS. Although the diagnosis of disputed neurogenic TOS cannot be excluded, [but] my overall impression is that he does not have significant consistent features of neurogenic TOS and that thoracic outlet surgical decompression is very unlikely to improve his symptoms. Arterial TOS is rare in comparison to neurogenic TOS, and the evidence to support this diagnosis in Dr Khalife’s case is also very weak, and the evidence for venous TOS in this case is similarly weak. His widespread, variable somewhat inconsistent symptoms/clinical findings/investigation results are all entirely consistent with a diagnosis of WAD, but only some are consistent with a disputed TOS diagnosis.”[49]
[49] PCB 260-261
61Associate Professor Laidlaw outlined that the following symptoms that Dr Khalife experiences are common components of WAD:
(a) pain in both shoulder joints;
(b) pain in the skull base;
(c) numbness in the fingers on both left and right hands;
(d) lower back and neck pain; and
(e) headaches/migraines.
62In his opinion, the prognosis of symptoms of WAD after such a long period is poor.[50]
[50] PCB 264
The issues at trial
63In closing submissions, Mr Kumar for the TAC submitted that the plaintiff’s application should fail because:
(a) the evidence does not establish a diagnosis for either the physical injury under paragraph (a) or the psychological injury under paragraph (c); and
(b) it relied on impermissible aggregation of impairment consequences relating to different body functions.
Compensable physical injury
64The TAC rejected the diagnosis of TOS, relying on the opinion of Dr Vidovich, Professor Davis, and Professor Laidlaw, in part on the basis that there is confusion as to whether Dr Khalife has vascular TOS or neurogenic TOS. The competing opinion, taking into account the whole of the evidence, does not preclude a finding that Dr Khalife suffers from TOS.
65It accepts the diagnosis of WAD, but says this is incapable of explaining all of the symptoms of which the plaintiff complains.[51]
[51] Transcript (“T”) 118 Line (“L”) 7
66Mr Macnab submitted that the relevant body function impaired by Dr Khalife’s TOS is the spine; and whilst there may be a question mark about whether it is vascular or neurogenic TOS, there is a clinical diagnosis made by Dr Khalife’s treating specialists.
67The plaintiff relies on the report of Mr Wallace, neurosurgeon, who is known to have an area of expertise in TOS,[52] and the results of the MRI conducted by Professor Richard O’Sullivan, who has significant experience with TOS.[53]
[52] Report dated 31 March 2020, DCB 83
[53] PCB 84
68In the alternative, Mr Macnab submitted that Dr Khalife would satisfy the test for serious injury through the opinion of Associate Professor Laidlaw. Associate Professor Laidlaw opined that there is a “pathophysiological” basis for the symptoms that Dr Khalife experiences, and he accepts that the plaintiff suffers from WAD. He also could not exclude TOS.
69Considering the evidence as a whole, I prefer the consistent opinion of Dr Khalife’s treating medical practitioners: general practitioner, Dr Kerr; neurosurgeon Mr Wallace; Associate Professor Ferris; physiotherapist, Mr Balster; endovascular surgeon, Mr Atkinson; and specialist radiologist, Professor O’Sullivan, supported by medico-legal opinion of Mr Kossmann and Associate Professor Stark, that the plaintiff suffers from a TOS as a result of the transport accident. I find that on the balance of probabilities Dr Khalife suffers from TOS.
70If Dr Khalife does not suffer from a TOS then, based upon the opinion of Professor Laidlaw, I find that he has WAD, which explains the majority of his symptoms.
71I find that both TOS, and WAD[54] are organic disorders. Further, that:
(a) TOS is a condition that affects the spine, which includes the thoracic outlet, and is the cause of symptoms down the plaintiff’s arms; and
(b) WAD is also an impairment of the cervical spine and the plaintiff is entitled to rely on the consequences of any referred pain to his arms as a consequence of this condition.
[54] Conceded by TAC: T117 L3
72In terms of the vestibular disorder (hyperacusis), Mr Kumar submitted that the medical evidence is not sufficient to support a causation finding, particularly when Dr Khalife has experienced some dizziness symptoms prior to the accident.
73Dr Paul Niall, consultant occupational physician and audiological physician, examined Dr Khalife and provided a report as to Mr Khalife’s auditory conditions of tinnitus, hearing difficulties and hyperacusis; and his vestibular condition.[55] Dr Niall’s report dated 22 May 2021 recorded a history and made findings that:
“…in the first post-collision week he developed noise aversion and noted he was bumping into objects. Concurrently, he developed dizziness with a tendency to stagger.
…
Currently his balance problems are continuing, are associated with tinnitus and bilateral sensations of aural fulness and his presence in noise such as in restaurants or near music; and with sudden head movements in the shower, in the dark, rising from bed or turning over in bed.
Sometimes dizziness lasts from one to five minutes but he has days where he is dizzy all the time with especially noticeable aural fulness sensation.
His dizziness and balance symptoms have caused him to stop riding his bike, stop playing volleyball and stop fishing (because of instability on rocks). He said he was a handyman but has now stopped activities like terrace gardening (because of lack of help), step difficulties and ladder climbing fears. He feels he would be better showering with help.
…
Classroom duties should be limited to his being in earshot of one class only at a time and that to be of senior (i.e. quieter) students. Noisy environments are still highly likely to lead to disabling symptoms. Generally, he should work in quiet office type environments.[56]
He has symptoms and signs of two vestibular conditions namely BPPV - benign paroxysmal postural vertigo and vestibular hydrops.”[57]
[55] PCB 107
[56] PCB 108-109
[57] PCB 110
74As referred to above, Professor Davis also diagnosed accident-related vestibular disorder.
75In terms of the vestibular disorder, the TAC relies on the opinion of Dr Calder, otolaryngologist:
“His vertigo is likely due to an inner ear concussion event, benign positional vertigo. … The tinnitus is a consequence of both an inner ear concussion event but also the fact that he has diagnosed with endolymphatic hydrops on electrocochleography in the right ear. … Hyperacusis is secondary to inner ear degenerative disease and endolymphatic hydrops. …
The aetiology of his Meniere’s disease is hard to assess. It is possible but by no means certain, that his accident has exacerbated the condition.” [58]
[58] Report dated 29 January 2020, PCB 215
76On balance, I accept that Dr Khalife’s vestibular disorder is accident related. I rely upon the opinions of Dr Niall, Mr Wallace, Professor Davis, Dr Kerr, Dr Clader and ENT Surgeon John Kennedy.[59]
[59]Mr Kennedy diagnosed “endolymphatic hydrops” in the context of his post-accident symptoms: see report of Mr Wallace, PCB 83
Compensable psychological injury
77Dr David Weissman diagnosed Dr Khalife in October 2019 as suffering from a chronic Adjustment Disorder with Depressed and Anxious Mood of moderate intensity or severity associated with a mild chronic post-traumatic stress and anxiety syndrome, relevant to the subject transport accident.[60]
[60] PCB 210
78Dr Michael Epstein examined Dr Khalife on 20 September 2022 and provided a report of the same date. Dr Epstein diagnosed Dr Khalife as suffering from a chronic Post Traumatic Stress Disorder and combined with his chronic physical symptoms, has developed a chronic Adjustment Disorder with mixed anxiety, depressed mood, and intermittent panic attacks.[61] Dr Epstein found that Dr Khalife has a psychiatric impairment of 15 per cent, which arises out of the subject transport accident:
“… There appear to be no other factors in his life that have led to any level of impairment. The level of impairment from this accident that is not secondary to physical injury is 5%. This is so-called primary psychiatric impairment.”[62]
[61] PCB 146
[62] Ibid
79Dr Janette Mohr, consultant psychiatrist, is the treating psychiatrist of Dr Khalife. She first saw the plaintiff on 13 June 2018. Dr Mohr diagnosed an Adjustment Disorder with prominent Anxiety and mild Depressive Symptoms in relation to the workplace.[63] In her report dated 8 August 2022, Dr Mohr updated the diagnosis to Post Traumatic Stress Disorder with chronic depressive symptoms in the context of an Adjustment Disorder.[64] In her report dated 21 March 2023, she acknowledged the contradiction between her diagnoses and reported:
“Mr Khalife stated ‘at times I thought I was going to die in the motor vehicle accident because the noise was so loud and I lost control of my car’ when it was hit in the rear, with his own car sliding forward. This caused my diagnosis to change therefore, from Adjustment Disorder given Criterion A I considered had been fulfilled. …”[65]
[63] Report dated 2 July 2018, PCB 31
[64] PCB 34
[65] PCB 38
80Associate Professor Peter Doherty, consultant psychiatrist examined the plaintiff in October 2022 at the request of the TAC and reported[66] that there is no diagnosable Post-Traumatic Stress Disorder (“PTSD”) condition or PTSD syndrome. His preferred diagnosis of an adjustment disorder is divided into one that is relevant to issues in the workplace and another that is relevant to the transport accident.[67] He opined that the symptoms of adjustment are now well settled and very mild in severity.[68]
[66] Report dated 22 October 2022, DCB 5
[67] DCB 14
[68] Ibid
81Mr Kumar submitted that:
(a) there has been a significant link between work stressors and Dr Khalife’s experience of psychological symptoms, and that there is therefore a pre-existing psychological condition;
(b) Dr Entwistle, consultant psychiatrist,[69] also diagnosed Dr Khalife with an adjustment disorder in relation to work issues;[70]
(c) Dr Khalife has experienced distress, anxiety and exacerbation of an underlying psychiatric condition due to significant stressors relating to the non-acceptance of his WorkCover claims, what happened at conciliation of those claims, and dealings with unions. It was submitted that these are not part of the compensable injury under the paragraph (c) claim, thus, should not form part of my consideration.
[69] Report dated 30 May 2018, Supplementary Defendant’s Court Book (“SDCB”) 33
[70] SDCB 36
Aggregation
82The TAC submitted that impairment of the spine, left and right shoulder cannot be aggregated in accordance with the principles in Lexa v Transport Accident Commission;[71] and further that there is no scope to aggregate the effects on both arms.
[71] [2019] VSCA 123
83It further submitted that it is unclear whether there is an impairment of the function of hearing, balance, or the head. Additionally, that none of these on their own could be said to be serious.
84Mr Kumar also referred me to Richards v Wiley,[72] where the Court affirmed Humphries and Anor v Poljack:[73]
“It was pointed out that it is not the injury itself which must be looked at in order to determine if the requirement of the definition is met. Attention must be focused upon impairment or loss of body function. If such impairment or loss of body function is shown to exist, the question is then: is that impairment or loss both serious and long-term? If it is then, and only then, can the injury responsible for such loss or impairment possibly be regarded as a serious injury. …”
[72] [2000] VSCA 50
[73] [1992] 2 VR 129 at 138
85It is the TAC’s position that if I were to accept that the relevant body function impaired is the spine, then assessment of consequences would not include the impairment of the shoulders that the plaintiff complains about, including the use of the upper limbs in a particular way. Further, the inability or increase in pain and numbness in the right upper arm could not properly be said to be a consequence of an impairment of the spine.
86Having regard to my findings at [71] that the relevant body function impaired by the TOS (or WAD) is the spine, including the referred pain into the shoulders, numbness and headaches, it follows that I reject this submission.
Consequences
87I accept Mr Macnab’s submission that, despite his current work capacity and ability to undertake activities of daily living, Dr Khalife has not exaggerated his symptoms. I take into account his relatively consistent reporting of symptoms to treating professionals over four to five years. The symptoms he complained of upon attending his general practitioner, Dr Ho, the day after the transport accident[74] are those that he continues to complain of, now some five years later.
[74] PCB 566
88There is no suggestion in any of the material tendered that he is a malingerer or feigning any of his symptoms. Despite surveillance being conducted over a period of 150 hours, none of the total amount of footage of 26 minutes and 40 seconds was shown to the plaintiff during cross-examination.
89The starting point is to consider the situation prior to the transport accident. In this regard, his affidavit evidence included:[75]
“(a) I sustained a lower back injury in or about 1990, when working at the factory. I have experienced some ongoing back pain since this time. I learned how to manage this over the years. I had physiotherapy treatment for this at the time of the accident.
(b) I underwent a vagotomy in or about 1991 to treat a peptic ulcer.
(c) I was involved in a car accident in or about 2001. I experienced some headaches and dizziness following this accident. I experienced these symptoms from time to time following this accident. I continued my employment at Deakin University between 2001-2006.
(d) I was diagnosed with metabolic syndrome in or about 2014 and pre-diabetes in or about 2016.
(e) I experienced some prior stress in the context of my work.
(f) I experienced prior right knee pain.”
[75] Affidavit of the plaintiff sworn 10 August 2020, paragraph [9]
90The plaintiff’s chronology[76] sets out some of the prior problems that were being experienced by him prior to the transport accident, and he was cross-examined about chest and lumbar pain in 2016. Dr Khalife gave a history to Professor Davis that he had experienced low back pain since 1989, but “he told me that back pain was not a significant issue leading up to the traffic accident”.
[76] Exhibit O
91Other medical records tendered show some right leg pain - suspected to be referred from the lumbar spine - in 2012; minor chest pain in 2001, and again in 2015 - suspected to relate to a previous sternotomy; and isolated incidents of dizziness and vertigo in around 2014 and 2015.
92Dr Khalife was investigated in 2011 for ongoing frontal headaches, in the context of concerns about a family history of aneurysm. There are no further reports of significant headaches before the transport accident. The only relevant records relating to neck pain, left upper limb numbness and paraesthesia and numbness in his rib relate back to 2002.
93What emerges is that in the crucial period of the years immediately prior to the accident, Dr Khalife was not receiving treatment for neck pain, arm pain or psychiatric treatment. The last mention of vertigo was in September 2015,[77] but this was not an ongoing problem leading up to the transport accident.[78] In the 12-month period before the accident he was not having any difficulties with dizziness, his low back, neck, shoulders, arms or chest.[79] His migraines before the transport accident (in the context of medication to control his blood pressure) were less frequent: and where before the accident the level of pain he experienced was a 4 out of 10, now his migraine pain is 10 out of 10. In comparison with those experienced before the transport accident, his headaches are much worse in intensity and frequency.[80]
[77] PCB 435
[78] T93
[79] T92
[80] T93
94Dr Khalife was the vice principal at Ashwood High School immediately prior to the transport accident in 2018, with the intention of becoming principal. His current rate of pay as a leading teacher of $123,257 (probably reducing to $112,333 because of his modified duties) is significantly less than the current rate for an assistant principal of $157,124.[81]
[81] T89-90; PCB 573 and Supplementary Plaintiff’s Court Book (“SPCB”) 4
95When he returned to work at Ashwood after the transport accident on the following Monday, he was experiencing symptoms of numbness in his arms, neck pain, shoulder pain and noise intolerance. By March 2019, he was unable to cope with his symptoms, and he resigned.
96Apart from an abortive attempt in July 2020, he was unable to work until January 2021 when he commenced at Bannockburn College. A period of unstable employment followed, during which Dr Khalife says he changed schools due to not coping. He is currently in a compassionate position at Lara Secondary College, effectively working on modified duties as a leading teacher.
97I accept Dr Khalife’s evidence that he has suffered from significant and persisting symptoms as a result of the transport accident, including:
(a) pain in his neck, shoulder joints and blades, chest, arms, jaw and lower back;[82]
(b) tingling and numbness in his fingers, coldness in his upper limbs and cramps in his right fingers; [83]
(c) reduced vision and vertigo;[84]
(d) headaches and migraines;[85] and
(e) auditory issues, including fullness and pressure in the ears, tinnitus and an intolerance to loud noises.[86]
[82] Plaintiff’s affidavit affirmed 10 August 2020, PCB 6, paragraph [21]-[22]
[83] Ibid; T94 L21
[84] PCB 6; T3 L7
[85] Ibid
[86] PCB 6, paragraph [21]-[22]
TOS/WAD
98Given the manner in which the claim was articulated, I will consider the consequences of Dr Khalife’s physical condition of TOS or WAD together.
99Dr Khalife gave evidence that the pain he suffers in his neck, shoulders and arms makes working in the classroom very difficult. Lifting his arm to write on the whiteboard exacerbates the pain symptoms and numbness.[87] He is only coping with his limited current teaching duties “with extreme difficulty”.[88] Lifting his arms to write on the board causes neck and shoulder pain extending into both arms, and increases his numbness in both hands.[89] He had to resign from his previous position as assistant principal at Ashwood High School, and was totally incapacitated for employment for about 18 months. He successfully applied this year for a compassionate transfer with the Department of Education and took a lesser teacher role.[90] He remains incapacitated from undertaking work as an assistant principal due to his physical symptoms preventing him from discharging those duties, including administrative duties.
[87] T86 L18-21
[88] T86 L28
[89] T86
[90] T80
100Dr Khalife’s symptoms impact his daily living. He reports having to do smaller grocery shops more frequently to avoid having to carry a greater load, as the pain in his arms gets worse when carrying groceries.[91] When getting dressed, lifting his arms above shoulder height to change his top causes him pain.[92]
[91] T92 L6-8
[92] PCB 6
101Reading in front of an iPad or computer causes the plaintiff pain in his neck, skull and shoulders and radiating down towards his arms.[93] Since the accident, symptoms are aggravated if he has been reading on a computer for 30 minutes or so, and he can no longer sit in front of a computer for two or three hours.[94]
[93] T96 20-24
[94] T96-97
102He used to enjoy completing renovations, which he can no longer do as a result of the need to work with his arms in a raised position. Prior to the transport accident, Dr Khalife undertook renovations as a hobby, including painting, fixing walls and putting up wallpaper.[95]
[95] T91 L14-17
103His has headaches related to his spinal condition.
104He requires regular ongoing physiotherapy, use of Voltaren gel and home-based exercises, and very significant ongoing medication for pain and other symptoms:
(a) Mersyndol forte — as needed;
(b) Sandomigran x 2 per day;
(c) Nexium 20 milligrams x 2 per day;
(d) Gabapentin 1000 milligrams per day;
(e) Imovane — as needed; and
(f) Naprosyn 250 milligrams — as needed.
105The endurance of daily pain requiring frequent medication must, according to ordinary human experience, raise a very real prospect of a “very considerable” consequence.[96]
[96] Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267
106I find that the consequences of Dr Khalife’s TOS (alternatively WAD) identified above, satisfy the narrative test. When judged by comparison with other cases, including those that do not come before the Court, those consequences are fairly described as being more than significant or marked, and as being at least very considerable.
Vestibular disorder
107The vestibular condition, although not relied upon principally by Dr Khalife, has also been productive of significant consequences to him.
108On its own, this condition has been productive of serious consequences for Dr Khalife in terms of his ability to participate in social and recreational activities he previously enjoyed.
109His hearing is impaired to the extent that his profession as a teacher has been compromised. His noise intolerance has caused Dr Khalife to lose enjoyment from his job, which he used to enjoy very much. In cross-examination, he gave an example where he had to leave halfway during a coaching observation for another teacher due to the noise of the young children. His condition prevents him from enjoying what he loves the most, which is teaching.[97]
[97] T81 L5-14
110His relationship with his daughter, who is a musician and singer, is also affected. He no longer attends her gigs due to his sensitivity to noise,[98] and her practise at home is a constant reminder. With the vestibular disorder and the hyperacusis that comes with it, he is unable to tolerate the noise from her daughter’s music.[99]
[98] T82 L26-28
[99] T83 L4
111It has also affected his other social interactions with his daughter. He recalled:
“Dr Khalife: She invited me to go to a restaurant, I accepted, and it was loud, and she was apologetic to me. You ask me about what – how my emotional thing affected my life.
Counsel: That situation … your hyperacusis affected it?
Dr Khalife: Yes”[100]
[100] T82-83
112He requires significant medication to manage his symptoms, including Serc 16 milligrams x three per day; and Stemetil as needed.
113In his affidavit, Dr Khalife deposed that he also experiences the following ongoing consequences due to his vestibular disorder:
· feeling dizzy and leaving him feeling like he is intoxicated;
· loss of balance in the dark or when he closes his eyes;
· migraines, particularly caused by noise;
· he now avoids noisy or bright places as these exacerbate his symptoms;
· concentration issues, particularly when noisy, which has also affected his ability to maintain long conversations;
· he now limits his socialising, including family gatherings or going out to enjoy meals with family, due to feeling embarrassed with his symptoms, and since he can become overwhelmed with various social situations;
· flashbacks to the transport accident;
· in 2019, he had to leave his family home since he found it too noisy.[101]
[101] The plaintiff’s first affidavit, paragraphs [23] and [24], PCB 14
Psychiatric injury
114Having regard to my findings above, it is not strictly necessary to make a further determination of the plaintiff’s claim under paragraph (c). If required to do so, I find that the plaintiff’s adjustment disorder is severe.
115In his affidavit, Dr Khalife deposed that the transport accident has taken a toll on him psychologically.[102] He reports experiencing flashbacks in traffic and he is now more nervous when on the road. He experiences feelings of anger, frustration, and has become short tempered; and feels overwhelmed about his future. His self-confidence and self-esteem have been reduced, and he is particularly upset that he now struggles with teaching, which is what he really loves.
[102] PCB 15
116His ability to remain at work does not preclude a finding of severe psychiatric consequence, as the evidence as a whole must be considered;[103] nor does the evidence that Dr Khalife’s adjustment disorder relates to in part to non-related work stressors – the medical opinions as a whole comfortably establish that his compensable injury is an operative and material cause of his psychological condition and its impairment consequences.[104]
[103]Haden Engineering v McKinnon [2010] VSCA 69, [15] per Maxwell P; and the plurality in Sutton v Laminex Group Pty Ltd[2011] VSCA 52, [77-78]
[104]Nettle JA in Spence v Gomez [2006] VSCA 48, [78]; Ashley JA in Grech v Orica Australia Pty Ltd (2006) 14 VR 602, [57]-[58]
117In his consultations with Dr Michael Epstein, psychiatrist, Dr Khalife gave a history that:[105]
· since the transport accident, has lost about 10 kilograms due to loss of appetite;
· he has experienced trouble sleeping, both due to physical discomfort and waking up from nightmares. He has nightmares around twice a month about losing control of his life. When he does wake in the middle of the night, he is able to quickly get back to sleep;
· he still has panic attacks, and this especially occurs with sudden loud noises resulting in him becoming very angry with the students he teaches;
· he feels flat about 90 per cent of the time.
[105] PCB 141
118Whether the plaintiff’s condition might be described as PTSD or an adjustment disorder, and notwithstanding the plaintiff’s pre-existing disposition and response to stress in his employment, it is beyond doubt that in the period of years prior to the transport accident he was not under any treatment or taking any medication.
119Mr Macnab submitted that Dr Khalife has required extensive psychological and psychiatric treatment. He is currently taking medication for depression and is struggling to cope with work from a psychiatric perspective.
120Dr Khalife is currently being treated by a psychologist, Ms Nerida Kinross-Smith, who he sees once a fortnight, and a psychiatrist, Dr Jeanette Mohr, who he sees once a month. He takes Effexor 75 milligrams, twice daily; and Valium (5 milligrams).
121Dr Khalife now looks at himself as disabled:
“There are things I used to be able to do and I used to be proud of doing, and there are things now – if I look at myself, it’s a person that I don’t like to see.”[106]
[106] T82 L15-17
122Dr Khalife’s work has also been affected by his psychological condition. He believes that he is no longer able to continue in his current role,[107] and no longer has confidence in being in the classroom.[108] Previously a principal and assistant principal, he is currently a leading teacher, with five classes a week, and other coaching/mentoring roles. Usually a leading teacher would involve 17 classes, but due to his mental condition he could not cope with that. In some instances in his current role he has had to leave the room.[109] I find that this is a significant consequence considering his love for his work.
[107] T87 L3-4
[108] T84 L26
[109] T85 L16-27
123Dr Khalife also experiences the following consequences due to his psychological condition:
· flashbacks of the transport accident while he is in traffic;
· he is now more nervous on the road;
· experiences of feelings of anger and frustration, making him shorter tempered than he used to be;
· feeling of depression and anxiety resulting to poor self-esteem;
· fear of losing control;
· panic attacks;
· a lack of interest in things he used to enjoy;
· reduced interest in socialisation;
· lack of motivation;
· frequent worrying thoughts and bouts of tearfulness;
· reduced libido which has affected his relationship with his wife;
· breathing difficulties;
· hypervigilance; and
· poor memory.[110]
[110] Plaintiff’s further affidavit, paragraphs [17] and [18], PCB 23-24
124In making an assessment of the consequences of an injury for a particular person, the Court must have regard to the range of consequences available, from the mildest, to the most catastrophic. Inevitably the cases that come before this Court are ones that tend to fit somewhere towards the middle of that spectrum. What the individual plaintiff says about the impairment and consequences is highly relevant, especially where the plaintiff is a credible and reliable witness.[111]
[111] Johns v Oaktech Pty Ltd[2020] VSCA 10
125When comparing what Dr Khalife has lost and what he has retained as a result of his injury, I am satisfied that his condition amounts to a severe consequence.
Conclusion
126I grant Dr Khalife’s application for leave to commence proceedings for common law damages pursuant to s93(4)(d) of the Act in respect of injuries sustained in the transport accident on 16 February 2018.
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