Kouppi v TAC

[2018] VCC 512

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
(Not) Restricted
 Suitable for Publication

SERIOUS INJURY

Case No. CI-17-00657

HELEN KOUPPI	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	18-20 April2018
DATE OF JUDGMENT:	23 April 2018
CASE MAY BE CITED AS:	Kouppi v TAC
MEDIUM NEUTRAL CITATION:	[2018] VCC 512

REASONS FOR JUDGMENT
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Subject:  Serious injury-spinal impairment-psychiatric injuries
Catchwords:            
Legislation Cited: Transport Accident Act 1986
Cases Cited:            
Judgment:                Leave granted to bring proceedings for the recovery of damages

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr V Morfuni QC with Ms	Klonis Kirby &Co
K Popova
For the Defendant	Mr R Middleton QC with Ms V C McLeod	Solicitor to TAC

HIS HONOUR:

1       Leave is sought for a paragraph (a) injury being an impairment of the spine. Injuries to both the lumbar and cervical levels are relied on. Leave is also sought for a paragraph (c) injury by way of both an aggravation of pre-existing depression and anxiety together with new mental or behavioural disorders including post traumatic stress disorder (PTSD). Both pain and suffering and loss of earning capacity consequences are relied on.

2       The plaintiff was involved in a transport accident on 10 May 2013. She was then twenty nine years old. It occurred only three weeks after her husband and father of her two children was killed in a motor cycle accident in their native Cyprus. The subject transport accident occurred at an intersection when the car she was driving was hit in the passenger door by another car driven by a motorist who was over the blood alcohol limit. It is not certain but the evidence is that both cars  probably had to be towed away from the scene. Not surprisingly given the death of her husband she was distressed and in a state of shock. This was added to by the plaintiff’s daughter who was in the car becoming very upset and saying “..is this how Daddy felt when he died?”[1]

[1]Plaintiff’s Court Book (PCB)7

3       Ms Kouppi suffered multiple injuries that included her back, neck, both knee and right arm regions. As almost always is apparent in these TAC collision applications a number of body parts can be involved with the initial focus of the patient and thus the treaters  on some parts and not others. But as time goes on and soreness diminishes the focus moves more to those parts that have proved to have long term issues. That is the case here.

4       At the Northern Hospital the next day she was given painkillers and a neck brace and after that she attended her local doctor. A number of radiological investigations took place. In time and with treatment her shoulder and knee problems have basically resolved and are no longer a relevant part of her symptomology. However cervical and lumbar spine pain, together with referred pain  coming from her neck  extending into the right shoulder,  form part of the pain relied on in this spinal impairment application for “serious Injury”.

5       The defendant indicated the issues were that the paragraph (a) impairment was not “serious” and the paragraph (c ) one  was not “severe”. In addition there were credit issues for determination.

6       Cross-examination as to credit really commenced with the absence in her first affidavit back in  2016 of a reference to previous low back symptoms. However in her second affidavit there was a very full explanation of pre-existing back symptoms, the clinic where she was treated, the precise  date of a lumbar  x-ray in 2012 as well as reference to a chiropractic referral.[2] I accept there were back symptoms in 2012 that  required treatment, she attended to treatment and to use her words she “dealt with it” and did not have any problems after that.[3] I accept it did “not stop her from doing anything”. [4]

[2]PCB17

[3]Transcript(T)99

[4]T94

7       I also accept that from about October 2012 over the eight or so months up until the 10 May 2013 transport accident, she was not experiencing any back pain. This is in contrast to her evidence which I accept that she has never been free of low back pain since that  accident. On all the evidence I am satisfied that as at 10 May 2013 there was no pre-existing spinal pain or impairment that interfered with her work or enjoyment of life. This is not an aggravation case. No before and after analysis of spinal injury is required in this application.

8       She was taken to the twelve page TAC Claim Form filled out on 28 May 2013 and to some inconsistencies there.[5] It was completed  only a couple of weeks after the transport accident and within weeks of  the tragic death of her husband in April 2013. This man had been very violent towards the plaintiff in the past. He had attempted to strangle her, and struck her  and pulled her hair but the fact is he was her husband and the father of her two young children. I accept his death and the circumstances surrounding this young mother’s life would have meant this was a  period of very great stress.

[5]PCB109-120

9       Filling out  lengthy unfamiliar paperwork when she “was told to do this by the hospital” would have probably been well down her list of priorities at that time.[6] She was “very upset” and “It was a very stressful time in my life”.[7] Later she said about the same topic “A lot of information is a blur to me.”[8] It remains that she did list  about seven body parts affected.[9]  A failure to initially mention a body part that in time has become increasingly troublesome did not detract from her credit. These failures are often seen in TAC claims where  these detailed forms are filled out in very early days, in stressful circumstances and often  principally because someone wants to make sure medicals bills can get paid.

[6]Transcript (T)51

[7]T51

[8]T60

[9]PCB112

10      There is no doubt there were some inconsistencies pointed out in the TAC form. For example  she had recorded pre-existing psychiatric/psychological treatment but had marked the box as “No” with respect to any pre-existing psychiatric or psychological “condition”. As well as the stress of the occasion she also said she did not understand that she  had a “condition as such” even though she was getting counselling to assist her with certain mental health matters.[10]

[10]T60-61

11      There were other stresses over and above her husband’s death. She had gone back to Cyprus to find some of her personal items had been taken apparently from a house she had occupied with him.  They included photos of her children. I accept that when the circumstances in which and the general time of her life when the TAC claim form was filled out are considered, any inconsistencies in it do not impugn her credit. The fact that she did not specifically mention her low back or shoulder problems in the list of seven different injuries she described  did not reflect badly on her credit.

12      In spite of the TAC claim form I accept her evidence that she had low back pain and on 11 May 2013, the day after the accident, it lead her to go to the Northern Hospital along with a number of  other symptoms at that time.[11] When the handwritten hospital notes of 11 May are looked at carefully, on the very first page they record  “8/10 pain in spine lumbar”.[12] The next note is hard to read but it seems to be “oxycontin 5 mil” although it is far from certain. The handwriting on page two is so faded it is indecipherable but on page three,  after “presenting problem” these words are typed: “Midline neck tenderness in C-spine and lower back.”[13] Radiology was performed on her upper spine.

[11]T41,60

[12]Defendant’s Court Book(DCB)5

[13]DCB7

13      Later  Kilmore Hospital emergency department notes confirm she attended there in October 2013 on two occasions and it was recorded she had  “lower back pain …after a MVA in May 2013”.[14] It also is worth remembering  that CT scanning of all three levels of her spine was ordered by her local doctor on 30 May 2013 less than three weeks after the accident although it was not carried out until 6 June 2013.[15] I do not need evidence to tell me that this level of radiology is higher than a plain X-ray. It  is consistent with very real contemporaneous complaints of spinal back pain caused by the transport accident on 10 May 2013.

[14]DCB11

[15]PCB30-31

14      Two photographs of the damage to her vehicle were tendered.[16] They do not show major damage but  the fact remains that both vehicles were probably towed away from the scene.[17] It is what happens to a driver’s body in and after a side on collision that is more to the point than some still photos of one part of only one of the cars involved. The photos do not assist very much in judging a bodily  impairment now.

[16]Exhibit 1

[17]T101

15      A DVD she herself supplied to TAC showed  a dance routine as part of a dance group she was involved in sometime after the accident. The date is uncertain but her evidence was that she not been back to it “for a very, very long time”.[18] It is but a mere snapshot out of the last five years of the plaintiff’s life. It only shows  a few short minutes of her dancing in the group. It shows a level of spinal mobility but I accept her evidence she took painkillers, did stretches to accommodate it and that she would  do it “even if I was in pain.”[19]

[18]T63

[19]T66

16      Assessing that DVD it is worth noting that the plaintiff worked on in the very arduous job of baggage check-in for an airline up till mid-2017 and she resigned on 30 January 2018. Her duties were obvious and she admitted that was a very heavy physical job.[20] The demands of that job were freely disclosed to TAC as early as 28 May 2013. Even the place at Terminal 2 at Tullamarine was given.   [21] The tasks implicit in such a job go far beyond anything in this dance routine. She spelled out those tasks in the first of her three affidavits. The DVD she supplied to TAC of the dance involvement years ago did not affect credit nor show anything that is inconsistent with her current impairment.  

[20]PCB3,T

[21]PCB116

17      A large number of Facebook photos were tendered as regularly happens in this court these days.[22] They are still shots. They do not bear on any physical actions but show she mixes socially at times. As with virtually all such exhibits they show her in attractive poses and clothing. I do not place any great weight on them. They certainly show she does not live the life of a hermit but not much else. After constantly viewing hundreds if not thousands of Facebook pictures  in this jurisdiction that are posted out to the world, the probabilities are they almost inevitably show a person in their most attractive light rather than  demonstrating discomfort or being seen in a less than favourable light.  

[22]DCB71-119

18      To not only hear but also to observe the plaintiff in cross-examination by very experienced  counsel provided a great opportunity to evaluate her as a witness. I found the plaintiff to be a nervous witness who was sometimes vague but one who was reliable and at all times attempting to give a truthful account often  about events years ago. She was candid and made admissions against interest. To take just one example, these included the reasons why she reduced her working hours.[23]

[23]T92-93

19      In particular I accept her complaints of ongoing pain from the accident in her neck.  She also has pain that is constant in the low back.[24] I also accept that there is referred pain into the right shoulder and arm region coming from her injured neck. She has been a compliant patient. Her spinal  pain has led her on a path of investigations, medication and conservative approaches to  treatment that has included a specialist spinal surgeon and a musculoskeletal pain practitioner.[25] She has been on painkilling medication “throughout the whole time” together with prescription painkillers at times.[26]

[24]PCB24J-K

[25]PCB43-44,55-57,69AK-AL & 58-68,69AB-AJ,

[26]T 92

20      Starting in October 2017 she underwent  months of multi-disciplinary pain management treatment  at Advance Healthcare for both her organic spinal pain and mental health problems.[27] Only limited success has been achieved. It has not resulted in  her pain being taken away  but more in strategies designed to help her cope with what is clearly seen as ongoing pain. In view of this and the other evidence over the last five years her constant spinal pain has been proved to be long term.

[27]PCB167-174

21      These applications involve matters of fact, degree and impression and to an extent a value judgment.  Her spinal impairment is productive of pain and suffering consequences that,  when judged by comparison with other cases in the range of possible impairments, are fairly described as very considerable. 

22      While I grant leave for loss of enjoyment of life consequences, I am also satisfied that on 30 January 2018 she resigned from her heavy physical job at the airport due to her back, neck and referred right arm symptoms.[28]

[28]PCB24G

23      The more recent medical reports are the most helpful in judging her impairment now some five years after the accident. I will deal with those directed to her paragraph (a) spinal impairment. Less there is any doubt, it needs to be stated at the outset there is a clear organic cause for her current spinal symptoms. But they have been accompanied by an emotional or psychiatric response  that is not surprising in the circumstances. There is no disentangling exercise required in view of the evidence I accept that an organic cause has been proved.

24      The more recent material from her local practitioner, Dr N Talat, includes his referral to the orthopaedic surgeon Mr P Chan in August 2016. Dr Talat’s brief letter left no doubt he was referring her off for an organic back pain condition that had become “excruciating”. [29]  He related that pain to a “protruding L4/5 disc and thecal compression on L4 nerve” as shown on MRI. His final word was in his formal report in September 2017 when he again stated her 10 May 2013 transport accident was the cause of her injury. He had seen her in May 2013 and recorded that she developed right shoulder, neck and back pain on the right side.[30]

[29]PCB40

[30]PCB69E

25      On 2 February 2017 in a “To Whom It May Concern” letter which was probably directed to TAC, he described an injury to her back from the motor vehicle accident. Gymnasium and swimming were recommended and he did not say much more but that recommendation indicated he was obviously dealing with a physical injury. It was causing her to be limited in a lot of domestic and daily chores as well as other activities.[31]

[31]PCB45

26      Mr Chan, in a September 2016 letter, diagnosed mechanical lower back pain and right leg sciatica. These are organic injuries. He thought further investigations were warranted.[32] His first formal report on 16 April 2017 diagnosed “mechanical axial lower back pain” with referred right leg pain.[33] The onset of these was due to  the transport accident. Her prognosis was fair and he referred her off to Mr Stephen Jensen , musculo-skeletal and pain physician. This was obviously an organic pain problem he was referring her off to Mr Jensen for.[34] As to work, Mr Chan thought she was fit for modified duties which involved avoidance of lifting and excessive bending and twisting.[35] Evidence is not required to convince me a worker on baggage check-in at Melbourne Airport has to do all those very things countless times every shift.

[32]PCB44

[33]PCB57

[34]PCB57

[35]PCB57

27       His last report was as recent as this month. After that recent consultation his opinion had not  changed. He noted she had completed the pain management and rehabilitation with Advanced Healthcare and incapacity for work saw her only fit for modified duties. She could do work that did not put strain on her back in the form of avoiding excessive twisting and bending and heavy lifting.[36] These limitations are consistent with her giving up her baggage check-in job in January this year. He thought the incapacity was related to her motor vehicle injury.

[36]PCB69AL

28      Mr Jensen reported in April 2017 and again in April this year. He sent her off to Advanced Healthcare for specialist pain management treatment. His view was she had suffered multiple soft tissue injuries involving her cervical spine, right shoulder and lumbosacral region. There were also prominent psychological factors.[37] This was a clear diagnosis of organic spinal impairment with the addition of psychological problems.

[37]PCB61

29      Earlier this month Dr Jensen reviewed her and reported his diagnosis again of physical injuries. He said she was a cooperative patient. He thought overall her situation had not changed to any significant degree but that the multidisciplinary pain management program appeared to see her coping somewhat better.[38]

[38]PCB69AD

30      There are a number of  Advanced Healthcare documents. It is not productive to go through them all in detail. Suffice to say physical pain is a big focus of a number of the treatment modalities from this multi-disciplinary team looking after Ms Kouppi’s injuries. That treatment included specialist attention also to her psychological health but that does not detract in any way from the obvious organically based spinal pain the team was trying to help her with.[39]

[39]PCB167-174

31      The practitioners I have quoted from make up a body of treating opinions from people charged with managing her health rather than any medico legal retainers. They have had the real advantage of seeing her on a number of occasions over the years. I accept their evidence that her spinal impairment results in current pain and other symptoms that are organically caused. That pain in spite of extensive treatment is long-term and amounts to a very considerable consequence in terms of loss of enjoyment of life. Their opinions support the evidence I accept from the plaintiff of this constant pain over the last five years.

32      In view of my findings I will only deal briefly with the medico-legal opinions the plaintiff relies on. Mr P Mangos, general surgeon, saw her back in November 2014. He only saw her once. He was asked to provide an percentage impairment and he did so with respect to both her cervical and lumbar spines. He clearly found an organic spinal impairment and  converted it to the percentage the AMA tables dictated. Implicit in his opinion is that it was a permanent organic impairment. [40]

[40]PCB73

33      Mr Garry Grossbard, Orthopaedic Surgeon, saw the plaintiff in 2016. His opinion was the transport accident had caused physical soft tissue injuries in her cervical and lumbar spines. Importantly he found not only tenderness in her low back but the objective sign of spasm.[41] He saw her again in July 2017 and his opinion was unchanged. The condition was stable and he repeated that she had sustained soft tissue injury to her cervical spine and discal injury to the lumbar spine.[42] These were organic causes of ongoing spinal pain he reported.

[41]PCB 86

[42]PCB107

34      Dr R Horsley, occupational physician, saw the plaintiff in May 2017 and a second time as recently as March this year. Her most recent opinion described a diagnosis of “mechanical neck pain and mechanical back pain” with MRI evidence of disc protrusion at L4/5.[43]She thought the symptoms were likely to persist and clearly set out a number of very wide limitations on activity which she said were on “purely physical grounds”.[44]

[43]PCB108J

[44]PCB 108K-L

35      Her opinions are consistent with the plaintiff having lost her capacity to work in her old job and indeed in many other jobs that involve the wide-ranging physical activities Dr Horsley said are now beyond the plaintiff. It goes without saying of course these activities also impact very considerably on loss of enjoyment of life in a large number of daily activities.

36      There were some other documents relied on by the plaintiff.  Some are directed to the question of home help and other assistance being sought from TAC. They  include a number of pain management assessment materials. There is nothing that needs to be said about them except that they were obviously dealing with both physical pain and psychological issues.

37      By way of summary the medico-legal opinions relied on by the plaintiff simply add further weight to the evidence of her treating doctors and to the plaintiff herself about ongoing organic spinal pain that still requires treatment and is a very considerable cinsequence.

38      The defendant relied on a medico legal report from Mr P Kierce, orthopaedic surgeon. He saw her only once and that was in May 2017. He also provided two letters after further material was sent to him. He said the transport accident “may” have caused “an exacerbation of pre-existing lumbar spondylosis.”[45] He then went on to say “she will no doubt suffer from recurrent pain and some limitation of movement in her lumbar spine as a result of her lumbar spondylosis”  but it was very likely brought on by a heavy lifting at work.[46] Then virtually in the last part of his report he said that his opinions were “she did sustain some soft tissue injury to her back and right shoulder in the motor vehicle accident of 10 May 2013 but symptoms have largely settled…”.[47]

[45]DCB32

[46]DCB33

[47]DCB37

39      I find his opinions difficult to follow. Does he mean that those symptoms he referred to still remain so there is still a causative connection to the transport accident? Then in a letter in July 2013, without seeing her again, but on the basis of notes he said “her current lumbar spine condition is not caused by the transport accident”.[48] Without hearing from him he seems to be saying the actual pathology of the lumbar spondylosis itself was not caused by the accident, but that some spinal symptoms still are caused by it.

[48]DCB40

40      His opinions and reasons are not properly explained. His views are also not well-founded. He was given the Northern Hospital Emergency Department records as part of the materials. He largely dismissed it saying the record was “illegible”.[49]  That is just plainly wrong.  As I have already set out the handwriting in the hospital record on 11 May 2013 clearly reads “8/10 pain in spine lumbar back” followed by a less clear but possible note about “oxycontin 5 mil”.[50] Mr Kierce has not looked at this material carefully enough.

[49]DCB39

[50]DCB5

41      He also seems to rely heavily on the photos of the limited damage to her vehicle.[51] This leads him to repeatedly call the accident “minor”.[52]  He did not have any photos of the other vehicle. There is no history he took about what bodily movements this accident caused to the driver immediately prior to and after the vehicles actually impacted. Nowhere did he describe how the minor damage he saw in photos  translates medically into the accident now having no causative connection to her ongoing spinal pain. He  took too inadequate a history of her work duties to just reach a conclusion that it was her work and what it has done to her that was the real cause of her spinal condition. In reaching his conclusion about causation, he  also seemed to take a deal of notice of  low back pain troubling her at work in 2014, without noting  of course that this  was after she had suffered the 2013 transport accident.

[51]DCB22,24

[52]DCB37,40

42      Furthermore Mr Kierce is also against the weight of medical evidence in this case from both treaters and other doctors. For that and the other reasons I have mentioned I reject his opinions.

43      Clearly there have been psychiatric and psychological symptoms also caused by the transport accident coming against  a history of symptoms pre-accident which would require a before and after analysis on the paragraph (c) claim. But is not necessary to deal further with paragraph (c) in view of the paragraph (a) organic spinal impairment being proved as “serious”.

44      I grant leave to bring proceedings for the recovery of damages.