Kostoski v Transport Accident Commission
[2019] VCC 1064
•19 July 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-00269
| CENA KOSTOSKI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 July 2019 | |
DATE OF JUDGMENT: | 19 July 2019 | |
CASE MAY BE CITED AS: | Kostoski v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1064 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Transport accident – neck injury – multiple pre-existing significant medical conditions – need for disentangling – creditworthiness
Cases Cited:Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Limited (2011) 31 VR 100; Halpin v Wilson Transformer Company [2012] VSCA 235; Aburrow v Network Personnel Pty Ltd & WorkSafe Victoria [2013] VSCA 46
Judgment: The plaintiff’s Originating Motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with Mr A Hill | John Dellios & Associates Pty Ltd |
| For the Defendant | Mr R Middleton QC with Mr A Middleton | Solicitor for the Transport Accident Commission |
HIS HONOUR:
Introduction
1 On 22 December 2014, the plaintiff was walking in a shopping centre car park pushing a trolley. As she was doing so, a car reversed from a nearby car parking space and collided into her. It resulted in her being knocked to the ground.
2 The plaintiff became aware of pain in her neck, right elbow and knees. She based her case for serious injury on the injury to her neck, submitting that she had suffered a serious long-term impairment of the function of her neck.
3 Mr T P Tobin SC appeared with Mr A Hill of counsel for the plaintiff. Mr R Middleton QC appeared with Mr A Middleton for the defendant.
The issues
4 The plaintiff suffered from a number of disabling medical conditions before the occurrence of the transport accident. Those medical conditions required medical attention both before the occurrence of the transport accident and subsequently.
5 The plaintiff submitted that her neck injury resulted in a long-term impairment. The defendant did not argue otherwise. The plaintiff submitted that there are identifiable consequences of the neck injury distinguishable from the impairment consequences of the pre-existing disabling medical conditions.
6 The plaintiff’s submission was that I could be satisfied that the she had suffered a serious injury by identifying the additional impairment consequences produced by the neck injury.
7 The defendant submitted that the approach advocated by the plaintiff was wrong in law. The defendant submitted that the plaintiff bore the onus referred to by the Court of Appeal in Peak Engineering Pty Ltd & Anor v McKenzie.[1] It submitted that the plaintiff was obliged to disentangle the consequences of the prior disabling medical conditions from the consequences of the neck injury. The Court of Appeal relevantly observed:
“24 In my respectful opinion, these grounds must be upheld. In a case of this kind, where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury. The matters identified in the previous paragraph were all directly relevant to the enquiry in the present case, and needed to be addressed squarely.
25 It is possible to imagine a case where the consequences of the original injury are so clearly separate and distinct from the consequences of the subsequent injury that no ‘disentangling’ is necessary. But this was not such a case. As the appellants pointed out, there was evidence indicating that certain of the pain and suffering consequences which his Honour regarded as relevant were attributable to the knee injury as well as to the hand injury.”[2]
[1][2014] VSCA 67
[2]Paragraphs [24]-[25]
8 The plaintiff submitted that the way in which she was putting her case is permissible because the impairment consequences of the prior disabling medical conditions are clearly separate and distinct from the impairment consequences of the neck injury.
The prior disabling medical conditions
9 The plaintiff was injured in a transport accident which occurred in the late 1980s. She suffered injuries to her left shoulder and right ankle. One of the most significant consequences of suffering those injuries was its interference with her work capacity. So troubling were those injuries that it forced her to stop work altogether in 1990. She has not returned to any paid employment since.[3]
[3]Plaintiff's Court Book (“PCB”) 1-2
10 The plaintiff also experienced what she described as “various orthopaedic problems”. She fractured her left femur in 2009. The resultant fracture interfered with the functioning of her left hip. She required a left hip replacement in 2009.[4]
[4]PCB 2
11 The plaintiff also developed pain in her knees. Her right knee appears to be worse than her left knee. She obtained active treatment for her right knee at some point in time which she did not identify. The active treatment included injections into the knee.[5]
[5]PCB 3
The medical evidence
12 Dr Esposito saw the plaintiff on 22 December 2014. He provided a report dated 5 December 2018 which summarises the treatment he provided the plaintiff. He did not provide a diagnosis, but it is clear that he accepted that the plaintiff had suffered an injury to her neck in the subject transport accident. He considered that the consequences of the neck injury were likely to continue on a long-term basis, and were likely to impact upon the activities of her daily living, social, domestic and recreational activities.[6]
[6]PCB 39-40
13 Dr Cipurovski, chiropractor, treated the plaintiff on referral from Dr Esposito. He provided a report dated 2 December 2018. He did not provide a diagnosis, but it is clear that he accepted that the plaintiff had suffered an injury to her neck in the subject transport accident. He considered that the plaintiff’s neck pain would restrict her in engaging in social, domestic and recreational activities. He considered that the pain and restriction of movement would continue for the foreseeable future.[7]
[7]PCB 41-42
14 Mr Mangos, general surgeon, examined the plaintiff on 9 December 2015. He provided a report bearing the same date. He considered that the plaintiff had suffered an aggravation of spondylosis in her cervical spine in the subject transport accident. He addressed not only the injury to the plaintiff’s neck, but also injuries to her lower back and knees when he considered that her prognosis would be guarded, and it was likely that the pain she was experiencing would continue on a long-term basis. He also considered that her injuries would restrict her in engaging in social, domestic and recreational activities.[8]
[8]PCB 43-45
15 Associate Professor Love, orthopaedic surgeon, examined the plaintiff on 20 November 2018. He provided a medical report bearing the same date. He considered that the plaintiff had suffered an aggravation of underlying degenerative changes in her neck. He was provided a history that the plaintiff had been injured in two transport accidents. On the basis of that history, he considered that both contributed to the discomfort in the plaintiff’s neck and impairment of her social, domestic and recreational activities. He considered that the plaintiff’s prognosis was for her neck injury to remain much the same.[9]
[9]PCB 60-64
16 Dr Slesenger, occupational physician, examined the plaintiff on 2 April 2019. He provided a report dated 9 April 2019. He described the plaintiff’s neck injury in three ways - a soft tissue injury; an aggravation of degenerative disease, and chronic pain with radiating features into her right upper limb. He considered that she would be unlikely to experience significant improvement into the foreseeable future, and that it would impair her capacity to engage in social, domestic and recreational activities.[10]
[10]PCB 65-75
17 Dr Menz, orthopaedic surgeon, examined the plaintiff for the defendant on 9 May 2019. He provided a report dated 31 May 2019. The defendant placed particular reliance on the way in which the plaintiff behaved when examined by Dr Menz. He considered that her presentation relevant to her right elbow was driven by significant exaggeration. He noted inconsistency in the use of a walking stick in her right hand, but an inability to use her right hand when she was asked to move her right elbow. He considered that the history provided by the plaintiff and her examination demonstrated an exaggeration of the symptoms relevant to her neck and right elbow. He accepted that the mechanism of injury produced some neck symptoms. He found it difficult to reconcile that she continued to complain of severe and increasing pain in her neck some four and a half years following the transport accident.[11]
[11]DCB 14-21
The claimed consequences
18 The following is a summary of the pain and suffering consequences which the plaintiff claims have resulted from the subject transport accident:
· Pain in the neck of varying intensity extending down the right arm into the right hand.[12] The pain is often severe, overwhelming and stopped her from functioning.[13]
[12]PCB 4, 7 and 8
[13]PCB 9
· Pain radiating up from the neck into the head, resulting in feelings of dizziness.[14]
[14]PCB 6 and 9
· Interference with sleep.[15]
[15]PCB 6 and 11
· Sitting for extended periods of time causes pain and stiffness.[16]
[16]PCB 5
· Difficulty turning the neck.[17]
[17]PCB 5
· Headaches which occur regularly when the pain in her neck is severe.[18]
[18]PCB 6
· The need to use Brufen (one per day), Panadeine Forte (two in the morning and two in the evening) and Panamax (two to four tablets about twice per week when not using Panadeine Forte) for pain relief.[19] At the time of swearing her second affidavit, she sometimes takes up to six Panadeine Fort daily, and up to six Panadol Osteo per day occasionally.[20]
[19]PCB 4 and 6
[20]PCB 8-9
· Significant difficulty enjoying outings with the Macedonian Pension Group, playing cards, other games, the pokies and going to dances.[21]
[21]PCB 4 and 10
· Undertaking Macedonian folk dancing at family functions and community events.[22]
[22]PCB 5
· Difficulty cooking pastries and cakes, particularly, rolling out dough and bending and turning her neck while working at the kitchen bench.[23]
[23]PCB 4 and 10
· An inability to undertake heavier domestic duties, now undertaken by other family members.[24]
[24]PCB 5 and 10
· Difficulty going shopping.[25]
[25]PCB 5
· No longer able to knit scarves and socks.[26]
· Difficulty driving a car because of difficulty turning her neck.[27]
[26]PCB 6
[27]PCB 5 and Transcript 27
The walking stick
19 In her first affidavit, the plaintiff said that she was not using a walking stick before the subject transport accident, and does not remember having any pain in her left hip.[28] That evidence amounts to her saying that she was not having any pain, or any significant pain.
[28]PCB 2-3
20 The plaintiff said that she developed a balance problem due to neck pain and headaches following the occurrence of the subject transport accident.[29] She said she had not experienced balance problems before.[30] The balance problems necessitated the use of a walking stick. That was contradicted by the following evidence.
[29]Transcript 9
[30]Transcript 9
21 The plaintiff made an application to the City of Darebin for a disabled parking permit. It is only necessary to refer to the last of those which is dated 31 October 2014. It was completed by Dr Esposito, general practitioner, who was the plaintiff’s family doctor before this subject transport accident, and has been since.[31]
[31]Defendant's Court Book (“DCB”) 54-56
22 Questions were asked of the plaintiff which Dr Esposito completed for her. The first relevant question was Question 6. It asked “What is your disability?” In answer, Dr Esposito wrote “(L) hip pain post (L) Hip replacement. R knee pain.” The next relevant question was Question 7. It asked “What appliances do you use as an aid?” In answer, Dr Esposito wrote “walking stick”. Under those questions is a declaration that the information provided in answer to Questions 1 to 7 were true and correct. The plaintiff signed the declaration.
23 The subsequent questions from 9 to 20 were completed by Dr Esposito. The first relevant question was “What is your patient’s disability?” In answer, Dr Esposito wrote “Persistent Pain in (L) hip post replacement / R knee pain”. The next relevant question was Question 10. It asked “Does your patient’s disability require him/her to continually use an appliance for support to aid his/her mobility?” In answer, Dr Esposito wrote “Yes (walking stick)”. The next relevant question was Question 11. It asked “Does your patient require additional space to access his/her vehicle due to the disability?” In answer, Dr Esposito wrote “Yes: Needs door fully opened to get in + out of car”. The next relevant question was Question 13. It asked “What appliance does your patient use as an aid?” In answer, Dr Esposito wrote “walking stick”.
24 It was also contradicted when the plaintiff said that she did use a walking stick prior to the occurrence of the transport accident when she went on long walks about twice a week through shopping centres.[32]
[32]Transcript 8-9
25 The plaintiff eventually conceded that what she said in her affidavit that she was not using a walking stick was not true.[33] She ultimately conceded under re-examination that the physical problems she had resulting from her hip and knees did not totally clear up and were a cause of ongoing problems for her.[34]
[33]Transcript 17
[34]Transcript 26
26 I think it is unlikely that representations made by the plaintiff and Dr Esposito in the application for the disabled parking permit are false. I think the plaintiff was using a walking stick prior to the occurrence of the transport accident far more frequently than she has been prepared to admit to. I think the principal reason why she used a walking stick was because of significant pre-existing medical conditions affecting her left hip and knees.
The left hip and right knee
27 The plaintiff was quite obviously under active treatment for her left hip and right knee prior to the occurrence of the transport accident. This is well demonstrated through the clinical notes of Dr Esposito:[35]
[35]DCB 29-49
· 1 May 2014 – painful left hip and nocturnal cramps – hip painful in cold weather – prescription of Panadeine Forte.[36]
[36]DCB 41
· 2 June 2014 – left hip painful in cold weather – prescription of Panadeine Forte.[37]
[37]DCB 43
· 27 August 2014 – clicking in the left hip – referred for an x-ray.[38]
· 31 October 2014 – application for disabled parking permit – persistent left hip pain and right knee pain.[39]
[38]DCB 44
[39]DCB 44
28 That evidence contradicts what the plaintiff said in her first affidavit about her use of medication and the reasons for its use. She said that she would sometimes use Panadol, but was unsure whether she was using Panadeine Forte. She described her use of Panadeine Forte as being rare.[40] She was quick to emphasise that after the subject transport accident she was using Panadeine Forte, adding that “it’s double now”.[41] It is not clear to me what she meant by the latter evidence of it being double now when she was unable to say how much she was taking before the transport accident.
[40]PCB 3
[41]Transcript 15
29 The plaintiff submitted that the three occasions I have just summarised from 2014 when the plaintiff was prescribed Panadeine Forte are to be compared to the occasions when there was an obvious increase in the rate of prescription of it following the occurrence of the subject transport accident. Dr Esposito provided a schedule of the occasions he has prescribed the plaintiff Panadeine Forte between 21January 2015 up to 10 February 2018 – eight occasions in 2015; four occasions in 2016; four occasions in 2017 and on one occasion in 2018.[42]
[42]PCB 33
30 The problem with that submission is that merely counting the number of occasions she was prescribed Panadeine Forte proves nothing. There is no accompanying evidence to demonstrate the condition for which that medication was prescribed. It must be remembered that the plaintiff’s evidence is that her left hip and right knee conditions worsened after the occurrence of the subject transport accident.[43] It may be that the prescriptions of Panadeine Forte were for those conditions as well.
[43]Transcript 12
31 A comparison between what the plaintiff deposed to in her affidavits, and the evidence which was adduced under cross-examination demonstrates a quite stark contrast between the two bodies of evidence. It occurs to me that what the evidence really demonstrates is that the plaintiff’s left hip and knees, and more so her right knee, were troubling her to a significant extent before the subject transport accident.
Conclusions
32 The plaintiff conceded that her pre-existing medical conditions were significant, and that it would have been expected that they would have produced ongoing symptoms of pain and impairment of her general functioning.[44]
[44]Transcript 43
33 What the plaintiff sought to do was to demonstrate that there were some impairment consequences which were solely due to the neck injury. The ones that were emphasised were the onset of pain and headaches which she had not suffered before, and the plaintiff’s inability to drive a motor vehicle. Otherwise, it was submitted that the neck injury contributed to the other claimed impairment consequences. In putting it that way I infer that the plaintiff was conceding that there were a number of medical conditions which played a role in producing many of the claimed consequences, not only the neck injury.
34 The state of the plaintiff’s evidence does not allow me to determine the extent to which the neck injury contributed to many of the claim impairment consequences. The disentangling required has not been undertaken.
35 For example the plaintiff’s left hip and right knee have, according to the plaintiff, worsened since the subject transport accident. The plaintiff made no effort to demonstrate the extent to which they impair her ability to engage in some of the claimed impairment consequences – the need for medication, interference with enjoying outings, folk dancing, standing at a kitchen bench to cook, undertaking domestic duties and going shopping. Each of these activities would very likely be affected by the disabling nature of the significant pre-existing medical conditions affecting her left hip and right knee.
36 I am satisfied that the plaintiff probably suffered a soft tissue injury and aggravation of pre-existing degenerative changes in her neck. I accept that she probably has, and continues to suffer pain and headaches, and that the movements of her neck may interfere with her ability to drive a motor vehicle.
37 The medical evidence does not impress me as demonstrating a serious neck injury. All of the examining medical practitioners considered that the plaintiff had suffered a soft tissue injury and/or an aggravation of degenerative changes. They found no other sinister abnormality. They were entirely dependent upon the history that she gave them in reaching conclusions that she had suffered a neck injury with consequences on which they each commented.
38 I hasten to add that injury is the starting point, and that it is the impairment consequences of the injury which are of importance in determining whether there is a serious injury or not; however, identifying the injury and the nature and extent of it are important in determining whether the claimed impairment consequences are in keeping with what the examining medical practitioners or expect to be the consequences of it.
39 The task I am set is to assess the intensity of the pain which the plaintiff claims she experiences.[45] The plaintiff submits that the neck pain she experiences is at a high level, and so much so that it is the worst injury she has to contend with when compared for example with the significant pre-existing medical conditions. I am not persuaded that what she experiences is nearly as significant as she says it is.
[45]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Limited(2011) 31 VR 100; Halpin v Wilson Transformer Company [2012] VSCA 235, and Aburrow v Network Personnel Pty Ltd & WorkSafe Victoria [2013] VSCA 46
40 I think the plaintiff lacked candour in the way in which she gave her evidence. I have referred to examples of that which I think demonstrate where it is that the plaintiff gave contradictory evidence on matters of significant importance. Her lack of candour has undermined my confidence about what of her evidence I can accept without reservation.
41 Her lack of candour has made it difficult to assess what I can accept in the medical evidence on which she relies. The extent of her lack of candour is also accompanied by exaggeration of the nature and extent of the neck injury. That is unquestionably demonstrated in the evidence of Dr Menz. As I have already remarked, the examining medical practitioners were greatly reliant upon the accuracy of the plaintiff’s account of the neck injury and its impairment consequences in reaching the conclusions that they did. I am, therefore, hesitant in accepting medical opinions relevant to the plaintiff’s impairment consequences at face value.
42 Insofar as the plaintiff’s evidence enables the impairment consequences of the neck injury to be identified and evaluated, I am not satisfied that those impairment consequences are serious. I repeat that one of the reasons why I am not so satisfied is because of the failure of the plaintiff to undertake the disentangling which I referred to earlier. I think the consequences are moderate at best.
43 I add that in reaching the conclusions, that I have made the relevant comparison with like impairments as I am required to do. I order that the plaintiff’s Originating Motion be dismissed.
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