Kovacic v Transport Accident Commission

[2017] VCC 467

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-14-00818

NEDELJKO KOVACIC	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	22 and 27 February 2017
DATE OF JUDGMENT:	27 April 2017
CASE MAY BE CITED AS:	Kovacic v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2017] VCC 467

REASONS FOR JUDGMENT
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Subject:  TRANSPORT ACCIDENT

Catchwords:           Serious injury – impairment to the cervical spine – credit – aggravation – unrelated conditions

Legislation Cited:     Transport Accident Act 1986, s93

Cases Cited:Kovacic v Transport Accident Commission [2016] VSCA 139; Kovacic v Transport Accident Commission [2016] VCC 346; Richards & Anor v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Ansett Australia Ltd v Taylor [2006] VSCA 171; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Petkovski v Galletti [1994] 1 VR 436; Poholke v Goldacres Trading Pty Ltd & Victorian WorkCover Authority [2016] VSCA 232; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Woolworths Ltd v Warfe [2013] VSCA 22

Judgment:                 Leave granted.         

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms J Forbes QC with Mr D Purcell	Zaparas Lawyers
For the Defendant	Mr G Lewis QC with Ms J Frederico	Solicitor to the Transport Accident Commission

HER HONOUR:

1       This matter comes before the Court for rehearing pursuant to an order of the Court of Appeal[1] allowing an appeal against the decision of Judge Misso, who dismissed the plaintiff’s application (“the first hearing”).[2]

[1]Kovacic v Transport Accident Commission [2016] VSCA 139

[2]Kovacic v Transport Accident Commission [2016] VCC 346

2 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 22 June 2008 (“the said date”).

3 Section 93(6) of the Act provides:

“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”

4       

The definition of “serious injury” relied upon by the plaintiff is under

s93(17)(a) – “a serious long term impairment or loss of a body function”.

5       The body function pursuant to sub-paragraph (a) relied upon by the plaintiff is the cervical spine alone, although it appears there was an aggravation of the plaintiff’s lumbar condition in the accident.[3]

[3]Transcript (“T”) 4

6       The enquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.

7       The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment.  What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function: see Richards & Anor v Wylie.[4]

[4](2000) 1 VR 79

8       In forming a judgment as to whether the consequences of an injury are “serious”, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as “at least very considerable” and “more than significant” or “marked”?[5]

[5]See Humphries & Anor v Poljak [1992] 2 VR 129 at 140-1

9       The plaintiff swore four affidavits and was cross-examined.  He also relied on an affidavit sworn by his wife, Nedeljka, on 4 March 2016.   The defendant relied on an affidavit sworn by the plaintiff in August 2003 and an affidavit sworn by his wife in relation to her claim in July 2012.

10      Transcript of the evidence given by the Mrs Kovavic and Dr Pjesivac at the first hearing formed part of the evidence in the present case.

11      In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

Background[6]

[6]The plaintiff’s first affidavit sworn 4 December 2014 (“the first affidavit”) Plaintiff’s Court Book (“PCB”) 11

12      The plaintiff is married with two adult sons.  He is presently aged fifty-six, having been born in Bosnia in 1960.  He attended school for about ten years.  He then did factory work and undertook National Service before buying a small truck, working as a driver.

13      The plaintiff moved with his family to Serbia as a refugee, staying there until 1999, when he came to Australia.  He did a six-month English course on his arrival and then started work at National Forge (Operations) Pty Ltd (“the employer”) as a process worker in April 2000.

14      On 4 October 2000, the plaintiff injured his back at work (“the work injury”).  His general practitioner, Dr Battenay, put him off work.  The plaintiff then underwent various investigations, and was referred to orthopaedic surgeons, Mr Hooper and Mr King.  He was also referred to a psychologist, Mr Tsironis, whom he saw for a year or two for anxiety and depression due to his ongoing back and left leg pain.  Later, the plaintiff came under the care of Dr Pjesivac, who speaks the plaintiff’s language.

15      The plaintiff attempted to return to work with the employer on a few occasions after the work injury but there were no light duties available and he was not able to cope with his normal heavy duties which involved frequent lifting and moving pieces of steel.[7]

[7]The plaintiff’s third affidavit sworn 4 March 2016 (“the third affidavit”) PCB 25

16      The plaintiff’s common-law claim in relation to the work injury settled in about 2005 for $240,000.

17      Thereafter, the plaintiff continued to see his general practitioner, and took Panadeine Forte.  His depression continued.

18      In 2007, Dr Pjesivac referred the plaintiff to Mr Barrett, orthopaedic surgeon, who arranged an MRI scan of the plaintiff’s lumbar spine in December that year.  Mr Barrett referred the plaintiff for a second opinion to Mr Michael Brighton-Knight, orthopaedic spinal surgeon, who suggested possible back surgery.  However, the plaintiff was scared to undergo this procedure.

19      In late 2007, the plaintiff was sent back to Mr Tsironis, whom he saw for a few months.  The plaintiff also had physiotherapy with George Kokovas.

20      On the said date, the plaintiff was driving home after a family function when a car coming in the opposite direction came over to his lane.  The plaintiff swerved to try and avoid a collision, but there was not enough time to do so and the two cars collided (“the accident”).

The issues

21      In opening, counsel for the plaintiff submitted that ultimately there would be a “body of discrete consequences” that flow from the plaintiff’s neck injury, including surgery and the consequences thereof, with the additional prescription of strong painkilling medication for ongoing neck pain.[8]

[8]T10

22      Counsel for the defendant submitted the “three CCC’s” were relevant in this application – consequences, credit and causation.  It was submitted the medical reports and clinical records showed a composite complaint of impairment in a number of areas, including the shoulder, lower back, as well as the neck, thus the principles in Peak Engineering apply.[9]  In those circumstances, the plaintiff could not establish a serious impairment in his neck alone relating to the accident. 

[9]T12; [2014] VSCA 67

Causation

23      Counsel for the defendant submitted that causation was in issue as the plaintiff had problems with his neck before the accident and he did not tell any doctor of an accident-related neck injury until four months thereafter

24      In this regard, reliance was placed on the opinion of Dr Boys, occupational physician, who examined the plaintiff in 2015.  It was submitted Dr Boys was the only medical practitioner with an accurate history and that he had come to the correct conclusion as to causation and that his view in relation thereto should be preferred to other examiners.[10]

[10]DCB 134; T102

25      In his first affidavit, the plaintiff deposed:[11]    

“I continued to have back pain, worse than before the transport accident, and also some neck pain worse when raising my right arm.  I assumed it would improve.  I continued to see Dr Pjesivac for painkillers.” 

[11]PCB 13, paragraph 7

26      In his second affidavit sworn on 29 July 2015 (“the second affidavit”), the plaintiff deposed:[12]

“I did not report the accident to Dr Battenay, as I had previously had a WorkCover Claim that had only recently resolved.  I found the whole process of going through Workcover exhausting and very upsetting.  I did not want to see more doctors and lawyers and have to wait for each request to be considered.  I also hoped that my neck pain would go away.

Approximately one month after the accident, I recall telling my usual general practitioner, Dr Pjesivac about the accident.  He asked what I wanted to do about it and whether I wanted to proceed with a TAC claim.  I decided not to as I still hoped the neck pain would resolve on its own.

It was not until several months after the accident, when my neck pain was getting worse that I decided to do something about the accident.  I saw Dr Pjesivac in November and lodged a claim shortly afterwards.”

[12]PCB 22, paragraphs 5-7

27      In his third affidavit, the plaintiff deposed:[13]

“I was aware of worse pain in my lower back immediately following the MVA.   I felt neck pain straight away, but it continued to develop in the days that followed.  The pain in my neck then gradually spread to my right shoulder and down my right arm, but I did not think that it was anything serious.  I just hoped it would resolve by itself.” 

[13]PCB 26, paragraph 4

28      At the first hearing, the plaintiff said that he did not tell doctors of his neck symptoms for four months, until November 2008, because he was waiting to see if his condition improved.[14]

[14]Transcript of first hearing “TA”  47

29      In the present hearing, when asked about three attendances with Dr Battenay, in late June 2008, where there was no mention of a neck injury or the accident in Dr Battenay’s notes,[15] the plaintiff said he did mention these issues but “nobody took much notice”.  He advised Dr Battenay he had had an accident and he felt a bit down, and he was told by Dr Battenay “let’s just see”.[16] 

[15]T26

[16]T27

30      The plaintiff could remember talking about his neck injury but not exactly when.  He did mention it a number of times and then it got much worse.  He did complain, but he did not know when it was recorded.[17]

[17]T28

31      In her March 2016 affidavit, the plaintiff’s wife, Nedeljka, deposed that:[18]  

“Shortly after the accident, the plaintiff started complaining of neck and right shoulder pain down his right arm.  At first we did not think it was serious and that the pain would just resolve.  However, over the following months he started complaining of more and more pain in his neck, right shoulder, and right arm.  He also told me the lower back pain was worse.  I told him he should make a TAC claim but he did not want to because of the difficulties he had experienced in the WorkCover system.  However, after several months, we realised the injuries he had suffered in the accident might be more serious than we initially thought and that he needed to discuss the injuries with his doctor.” 

[18]PCB 32, paragraph 4

32      Whilst the plaintiff has given conflicting evidence as to the date of his first accident-related neck complaint in both his affidavits and his viva voce evidence, there is limited support for an early complaint in Dr Pjesivac’s December 2010 report where he listed on the front page thereof, neck and shoulder complaints in August 2008.[19]

[19]PCB 55, T126

33      Whilst there was not a similar entry in Dr Pjesivac’s clinical notes, counsel for the plaintiff submitted “things could get lost in the transposition from handwritten to computer”.[20]

[20]T127

34      However, in the body of that report, Dr Pjesivac noted that “four months following the accident, the plaintiff started complaining of … some neck pain and some right shoulder pain”[21] and that the plaintiff’s first accident-related presentation was on 7 November 2008.[22]

[21]T157, PCB 56

[22]PCB 57

35      Counsel for the plaintiff also relied on the handwritten note of “new injury” that had been crossed out at the top of Dr Battenay’s clinical notes which detailed three post-accident attendances in June 2008 where back complaints were noted.[23]

[23]T126

36      In my view, the likelihood is that if the plaintiff had mentioned a neck complaint or injury in the accident, his treating doctor would have recorded it in his notes. Dr Pjesivac agreed most likely he would have recorded it if he was told.[24]

[24]TA97, TA100

37      In the end however, whether or not the plaintiff reported the accident injury before November 2008 is not crucial to the issue of causation as the preponderance of medical evidence, on the basis of a first complaint in November 2008, is that the accident is a cause of the plaintiff’s neck injury.

38      Dr Pjesivac’s evidence in this regard was unchallenged.[25]  Mr Drnda[26] and Mr Barrett [27] did not raise any concerns as to causation.

[25]PCB 56; T128

[26]PCB 80

[27]PCB 104

39      Medico-legal examiners also accept that the plaintiff’s neck injury is consistent with the occurrence of the transport accident.

40      Dr Peter Mangos, general surgeon, examined the plaintiff in October 2010.  He thought, as a consequence of the accident, the plaintiff had suffered an injury to the C6-7 cervical disc with right-sided C7 radiculitis and aggravation of right rotator cuff.[28]

[28]PCB153

41      Mr Thomas Kossmann, orthopaedic surgeon, examined the plaintiff in June 2015.  He diagnosed C7 radiculopathy on the basis of degenerative disease of C5-6 intervertebral disc and cervical spondyloarthropathy, a right shoulder injury and aggravation of pre-existing degenerative changes in the lumbar spine with disc bulges at three lumbar levels consistent with the stated cause being a head-on motor vehicle accident.[29]

[29]PCB 178

42      Dr Aliashkevich, neurosurgeon and spinal surgeon, first examined the plaintiff in January 2016 and saw him again in December that year.  He diagnosed chronic and refractory mechanical right dominant neck, shoulder and arm pain after the accident consistent with the accident.[30]

[30]PCB 185

43      Mr David Brownbill, neurosurgeon, examined the plaintiff on 21 January 2016.

44      On the information provided, Mr Brownbill considered the plaintiff sustained a neck injury in the accident with probable intervertebral disc derangement.  He thought probable this disc derangement gave rise to neck pain and radiating right arm pain for which the plaintiff underwent fusion surgery.[31]

[31]PCB 194

45      Professor Stephen Davis, neurologist, examined the plaintiff in March 2011 for the purposes of an AMA assessment.

46      Professor Davis noted that in the accident, the plaintiff undoubtedly had soft tissue musculoligamentous injuries in the cervical spine and he had right brachial neuralgia, suggestive of symptomatic radiculopathy, with some subtle features of right C7 radiculopathy.[32]

[32]DCB 99

47      In my view, there are difficulties with Dr Boys’ opinion relied upon by the defendant. 

48      In his first report, Dr Boys stated that the plaintiff’s current complaint of chronic pain reflected degenerative disease within the cervical spine.  He thought, the specific physical injuries sustained to the neck and right shoulder in the accident had resolved, and that the plaintiff’s current complaints reflected conditions which would have existed, notwithstanding the accident.[33]

[33]DCB 144

49      However, in his second report, having been provided with further medical evidence, Dr Boys concluded the plaintiff had experienced symptoms associated with the natural progression of degenerative change within the cervical spine, ultimately precipitating cervical fusion surgery.[34]

[34]DCB 149

50      Thus in his first report, Dr Boys accepted there was an aggravation of the plaintiff’s cervical spine condition in the accident and then in his supplementary report, he seems to have abandoned his earlier view.[35]

[35]T132

51      Further, in his later report, Dr Boys concluded, unlike other examiners, that any aggravation had ceased but gave no explanation as to when and how it was said to have ceased. 

52      The defendant also relied on the opinion of Mr Simm, orthopaedic surgeon, who examined the plaintiff in 2011, before the surgery.  Mr Simm also had some issue as to any causal relationship between the plaintiff’s neck condition and the accident. 

53      Mr Simm noted the contemporaneous medical records made it difficult to determine with any certainty that the plaintiff’s neck, right shoulder and arm pain relate to the accident.  However, he stated he was not in a position to refute the plaintiff’s history.[36]

[36]DCB 108

54      Mr Simm thought the plaintiff may have suffered a soft tissue injury to the cervical spine with aggravation of degenerative changes leading to a pattern of referred pain into the right upper limb.  Alternatively, those symptoms arose spontaneously sometime after the accident.[37]

[37]DCB 109

55      However, as counsel for the plaintiff submitted, Mr Simm last saw the plaintiff in 2011.  He is alone in his view of the possibility of an alternate cause for the plaintiff’s neck complaint and also in finding non-organic factors in the plaintiff’s presentation.  In any event, the plaintiff ultimately came to neck surgery.[38]

[38]T131

56      As counsel for the plaintiff submitted, the plaintiff’s credit has no bearing upon causation other than the accuracy of his history of symptom onset to doctors.  Even leaving aside the plaintiff’s evidence and that of his wife, the preponderance of medical evidence demonstrates injury to the cervical spine of which the accident is a cause.

57      Further, I accept that the plaintiff’s problems with his neck pre accident may at times explain his “wait and see attitude”.[39]

[39]T125

58      It is also significant that the plaintiff’s TAC claim signed by him on 10 December 2008 included a neck injury – “shoulder pain right, neck pain, traumatic anxiety and aggravated lower back pain”.  The claim was accepted by the defendant by letter dated 8 January 2009.[40]

[40]Ansett Australia Ltd v Taylor [2006] VSCA 171

59      Taking into account all the evidence, I accept that the accident is a cause of the plaintiff’s neck injury.

60      As counsel for the plaintiff submitted, the diagnosis and the need for surgery is not controversial, with the consensus of medical opinion being that, in what appears to have been a high impact accident, the plaintiff suffered an aggravation of cervical spondylosis with the development of right-sided radiculopathy from compression of the C7 nerve root leading to surgery in 2014.[41]

[41]T119

Pre-existing back condition

61        Whilst considerable time was taken up in cross-examination in relation to the plaintiff’s pre-accident lumbar condition and the consequences thereof, counsel for the plaintiff, in closing addresses, conceded it was “self-evident” that the consequences in terms of activities of daily living in relation to the cervical injury were compromised by the work injury and that those consequences cannot be made out:

“The conventional markers of activities of daily living that are often a measure of the consequences are not really the measures in this case.”[42]

[42]T141

62      In those circumstances, whilst much of the evidence and counsel for the defendant’s submissions relate to this issue, it is only necessary to consider it in general terms.

63      In his first affidavit, the plaintiff deposed to the matters set out in “Background” herein.[43]  In his second affidavit, there was no mention of his pre-accident lumbar condition.

[43]See paragraphs 10-19 of this Judgment

64      In his third affidavit, the plaintiff described “pain and restriction before the mva”:

“At the time of the mva on 22 June 2008, I was still suffering from pain and restrictions as a result of the low back injury that I sustained at work.  I had constant pain in my low back, and I took Panadeine Forte every day to help manage my pain.  I also had pain down both my legs.  Although my low back pain was disabling prior to the MVA, I was learning to live with it and get on with my life.  I had started to go fishing again sometimes and I had also got more involved with my friends and family again.  I tried to help around the house as much as I could.  I had difficulty with standing, sitting and walking for long periods of time and with bending and lifting heavy things  but I had learned to live within my restrictions and avoided doing activities that aggravated my pain too much.  I had also started to feel better within myself in the year or so leading up to the accident.[44]

I am in a lot more pain now than prior to the MVA.  I feel that the MVA has had a huge impact on my life…   Prior to the MVA, even though I had constant pain in my lower back, I was learning to live with it.  I had only occasional pain in my neck.”[45]

[44]PCB 25 paragraph 9

[45]PCB 25, paragraph 11

65      The plaintiff has not worked since 2000 as a result of the work injury and has been in receipt of a Disability Support Pension (“DSP”) in relation thereto since 2006.  As at the accident date, he had no earning capacity, with Dr Pjesivac of the view that he was then totally and permanently disabled.[46]  

[46]PCB 57

66      The plaintiff lodged a claim for impairment benefits on 19 October 2000 in relation to the work injury in which his injuries were listed as spine, including neck, lower back, hips, legs, stomach problems and anxiety and depression.[47]

[47]DCB 150

67      The plaintiff described significant problems with his lower back in his affidavit sworn on 20 August 2003 in relation to his work injury claim.  These included constant back pain and pain in the left leg most of the time, difficulty with prolonged postures and bending and squatting, issues with self-care and dressing, difficulty sleeping and problems with his libido and intimate life.  He did little around the house and garden.  He no longer went fishing or watched local soccer matches.[48]

[48]DCB 24, paragraphs 11-12

68      As at the said date, the plaintiff agreed he was having significant difficulties in a range of daily activities as a result of his back pain.[49]

[49]T25

69      The plaintiff agreed in cross-examination that he told medico-legal psychiatrist, Dr Entwisle, in June 2005 that he does not do much.  He walks about the house.  He might walk outdoors, weather permitting, depending on how he feels.  He spends time in the afternoon with his children.  He might go out into the street and talk to neighbours.  He spends some time indoors, sitting, lying down or watching television.[50]

[50]T30

70      The plaintiff agreed he told Dr Michael Baynes, occupational physician, in June 2005 that his walking tolerance was limited to ten to fifteen minutes.  He agreed that was how his life was before the accident.  He then said it was the same, and even worse, after the accident.[51]

[51]T30

71      The plaintiff could not remember asking for a ground floor appointment when he saw Dr Weissman in March 2011, but it was possible.  His ability to climb stairs at that time depended on the day.[52]

[52]T31

72      The plaintiff agreed he told Mr Simm in March 2011 that he drove infrequently, he did not do any household chores, but he might do shopping with his wife.  He did not attempt lawn mowing or gardening, or other physical activities.  If that is what he said at the time, that would have been right.  He can do some things, sometimes, and not at others.[53]

[53]T32

73      The plaintiff might have told Dr Weissman in March 2011 he did not do any cooking or cleaning, and his wife just did those things.[54] 

[54]T34

74      The plaintiff did not remember telling Mr Kossmann on examination in 2015 whether he was not able to help with the housework or cleaning but, at that time, sometimes he could and, at other times, he could not.  He then agreed he flatly told Mr Kossmann he could not do anything around the house.[55] 

[55]T34

75      The plaintiff was taken to his wife’s affidavit in support of her WorkCover Claim sworn on 12 July 2012 in which she deposed:[56]

“I still do much of the cooking but can only stand at a bench or sink for 10 to 15 minutes before I need to move around or sit down.  My husband often finishes the cooking when I have to stop because of back pain.  My daughter in law does much of the washing and ironing for me at weekends.  The bending and stretching involved in those tasks causes more back pain.  My husband does the vacuuming and mopping.  The bending and stretching would also increase my back pain.  I used to tend the garden by planting annuals, digging flower beds and pruning roses.  I just pick the roses now.  My husband looks after all the garden, although he just does the basics.  There are no flowers apart from roses now.”

[56]DCB 228, paragraph 25

76      Sometimes the plaintiff did these activities, but very often it was his daughter-in-law who did them.  When he went to the doctor, the plaintiff always told him what he could do at the time.[57]

[57]T38

77      Similar histories given by the plaintiff to other examiners although not mentioned in addresses, were relied upon by the defendant:

·        Mr Hadj in July 2003[58]

[58]DCB 37

·        Mr Flanc in January 2003[59]

[59]DCB 45

·        Mr W Doig in January 2003[60]  

·        Dr Stevenson in June 2005.[61]       

[60]DCB 50

[61]DCB 65

78      The plaintiff confirmed he told Mr Kossmann in June 2015 that he was no longer able to go fishing.  He agreed he had not gone fishing for many years because of back pain but the situation became much worse.  He then agreed he had to stop fishing because of his work injury back pain.[62] 

[62]T33

79      The plaintiff agreed he had been seen by a psychiatrist[63] and also had seen a psychologist before the accident for treatment for anxiety and depression.[64]

[63]T26; Dr Ram May, September, July and November 2005 and August and September 2007

[64]T25

80      Having been taken in some detail through Dr Pjesivac’s notes, the plaintiff thought it was possible he had seen his doctor over forty times from 2003 to 2008 about his back pain, but he did not remember.[65]

[65]T19-20

81      In early 2008, six months before the accident, the plaintiff had been referred by orthopaedic surgeon, Mr Barrett, to surgeon, Mr Brighton-Knight, for his opinion on surgery for the plaintiff’s increasingly severe lower back pain.[66]  The plaintiff was then taking strong painkilling medication for that condition.

[66]DCB 86

82      Mr Barrett reported in January 2008 that when he last saw the plaintiff before the accident, he advised Mr Brighton-Knight that re-examination had shown no improvement with the plaintiff’s major problem now, right sciatica, and some mild weakness of the right ankle joint dorsiflexor muscle power and hypoesthesia in the right lower limb, maximal in the right L4-5 dermatome regions.[67] 

[67]PCB 100

83      Mr Barrett discussed with the plaintiff the alternatives of continued rest and operative decompression and the plaintiff seemed quite keen to get rid of his right sciatica, although Mr Barrett had explained to him it would not improve his backache.[68] 

[68]PCB 101

84      The plaintiff agreed that by January 2008, low back surgery was being discussed and in February 2008, his back pain was severe.[69] 

[69]T25

85      Before the accident, the plaintiff was taking Panadeine Forte quite often and could recall being prescribed Tramal in January 2007 when back pain was a serious problem and making him very upset.[70]  He was also prescribed Endep and Valium at various times.[71]  He was not sure when he had been prescribed Zoloft, which could have been for pain.[72]

[70]T16

[71]DCB 149, pages 1-2 - medication summary

[72]T18

86      Clearly, the plaintiff was experiencing significant pain and restrictions due to his back injury as at the said date.

87      Further, the plaintiff ultimately said he has had more pain in his lower back since the accident,[73] having said at the first hearing he had not noticed any major change in his back since the accident, and it remained the same.[74]

[73]T36

[74]TA37

88      The plaintiff’s ongoing clinical history included the following notes of back complaints:

·    10 December 2006 – worsening low back pain

·    22 January 2009 – continuing lower back pain

·    20 July 2009 – lower back pain and neck pain

·    6 August 2009 – low back pain

·    11 January 2010 and 23 March 2010 – severe back pains

·     April 2010 – severe low back pain radiating to the left leg, pains are severe, unbearable

·    10 May 2010 – bilateral back tender

·    17 May 2010 – lower back and stiffness, poor range of movement, lower lumbar limbs, pain and weakness

·    23 August 2010 – lower back pain, muscle spasm

·    18 October 2010 – low back pain and stiffness persist, poor mobility not improving.

89      By June 2010, Mr Barrett was contemplating lumbar surgery and had referred the plaintiff to operating surgeon, Mr Michael Brighton-Knight, for advice about back surgery.[75]

[75]T35

90      The plaintiff complained to Mr Simm in 2011 of constant pain of the low back, radiating to the left leg and foot.[76]

[76]DCB 106

91      There were about forty further entries in the general practitioners’ notes from October 2010 to January 2017 implicating the low back, including:

·    14 December 2015 – struggling with low back pains

·    30 December 2016 – struggling back pains, reduced flexion, patient struggles to stand and walk, walks with a limp.

92      Dr Andrianakis has continued to bill WorkCover for these consultations after the accident.[77]

[77]T50

93      The plaintiff agreed that in January 2017, he had low back pain, making it hard to stand and walk for any length of time.[78]

[78]T38

94      The plaintiff agreed that he only drove short distances.[79]  He said he could drive 30 to 40 minutes before the accident because of his back, but he has more problems now, then agreed he could drive only for 15 to 20 minutes before because of his back, it depended.[80] 

[79]T41

[80]T42

95      Counsel for the defendant submitted the capacity of the plaintiff to move freely and walk or stand at length or indeed perform any task with his low back was severely compromised by his longstanding lumbar injury.  It was submitted that impacted widely into impairment stemming from the subject accident, and that the low back was the plaintiff’s main problem when walking.[81]

[81]T38

96      The plaintiff also described in his affidavits problems with prolonged sitting, difficulty sleeping and restricted domestic and social life as a result of his cervical injury.  However, counsel for the plaintiff indicated that the interference with enjoyment of a range of activities of daily living was not relied upon in the present application.  In effect, it was conceded that many of the plaintiff’s current complaints were those he had prior to the accident. 

97      In those circumstances, it is not necessary to consider the matters raised by the plaintiff’s wife in her affidavit in support of the present application.

98      However, Counsel for the plaintiff relied to a limited extent on the impact of the plaintiff’s cervical condition on his work capacity.

99      Although the plaintiff did not have a capacity for work at the time of the accident due to his back condition, some medical practitioners considered his neck condition alone would restrict his work capacity.

100     Mr Drnda thought the plaintiff had a partial incapacity[82] and Mr Brownbill considered he was totally incapacitated due to his neck injury alone.[83]

[82]PCB 87

[83]PCB 195

101     As counsel for the plaintiff submitted, whilst this does not translate into vocational consequences, nevertheless it is one way in which the experience of pain can be measured.[84]

[84]Peak Engineering & Anor v McKenzie [2014] VSCA 67 at paragraph 45; T148

102     With the concessions made by counsel for the plaintiff as to the limited consequences of the plaintiff’s cervical condition, the issues in dispute are significantly narrowed. 

103     Counsel for the plaintiff confined the claimed consequences of the accident to increased pain and new pain in the cervical spine and the need for surgery, the prescription of stronger painkilling medication such as Targin, headaches and complications with speech and swallowing post surgery.

104     In this case, where there is a pre-existing cervical condition, I must consider what the evidence discloses as to plaintiff’s neck condition before the accident and determine whether the additional impairment resulting from the accident is serious and permanent.[85]

[85]Petkovski v Galletti [1994] 1 VR 436 at 444

105     In his third affidavit, the plaintiff dealt with his pre-accident neck condition as follows:

“Prior to the MVA, I had occasionally experienced pain in my neck which sometimes travelled down my left arm.  I am not sure what was the cause of the pain.  Prior to the MVA, the pain in my neck came and went and it did not cause me any significant ongoing difficulties.” 

106     In the present hearing, the plaintiff initially said he did not have any neck pain before the accident and then said he might have complained two or three times.  It might have been because of the way he was sleeping, or something else.[86]

[86]T15

107     The plaintiff had an x-ray of his cervical spine on 30 August 2002 which was normal.[87]

[87]PCB 114

108     The plaintiff included a neck injury in his WorkCover impairment benefits claim dated October 2000[88] and also in the Particulars of Demand in his 2003 Magistrates’ Court proceedings.[89]

[88]DCB 153

[89]DCB25

109     Dr Pjesivac noted a complaint by the plaintiff of neck pain radiating to his shoulder on 15 November 2004.[90]  Thereafter, the plaintiff was referred to Mr Drnda, as became apparent in Dr Pjesivac’s evidence at the first hearing.[91]

[90]T16

[91]Mr Drnda does not mention this attendance in his later report; TA102

110     Mr Drnda wrote to Dr Pjesivac in December 2004 advising that in regard to the plaintiff’s chronic myofascial pain, surgery would not help at all, noting the plaintiff had pain in his neck, both shoulders and lower back, and non-sciatic type of pain in both legs.[92]

[92]TA102

111     Neck complaints were also noted by a number of medico-legal examiners:

·        Mr King – persistent mild ache in neck and left shoulder - February 2002[93]

[93]DCB 32

·        Mr Hadj – radiating pain into the neck - October 2002[94] and July 2003[95]

[94]DCB 38

[95]DCB 41

·        Mr Flanc – neck pain started six months ago - January 2003[96]

[96]DCB 45

·        Mr Doig – a little pain up towards the back of the neck a year ago - January 2003[97]

·        Dr Stevenson – neck pain - June 2005.[98]

[97]DCB 49

[98]DCB 65

112     In my view, whilst there were some neck complaints prior to the accident, I accept, as counsel for the plaintiff submitted, they were occasional and not of any longevity and had resulted in no treatment or investigation since x-ray in 2002 which was normal.[99] Further, there is no suggestion of cervical radiculopathy prior to the said date.

[99]PCB 114

113     I accept that the plaintiff’s cervical spine was not giving him any problems as at the said date, with the real issue being his lumbar condition.[100]  Further, he did not have any neck pain that stopped him doing any activities.[101]

[100]T124

[101]T69

114     Whilst there was reference to shoulder pain in Dr Pjesivac’s November 2004 note, this was the only shoulder complaint pre accident.  Further, no investigations were carried out, nor was there any treatment following this complaint.

Credit

115     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[102]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[102](2010) 31 VR 1 at paragraph [12]

116     There were significant issues in relation to the plaintiff’s credit raised by the defendant’s counsel in the first hearing and also during the present hearing which require detailed consideration.[103]

[103]Woolworths Ltd v Warfe (2013) VSCA 22

117     These attacks related largely to the level of the plaintiff’s involvement in his sons’ businesses shown on the surveillance films compared to the relative inactive lifestyle he deposed to and described to medical examiners after the accident.

118     It was submitted on that basis, clearly, the plaintiff had not given any doctor an adequate account of his activities since the accident and that he had overstated the level of his disability as examiners, Professor Davis and Mr Simm, concluded, having seen the August 2011 surveillance film.

119     In his first affidavit, the plaintiff deposed:[104]

“I generally am careful in my movements to avoid jarring my neck or back which will cause worse pain.

I can only sit for fifteen to thirty minutes before I want to move about to alter the strain on my back and neck.  I can drive a car but I want to stop after about 15 minutes because of increased discomfort.  When driving, I use the mirrors more, and try to limit turning my head.  I drive using mainly the force of my left hand on the steering wheel which I just steady with my right hand.  I take my right hand off the wheel at times to rest my neck and shoulder.  When opening the car door to get out, when I have been driving, I use my right knee to assist.  I have to be careful to take more weight on my right leg as my left leg can also feel weak.

Since the accident, I find I am more nervous in a car.  I believe I drive more slowly.  I worry about a further collision.”

[104]PCB 18, paragraphs 26-28

120     In his second affidavit, the plaintiff first made reference to his son’s mechanic business and his involvement in relation thereto:[105]

“One of my sons is a mobile mechanic, who buys cars to fix them and then sells them to make money.  He does not have a separate workshop as he fixes cars out in the field.  Sometimes when there is a car that needs a lot of work done, he will bring it to my house or to his own home depending on whose house is closer or where there is room.  In the past, I might have done the occasional task to help him and pick up a car.  I was never paid for this, nor did it happen frequently, only when my son was really desperate for help. 

Since the surgery, the pain in my neck and right arm pain is still present and affects my ability to move around and it would be difficult for me to pick up cars for my son.  I am now much more limited in my ability to help my son as he fixes the car.  Occasionally, my son will bring cars to my house and fix them there.  I do not help him like I used to, but I may check the oil or water.  I have washed the concrete if there is a mess on occasion.

I live across the road from a shop that sells car parts.  Sometimes my son will call me and my wife and ask us to pick up something small from across the road.  They are only small objects and I will do this for him on occasion if my wife is not able to go.  This does not happen very often.” 

[105]PCB 23, paragraphs 8-9

121     In his third affidavit, the plaintiff further deposed:[106]

[106]PCB 29, paragraphs 17-20

“My youngest son owns the mechanic business.  My son sometimes buys cars and registers them in my name or my wife’s name because there are rules that you are only allowed to buy and register a certain number of cars in one person’s name each year.  My son registers the cars in my name or my wife’s name in order to get around these rules.

My eldest son is a self-employed truck driver.  His truck is registered in my name.  That is because my son had previously owned a truck in his own name and then sold it and spent all the money.  Our family then all agreed to contribute in order to buy him another truck but the condition was that it would be registered in my name so that he would not be able to sell it and spend all the money again.

Both of my sons work quite long hours, so my wife and I help them by running errands, both personal and for their businesses, when we feel up to it.

I am aware that the TAC have surveillance of me dropping off tyres at the Tyre Factory.  This was an errand I was running for my eldest son who needed new rims for the tyres on his car.  That was one of my better days so I agreed to help him.

I am also aware that the TAC have surveillance of me attending VicRoads with some paperwork.  The reason I went to VicRoads on that occasion because a neighbour needed a lift there so I agreed to drive him.  While I was there, I checked some details about the registration of the vehicles that my sons have registered in my name.  This, again, was one of my better days.”

122     There was extensive surveillance of the plaintiff carried out mainly before the first hearing[107] and most recently in January this year.[108]

[107]August 2011: 17.33 minutes of film / 17.25 hours’ surveillance; June 2015: 26.46 minutes of film / 17.5 hours’ surveillance; July 2015: 2.06 minutes of film / 10.5 hours’ surveillance and January 2016: 9 minutes of film / 17.5 hours’ surveillance.

[108]24 January 2017: 12.46 minutes of film and 29.5 hours’ surveillance

123     In the film of 17 August 2011, the plaintiff was shown wearing a “Ned’s Towing” fluoro top.  He was shown walking down the street carrying some paperwork.  Later in the morning, he was shown reversing a dark grey four-wheel drive and a white four-wheel drive vehicle.  At midday, he was shown getting into a tow truck without apparent difficulty and driving along Mt Alexander Road.  The plaintiff explained he tried to do things and maybe he was able to do it at that time.[109]

[109]T53

124     The plaintiff’s mobile telephone number appeared in the rear window of the tow truck.  He explained the business was called “Ned’s Towing” as his son wanted the business named after him and that is what people call him as they cannot pronounce his Christian name.[110]

[110]T54

125     On the morning of 18 August 2011, the tow truck was shown outside the plaintiff’s home.  He then drove it to Pickles Auctions.[111]   A small yellow car was put on the tray thereof and the plaintiff was shown securing it and then driving off with it on the back of the tow truck.  He explained he was delivering that car to his son, Goran.[112]

[111]T56

[112]T63

126     At 1.09pm that day, the plaintiff got up on the rear of the truck and commenced hosing it, bending down to do so.  He jumped off two minutes later, then got back on the tray and continued hosing.  He jumped off again after another two minutes and then went to the side of the vehicle, bending from the waist and squatting at 1.14pm to clean the lower part of the carriage and the wheels.  He got back onto the tray about two minutes later.

127     The plaintiff did not appear to be in any difficulty performing the tasks shown, although he claimed he could see in the film that he was having problems, explaining he always bent and he could not straighten his body.[113]

[113]T53

128     Counsel for the defendant submitted this was not a man who took care not to jar his neck and back, as he deposed in his first affidavit.  Further, the medical examiners who commented on this film, Professor Davis and Mr Simm, considered the plaintiff was not as disabled as he had presented to them on examination.[114]

[114]T79

129     Clearly, the plaintiff made no reference to involvement in these type of activities in his first affidavit, describing physical difficulties and nervousness driving.  He explained this omission on the basis that he discussed things with his solicitors “as they surfaced”.  He agreed he only mentioned his son’s job after he knew there was film of the tow truck.[115] 

[115]T43

130     However, as counsel for the plaintiff advised, whilst the plaintiff admitted he first mentioned his involvement in activities relating to the truck business in his second affidavit after he became aware of the film, this film had in fact been exchanged some years earlier and well before he swore his first affidavit. 

131     The plaintiff did not tell any doctors about the tow truck that was originally registered in his name and then transferred to his son, Goran, in 2012 when he started working as a mechanic because no one asked him.  The plaintiff tried to do things and did not succeed.[116] 

[116]T44

132     Further, as counsel for the plaintiff submitted, the plaintiff had actually told some doctors about his involvement in his son’s business.[117]  In any event, the film did not change Professor Davis’ view that the plaintiff had an organically-based condition.[118]

[117]T134, Mr Simm, Dr Boys and Professor Davis

[118]T135

133     After the neck surgery, the plaintiff was filmed on the following occasions:

·        On the film of 17 June 2015, the plaintiff was shown limping.[119]  At other times during the film, he was shown standing by a Mercedes vehicle talking to a man.  He was later shown standing next to a mobile mechanic’s van.  At various times during the film, the plaintiff was shown walking slowly, holding a small child’s hand.  For about ten minutes, he was shown talking to his neighbours.

[119]T59

·        On 24 July 2015, the plaintiff was shown driving a blue Mercedes vehicle which he explained he was taking to his son to repair.[120]

[120]T61

·        On 8 January 2016, the plaintiff was filmed at VicRoads with a friend.  Whilst there, they stood at the counter at various times and the plaintiff walked slowly around the premises.

·        On 7 January 2016, the plaintiff was shown standing near a four-wheel drive Suzuki with a car jack nearby.  It was difficult to see what he was doing at that location.  He was wearing fluoro gloves.  He denied he was carrying any tyres.  He then took the tyres in his vehicle to Sunshine.[121]

[121]T62

·        On 8 January 2016, the plaintiff was shown walking slowly and later, driving a white four-wheel drive. 

·        On the morning of 14 January 2017, the plaintiff was shown in the morning driving a Mitsubishi Ute to Edgewater Motorworks for his son Goran.[122] Later, he was shown standing next to a vehicle and appeared to be waiting for someone, pacing on the footpath outside these premises.  He was shown leaning on the tray of a vehicle and then drove off.

[122]T63

134     In my view, none of the film taken after the surgery showed the plaintiff having any difficulty with his neck undertaking the tasks he was performing and his only problem was walking slowly/limping due to his lumbar complaint.

135     However, as counsel for the plaintiff submitted, there was nothing on these later films inconsistent with plaintiff’s described level of activity.  What was seen on the August 2011 film was a “snapshot” and not repeated in the films post surgery.[123]

[123]T136

136     Counsel for the defendant also relied on the surveillance film as indicating the plaintiff had worked since the accident in his son’s business, having told doctors he had not worked after the accident.  Besides driving and cleaning a vehicle, the plaintiff was shown wearing a Ned’s Towing fluro top during the films and his mobile phone number was visible in the rear of the tow truck.

137     It was submitted the plaintiff’s evidence in the present hearing that he told doctors he did try different things with the encouragement of his doctor but it did not work out, that he would love to try to be able to work[124] and that there were good and bad days,[125] was inconsistent with his evidence in the first hearing that he told all doctors he had not been employed since the accident.[126]

[124]T54

[125]T55

[126]T17; TA21

138     In my view, the plaintiff’s evidence as to his involvement in his son’s business, particularly pre surgery, was unreliable and his activities in that regard are more significant than deposed to. 

139     Further, I would have been assisted by an affidavit from his sons in relation to this issue but there was no such evidence before the Court. 

140     I also found the plaintiff’s evidence about the purchase of the tow truck somewhat confused.  It is difficult to accept that he could not recall who bought the vehicle and in what circumstances.[127]  I do not accept his explanation that he gave conflicting answers because he was talking at times about a different tow truck.[128]

[127]T45

[128]T49

141     I accept that the plaintiff’s evidence was also unreliable as to the level of housework he had engaged in before and after the accident as counsel for the defendant submitted.[129]  The plaintiff had sworn, and also told doctors he could do hardly any domestic tasks, yet when confronted with his wife’s affidavit in support of her claim describing his activities in this regard, he then said he did domestic tasks sometimes.

[129]See paragraphs 80-85 of this Judgment

142     However, whilst there were inconsistencies in the plaintiff’s evidence during the present hearing and the first hearing, I do not accept he had rehearsed his evidence to some extent, as counsel for the defendant submitted.[130]

[130]T81

143     Although I have significant concerns as to the reliability of the plaintiff’s evidence in general, as counsel for the plaintiff submitted, to his detriment, he did acknowledge the seriousness of his back condition before the accident.  He made no attempt to play down these problems and readily accepted the histories given by him to doctors in this regard.[131]

[131]T140

144     Further, any attack on the plaintiff’s credit does not detract from the medical opinion that the plaintiff has an organically-based cervical condition, confirmed by radiology,[132] of such significance that surgery was required and symptoms continue, as confirmed by a number of practitioners including Mr Aliaskevich, Professor Davis and Mr Brownbill.[133]

Post-accident treatment leading up to the 2012 accident[134]

[132]See paragraphs 148-151 of this Judgment

[133]T138

[134]First affidavit PCB 13, paragraph 8ff

145     In October 2008, Dr Pjesivac referred the plaintiff to Mrs Pennas for physiotherapy for lower back pain.  At that time, the plaintiff was still hoping his neck, right shoulder and right arm pain would go away.  So far as he could recall, he was not seeking treatment for it.

146     In November 2008, an x-ray of the plaintiff’s right shoulder and neck and an ultrasound of his right shoulder was organised.  The following month, Dr Pjesivac gave him a steroid injection to his right shoulder, which did not really help.

147     Thereafter, the plaintiff had difficulty sleeping and he was prescribed Temaz.  He was getting headaches and neck tightness.  He underwent a further right shoulder injection in 2009 with little result.  His neck pain gradually worsened and Dr Pjesivac referred him back for physiotherapy in April 2009.  The plaintiff was then having a sensation of pins and needles, and numbness in his right arm.

148     On 15 May 2009, the plaintiff had a cervical CT scan of his cervical spine organised by his general practitioner.  It was reported there was degenerative disc disease at C6-7, with right-sided neurocentric joint degeneration and osteophyte formation resulting in moderate encroachment on the right C7 foraminal entrance.  There was probable degenerative subchondral cyst seen in the superior aspect of the facet of C2 on the left.

149     After the scan, the plaintiff was again referred to Mr Barrett.  He was also referred to neurosurgeon, Mr Armin Drnda, whom he saw in August 2009.

150     Mr Drnda organised an MRI scan of the plaintiff’s cervical spine on 1 September 2009.  It was reported there was a right lateral ridge at C7 impinging on the exiting right C7 nerve root at C6-7.  There was a prominent perineural cyst adjacent to the left C7 nerve root at the left C6-7 exit foramen.  There was no cord myopathic change.

151     Further, there was severe left C2-3 exit foraminal stenosis and the exiting left C3 nerve root appeared impinged, but that required clinical correlation.

152     Following the MRI scan, Mr Drnda suggested possible neck surgery, but the plaintiff was unsure about undergoing this procedure.

153     About that time, as Dr Pjesivac moved his practice, he recommended the plaintiff start seeing Dr Andrianakis, whose receptionist spoke Bosnian.  The plaintiff commenced treatment at this practice in November 2009.  In January the following year, he was referred back to his psychologist, whom he saw about five times. 

154     In early 2010, the defendant ceased funding for physiotherapy for the plaintiff’s neck pain.  The plaintiff’s neck and back pain worsened, and he was having difficulty sleeping. 

155     The plaintiff was sent back to Mr Barrett, who organised a further lumbar MRI scan in May 2010.  Thereafter, the plaintiff was referred back to Mr Brighton-Knight who, once again, suggested back surgery.  As the insurer would not pay for the procedure, the plaintiff was booked in as a public patient.

156     At that time, the plaintiff had ongoing neck pain, spreading in his shoulders, worse on the right, and down his right arm and also into his back and left leg.  Dr Andrianakis continued to prescribe painkillers.

157     While in Bosnia and Serbia for about two months to visit relatives in August 2011, the plaintiff attended hot spas and also had massages, which improved his neck and back pain a little.

The 2012 motor vehicle accident

158     In his first affidavit, the plaintiff described this accident as follows:[135]

“On 28 May 2012, I was involved in a further transport accident when stationary on the gravel at the side of the road … my car was sideswiped.  I was shaken up but did not seem to suffer worse injury.  I continued to see Dr Andrianakis for painkillers for my neck and back pain.”

[135]PCB 15, paragraph 15

159     In cross-examination, the plaintiff was taken to the history recorded by Mr Brownbill that:

“In the 2012 accident, the plaintiff immediately noted pain in his neck and lower back and the increase of pain in his neck and lower back continued.  The plaintiff indicated his back and neck pains increased following the 2012 accident, with that increase in pain continuing.”

160     Further, Mr Kossmann noted, on examination in 2015:

“The plaintiff’s cervical radiculopathy was worsened by a second car accident in May 2012.  As a result of the worsening of his radiculopathy following that injury, the plaintiff decided to proceed with a cervical decompression and fusion.  Thereafter, he complained of difficulty breathing.” 

161     Mr Kossmann thought:

“The plaintiff’s car accident injury had diminished his quality of life.  He now found it difficult to help with house work and mowing the grass.  He reported he is no longer able to perform activities he used to enjoy, such as fishing.”

162     Mr Kossmann provided a supplementary report in July 2015, having been sent the first affidavit and the plaintiff’s solicitor having “clarified” the aftermath of the 2012 accident.  Having taken into consideration that new information, in particular, the plaintiff did not suffer any worse injury in the accident, Mr Kossmann explained he must have misunderstood the plaintiff.

163     In his supplementary report of 31 July 2015, Mr Kossmann simply added a new paragraph noting the plaintiff was shaken up in the 2012 accident, but did not suffer worse injury.

164     Counsel for the defendant also relied on Dr Aliashkevic’s report after his 2016 examination in which he stated he gained the impression the 2012 accident had ongoing responsibility for the plaintiff’s symptoms.[136]

[136]PCB 188

165     It was submitted by counsel for the defendant that these histories create difficulties isolating the effects of the accident.[137]

[137]T114

166     In cross-examination, the plaintiff explained that he had told Mr Brownbill he had more pain a few days after the accident, and then it “went back to the same” and that he thought he knew what he told Mr Brownbill.[138]

[138]T39

167     Counsel for the plaintiff submitted the 2012 accident was not significant on Mr Drnda’s view that surgery was appropriate in 2009, although not taken up by the plaintiff until 2014.[139]

[139]T119

168     Further, the attendance with Mr Drnda noted by Dr Pjesivac in 2004 did not involve a complaint of radiculopathy.[140]  Radiculopathy and the involvement of C7 was found post accident and had not been present before.

[140]Medical materials folder – 24 March 2005

169     When the plaintiff saw him again in 2013, Mr Drnda commented on the longstanding radiculopathy and noted the development of right arm pain after the accident.[141]

[141]T121: Mr Drnda was aware of the work injury

170     Counsel for the plaintiff also relied on the following:

·        After the 2012 accident, the plaintiff did not submit a TAC claim.[142]

[142]T137

·        Mr Drnda made no comment about the 2012 accident affecting the progress of the plaintiff’s neck condition, nor did Dr Andrianakis in examinations thereafter.[143]

[143]T120

·        No further cervical investigations were ordered as a result of the 2012 accident.

·        The plaintiff’s general practitioners’ notes from November 2008 until December 2011 set out there were forty attendances where complaints of neck pain were recorded.[144] 

·        On 23 January 2012, Dr Andrianakis noted the plaintiff had an appointment for surgery and was very anxious and concerned as his wife was then very sick.

[144]2008: three attendances; 2009: thirteen attendances; 2010, fourteen attendances and 2011, ten attendances

171     Counsel for the plaintiff submitted the 2012 accident was a “blip on the horizon” when one looks at the objective evidence.[145]

[145]T137

172     Whilst the histories noted by Mr Brownbill and Mr Kossmann are somewhat difficult to explain, looking at that objective evidence, I am satisfied the 2012 accident did not have ongoing consequences which are relevant to the plaintiff’s present cervical condition.

Treatment following the 2012 accident[146]

[146]First affidavit PCB 15 at paragraphs 15ff

173     In mid 2013, Dr Andrianakas organised an x-ray of the plaintiff’s back, pelvis and left hip.  He also referred him for five further physiotherapy visits and a similar number of visits with the psychologist.

174     Dr Andrianakis arranged for an injection into the plaintiff’s left hip in early September 2013.  The plaintiff’s back pain was then spreading into his hips.  The injection, however, only numbed the discomfort for a few hours.

175     Dr Andrianakis then arranged for a further cervical CT scan in September 2013.  He referred the plaintiff back to Mr Drnda, whom he saw in October 2013.  A further cervical MRI scan and a nuclear bone scan was arranged.  Thereafter, Mr Drnda suggested neck surgery.  The plaintiff was put on the list as a public patient, but did not take up an opportunity for surgery in late 2013 because he was scared to undergo the procedure. 

176     Dr Andrianakis referred the plaintiff to Mr Hunt, orthopaedic surgeon, in 2013.  The plaintiff then continued to have neck pain and stiffness.  That was his worse discomfort and he finally decided to have neck surgery performed by Mr Drnda, which took place in late January 2014 at the Austin Hospital (“the neck surgery”) following which he as an inpatient for two days.[147] 

[147]C6-7 anterior discectomy and fusion, PCB 86

177     After the neck surgery, the plaintiff was discharged in a brace, which he wore for several months.  He was aware of a hoarse voice, which improved, but was still present.  His neck felt a little better, but only for a few months after the neck surgery.  Following the surgery, he became aware of some dizziness.  There was no improvement in his pain and right arm weakness.

178     Pain and weakness in the right arm did initially improve, but that was only short-lived for a few weeks.  Two or three days after the surgery, the symptoms then returned to how they had been pre surgery, and they might actually be worse now.  The plaintiff then stated the pain is much worse than before the operation.[148]

[148]T68

179     In April 2014, the plaintiff underwent further physiotherapy for about three months, funded by Medicare.

180     When the plaintiff saw Mr Drnda for review in March 2014, another x-ray was arranged.  The plaintiff was sent back for further counselling in about July 2014 as he was disappointed at the failure of his symptoms to improve after the neck surgery.

181     On a visit to Serbia in August 2014 to see family, the plaintiff had more spa treatment.  On his return, Dr Andrianakis arranged for further investigations of the plaintiff’s neck and right shoulder.

182     The plaintiff has continued under the care of Dr Andrianakis, whom he sees regularly.  In 2016, the plaintiff saw a chiropractor, Grant Ziros, through a Medicare plan.  In 2015, he used Medicare funding to see a physiotherapist and another chiropractor.  The plaintiff last saw psychologist, John Karamanos, in early 2016 when funding ceased.

183     As of February 2017, the plaintiff continued to take painkillers including Targin, Panadeine Forte, Lyrica, Mersyndol Forte, Losec and others.[149]

[149]PCB 30(1)

Is the impairment to the cervical spine “serious”?

184     I must be satisfied that the consequences of any neck impairment alone are serious as at the date of the hearing and for the foreseeable future.

185     In Peak Engineering & Anor v McKenzie,[150] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.

[150][2014] VSCA 67

186     In such circumstances:[151]

“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ...  at least very considerable’.  For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”

[151]At paragraph 1

187     The President found that the judge was:

(a)   bound to identify, and exclude, the continuing consequences for the plaintiff of the unrelated injury; and

(b)   when the consequences properly referable to the relevant injury were identified, identify them as “serious”.[152]

[152]At paragraph 2

188     In this case however, the plaintiff’s difficulties with disentangling the consequences referable to his cervical injury raised by counsel for the defendant were in the end of little consequence, given the acceptance by counsel for the plaintiff that the plaintiff already had pain and suffering consequences from the back injury.

189     However, as counsel for the plaintiff submitted, the fact that the plaintiff has suffered a serious injury to his lower back does not of itself mean any impairment to his neck cannot be “serious”.

190     As the Court of Appeal said in Poholke v Goldacres Trading Pty Ltd:[153]

“First, the fact that the applicant experienced significant pain and discomfort arising from the injury to his neck did not diminish, or in any way devalue, the degree of pain suffered by him as a result of his back injury.  That is, the pain, that the applicant suffered as a result of his neck injury, did not, for the purposes of the evaluation required to be carried out by the court, in any way detract from the significance of the level of pain and discomfort experienced by the applicant as a result of his back injury.”

[153][2016] VSCA 232 at paragraph 110

191     A significant part of the present application related to the plaintiff’s continued cervical pain resulting from the accident.

192     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[154]

“The evidentiary basis of the pain assessment will ordinarily comprise the following:

(a)  what the plaintiff says about the pain (both in court and to doctors);

… .”

[154](2010) 31 VR 1 at paragraph 11

193     Whilst the plaintiff was challenged in a number of matters regarding his credit, he was not challenged as to his experience of ongoing neck pain[155] which he has described in the following terms:

[155]T143

194     In his first affidavit, the plaintiff described his pain as follows:[156]

“I have a tight and jabbing pain in my neck all the time, worse if I turn my head quickly or too far, particularly to the left.  I also have intermittent pain in the top right of my shoulder blade extending into the shoulder.  This pain in my shoulder is different from the neck pain.  It is more of a burning pain, with a pins and needles feeling on the outside of my right arm and into my right little finger and the two fingers next to it.

My right arm generally feels weak, as is the grip in my right hand.  Raising my right arm above shoulder height causes increased his shoulder and neck pain, as did forceful use of my arm.  I favour my right arm for any forceful movement.  I try to use his left arm as much as possible.

Since the mva, I have also experienced increased back and left leg pain.  I believe I limp at times, now on my left leg.

After about an hour on my feet, I find I seem to have increased neck pain and want to rest my head.  I get headaches several times a day, usually when the neck pain is worse.  When I get the headaches I take Panadol or Panadeine Forte and massage the neck which can help.  I also sit or lie down and rest my head if I can.  The headache usually lasts from about 30 minutes to 2 to 3 hours.  The headache which affects the back of my head can also go into my forehead if it is worse.  I generally am careful in my movements to avoid jarring my neck or back which will cause worse pain.” 

[156]PCB 17-18

195     In his second affidavit, the plaintiff deposed:[157]

“I have continued to experience significant pain in my neck.  I continue to experience pins and needles and pain from my neck into my right shoulder and down to my fingertips.  The pain was different to before surgery, however, it was still severe enough to require daily pain medication.

I continue to be restricted in my neck.  I struggle to use my right arm and hand like I could before the accident.  My wife and I continue to live with my son and daughter-in-law.  I try to help around the house where I can, but I rely too much on my son and daughter-in-law.  This makes me feel guilty because they have a young child and I wish that I was able to do more so they did not have to.  I also find it too difficult to be as involved with my grandchild as I would like to be.

My headaches continue to cause pain and anxiety.” 

[157]PCB 21

196     In his third affidavit, the plaintiff described his pain as follows:[158]

“As a result of the mva, I now suffer from debilitating pain in my neck, right shoulder and arm, and the lower back is worse too.  I have pain in my neck, right shoulder and low back all the time, and I also have pins and needles down my right arm all the time.  Some days are better than others, and I have less pain and more movement in my neck, right shoulder and low back.  On the days that I am feeling better, I try and do as much as I can manage.  However, generally I feel very disabled.  The pain in my neck is my worst pain.  I take more medication for my pain now than I did prior to MVA.”

[158]PCB 27-28

197     In his last affidavit sworn in February 2017, the plaintiff deposed that there has been no real change in his overall condition.

198     The plaintiff’s cervical pain and restriction was such that surgery was suggested as early as 2009 but not undertaken until 2014.  Whilst there was some improvement following the neck surgery, the plaintiff continues to experience neck pain and, to a lesser extent, right arm pain.

199     I accept that the plaintiff’s cervical pain is worse than his lumbar pain.  He is not a man to rush into surgery as indicated by his reluctance to undergo lumbar surgery in the past and more recently, right shoulder surgery, yet he ultimately underwent surgery for his cervical pain.[159]

[159]T153

200     I accept that the plaintiff’s additional pain and restrictions resulting from his neck injury are arguably of greater consequence to him in a setting whereby he already had substantial back pain.  His enjoyment of day-to-day activity, even if limited, is more limited due to his subsequent neck problems.[160]

[160]T147

201     The plaintiff has complained to examiners of neck pain in similar terms to that deposed to.

202     When he last reported in February 2016, Dr Andrianakis noted the plaintiff continued to complain of daily neck pain with stiffness and pain into his right shoulder and arm.

203     When last seen by Mr Drnda on 25 March 2015, the plaintiff was complaining of headaches and right shoulder pain, and had a decreased range of movement in that shoulder, and there was some local tenderness. 

204     Dr Aliashkevich, neurosurgeon and spinal surgeon, examined the plaintiff in January and December 2016.

205     On both examinations, the plaintiff complained of quite severe pain in his neck and pain down his right arm, the intensity of which reached 9 out of 10.  He also mentioned difficulties with his voice because of neck problems.

206     Mr David Brownbill, neurosurgeon, examined the plaintiff on 21 January 2016.

207     On examination, the plaintiff reported constant posterior neck pain with fluctuations, and worse with activity; pain in the right arm going down to the fingers, mainly the middle and ring, which was constant; lower back pain since the previous injury, together with left leg pain and right leg pain since the 2008 accident, but worse since 2012.  He also complained of headaches at the back of the head.

208     The most recent medico-legal examination organised by the defendant relating to the accident was by occupational physician, Dr Boys, who examined the plaintiff on 2 July 2015.  Other examinations took place prior to surgery.[161]

[161]Professor Davis on 16 March 2011; Mr Simm on 23 March 2011 and Dr Weissman on 23 March 2011

209     The plaintiff told Dr Boys of chronic neck, right shoulder and lower back complaints.  Right-sided neck pain extended to the right arm and intermittent pain extended as far as the hand, with episodic complaints of numbness. 

210     Relevant also to the evidentiary assessment of the pain experience is what doctors say about the extent and intensity of the plaintiff’s pain.[162]

[162]Per Maxwell P at paragraph 11 in Haden Engineering Pty Ltd v McKinnon (supra)

211     Dr Andrianakis noted the plaintiff struggled with good and bad days, where the pain and discomfort of the neck and shoulder were concerned.  He was never pain free long enough and well enough to attempt to return to work at any level.

212     Mr Drnda thought the plaintiff may have minimal residual clinical chronic radiculopathy, but most of his symptoms were muscular from muscular tenderness, and he thought most of the problem would also be coming from the shoulder.  He considered neck pain and headaches were cervicogenic and could not be helped with surgery.  In his view, widespread spondylosis was the baseline for increased muscle activity and, hence, the pain.

213     Whilst Mr Drnda thought the plaintiff had a mild disability with his neck injury which had stabilised and did not paint a florid picture as counsel for the plaintiff conceded, he accepted that there was ongoing neck pain with a milder level of radiculopathy than pre surgery for which the plaintiff is being prescribed Lyrica.[163]

[163]T145

214     Mr Drnda thought the plaintiff’s quality of life had diminished to some extent due to his neck injury. 

215     Dr Aliaskevich considered the plaintiff had a moderate degree of disability.  He thought the plaintiff was significantly limited in his activities of daily living as a result of the accident and his restrictions were further aggravated by the 2012 accident.

216     On the information provided, Mr Brownbill considered the plaintiff sustained a neck injury in the accident with probably intervertebral disc derangement.  Probable intervertebral disc derangement gave rise to neck pain and radiating right arm pain for which he underwent fusion surgery.   

217     Mr Brownbill thought it was appropriate for the plaintiff to avoid activities involving heavy lifting for cervical mobility, or holding his neck in a fixed position.

218     Mr Brownbill considered there was a disability of a moderate degree.  He anticipated that neck pain with some arm pain would continue indefinitely but he did not expect any untoward neurological sequelae.

219     Dr Boys did not believe the plaintiff suffered any impairment of his domestic or leisure activities, which would have existed notwithstanding the accident.

The right shoulder

220     As counsel for the defendant submitted, there is a separate right shoulder injury from any radiculopathy from the neck and the consequences thereof must be excluded when considering the plaintiff’s cervical impairment.  In this regard, Mr Kossman described the pathology as pain and restriction on the basis of rotator cuff pathology and bursitis.[164]

[164]PCB 186

221     Pathological problems in the right shoulder have been shown on investigations with the right shoulder sufficiently problematic to require ultrasound on 17 November 2008,[165] an x‑ray on 20 October 2014[166] and a further bilateral ultrasound on 23 September 2015.[167]

[165]PCB 124

[166]PCB 125

[167]PCB 129

222     Counsel for the defendant submitted the right shoulder was a continuing source of impairment confirmed by the clinical records of four attendances in 2010 and 2011 where right shoulder pain and restricted movement was noted, with similar entries in October 2012, September and December 2013, six attendances in 2014 and five attendances in 2015.

223     Dr Andrianakis noted on 6 April 2016 that the plaintiff was struggling with right shoulder pains and impingement, recording similar findings the following month and also that the plaintiff was in a lot of pain and had very restricted movement and power.  On 20 June 2016, Dr Andrianakis recorded “right shoulder pain is severe causing severe restriction”.

224     At present, the plaintiff has problems with constant pain, indicating the front of his right shoulder where he thought he had been told two of the muscles had gone.[168] 

[168]T67

225     Counsel for the defendant submitted that it was plain activities requiring the use of the right shoulder, such as cooking and vacuuming, were severely restricted by that incapacity, and the plaintiff agreed this was a problem for him in doing a lot of things, such as vacuuming and shopping.[169]

[169]T37, L19–22

226     The plaintiff agreed he had lower back and right shoulder problems continually since the accident, and that the latter caused him problems doing a lot of things and it, alone, made it difficult doing vacuuming and mopping.  He is left handed.  His right shoulder makes it harder to do everything, not only driving the car.[170]

[170]T37

227     The plaintiff complained of debilitating pain in his neck, right shoulder and low back in his March 2016 affidavit.[171]

[171]PCB 2, paragraph 11

228     The plaintiff confirmed the investigations of his right shoulder since the accident.  The pain is now going into the left shoulder as well, and he has been sent to a specialist, Mr Pullen, but has not planned to see him again.[172]  Mr Pullen had suggested the plaintiff would probably have an operation on the shoulder itself.[173]

[172]T38

[173]T39

229     Mr Pullen, in August 2016, reported that when he saw the plaintiff, the plaintiff told him of injury to his right shoulder and neck in a car accident and the development of lateral-sided upper limb pain. 

230     Mr Pullen reported that on examination, movement of the right shoulder was restricted because of pain and there was a positive impingement sign and weakness of supraspinatus.  He noted an ultrasound of the right shoulder of April 2016 showed evidence of a full-thickness tear of the supraspinatus tendon and also partial thickness tearing of the subscapularis.

231     Mr Pullen discussed both non-operative and operative treatment for the right shoulder injury and advised that if the plaintiff wanted surgery he should have an MRI scan to confirm the diagnosis.[174]

[174]Letter to Dr Andrianakis dated 17 August 2016, PCB 113

232     The plaintiff reported injury to the right shoulder and neck in a car accident and later developed lateral sided upper limb pain. 

233     Whilst there is clearly a separate right shoulder injury, Mr Drnda considered some radiculopathy remains despite the neck surgery, describing residual chronic radiculopathy.[175]

[175]PCB 82

234     Mr Brownbill thought the plaintiff’s radiating arm pain would be regarded as arising from nerve root irritation as a result of the intervertebral disc derangement and foraminal encroachment.[176]

[176]PCB 194

235     As counsel for the plaintiff submitted, there is no suggestion that the plaintiff’s shoulder injury is causing referred pain into the right arm nor was it involved in the need for neck surgery.  Further, the plaintiff has not claimed any restricted shoulder movement or problems with activities in relation thereto as part of the present application.[177]

[177]T153

Medication – pre accident

236     In his third affidavit, the plaintiff described “Pain and restriction before the mva” as follows:[178]

“At the time of the mva on 22 June 2008 …  I had constant pain in my low back, and I took Panadeine Forte every day to help manage my pain.”

[178]PCB 27, paragraph 9

237     The plaintiff could recall being prescribed Tramal in January 2007 when back pain was a serious problem and making him very upset.[179] He was also prescribed Endep and Valium at various times.[180]

[179]T16

[180]DCB 149, Hygieia Medical Clinic Medication Summary

238     The plaintiff agreed that he had taken Panadeine Forte quite often before the accident for back pain.  He also had Valium, but was not sure when he had been prescribed Zoloft, which could have been for pain.[181]

[181]T19

239     The plaintiff’s medication regime was described as follows in his first affidavit:

“I currently take Lyrica, 75 milligrams at night; 3 to 5 Panadeine Forte a day, always one in the morning; and Panadol 2 to 4 a day for my neck and back pain.  I also take antidepressants in the morning and the evening but have forgotten their current name as well as Aspirin for my blood and cholesterol medication.”

240     In his second affidavit, the plaintiff stated:[182]

“I currently take Panadeine Forte, Lyrica, Mersyndol Forte, Astrix and Zoloft.  These medications help my pain and anxiety to a small extent, but the effects thereof wear off quickly and the pain returns.” 

[182]PCB 22

241     As of his March 2016 affidavit:[183]

“I take many medications every day….  The current medications that I take for the injuries suffered in the mva are Lyrica, 150 milligrams twice a day; Panadeine Forte, 500 milligrams/30 milligrams, two tablets four to six times a day; Targin, four tablets a day; Naprosyn, 500 milligrams, one tablet twice daily; Difflam Gel, Hydrocortisone Cream, Zoloft, 100 milligrams, one tablet twice a day; Mersyndol, two tablets at night and also Coloxyl with Senna 50mg/11.27 mg two tablets twice a day to help with the constipation I suffer as a side effects from all the other medications I have to take.”[184]

[183]PCB 28

[184]This regime essentially continues - affidavit sworn 20 February 2017

242     Counsel for the defendant submitted there was a disentanglement issue in relation to the plaintiff’s medication intake.  The plaintiff’s current medication was listed in his affidavit without reference to whether it was taken for neck, back or shoulder.  Further, the clinical records indicate pain medication is often prescribed when there are a variety of complaints and it is not possible to say it is only for the cervical spine.[185]

[185]T116, T117

243     One example relied upon was a detailed note of 5 September 2012, where the only physical complaint recorded by Dr Adrianakis related to continuing lower back pain and Endep, Lyrica, Mersyndol and Panadeine Forte were prescribed.[186]  

[186]Materials folder, page 16

244     However, Dr Adrianakis reported the plaintiff was prescribed strong narcotics, Targin and Endone, during his recovery period from the neck surgery.[187] His most recent records confirm ongoing prescription of Targin.[188] which Dr Pjesivac explained is a strong painkiller.[189]

[187]PCB 43

[188]T146

[189]T149

245     On 22 February 2016, Dr Andrianakis noted:[190]

“Pt remains unwell neck pains and stiffness needing some therapy struggling with pains remembers Targin helped him last time.”

[190]22 February 2016

246     Prescription of Targin has continued thereafter.

247     In Kelso v Tatiara Meat Company Pty Ltd,[191] Dodds-Streeton JA noted that where chronic pain was a prominent feature of the appellant’s case, the endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence. 

[191][2007] VSCA 267 at paragraph 199

248     In my view, the increased medication and the ongoing prescription of the stronger painkiller Targin makes the post-accident regime more significant.

Headaches

249     I addition to ongoing neck pain, since the accident, the plaintiff has suffered headaches which have caused him pain and anxiety.

250     In his first affidavit, the plaintiff described his headaches as follows:[192]

“I get headaches several times each day usually when my neck pain is worse.  When I get the headache, I take Panadol or Panadeine Forte and massage the neck which can help.  I also sit or lie and rest my head if I can.  The headache usually lasts from 30 minutes to 2 to 3 hours.  The headache which affects the back of my head can also go into my forehead if it is worse.” 

[192]PCB 18

251     In July 2015, the plaintiff deposed that his headaches continued to cause him pain and anxiety.[193] He confirmed in his subsequent affidavits that these problems continue. 

[193]PCB 22

252     The plaintiff‘s complaints of headaches post accident have been noted by Dr Andrianakis.  Mr Drnda believed the headaches were cervicogenic and could not be helped with surgery.[194]

[194]PCB 82

Surgical complications

253     The plaintiff’s evidence as to the complications following the surgery is unchallenged.[195]

[195]T150

254     The plaintiff has complained of a hoarse voice since the neck surgery.[196]  At the moment, he cannot talk for very long.[197]

[196]PCB 16

[197]T67

255     Dr Andrianakis considered this was caused by damage to the recurrent laryngeal nerve.[198]

[198]PCB 43

Psychological

256     I am also entitled to take into account the expected mental consequences of the plaintiff’s neck injury when considering pain and suffering.[199]

[199]Per Winneke P in Richards & Anor v Wylie (supra)

257     In his various affidavits, the plaintiff has described being depressed and frustrated due to the restrictions and pain resulting from his neck injury.  The plaintiff’s complaints in this regard are confirmed in Dr Andrianakis’ records.[200]

[200]PCB 148-50

258     Taking into account all the evidence, I am satisfied that the consequences of the plaintiff’s neck impairment alone – significant ongoing neck pain, despite surgery, right arm pain to a lesser degree, the need for surgery and strong painkilling medication thereafter on an continuing basis, headaches and to a lesser extent problems with his voice and psychological issues – are “serious”.

259     Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to the accident. 

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