Kovacic v Transport Accident Commission
[2016] VCC 346
•7 April 2016
| 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: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7, 8, 9 March 2016 | |
DATE OF JUDGMENT: | 7 April 2016 | |
CASE MAY BE CITED AS: | Kovacic v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 346 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – neck injury requiring surgery – causation – delay in reporting injury – creditworthiness and reliability – prior lower back injury – separation of consequences attributable to lower back injury and neck injury – intervening further transport accident
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited:Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67; Davies v Nilsen & Transport Accident Commission [2014] VSCA 278; Jones v Dunkel (1959) 101 CLR 298
Judgment: The plaintiff’s Originating Motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Ms M Tait | Zaparas Lawyers |
| For the Defendant | Mr G A Lewis QC with Ms J Frederico | Solicitor for the Transport Accident Commission |
HIS HONOUR:
Introduction
1 The plaintiff is a fifty-five-year-old man who was born in 1960. He was injured in a transport accident on 22 June 2008. He suffered an injury to his neck, which is said to have consequences that meet the statutory test of seriousness.
2 Mr J Mighell QC appeared with Ms M Tait of counsel for the plaintiff. Mr G A Lewis QC appeared with Ms J Federico of counsel for the defendant.
Summary of the issues
3 The plaintiff had surgery to his neck on 28 January 2014, performed by Mr Drnda, neurosurgeon. The surgery comprised a C6-7 anterior cervical discectomy and fusion.
4 The first issue raised in this application is causation; that is, whether the neck injury was caused by the transport accident. The plaintiff claimed that he suffered an injury to his neck in the transport accident. The defendant denied that it was caused by the transport accident. The denial was essentially based upon the delay in the plaintiff presenting to a medical practitioner alleging that the neck injury resulted from the transport accident.
5 The second issue is the plaintiff’s creditworthiness and reliability. In a sustained attack upon the plaintiff, the defendant exposed significantly contradictory accounts given by the plaintiff regarding his capacity to function subsequent to a prior industrial accident, which occurred in October 2000,[1] and subsequent to the transport accident. The plaintiff’s creditworthiness and reliability impinge upon what consequences I should accept have resulted from the neck injury.
[1]The plaintiff was injured in an industrial accident on 4 October 2000. He suffered an injury to his lower back. He brought a common law claim, which settled in 2005 or 2006. Some of the medical reports of medical practitioners who examined him with respect to that claim were reproduced in the Defendant’s Court Book.
6 The third issue is based upon Peak Engineering Pty Ltd & Anor v McKenzie;[2] that is, the necessity to separate consequences attributable to the neck injury from consequences attributable to lower back injury and the right shoulder injury.
[2][2014] VSCA 67
Causation
7 The plaintiff was aware of worsening pain in his lower back and pain in his chest immediately after the transport accident. He then became aware of pain in his neck, which was worse when he raised his right arm.[3] He did not say when he first became aware of the pain in his neck.
[3]PCB 10
8 The plaintiff saw Dr Betteney, general practitioner, on 23, 26 and 30 June 2008. He did not report the transport accident to him, but curiously the words “NEW INJURY” are written beside the date of 23 June 2008 and have been scribbled out. The plaintiff attempted to explain why he did not report the transport accident to Dr Betteney. He found going through the WorkCover experience with his lower back injury to be “very upsetting”. He did not want to see more doctors and lawyers. He just hoped that his neck pain would go away.[4] It would appear that he had forgotten that he had seen Dr Betteney. It was only when his solicitors discovered the clinical notes and confronted the plaintiff with them that the plaintiff gave the explanation which I have just summarised.
[4]PCB 21
9 The plaintiff was referred to the clinical records of Dr Pjesivac, general practitioner. He treated the plaintiff from August 2003 through to August 2010. He was called to give evidence and was cross-examined. The plaintiff maintained that he told Dr Pjesivac that he had suffered an injury to his neck fairly early on, but he was unable to say when that occurred.
10 The clinical notes reveal that the first occasion that such a complaint was recorded was on 7 November 2008. The clinical note reads:
“Low back pain/ neck paiun (sic) / rright (sic) shoulder pain.”[5]
[5]Exhibit 3 at page 8
11 The next relevant entry in the clinical notes is from a consultation on 1 December 2008. The clinical note reads:
“Pain right arm / shoulder / neck
Right shoulder tendinosis - supraspinatus
Apparently due to MCA.”[6]
[6]Exhibit 3 at page 7
12 Dr Pjesivac conceded that if a complaint was made, it was his ordinary practice to record it. It was my impression, however, that he equivocated when he gave that answer. He said that he usually made handwritten notes of consultations until he mastered entering the content of a consultation onto his computer. There was a time when he did both. Unfortunately, he has disposed of his handwritten notes.
13 Dr Pjesivac provided a report to the plaintiff’s solicitors dated 6 December 2010. On the first page of that report, he gave a summary of the plaintiff’s relevant past history. In a left-hand column he noted the date of the relevant past history under the heading “Date” and in the right-hand column he noted the medical condition under the heading of “Condition”.
14 In the left-hand column, he noted a date “22 June 2008”, which is in fact the date of the transport accident. Beside it in the right-hand column, he noted “MCA (Motor Car Accident) injury”). Two entries down, he noted the date “August 2008” and beside it in the right-hand column, he noted “Neck pain”. He was not asked to explain the basis upon which he made those notations.[7]
[7]PCB 38
15 In the body of Dr Pjesivac’s report is the following:
“On the 22.06.2008 Mr Kovacic was involved in a motor vehicle accident near Macedon. His car was struck on its left front. Apparently, the car was written off and initially Mr. Kovacic did not have any additional injuries or complaints apart from his ongoing work related low back pain / sciatica and depression. Four months following the accident Mr Kovacic started complaining of a more severe low back pain, some cervical spinal and some right shoulder pain … .”[8]
[8]PCB 39
16 Later, and in the same report, and presumably in answer to questions which were put to him, he said the following:
“Mr. Kovacic first presented to my clinic with symptoms related to his MCA on the 07.11.2008.”[9]
[9]PCB 40
17 There are a number of internal inconsistencies in the report of Dr Pjesivac. Firstly, the reference to his knowledge of the plaintiff’s neck injury in August 2008 is contradicted by what he said in the body of his report: that the first complaint was four months after the transport accident, which must mean it occurred in October 2008. Further, later, when he expressed an opinion about matters on which he was asked to comment, he said that the plaintiff first presented with symptoms related to the transport accident on 7 November 2008.
18 In Davies v Nilsen & Transport Accident Commission,[10] the Court of Appeal considered that to isolate consideration of clinical notes only in the determination of a causation question is to fall into error. The obligation of the trial judge is to consider all of the evidence in the plaintiff’s case. That would include the gravity of the transport accident and the subsequent opinions of medical practitioners who have examined the plaintiff for treatment and on a medico-legal basis where those medical practitioners have an adequate history upon which to base an opinion on causation.[11]
[10][2014] VSCA 278
[11]Davies (ibid) generally and at paragraphs [84], [91] and [95]
19 I accept that the plaintiff’s neck injury was caused by the transport accident.
20 Although Dr Pjesivac did not positively say that the neck injury was caused by the transport accident, this can be inferred by the context in which he dealt with that complaint in his report. Importantly, he did not say that it was not caused by the transport accident.
21 I think it is more likely than not that the plaintiff did suffer some symptoms of pain in his neck contemporaneously with the transport accident, which increased to the point where he sought medical treatment from Dr Pjesivac. Despite the internal inconsistencies in Dr Pjesivac’s report, I think it is more likely than not that the plaintiff first complained to him of the neck injury on 7 November 2008.
22 Dr Pjesivac subsequently referred the plaintiff to have a plain x-ray, which was taken on 15 May 2009. The radiologist concluded that the plaintiff was suffering from 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.[12]
[12]PCB 86
23 Dr Pjesivac referred the plaintiff to Mr Barrett, orthopaedic surgeon. Mr Barrett had treated the plaintiff in May 2007 and subsequently, for his lower back injury. Mr Barrett provided a medical report dated 28 May 2009 directed exclusively to the plaintiff’s neck injury. He was aware of the plaintiff’s complaints of injury and the CT scan. He did not consider that his clinical findings and the radiology justified referring the plaintiff to have an MRI scan.[13] It would appear that he assumed that the neck injury was caused by the transport accident.
[13]PCB 80-81 and 82
24 Dr Pjesivac then referred the plaintiff to Mr Drnda, neurosurgeon, who first saw the plaintiff on 29 July 2009. By that time, the plaintiff had undergone an MRI scan, which was taken on 1 September 2009. The radiologist considered that it demonstrated a right lateral ridge at C7, impinging on the exiting right C7 nerve root at C6-7.[14] Mr Drnda agreed with the findings on the MRI scan. He suggested that the plaintiff have surgery to his neck. Of importance is that he considered that the neck injury “was consistent with the stated cause” being the transport accident.[15]
[14]PCB 88-89
[15]PCB 66-67
25 The plaintiff commenced seeing Dr Adrianakis, general practitioner, on 16 November 2009 because Dr Pjesivac began practising elsewhere. Dr Adrianakis assumed that the neck injury was caused by the transport accident.
26 Mr Mangos, general surgeon, examined the plaintiff in October 2010. The plaintiff told him that he became aware of neck pain a day or two after the transport accident and later, when the pain worsened, he experienced pain, numbness and tingling radiating into his right arm. He considered that the plaintiff had suffered an injury to his neck with C7 radiculitis involving the right arm. He also considered that the injury was consistent with the stated cause being the transport accident.[16]
[16]PCB 121-122
27 Professor Stephen Davis, neurologist, examined the plaintiff on 16 March 2011. He was aware of the plain x-ray, the CT scan, and viewed the MRI scan. He gave a similar opinion to Mr Drnda, but expressing it somewhat differently. He considered that the plaintiff had suffered a musculoligamentous injury to his neck with right brachial neuralgia suggestive of symptomatic radiculopathy with some subtle features of right C7 radiculopathy, which he considered were confirmed by what he saw on the MRI scan.[17] After viewing the films of the plaintiff, the contents of which are summarised below, Professor Davis did not alter his diagnosis of the plaintiff’s neck injury. Indeed, he did not do that, because he said that his diagnosis was based on objective clinical findings.[18] He was not asked to give an opinion on causation.
[17]PCB 99
[18]PCB 102
28 Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff on 23 March 2011. He viewed the plain x-ray, the CT scan and the MRI scan. It would appear that he was provided with “contemporaneous medical records”, which he considered made it difficult for him to determine whether the symptoms of neck pain, right shoulder pain and right arm pain were related to the transport accident. He disagreed with the diagnosis made by Mr Drnda and Professor Davis, preferring the diagnosis of chronic pain, and with respect to the neck injury, he considered it to be a soft-tissue injury, which had occurred spontaneously rather than as a result of the transport accident.[19]
[19]DCB 103-109, and in particular at 108-109
29 Mr Kossman, orthopaedic surgeon, examined the plaintiff in June 2015. The plaintiff told him that he became aware of neck pain after the transport accident. He considered that the neck injury was caused by the transport accident. Essentially, he appears to agree with the diagnosis made by Mr Drnda and the need for surgery.[20]
[20]PCB 139-148, and in particular at 147. This report is the same report found at PCB 127-136 with some amendments based upon the provision of additional material referred to it at PCB 137-138
30 Mr Aliashkevich, neurosurgeon, examined the plaintiff in January 2016. The plaintiff told him that he tried to manage his neck pain before seeing Dr Pjesivac because of persisting symptoms of pain in his neck. He considered that the neck injury was caused by the transport accident. Essentially, he appears to agree with the diagnosis made by Mr Drnda and the need for surgery.[21]
[21]PCB 148a-148e, and particularly at 148a-148b and 148d. His medical report reads as if it is a medico-legal assessment; however, Dr Adrianakis said that he referred the plaintiff to him in December 2015. Mr Aliashkevich makes no reference to having treated the plaintiff – PCB 148a-148e
31 Mr Brownbill, neurosurgeon, examined the plaintiff on 9 February 2016. The plaintiff told him that he noticed pain on the top of his right shoulder and at the back of his shoulder blade and later the spread of that pain to the side and back of his neck. He considered that the neck injury was caused by the transport accident. Essentially, he appears to agree with the diagnosis made by Mr Drnda and the need for surgery.[22]
[22]PCB 148g and 148j-148k
32 Dr Boys, orthopaedic surgeon, examined the plaintiff on 2 July 2015. The plaintiff told him that he did not suffer immediate pain or exacerbation of symptoms of injury following the transport accident. He also told him he was unsure when he first experienced neck pain. Dr Boys then recorded that the neck pain “would appear to have occurred some 3 to 4 months” after the transport accident. It is not clear whether that is what the plaintiff told him or that is what he deduced from Dr Pjesivac’s clinical notes. Unlike the other medical practitioners, he was of the opinion that the plaintiff’s neck pain and the need for surgery were the result of constitutional degenerative changes. Additionally, he considered that the plaintiff’s complaints of pain would have arisen whether the transport accident had occurred or not.[23]
[23]DCB 134-149, and particularly at DCB 138 and 144
33 What is clear from the summary of the relevant medical opinions is that some medical practitioners assumed that there was no issue with causation and subsequently, provided an opinion that causation could be established. Others were given a measure of the correct history, and subsequently, provided a similar opinion that causation could be established. Only Mr Simm and Dr Boys doubted it could be established.
34 The plaintiff’s wife, Nedeljka Kovacic, gave evidence and was cross-examined. In her affidavit, she said that it was shortly after the transport accident that the plaintiff complained to her of pain in his neck, right shoulder and right arm. She added that neither of them thought much of that complaint until it occurred to them over the following months that the plaintiff was experiencing more pain in those regions.[24] Under cross-examination, Mrs Kovacic said that the plaintiff complained of neck pain “straightaway” after the transport accident.[25]
[24]PCB 23h
[25]Transcript 88-89
35 The conclusions I have reached after analysing the plaintiff’s evidence and that of his wife are as follows:
·The plaintiff was involved in a significant transport accident which wrote his car off. The impact is very likely to have caused sudden movements of his body whilst restrained by the seatbelt. It is the sort of impact which can be associated with the production of a whiplash-type injury affecting the spine.[26]
·I accept the plaintiff’s evidence, and that of his wife, that he experienced some neck and shoulder pain, and later, pain radiating into his right arm, which worsened.
·It was in the setting of that worsening that saw the plaintiff consult Dr Pjesivac.
·Despite the internal inconsistencies in Dr Pjesivac’s report, I think it is more likely than not that the plaintiff sought treatment for those medical problems on 7 November 2008, and later, related them to the transport accident on 1 December 2008.
[26]The plaintiff described the nature of the impact in a diagram in the Claim Form lodged with the defendant at PCB 150
36 Although not all the medical practitioners who are satisfied that causation can be established were given a history consistent with the findings that I have made, I am nonetheless satisfied that the histories they were given were sufficient for them to understand that they needed to make a link between the occurrence of the neck injury and the transport accident. I accept their evidence on causation. It follows that I do not accept the opinion of Mr Simm or Dr Boys.
Creditworthiness and reliability
37 I will firstly turn to a number of histories recorded by medical practitioners who examined the plaintiff after he suffered the lower back injury. Each of the following histories were put to the plaintiff.
38 The plaintiff was examined by Dr Entwisle, psychiatrist, on 5 March 2003. He recorded the following history in his report dated 14 March 2003:
“Otherwise, he described that he does ‘not much’. He walks around the house. He might walk outdoors, weather permitting. He walks irregularly from what I can gather. He is not part of any exercise program as such, ‘it all depends on how I feel’. The afternoons he spends with his children. The younger one leaves before 9.00am and comes home at 3.00pm. The other son, when he is home from work, is often involved in working on his car. He spends time doing the same. Other than that, he spends time in the backyard. He might go out into the street and talk to neighbours. He spends time indoors sitting, lying down watching television.”[27]
[27]DCB 57
39 The plaintiff was examined by Dr Baynes, occupational physician, on 23 June 2005. He recorded the following history in his report dated 23 June 2005:
“Mr Kovacic advises that he is married and has two children aged 18 and 19. Mr Kovacic advises that he is usually able to cope with personal grooming but sometimes needs the aid of his wife. Mr Kovacic does not do any real housework but does advise occasionally cooking an egg. He will supervise his children outside. He will occasionally go to the shops and will carry a small bag. He spends his day going for a walk, occasional exercises and going shopping with his wife if he is able. Most the time he is unable to do this. Mr Kovacic advises that he suffers from ongoing depression … Mr Kovacic advises that he did enjoy fishing and cycling in the past … .”[28]
[28]DCB 75
40 The plaintiff conceded that what he told each of those medical practitioners was how he was when they examined him and that he continued to suffer a loss of function to that degree. He added that his loss of capacity has worsened subsequent to the transport accident.[29]
[29]Transcript 39-40
41 The plaintiff was then referred to histories recorded by medical practitioners who examined him in 2010 and 2011. The purpose was to compare the degree of the loss of function, which the plaintiff complained about, with the level of his functioning demonstrated in film that was taken of him in 2011.
42 The plaintiff was examined by Professor Davis, neurologist, on 16 March 2011. He did not record as substantial a history of the plaintiff’s loss of function as did other medical practitioners. He did record the following in his report dated 16 March 2011:
“Mobility
He cannot walk very far because of back and leg pain.
Personal Relationships
He has become withdrawn, more socially isolated and does not mix much with friends because of his chronic pain problems.
Work and Home Activities
He lives at home with his wife and son. He is not able to do housework because of his chronic pain.
Leisure Activities
He is more socially withdrawn and communicates less with people. He now does much less walking.”[30]
[30]DCB 100
43 The plaintiff was next examined by Dr Weissman, psychiatrist, who examined the plaintiff on 23 March 2011. The plaintiff told Dr Weissman that he could not climb the staircase at his rooms and that he needed to be examined in a ground floor room.[31] He recorded the following history in his report dated 23 March 2011:
“I asked him about his capacity to perform personal activities of daily living. He is usually able to shower and dress himself independently, but not always. Sometimes he requires help.
He does not do any cooking or cleaning at home. His wife does these activities.
He does not do any gardening. He sometimes goes grocery shopping by himself to buy light items. Sometimes he attends with his wife.”[32]
[31]DCB 121
[32]DCB 118 – 119
44 The plaintiff was next examined by Mr Simm, orthopaedic surgeon, on 23 March 2011. He recorded the following history in his report dated 23 March 2011:
“He lives with his wife and one of his two sons remains at home. He drives infrequently. He does not do any household chores although he may go shopping with his wife. He does not attempt lawn mowing, gardening or other physical activities. He goes for a walk during the day. His son is a motor mechanic who does some work at home and Mr Kovacic spends some time with his son whilst he is doing this work.”[33]
[33]DCB 106
45 The plaintiff was shown films that were taken of him on 17, 18 and 25 August 2011,[34] which are in dramatic contrast to his evidence that he continued to be as incapacitated as he described to Dr Entwisle, Dr Baynes, Dr Weissman, Professor Davis and Mr Simm.
[34]Exhibit 1
46 The first film was taken on 17 August 2011. The relevant parts of that film are as follows:
·At 7.06am, a flatbed tow truck was shown parked in front of the plaintiff’s home.
·At 8.26am, the plaintiff was seen wearing an orange shirt and a green fluoro jacket. He walked in the company of his wife into a VicRoads office.
·At 9.30am, he boarded a four-wheel-drive vehicle and drove to his home.
·At 12.23pm, he boarded the tow truck by climbing into an elevated cabin. He sat on the track for about three minutes before he drove off.
47 The next film was taken on 18 August 2011. The relevant parts of that film are as follows:
·At 11.55am, the plaintiff was seen wearing an orange shirt and a green fluoro jacket walking around in what appeared to be a caryard with a young man who was probably one of his sons.
·At 12.01pm, a yellow car had been placed on the flatbed of the tow truck. The plaintiff was seen winding an apparatus, which I assume to have been a device to secure the car on the flatbed of the tow truck.
·At 1.09pm, the plaintiff was at a car wash. He was standing on the flatbed of the tow truck using a pressure hose held in both hands washing down the flatbed of the tow truck. At various times he bent to about 45 degrees while using the hose. He jumped down off the truck, which appeared to me to be a distance of about a metre or so. He then climbed back onto the flatbed of the tow truck with apparent ease, using a step while holding onto part of the truck. Later, he jumped down again in the same way. He then bent at the knees and at the back significantly while hosing down the undercarriage of the tow truck.
48 The film taken on 25 August 2011 was of no significance and was only a few seconds in duration.
49 It is noteworthy that the plaintiff barely referred to any of the activities he was seen undertaking in the film taken on 18 August 2011 in his first affidavit sworn 4 December 2014, nor in his second affidavit sworn 29 July 2015. In the latter affidavit, he said that he has assisted one of his sons who buys cars, repairs them and then on sells them. The limited role he played in that regard was to occasionally pick up a car for his son, but in order to do so he would have to push himself, and would do that when his son was desperate for assistance.[35]
[35]PCB 22
50 In his last affidavit sworn 4 March 2016, the plaintiff was more forthcoming about the extent of his involvement in his son’s business:
“17.… one of my sons owns a mechanic business. It is my youngest son who owns this business. My son sometimes buys cars and registers them in my name or in 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 in my wife’s name in order to get around these rules.
18.My eldest son is a self-employed truck driver. His truck is registered in my name. The reason that the truck is registered in my name is because my son had previously owned a truck in his own name, and then sold it and spent all of the money. Our family then agreed to all 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.
19.Both of my sons work quite long hours, so my wife and I help them by running errands, both personal errands and errands for their businesses, whenever we feel up to it.”[36]
[36]PCB 23e
51 At the time when the plaintiff had the opportunity to give a truthful account of the work that he was obviously undertaking in 2011, he chose to avoid revealing the real extent of his capacity to work.
52 The tow truck was registered in the plaintiff’s name between 7 March 2011 and 5 January 2012.[37] The green fluoro jacket worn by the plaintiff had the words “Ned’s Towing” printed on the back of it and also the plaintiff’s personal mobile telephone number.[38] The same name and mobile telephone number were painted onto the back of the tow truck.
[37]DCB 175
[38]Transcript 70-71. “Ned” is obviously an abbreviated version of the plaintiff's first name
53 The plaintiff’s wife purchased the tow truck for her son. She used her credit card to make the purchase. The plaintiff denied that he or his wife funded the purchase of any of the cars bought by his son.
54 What I have set out above led the defendant to submit that when a comparison is made between the representations of the plaintiff of his degree of incapacity and the reality of what he was doing in 2011, that his creditworthiness and reliability have been seriously undermined. I agree.
55 Additionally, the creditworthiness and reliability of the plaintiff’s wife was attacked under cross-examination. A similar cross-examination was conducted of her regarding the plaintiff’s level of incapacity recorded by Dr Entwisle and Dr Baynes, but in a much truncated form. She agreed that the plaintiff suffered that degree of incapacity recorded by those medical practitioners.
56 Mrs Kovacic made her own application for serious injury in November 2013. It was put to her that in that application, she said that she was so incapacitated that the plaintiff helped her by doing the vacuuming and mopping. That was contrasted with what she said in her affidavit in this proceeding, in which she made no reference to getting assistance from him of that kind, but only that he was able to help around the house “sometimes” before the transport accident.[39]
[39]Transcript 86 and PCB 23h
57 The plaintiff’s wife conceded that the plaintiff did drive the tow truck and wore a fluoro jacket bearing his name and telephone number. She gave equivocal answers about whether she had observed a “truck” outside her home.[40]
[40]Transcript 87
58 The attack on the creditworthiness and reliability of the plaintiff’s wife was fairly limited; however, I was left with the uneasy feeling that she was not being candid in her answers concerning the apparent contradiction in her affidavits regarding the plaintiff’s level of activity following the transport accident, and whether there was a tow truck outside her home. The tow truck I saw in the films is a very black vehicle that would be impossible to miss, and in some of the films it was shown parked outside the plaintiff’s home. Furthermore, it was owned by her son who was living with her, so for her to give such a non-responsive answer was surprising.
59 There is no doubt in my mind that the accounts given by the plaintiff to Dr Weissman, Mr Simm and Professor Davis of the degree of his incapacity were plainly untrue. I am in no doubt that the plaintiff was actively involved in his son’s business. He was clearly able to involve himself in that business to a significant degree. The fact that his name and telephone number were on the back of the fluoro jacket and the tow truck demonstrate that very clearly; however, the evidence does not permit me to determine the extent to which the plaintiff was involved in that business beyond what I have seen in the films.
60 There is also no doubt in my mind that the activity of driving the tow truck must involve a level of capacity inconsistent with the representations made by the plaintiff of being seriously incapacitated. Furthermore, the plaintiff’s movements when washing down the flatbed of the tow truck demonstrated full, free and unrestricted movements of his spine, and confidence in the integrity of his spine, when he jumped down from the flatbed of the tow truck to the ground on two occasions, and then climbed back onto the flatbed of the tow truck on one occasion. Otherwise, all of the other movements which I have recorded in my summary of that part of the film were not the movements of a person with a serious level of incapacity resulting from a spinal dysfunction.
61 The film taken on 18 August 2011 was shown to Professor Davis and Mr Simm. Professor Davis concluded that the films demonstrated no obvious signs of restriction in the plaintiff’s movements and that the plaintiff appeared to undertake activities without any evidence of stress or objectively based disability.[41] Mr Simm concluded that the films demonstrated that the plaintiff had no significant condition affecting his neck or lower back.[42]
[41]DCB 102
[42]DCB 114
62 I was referred to other histories recorded by other medical practitioners to whom the plaintiff gave similar histories of a serious level of incapacity. I do not propose to summarise those histories, because what I have summarised thus far, is sufficient to see me conclude that the histories recorded by the likes of Dr Entwisle, Dr Baynes, Dr Weissman, Mr Simm and Professor Davis were simply not true.[43]
[43]For example Dr Kornan, psychiatrist, at PCB 101; Mr Mangos at PCB 120-122
63 The defendant tendered one page of the clinical notes of Dr Betteney, general practitioner.[44] The purpose was to demonstrate that at a consultation on 4 January 2013, the plaintiff asked Dr Betteney for a medical certificate so that he could obtain a shooter’s licence. The plaintiff intended to join his friends to go deer hunting. He agreed that it would involve carrying a rifle and walking in the bush; however, he intended to join his friends and stay in their camp rather than join them on actual hunt. He thought he needed a license to be able to enter the particular area where his friends would set up their camp.[45] This evidence was no doubt adduced to demonstrate that the plaintiff was not so incapacitated in 2013 as to be unable to engage in an activity of that kind.
[44]Exhibit 5
[45]Transcript 43-44
64 The plaintiff did not obtain any affidavits from his sons to explain the extent to which he worked for one of them, and the extent to which he assisted both of them short of performing actual work. The defendant submitted that I should draw an adverse inference from that failure consistent with Jones v Dunkel.[46] Clearly, the sons are in the plaintiff’s camp. There is no explanation why affidavits were not obtained from them. I cannot speculate as to what they might have said, but I can draw an inference that they would have been of no assistance to the plaintiff in prosecuting his case. Further, I can more comfortably accept the contrary evidence, which is that the plaintiff had a significant capacity to function at least at 2011 when the relevant films were taken. I draw that inference against the plaintiff.
[46](1910) 10 CLR 266
65 For the foregoing reasons, I have an understandable reluctance to accept the plaintiff’s evidence or that of his wife, save for instances where other evidence leaves me with some confidence that what the plaintiff has said is probably true. I consider the plaintiff’s creditworthiness and reliability to be seriously undermined, not in the reporting of an incident and the occurrence of an injury, but rather in what amounts to a gross exaggeration of the consequences of that injury. Again, I simply refer to the histories recorded by Dr Baynes and Dr Entwisle and the plaintiff’s evidence about those histories.
The further transport accident
66 Before turning to the plaintiff’s consequences and whether I consider that the consequences of the impairment of function of the neck are serious, I must deal with a submission made by the defendant that the plaintiff has suffered an aggravation of the neck injury resulting from a further transport accident, which occurred on 28 May 2012. The plaintiff was stationary on the gravel shoulder of a roadway when his car was sideswiped by another car.
67 Dr Adrianakis was the plaintiff’s treating family doctor at the time when the further transport accident occurred. The plaintiff did not seek treatment from him for any injury, or aggravation of any pre-existing injury, following the occurrence of it. Nor is there anything in his medical reports about it.
68 Mr Kossman obtained a history of the further transport accident. He recorded that the plaintiff suffered an extension flexion injury. He considered that the further transport accident worsened the plaintiff’s neck pain, which caused the plaintiff to go back to Mr Drnda on 3 October 2013.[47]
[47]PCB 128, 133-134 and 140
69 Mr Aliashkevich obtained a similar history of the further transport accident, and additionally, that the plaintiff’s car was hit from behind at fairly high speed, resulting in a whiplash injury to his neck. He recorded that the plaintiff attended Dr Adrianakis a couple of days later, which is incorrect. He considered that the plaintiff had suffered an exacerbation of the pre-existing injuries to his neck, right shoulder and arm.[48]
[48]PCB 148b
70 Mr Brownbill obtained a much shorter history of the further transport accident. He recorded that the plaintiff’s car was hit from behind, that he “immediately” noted pain in his neck and lower back, and that the pain continued.[49]
[49]PCB 148g
71 Dr Boys obtained a similar history of the further transport accident. He recorded that the plaintiff’s car was struck from behind. The plaintiff experienced no immediate pain, but suffered an exacerbation of neck, back and right shoulder pain over the next few days, for which he received treatment from Dr Adrianakis and physiotherapy treatment.[50]
[50]DCB 139
72 Each of these medical practitioners obtained a history of the further transport accident. I assume that they obtained that history from the plaintiff. What is odd about those histories is, firstly, they are not consistent with what the plaintiff said in his first affidavit, that he was sideswiped and not hit from behind, and secondly, there is no entry in Dr Adrianakis’ clinical notes of a consultation relevant to the further transport accident or any particular treatment for his neck injury consistent with an aggravation. Indeed, the plaintiff saw him on 5 September 2012 and 20 September 2012, making no complaint of neck pain or an exacerbation of neck pain. The first entry after the further transport accident referring to neck pain is 31 October 2012, but there is no history that it was related to a further transport accident.
73 Under cross-examination, the plaintiff said that he told some of the examining medical practitioners that he did suffer an increase in neck pain after the further transport accident, but that it settled down and returned to what it was like after the subject transport accident within a few days. There was little cross-examination on this issue.[51] Although I have said quite a bit about the plaintiff’s creditworthiness and reliability, I am more inclined to accept his evidence on this issue because it is consistent with the other evidence, and principally, from Dr Adrianakis and Mr Drnda, who have no history of any further transport accident and any exacerbation of the plaintiff’s neck injury.
[51]Transcript 52
74 I do not accept that it constitutes an intervening event resulting in any pathological change to the plaintiff’s pre-existing neck injury, or is anything other than the cause of a passing increase in the symptoms previously experienced by the plaintiff.
The Plaintiff’s consequences
75 It was not the case in 2011 that the plaintiff was not suffering from some consequences of the neck injury. I am fortified in reaching that conclusion, because Professor Davis was probably in the best position of any of the examining medical practitioners to, firstly, diagnose the neck injury, and secondly, to comment on whether what he saw in the films suggested to him that the plaintiff had no injury or a significantly less serious injury. It is clear that he distinguished between an injury which was demonstrated organically and the consequences of that injury.
76 The plaintiff was significantly more able than he represented himself to be in 2011. There is a temptation to infer, therefore, that he had the ability to engage in levels of social, domestic and recreational pursuits; however, to do so would be to engage in speculation. What that means, is that there is no reliable evidence of the plaintiff’s capacity to engage in social, domestic and recreational activities between 2011 and 2014.
77 The plaintiff’s tendency to grossly exaggerate the consequences of his neck injury, and his wife’s lack of candour lead me to search for evidence which is more creditworthy and reliable. I think the assessments by the plaintiff’s treating medical practitioners are probably more creditworthy and reliable. I say that, because they were more likely to measure the complaints made by the plaintiff with the objectivity of an examining medical practitioner. It is for these reasons that I propose to closely examine the medical evidence against the evidence of the plaintiff and his wife regarding the consequences of the impairment of function of the plaintiff’s neck.
78 The plaintiff put his case on a fairly limited basis, that being, that I should assess the consequences to the plaintiff of the surgery and its aftermath. A summary of those consequences which I consider to be relevant and reliable are as follows:
·The plaintiff suffered neck pain with right-sided C7 radiculopathy, which had probably been developing by the time the plaintiff saw Dr Pjesivac in November and December 2008.
·The presence of the neck pain and the radiculopathy was first diagnosed by Mr Drnda in late September 2009, after he examined the plaintiff on 30 September 2009 with the advantage of the MRI scan taken on 1 September 2009.[52]
[52]PCB 66-67
·The diagnosis made by Mr Drnda is consistent with, and confirmed by the diagnosis made by Professor Davis in March 2011.[53]
[53]DCB 99
·The plaintiff continued to experience neck, right shoulder and arm pain. That is clear, because Dr Adrianakis referred the plaintiff for review by Mr Drnda on 23 September 2013 for management of the plaintiff’s neck and arm pain.[54] Dr Adrianakis treated the plaintiff from November 2009. During the period he treated the plaintiff and up to the date when the plaintiff had surgery, the plaintiff complained of neck pain, stiffness in his neck and recurring headaches. In April 2010, the plaintiff reported that he was suffering from daily severe neck pain.[55]
·The plaintiff underwent major spinal surgery on 28 January 2014. Mr Drnda performed a C6-7 anterior cervical discectomy and fusion.[56]
·The plaintiff was reviewed by Mr Drnda on 14 March 2014, 28 November 2014, 18 March 2015 and 25 March 2015. He considered that the radiculopathy had subsided, and that the plaintiff’s post-operative course was favourable. The plaintiff described different pain in his right shoulder and arm, which Mr Drnda considered was consistent with shoulder pathology.[57] This is something which Mr Kossman commented on from the perspective of his orthopaedic specialty.
·Although Mr Drnda considered that the plaintiff was partially incapacitated for employment and that his quality of life was diminished to some extent, he concluded that the plaintiff had a mild disability resulting from his neck injury; however, he also described the neck injury as resulting in a partial incapacity, which the plaintiff would suffer indefinitely.[58] It is difficult to know what he meant by a “partial incapacity” because he did not explain what that was linked to. Usually an expression such as that is a reference to a retained capacity for work. It is unusual to see it used to describe any impact upon an injured person’s capacity to engage in social, domestic and recreational activities.
·Dr Adrianakis continued to treat the plaintiff post-surgery. He referred the plaintiff to have a further MRI scan, which he interpreted to demonstrate residual compression of the C7 nerve root. He said that the plaintiff was subsequently reviewed by Mr Drnda in March 2015, who apparently confirmed the residual C7 compression;[59] however, Mr Drnda saw the plaintiff on 25 March 2015, but said nothing about a further MRI scan or there being residual C7 compression.[60] Dr Adrianakis recorded the complaints of the plaintiff post-surgery of ongoing neck pain and neck stiffness. He considered that the plaintiff had a poor prognosis; however, that prognosis appears to include the constellation of the plaintiff’s medical problems including his lower back, right shoulder and arm.[61]
·The plaintiff developed dysphonia following the surgery. It is the impairment of the ability to make voice sounds. Mr Drnda was informed by the plaintiff of that development. By implication, it would appear that the development of it is temporally connected with the surgery.[62]
·The plaintiff developed cervicogenic headaches, which are related to his neck injury.[63][64]
·The plaintiff’s present medication regime relevant to the treatment of his neck injury comprises the use of Targin (four per day), Lyrica (two per day) and Panadeine Forte (four to six per day).[65] He was previously prescribed Endone and diazepam post-surgery.[66]
·Dr Adrianakis advised the plaintiff to undergo physiotherapy. Dr Adrianakis has not commented on whether the plaintiff had any rehabilitation treatment, but the plaintiff said that he saw Mr Ziros, chiropractor, Ms Pennas, physiotherapist, and Mr Lejeak, chiropractor, post-surgery. No reports were obtained from any of those practitioners.
[54]PCB 63
[55]PCB 35a-35b
[56]PCB 64
[57]PCB 64
[58]PCB 65
[59]PCB 35c-35d
[60]PCB 64
[61]PCB 35d
[62]PCB 64
[63]PCB 64
[65]PCB 23d-23e, Transcript 81-82 and PCB 35c-35d. The plaintiff was first prescribed Lyrica by Dr Adrianakis on 21 June 2010. He had also been prescribed Panadeine Forte prior to undergoing surgery.
[66]PCB 35b-35c
79 I prefer the evidence of Dr Pjesivac, Dr Adrianakis and Mr Drnda over the evidence of all of the other medical practitioners who have examined the plaintiff. I think I have stated my reasons for doing so clearly, but should there be any doubt, I consider that because they have treated the plaintiff, they are probably in the best position to provide an objective assessment of the nature and extent of the plaintiff’s neck injury since its occurrence. Dr Adrianakis and Mr Drnda are probably in the best position to provide an objective assessment of the nature and the extent of the plaintiff’s neck injury at this point in time.
80 The plaintiff was shown further films which were taken of him on 17 and 26 June 2015, 24 July 2015 and 7 and 8 January 2016.
81 The first film was taken on 17 June 2015. The relevant parts of that film are as follows:
·At 8.13am, the plaintiff got into a blue BMW sedan. He appeared to walk somewhat stiffly.
·At 8.25am, he walked around the car yard.
·At 9.09am, he walked around the outside of his house.
82 The next film was taken on 26 June 2015. The relevant parts of that film are as follows:
·10.32am, he stood beside a blue BMW sedan talking on a mobile telephone.
·Between 10.33am and 10.36am, he talked to a young man while standing. The young man was his son.
·At 12.13am, he walked with a little boy who looked about three years of age. He held the little boy’s hand in his left hand.
·Between 12.22pm and 12.29pm, he walked to a building site with a young man of Asian of appearance. They appeared to be handling scraps of building materials. The young man emerged carrying something which looked like a roll of carpet.
·At 12.29pm, the plaintiff was leaning on a fence talking to a neighbour. He gesticulated to some degree with his left hand.
83 The next film was taken on 24 July 2015. The relevant parts of that film are as follows:
·At 8.55am, the plaintiff walked along a street with his wife. He talked to a man while standing beside a car. He gesticulated to some degree with his hands while talking to that man. He drove away in a blue Mercedes sedan.
·At 9.27am, he walked from a silver four-wheel-drive.
84 The next film was taken on 7 January 2016. The relevant parts of that film are as follows:
·At 10.44am, the plaintiff was at a business premises which sold tyres. He opened the rear door of a Suzuki four-wheel-drive. He was wearing gloves.
·At 10.45am, he bent into the open rear door of the four-wheel-drive. He then entered the car and drove it out of the business premises.
·10.47am, he drove away from the business premises in the four-wheel-drive.
85 The first film taken on 8 January 2016 did not show very much. At 11.42am, the plaintiff walked in what appeared to be a car park. Later, at 11.55am, he was seen in his car. The second film taken on 8 January 2016 also did not show very much. At 11.47am, the plaintiff was at a counter with the young man at what appeared to be a VicRoads office. He was standing at the counter. Some of the film was fast forwarded because it was of no consequence.
86 The plaintiff was cross-examined principally about the films taken on 17 and 26 June 2015, 24 July 2015 and 7 January 2016. It was put to him that what was shown in those films was consistent with him working in his son’s business. It was put to him that there were six cars parked in and around his house consistent with the business being conducted from his home. He said the cars belong to his son. In the film taken on 7 January 2016, it was put to him that he unloaded a number of tyres from the rear of the Suzuki four-wheel-drive. I could not make out that event from my review of the film. The plaintiff said that his son put a number of tyres into the car, and that he (the plaintiff) unloaded them by rolling them out of the rear carrying area of the four-wheel-drive. It was also put to him that he reversed the four-wheel-drive out of the business premises turning his neck. It was difficult for me to discern the extent to which the plaintiff turned his neck, but he certainly reversed out of the business premises.
87 At best the films show the plaintiff engaging in a number of fairly simple activities. The fact that he can drive a car, walk, move his neck when reversing a car, and unload tyres from the rear of the four-wheel-drive do not impress me as being activities which suggests that he is less incapacitated than Dr Adrianakis and Mr Drnda consider he is, but they are activities that are consistent with what the plaintiff was doing in 201, which suggests that despite having neck surgery, he has retained a capacity to function that appears to be unaltered.
88 Essentially, I accept that the plaintiff suffered a neck injury resulting from the transport accident, principally at the C6-7 level of his cervical spine, that resulted in compression of the C7 nerve and which in turn resulted in radicular pain affecting his right shoulder and arm. I accept that Mr Drnda and Professor Davis made a correct diagnosis of the injury in 2009 and 2011 respectively. I accept that the plaintiff was suffering increasing neck pain and radicular pain, which saw him decide to have the surgery performed by Mr Drnda.
89 As a result of the limited manner in which the plaintiff chose to put the consequences of the impairment of function of his neck, no issue arises of the kind referred to in Peak Engineering.[67]I do not consider it necessary to separate the consequences attributable to the prior back injury from the consequences attributable from the neck injury. The plaintiff has focused exclusively upon the neck injury and the consequences to the plaintiff of the surgery and its aftermath. I have excluded the pain and incapacity he experiences resulting from the discrete injury to his right shoulder and arm. Furthermore, I have not taken into account any psychological or psychiatric consequences that the plaintiff has endured for a significant period of time in the past.
[67]Peak Engineering & Anor v McKenzie (supra)
90 I note that the plaintiff lost his capacity for suitable employment as a result of his lower back injury, and has never suggested that he has returned to even a partial capacity for employment, even though the films of 2011 may suggest otherwise. Therefore, his claim for serious injury is based upon pain and suffering without the addition of any pecuniary disadvantage.
Are the consequences serious?
91 I am not satisfied that the consequences of the impairment to the function of the plaintiff’s neck are serious. If I am to assess the plaintiff’s consequences of the surgery and its aftermath, there appears to me to be very little that the plaintiff has lost by way of social, domestic and recreational activities to support his claim.
92 For reasons already discussed, I do not accept that the plaintiff has been entirely forthcoming regarding his true level of pain and disablement following the car accident in 2009, and up until at least 2011. I consider that the film demonstrates that the plaintiff grossly exaggerated the consequences of both the prior back injury and the neck injury, and that he was able to function at a much higher level of activity than he was prepared to admit when presenting to medical practitioners.
93 The plaintiff’s claim therefore rests on the consequences that I have described above. I prefer Mr Drnda’s opinion regarding the degree of the plaintiff’s residual capacity over the opinion of Dr Adrianakis, because he performed the surgery, and was probably in the best position from the perspective of his medical specialty to determine its rate of success, and the extent to which it relieved the plaintiff of the radicular pain. Dr Adrianakis’ prognosis appears to include the constellation of the plaintiff’s medical problems including his lower back, right shoulder and arm.
94 I accept Mr Drnda’s prognosis that the plaintiff continues to suffer pain and incapacity due to his neck injury; however, I do not consider the consequences that flow from that incapacity satisfy the statutory test for seriousness. Mr Drnda considered that the radiculopathy has subsided and that the plaintiff’s post-operative course was favourable. Whatever pain the plaintiff continues to suffer in his right shoulder and arm are probably due to discrete pathology in his right shoulder.
95 I consider that the impairment of the function of the plaintiff’s neck injury might approach being moderate; however, there is very little, if anything, I can accept the plaintiff has lost in the sense of his capacity to engage in social, domestic and recreational activities, and certainly he has not suggested that he has suffered any pecuniary disadvantage. I do not consider that the surgery and the plaintiff’s regime of medication are enough to satisfy the statutory test.
96 I therefore order that the plaintiff’s Originating Motion be dismissed.
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[64]PCB 64
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