Krajnc v Transport Accident Commission
[2021] VCC 1709
•5 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-04343
| MARJAN KRAJNC | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 May 2021 and 3 June 2021 | |
DATE OF JUDGMENT: | 5 November 2021 | |
CASE MAY BE CITED AS: | Krajnc v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1709 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – permanent serious impairment or loss of a body function – function associated with spine – aggravation of the pre-existing degenerative condition of cervical and lumbar spines – permanent severe mental or permanent severe behavioural disturbance or disorder
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Richards v Wylie (2000) 1 VR 79; Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67; Petkovski v Galletti [1994] 1 VR 436
Judgment: Leave granted to the Plaintiff to recover damages under paragraph (c) of the definition of serious injury
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram QC Ms K Karadimas | Slater & Gordon Lawyers |
| For the Defendant | Mr P Jens QC Ms F Crock | Transport Accident Commission |
HIS HONOUR:
Introduction
1Marjan Krajnc seeks leave to commence a proceeding to recover damages for injuries he allegedly suffered in a transport accident occurring on 30 January 2017. He does so under the Transport Accident Act 1986 (“the Act”) and relies upon paragraphs (a) and (c) of the definition of “serious injury” in s93(17).
2Regarding paragraph (a), the injury is said to be an aggravation of the pre-existing degenerative condition of his cervical and lumbar spines and the body function is associated with the spine. The alleged aggravation is complicated by a further allegation he suffers from an organically-based chronic pain syndrome.
3As to paragraph (c), the serious injury is the severe long-term mental or severe long-term behavioural disturbance or disorder. Allegedly, he suffers from recognised psychological disorders, variously described as Post-Traumatic Stress Disorder, an Adjustment Disorder or a Dysthymic Disorder. These diagnoses are not necessarily mutually exclusive.
4As to the consequences, Mr Krajnc relies on both pain and suffering and loss of earning capacity. The latter has an unusual flavour in that his injuries cause him to struggle to maintain his business and allegedly employ others to do the work.
5Mr Krajnc gave oral evidence as well as relying on his two affidavits. Two others swore affidavits, of whom Ann-Marie Burgar was examined. There were a host of medical and other reports relied upon, mainly from Mr Krajnc’s side.
Circumstances
6Mr Krajnc is now seventy-four. He was born and raised in Slovenia. After his father committed suicide in 1952, he was raised by his mother. He was educated in Slovenia to the equivalent of Year 12 standard. He then qualified as boilermaker and welder.
7At the age of twenty, Mr Krajnc emigrated to Australia. After arriving in this country, he obtained employment with international construction companies and worked on heavy industrial construction sites, both in Australia and overseas. Since 2004, he has operated a business from a rented warehouse in Diggers Rest where he designs, modifies and sells machinery. He imports European machinery used in wood splitting and sawing, which he modifies for Australian customers.
8When young, Mr Krajnc was a very keen soccer player. Unfortunately, he suffered injuries playing. He has had three operations which he links to his playing soccer: in 1971, a repair of a left shoulder injury; in 1989, arthroscopies to both knees; and, in 1991, the repair of the long head of the biceps tendon.
Prior medical history
9Apart from the above and before the transport accident, Mr Krajnc has had an extensive involvement with surgeons.
10In 2008, there was lumbar surgery, which was unsuccessful in that his lower back remained painful. There was further surgery to his lumbar spine in 2011 which was successful.
11In 2012, and again in 2015, his left and right hips were replaced. These replacements were successful.
12On 18 September 2014, Mr Krajnc jumped out of a truck and experienced pain in his left leg. After consulting a surgeon, he received nerve root blocks at L4 and L5.
Transport accident
13As to the transport accident on 30 January 2017, Mr Krajnc said:[1]
“…I was stationary at lights behind other traffic at the intersection of Manningham Road and Lower Heidelberg Road, Heidelberg when my car was struck by another vehicle. It was a forceful collision and although I was wearing a seatbelt I was violently jolted within my car. I did not lose consciousness. I was able to get out of my car and later drove my car to a nearby panel beater…”
[1]Affidavit sworn 1 July 2019 at [11].
14Mr Krajnc’s car was stationary in Manningham Road and behind a truck. The accident occurred in the morning. His car was struck in the rear. The force of the collision did not push it into the truck in front because his car was one car length away. Although he recalls the tow bar of his car penetrating the radiator of the vehicle which struck his car, he does not recall the type or size of that vehicle except it was a light sedan. Neither an ambulance nor the police attended. After the vehicles were separated, Mr Krajnc parked his car at the side of the road. After a tow truck arrived for the other vehicle, Mr Krajnc drove his car to a nearby panel beater for an assessment of the damage. Later, the damage was repaired with the bumper and tow bars being replaced.
15Pausing there. The defendant submitted it was a low-impact collision. Mr Krajnc denied this proposition. The fact he is still driving the car now tells me it was repaired and was economic to repair. It would be wrong to infer a low-impact collision from those facts.
Afterwards
16Following the collision, Mr Krajnc felt a metallic taste in his mouth and a tingling sensation through his body. Later that day, he attended his general practitioner, Dr Sam Assad, who referred him for x-rays of his cervical spine.
17On 16 March 2017, Mr Krajnc saw a neurosurgeon, Mr David Oehme, who arranged MRI scans of the cervical and lumbar spines.
18On 12 May 2017, he underwent CT SPECT scans of his cervical and lumbar spines to determine the source of his pain. Although suggested, Mr Krajnc rejected an L3‑4 fusion.
19On 8 February 2018, MRI scans were taken, revealing grade 1 spondylolisthesis at L3-4 and facet joint arthropathy causing moderate canal and foraminal stenosis.
20On 10 July 2018, Mr Krajnc saw a psychiatrist, Associate Professor Wong, who prescribed an anti-depressant medicine. He was referred to a psychologist, Ms Maryam Elyas, who continues to treat him.
21On 4 December 2018, Mr Krajnc saw Mr Oehme for the last time. With his pain becoming more severe in the back and legs, he was again offered an L3-4 fusion. After consideration, he rejected the offer.
22On about 24 January 2019, Mr Krajnc suffered a stroke. He had an operation which he believes left him with numbness on the right side of face. The stroke left him with weakness in his left arm. These symptoms may improve. He takes no medicines following his recovery.
23Mr Krajnc suffers from diabetes, hypertension and gout.
Present Circumstances
24Mr Krajnc has never married. Although having had relationships, he has no children. He receives the aged pension. He shares the home of Gabriella Burgar. They are not in an intimate relationship. They provide each other companionship as Ms Burgar is a widow.
Pain
25Mr Krajnc suffers constant, generally sharp, pain in his lower back. The pain radiates across his lumbo-sacral junction into his buttocks and legs. The level of this pain is of moderate intensity. It increases through the activities of bending, twisting, lifting more than 30 to 40 kilograms, coughing, sneezing, straining, sitting for more than 20 minutes and standing or walking for more than 200 metres. It is relieved by frequent changes in posture, heat packs and medicines.
26His neck pain is also constant. It is of moderate intensity. It is increased by various activities including sudden or repetitive neck movements. Its character varies between dull, burning, gnawing and aching.
27There is constant pain in his legs. He has numbness and a pins and needles sensation through his legs. The pain is as severe as that which he experiences with his lower back. The same circumstances aggravate the level of pain and the same features relieve it.
28Mr Krajnc usually experiences headaches when his neck pain flares up. They occur two or three times a week and vary in duration.
29He suffers some numbness and weakness in his left arm and hand.
Treatment
30He sees his general practitioner, Dr Atalla Abraham, fortnightly.
31He did have regular physiotherapy and Pilates but these have stopped because of the restrictions due to COVID-19.
32Although he is careful through his experience of side effects, Mr Krajnc takes Cialis for pain relief. He also takes Endone, Panadeine Forte and Panadol for pain relief but not on a daily basis. He no longer takes Cymbalta for his depression. He takes another anti-depressant whose name was not disclosed. These pain-relieving medicines give him only limited relief.
33The defendant refused to fund fusion surgery. In any event, Mr Krajnc did not want surgery. He is waiting for something better in his view:[2]
“No, I’m waiting for a better deal in the lack (sic) of stem cells which I have heard and I’ve been in contact with some people, some surgical people and I decide not to go any further with that because I didn’t want any more cuts.”
[2]Transcript at p 49.
34Ann-Marie Burgar is the daughter of Gabriella Burgar. She has known Mr Krajnc for about twenty years. She visits her mother’s home every fortnight. She is a myotherapist by occupation. She treats him every four to six weeks. Her treatment gives him temporary relief from his symptoms which include muscle spasms and muscle tightness.
35Mr Krajnc sees Ms Elyas every six weeks. He takes Normison nightly. He did take an anti-depressant, Cymbalta, 60 mg daily, but developed a rash and stopped. He now takes a different anti-depressant medicine.
36He uses a walking stick when he is outside his home. He is restricted as to the distance he can walk. He is wary of stairs and uneven ground.
37He no longer plays golf. He has stopped attending soccer matches. Generally, his social life is more limited including attending the Slovenian Catholic Church.
38Generally, his mood is lower. He has lost motivation and his interests have gradually fallen away. He has lost confidence and his self-esteem. He experiences flashbacks and recurrent intrusive thoughts of the accident. Although he still drives there are times when he freezes and cannot drive.
Ann-Marie Burgar
39Ms Burgar is in a reasonable position to comment on Mr Krajnc for she knew him before the transport accident and still does. She said:[3]
“Before the subject transport accident on 30 January 2017 the plaintiff was a fit and active man. He was actively involved in the running of his own business. He engaged in sporting activities such as playing golf and having an interest in soccer including coaching little league for years. The plaintiff was able to work in his own business without restriction.
Since the subject accident, the Plaintiff’s lifestyle has been very substantially and adversely impacted. The Plaintiff’s business has slowed to a halt and he is no longer able to undertake the physical work that he previously could undertake.
The Plaintiff is no longer able to play golf. The Plaintiff’s walking has been very considerably restricted and he walks using a walking stick.”
[3]Affidavit sworn 13 April 2021 at [5], [6] and [7].
40In one respect, cross-examination revealed Ms Burgar is an uncertain witness. Despite her affidavit, she believed Mr Krajnc stopped playing golf before his hip operations and did not resume after the hip replacements and it may have been earlier than that, before his spinal operations. In re-examination, she could not dispute the proposition that he returned to golf after the second spinal operation and was unsure whether he returned to playing golf after the second hip replacement.
41Her mother has a well-kept garden. Her mother does the gardening. Ms Burgar helps occasionally. Having studied horticulture she advises her mother on plants. But she does some of the mowing of the lawns as does a neighbour. Mr Krajnc no longer gardens or mows the lawns. He has not mown the lawns for the “last few years”.
42She agreed the various operations to his spine and hips have seen Mr Krajnc “slow down”.
43To her, Mr Krajnc’s second bout of back surgery certainly helped him.
44What she knows of his business is what she is told. It is many years since she saw him at the business. She suspects he now visits the business only to check on the premises. There was a burglary of those premises several years ago.
45Stephen Neil Smith has also known Mr Krajnc for about 20 years through their business dealings. He too can compare the person he knew before and after the transport accident. After the accident, Mr Krajnc lacks the physical vigour and strength he showed before. His ability to lift, twist, bend, sit and stand appeared very significantly limited.
46Over the years, Mr Smith and Mr Krajnc have socialised. Since the accident, Mr Smith has noticed a considerable loss of motivation, self-confidence and self‑esteem in Mr Krajnc.
Employment
47Through a company, Mr Krajnc still conducts his business in Diggers Rest. It trades under the name “SpikeMaster”. He is the sole director of the company. He visits the warehouse from time to time. When he travels to the warehouse, he drives. The round trip from Templestowe to Diggers Rest takes about 90 minutes.
48Once, he travelled interstate for his business. He has not done so since about 2015. He stopped because there was no business reason to do so.
49He still works in his warehouse but in “managerial” duties. This involves making and taking phone calls with manufacturers and customers, seeing potential customers and dealing with the mail. He still invents and designs new machines or products. Nevertheless, he does some physical work which often leaves him sore by the end of the day. He conducts “live” demonstrations of machinery but these occur about once a month.
50Mr Krajnc says he cannot perform many of the physical tasks in his business which he did before the transport accident and hires others to perform those tasks. He says he now engages various trade persons in the business – electricians, engineers, labourers, welders and boiler makers. They are involved in the manufacture of items which he has designed, where the parts are made elsewhere. These parts are assembled at the warehouse. However, judging from his income tax returns between 2016 and 2019, he spent nothing on the hire or engagement of persons to work in his warehouse.
51Mr Krajnc referred to those electricians, etc, as his friends. When pressed on the lack of inclusion in the taxation returns of amounts paid to these persons, he doggedly maintained the accuracy of the returns. Ultimately, however, he referred to the payment of cash:[4]
“But there’s no ‑ there’s no entry for that?‑‑‑Yeah, well I, when they want the cash, I don’t put ‑ I don’t put the cash on the entry.”
[4]Transcript at pp 54-55.
52Perhaps owing to Mr Krajnc’s idiosyncratic answer to the next question, this apparent admission was not pursued.
53In the years ending 30 June 2016, 2017 and 2018, the business lost money. It made a small profit in 2019. Since Mr Krajnc says he took no monies out of the business for himself, the business appears thoroughly unprofitable. Even if his payments to certain persons do not appear in the taxation returns, the business achieves nothing commercially. A business will cease to exist if it incurs losses year after year without the injection of outside funding. The 2019 year was marginally profitable. If working in that business represents Mr Krajnc’s exercise of his remaining capacity for work then it translates into very little and has been so for the years before the transport accident.
54Frankly, from an organic perspective, Mr Krajnc cannot establish any real change in his capacity for work after his transport accident.
55Mr Krajnc is incapacitated for work now. How much of that incapacity is due to the transport accident is unknown. On 24 January 2019, he suffered a stroke. There was an operation. Whether the stroke left him with numbness on the right side of his face or not, it did leave him with weakness in his left arm.
Treating practitioners
Dr Sam Assad
56Sam Assad is a general practitioner. He practises in the Bulleen Plaza Medical Centre. Mr Krajnc has been a regular patient of the practice since August 2001. Dr Assad treated Mr Krajnc following the transport accident and during, at least, the first half of 2017.[5] Between 30 January and 31 May 2017, Dr Assad saw Mr Krajnc twenty-three times regarding the injuries suffered in the accident. He, and others, arranged five radiological examinations. He had referred Mr Krajnc to a neurologist and a pain-management specialist.
[5]Report dated 12 June 2017.
57His diagnoses were:
(a) neck pain and stiffness associated with brachialgia of the left arm due to the accident impact causing the degenerative changes to become symptomatic.
(b) exacerbation of his pre-existing degenerative low back pain associated with L3‑4 disc degeneration and also associated with right L3 nerve root compression.
58By the time Dr Assad wrote his report in June 2017, he had formed pessimistic views of both the prognosis and capacity for work. The former was expressed in these terms:[6]
“Severe bad prognosis is expected for both her (sic) neck and lower back conditions due to developing future osteoarthritic changes.”
[6]At p 3.
Dr Atalla Abraham
59Atalla Abraham is a general practitioner in the same practice as Dr Assad.[7]
[7]Reports dated 12 May 2020 and 24 May 2021.
60Dr Abraham noted the psychological effect of the accident:[8]
“Soon after the accident he became anxious, panicky and depressed with disturbance of sleep, appetite, concentration, attention, energy, interest and motivation. He also had nightmares and flashbacks of the accident…”
[8]Report dated 12 May 2020 at p 1.
61Diagnostically, he appears to rely on the views of others and the results of imaging. In neither of his reports does he address the issue of causation. He paints a decidedly bleak outlook, both physically and psychologically. His diagnoses include something which no one else mentions, Fibromyalgic Muscle Injury covering the whole back and right hip. The situation is complicated by the development of a psychological Chronic Pain Syndrome. Finally, Dr Abraham believes Mr Krajnc’s capacity for work has been lost through a combination of organic and psychological reasons.
62Mr Krajnc was cross-examined about entries in the clinical records of this practice before and after Mr de la Harpe’s operation in 2011. Some of the entries suggest significant lower back problems in 2015 and some neck problems in 2015.[9] As was typical of Mr Krajnc’s evidence of past events, he professed little memory.
[9]Defendant’s supplementary court book for entries on 16 July 2015 and 15 October 2015.
63Apart from Mr Krajnc’s memory, the defendant placed much emphasis on a large number of entries between December 2003 and 2016, particularly those in 2015 and 2016.
Clinical Records
64The clinical records of the Bulleen Plaza Medical Centre were admitted into evidence.
65After Mr de la Harpe’s surgery in 2011, the records contain many references to his lower back and neck during 2012, 2014, 2015 and 2016. The majority of entries involve the lower back and not the neck. For several years, he received or took morphine for his lower back pain.
66During 2015, there are entries referring to pain in Mr Krajnc’s lower back and neck. For the former, there are entries on 24 March, 27 March, 16 April, 30 June, 16 July, 12 August, 5 and 6 November, and 10 December. During 2016, there is an entry on 11 March. For the latter, there are entries on 16, 18 and 19 October 2015. The last entry says in part:[10]
“was in BHH yesterday for ongoing pain L elbow and L shoulderz (sic): had CT cervical spine. started after osteo sessions…”.
[10]Defendant’s supplementary court book page 134.
67Generally, the entries are very short and contain little information. A few contain more information. For example:
(a) 16 July 2015[11] – “still ongoing L B pain, already had local steroid x 2. still severe pain options discussed Actions:
Letter created – re Standard Ref Letter to MR DAVID DE LA HARPE…”;
(b) 11 March 2016[12] – “options for sleep discussed…Workcover
still lower back pain, L hip is normal now”.
[11]Defendant’s supplementary court book page 133.
[12]Defendant’s supplementary court book page 136.
68During 2016, Mr Krajnc attended the clinic on thirty-four occasions. Apart from the entry on 11 March 2016, neither the lower back nor the cervical spine is mentioned that year. However, during that year, he received repeated treatment for his inability to sleep. It took the form of counselling and the prescription of medicine.
Mr David Oehme
69David Oehme is a neurosurgeon specialising in the brain and spine. He examined Mr Krajnc on referral from Dr Assad.[13]
[13]Reports dated 10 March 2019.
70At Mr Oehme’s request, MRI scans were made of Mr Krajnc’s cervical and lumbar spines. With the former, there was multi-level degenerative change without a “lot” of nerve root compression on the left-hand side to explain his left arm brachialgia. With the latter, there was grade 1 spondylolisthesis of L3-4, facet arthropathy at that level and “quite severe” compression of the right L3 nerve root.
71Mr Oehme described the spondylolisthesis as degenerative or iatrogenic. Usually, iatrogenic means caused by treatment. I assume that is the sense in which Mr Oehme uses the word.
72Mr Oehme arranged CT SPECT bones scans of the cervical and lumbar spines. With the former, there was a “lot of disc activity” in the C6-7 disc space. With the latter, there was “quite a lot of activity” in the L3-4 disc space. Mr Oehme noted that spondylolisthesis existed at that level. There was also compression of the right L3 nerve root and minor instability there as shown on flexion-extension x‑rays.
73Apart from recognising chronic back pain, Mr Oehme pointed to the unstable, grade 1 spondylolisthesis at L3-4. This caused moderate canal and foraminal stenosis. In turn, the spondylolisthesis caused mechanical back pain and neurogenic claudication, the latter represented by pain in the back and legs.
74Mr Oehme raised the possibility of fusion of the lumbar spine at L3-4 because of the spondylolisthesis, but Mr Krajnc was not keen. He did not see the need for surgery of the cervical spine. Mr Oehme last saw Mr Krajnc on 4 December 2018.
75Mr Oehme took a history of back pain before the transport accident but no neck pain. As to the effect of the accident, he said:[14]
“…although the motor vehicle has exacerbated his neck and back pain, spinal degeneration is a significant contributing factor to Marjan’s pain. His pain issues cannot be solely blamed on the car accident. Marjan had already undergone surgery for his lumbar spinal issues on multiple occasions. There is no doubt that in the setting of significant spinal degeneration, the motor vehicle accident has aggravated his condition. Although his condition had stabilised, there were likely to be flare ups requiring an increased need for pain control.”
[14]Report dated 10 March 2019 at p 7.
Professor Richard de Steiger
76Richard de Steiger is an orthopaedic surgeon. He has treated Mr Krajnc since 2011.[15]
[15]Report dated 11 February 2019.
77In November 2012, Professor de Steiger performed a total right hip replacement. The replacement was successful without complications.
78Professor de Steiger last saw Mr Krajnc for treatment in 2015 following a fall from a truck. The fall did not affect the hip replacement.
79However, on 11 February 2019, he examined Mr Krajnc at the request of his solicitors, mainly in relation to the right hip.
80After arranging x-rays of the pelvis and right hip, Professor de Steiger concluded the right hip replacement was well fixed with good bony ingrowth and no evidence of wear in the hip joint. He felt his clinical findings and the nature of the pain (burning and vibrating) pointed to its source in the spine and more likely nerve type pain than mechanical pain.
Mr David de la Harpe
81David de la Harpe is an orthopaedic surgeon.
82On 24 May 2011, he performed an L3 laminectomy after Mr Krajnc could no longer cope with the level of pain. He did so after MRI scans from which he diagnosed stenosis at L3‑4 level and neurogenic claudication. There had been an earlier L4 laminectomy, which did not improve his condition. The 2011 surgery was successful.
83Mr de la Harpe saw him again on 18 September 2014 after Mr Krajnc had jumped from a truck. He performed nerve root blocks at L4 and L5.
84He saw him again on 12 August 2015. He felt the laminectomies were successful. Although Mr Krajnc complained of diffuse leg pain, Mr de la Harpe did not think he could help except to advise that getting the left hip moving would unload the lumbar spine and possibly help his symptoms.
Mr Shane Blackmore
85Shane Blackmore is an orthopaedic surgeon.[16] He first saw Mr Krajnc in November 2015 about his left hip. Following a clinical examination and MRI scans, Mr Blackmore concluded he had severe osteoarthritis of the left hip and the only solution was a total hip replacement. On 16 November 2015, the hip was replaced totally. He also lengthened his left leg. When he last saw Mr Krajnc on 11 March 2016, the surgery had been successful.
[16]Report dated 10 May 2019.
Associate Professor Michael Wong
86Michael Wong is a consultant psychiatrist.[17] He interviewed Mr Krajnc at the request of Dr Abraham. He saw him only once. To Associate Professor Wong, the diagnosis was post-traumatic stress disorder. He made recommendations for further treatment including a referral to a psychologist.
[17]Undated report, probably prepared in July 2018.
Ms Maryam Elyas
87Maryam Elyas is a psychologist. She started treating Mr Krajnc in early October 2018 following a referral from his general practitioner.[18] She has treated him regularly since then. When she wrote her report dated 18 May 2021, she had last seen him on 4 March 2021.
[18]Reports dated 31 March 2019 and 18 May 2021.
88Ms Elyas assessed Mr Krajnc’s mental state at each of her attendances upon him. This was a continual process. The abnormal aspects of his presentation were:[19]
(a) speech – it was elevated in volume and quantity, particularly when retelling or recalling the events of the transport accident;
(b) mood and effect – his mood in recent sessions continued to range from dysthymic (depressed) to angry and frustrated;
(c) insight into problems – he seems to have limited or selective insight about his problem and its nature as he is preoccupied with the effects of the accident upon him. His level of motivation has reduced with time as evidenced by his dysthymic moods. He does not believe he can improve physically and believes he is getting worse due to continuous pain, which continued to worsen his mental health.
[19]From report dated 18 May 2021.
89Ms Elyas identified the same areas of abnormality in her first report. The only difference is the decline in motivation stated in her second report.
90Ms Elyas diagnosed two recognised disorders: Dysthymic; and Post-Traumatic Stress Disorder. The former is also known as long-term depression. His symptoms of that disorder included low motivation, hopelessness, low or dysthymic (depressed) mood, reduced appetite, repetitive headaches, loss of interest in pleasurable activities, low energy and fatigue. What was once a Major Depressive Disorder had now become a Dysthymic disorder.
91His symptoms of post-traumatic stress disorder included flashbacks and physiological reactions. She gave the examples of intrusive distressing memories and nightmares. There were also what she called “tense reactions”.
92Despite her longstanding treatment of trauma-focussed cognitive behaviour therapy, his symptoms persist and her prognosis is, according to her, “not hopeful”. He still experiences anxiety, depression and anger triggered by his trauma and pain. To her, his recent presentation indicated a deterioration in his mental health.
93Owing to his mental state, Ms Elyas saw no capacity for work in his pre-injury duties. She was reticent about other employment, saying he “…may not be able to function in an adequate capacity in the future”.[20]
[20]At p 4.
94Despite her pessimism, Ms Elyas outlined a series of future treatments: cognitive behaviour therapy for his anxiety and thinking patterns; mindfulness based interventions; positive thinking and goal planning; diffusion strategies to rid him of unhelpful thoughts; acceptance and commitment therapies; anger management; and progressive muscle relaxation. Some of these therapies were being undertaken. Although the content of these therapies was not revealed in her reports, they appear to address the broad nature of Mr Krajnc’s symptoms.
Medico-legal practitioners
Mr Russell Miller
95Russell Miller is an orthopaedic surgeon. At the request of Mr Krajnc’s solicitors and the defendant he examined him on 23 January 2018, and on 21 October 2020 at the request of his solicitors only.
96For the cervical spine, Mr Miller diagnosed a Musculo-Ligamentous Strain and aggravation of degenerative disease. He developed what Mr Miller described as a “Chronic Regional Pain Syndrome”. The injuries and the syndrome lead to a fair prognosis. Since there were no symptoms before the accident, Mr Miller believes the symptoms relate substantially to the transport accident.
97Mr Miller made the same diagnoses for the lumbar spine. Unlike the cervical spine, there was structural disease in the form of Grade 1 to 2 Spondylolisthesis at the L3‑4 level. Again, he saw the presence of a Chronic Pain Syndrome. The prognosis was fair. He thought these injuries were substantially accident-related due to Mr Krajnc telling him of a significant deterioration since the accident.
98Mr Miller regards Mr Krajnc’s condition as substantially stabilised.
99As to his capacity for work, Mr Miller noted the difficulties Mr Krajnc will have with work that involves repetitive bending and lifting, lifting weights more than five kilograms, and that he will need to shift his posture regularly.
Professor Richard Bittar
100Richard Bittar is a neurosurgeon. On about 22 February 2021, he examined Mr Krajnc at the request of his solicitors.
101Professor Bittar assumed Mr Krajnc had not suffered lower back pain for a number of years before the accident.
102The physical examination revealed that Mr Krajnc walked with a slightly antalgic gait and used a walking stick. There was moderate restriction of extension of the cervical spine, mild restriction of flexion of the lumbar spine and severe restriction of extension. There was paravertebral tenderness and muscle spasm on both sides of the cervical and lumbar spines. Straight leg raising was normal for both legs. There was no evidence of radiculopathy or myelopathy of the limbs, upper and lower.
103Professor Bittar saw three radiological reports, two for x-rays and CT scans in early 2017 and MRI scans on 8 February 2018. The last demonstrated a 6 mm spondylolisthesis at L3‑4, with a broad based disc bulge. There was compression of the right L4 nerve root. There was disc bulging at L4‑5 without neural compression. At L5‑S1, there was a small central disc protrusion without neural compression.
104Professor Bittar diagnosed aggravation of cervical and lumbar spondylosis. The former causing pain and cervicogenic headaches. The latter causing pain which radiates into both legs.
105As for future treatment for his neck, Professor Bittar recommended conservative treatment. He also recommended assessment by a pain specialist with the possibility of diagnostic blocks and radiofrequency denervation. For his lumbar spine, there is an equal choice between an L3-4 fusion or diagnostic blocks and, possibly, radiofrequency denervation.
106Professor Bittar did not think Mr Krajnc retained any realistic capacity for work due to his injuries and this incapacity was permanent.
Dr Nathan Serry
107Nathan Serry is a consultant psychiatrist. At the request of Mr Krajnc’s solicitors, he examined him on 12 February 2018 and 24 November 2020.[21]
[21]Reports dated 12 February 2018 and 24 November 2020.
108During the hearing before me, I was concerned at the way Mr Krajnc gave his evidence. It is instructive to note Dr Serry’s observations during his mental state examination of Mr Krajnc on 24 November 2020:[22]
“He was again a rather clear and straightforward historian. He presented information in a straightforward fashion…He was somewhat stressed and anxious at presentation but more particularly, he described being irritable, short-tempered and impatient, these features being hinted at during the assessment…”.
[22]Report dated 24 November 2020 at p 6.
109Dr Serry observed Mr Krajnc:[23]
“…appears to have struggled to cope with his pain levels and functional limitations. He has experienced fluctuating low mood, ongoing anxiety, a degree of traumatisation and further still, he said that he has been very irritable, impatient and short-tempered, this resulting in a degree of social isolation.”
[23]At p 7.
110There were no psychotic features and no perceptual disturbance. There were recurrent trigger-sensitive flashbacks to the transport accident. Dr Serry noted the metallic taste in his mouth when reminded of the accident. His insight was coloured by his anxiety.
111Dr Serry diagnosed a chronic adjustment disorder with anxious and depressed mood and with significant features of traumatisation. The disorder was partly caused by the direct trauma of the accident and partly by Mr Krajnc’s ongoing pain and functional limitations.
112The features of traumatisation include intermittent accident-related nightmares from which he wakes in a sweat and trigger-sensitive flashbacks.
113As to prognosis:[24]
“…would be considered somewhat guarded given the persistence of both physical and psychiatric symptomatology and an ongoing nexus which exists between the two.”
[24]At p 8.
114Dr Serry recommended conservative treatment for the management of his physical symptoms and because of his clinical presentation, psychological input with a pain management input. Strangely, he recorded Mr Krajnc telling him of only two sessions with a psychologist as his only form of mental health intervention although he possessed the two reports of Ms Elyas.
115Despite Dr Abraham speaking of a psychological Chronic Pain Syndrome, Dr Serry did not diagnose any form of psychological pain disorder.
Legal considerations
116A person who is injured as a result of a transport accident may recover damages in respect of the injury if the injury is a serious injury.[25] In this application, “serious injury” is said to be a long-term serious impairment or loss of body function.[26] It is also said to be a severe long-term mental or severe long-term behavioural disturbance or disorder.
[25]Section 93(2).
[26]Paragraph (a) of the definition of “serious injury” in s93(17).
117The meaning of “serious” in s97(17) of the Act was explained in Humphries v Poljak:[27]
“To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such a consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”
[27][1992] 2 VR 129 at 140 per Crockett and Southwell JJ.
118Paragraph (c) of the definition of “serious injury” uses the word “severe”. The word “severe” is a stronger than the word “serious”.[28]
[28]Mobilio v Balliotis [1998] 3 VR 833 at 846 per Brooking JA.
119In Richards v Wylie[29] where Winneke P said:
“If, as a result of an injury, a person loses a limb, it will, no doubt, often occur that one of the consequences of such a loss or impairment will be the development of a mental response to that impairment or loss. That is one of the consequences which, along with others, the court will need to evaluate in determining whether the loss or impairment of a body function, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as “serious”…Thus, the “serious injury” defined by para (a) of subs (17) can, I think, 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 itself constitute or be the producer of the impairment of a body function.”
[29](2000) 1 VR 79 at 87-88. See also Buchanan JA at 90.
120As often happens in these applications, two propositions are drawn to the court’s attention.
121First, the proposition stated by Maxwell P in Peak Engineering Pty Ltd v McKenzie.[30] At [24]:
“In my respectful opinion, these grounds must be upheld. In a case of this kind, where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury.”
[30][2014] VSCA 67.
122Second, the proposition stated in Petkovski v Galletti.[31] It is captured in the headnote: where the case was one of aggravation of a pre-existing condition, the applicant must establish what injury was caused by the accident. An analysis must be made of the extent of the impairment of a body function before and after the relevant injury, and the additional impairment must involve serious long-term impairment of a body function.
[31][1994] 1 VR 436.
Discussion
Credit
123The defendant put Mr Krajnc’s credit in issue.
124He was a difficult witness to cross-examine. He was often querulous. Many of his answers did not respond to the questions. Even when starting to give a responsive answer, he would often go off on a tangent. He was incapable of answering a question which contained two or more propositions or statements of fact. He almost invariably answered the last proposition only. He did not appear to listen to questions or, if he did, give them appropriate consideration. Too many of his answers to propositions were the words “not true” or “not so” even where counsel was reading from a report. These answers were given in response to complicated questions. Instead of trying to grapple with the question, he would simply answer “not true” or “not so” or something similar.
125If Mr Krajnc was a normal witness, one would doubt his truthfulness. However, Mr Krajnc is suffering from recognised psychological disorders. Dr Serry noted his mental state in November 2020. Throughout her association with him, Ms Elyas has noted wide variations in his mood from the depressed to the angry and frustrated. Where a witness is suffering from a recognised psychological disorder or disorders, as does Mr Krajnc, one must be careful in the assessment of his or her credit for the disorder may affect the presentation. In Mr Krajnc’s case, it did. He displayed irritability, impatience and a short temper, noted by Dr Serry.
126The defendant did point to specific aspects of his answers in cross-examination. In particular, the advertisement of a stall at the Wandin Silvan Machinery field days on 12 and 13 October 2018 to display a particular machine. Contrary to his evidence, it was not a repeat advertisement from years earlier because the dates of the field day fit with the days of the week. His evidence that the field day was cancelled in 2018 because of COVID-19 cannot be correct. His final response about not attending the field day because he had “something else on” is weak.
127Some of his answers to questions about his Facebook entries and advertising for his business are unsettling. Either he was, as counsel suggested, making up his answers as he went along or he practises deception in his advertising. It is likely to be the latter.
128I do not accept the submission Mr Krajnc gave an incorrect picture of his life before the accident, although Ms Elyas’ view that he was a highly functional professional and his well-being was optimal before the accident is incorrect. The hip replacements and the second spinal surgery were successful. He entered the accident in the best condition he had experienced for years.
129Dr Serry recorded Mr Krajnc had two sessions only with a psychologist. I suspect this is Dr Serry’s error. Mr Krajnc may have been referred to a psychiatrist, not a psychologist. Plainly, Mr Krajnc had been seeing Ms Elyas for more than two years by then. Dr Serry had been supplied with two reports of Ms Elyas. I would not attribute the mistake to Mr Krajnc.
130Overall, I have doubts about Mr Krajnc’s truthfulness and, certainly, about his reliability.
Injury – organic
131Broadly, the accident aggravated the degenerative condition of Mr Krajnc’s lumbar and cervical spine. The aggravation of the injury to the cervical spine has caused headaches. The effects of the aggravation have not disappeared and will not.
132Bringing together the various comments of Mr Oehme, I would find that the symptomatic state of the spondylolisthesis at L3-4 also resulted from the accident. This condition is responsible for stenosis, which, in turn, is responsible for neurogenic claudication.
133Based on Dr Assad’s finding of paraesthesia of the right L3 region, Mr Krajnc’s counsel submitted this finding is different from what preceded the accident. It is an incidental symptom among many due to the aggravation of the degenerative condition of the lumbar spine.
Injury – Psychological
134Ms Elyas has treated Mr Krajnc since 6 October 2018. She diagnoses two disorders. Her treatment has not improved the state of his mental health. It is in decline but her treatment has prevented a steeper decline. Her prognosis is not optimistic. She identifies the wide-ranging symptoms underlying these disorders. If I needed to choose between her diagnoses and that of Dr Serry, I would prefer those of Ms Elyas because of the longevity and regularity of her association with Mr Krajnc.
Consequences: organic
135Earlier in this judgment, I have set out the current pain and suffering consequences of Mr Krajnc. Applying the approach required by Peak Engineering, then Mr Krajnc has not succeeded in sufficiently “disentangling” the consequences of the pre-accident injuries to his cervical and lumbar spines from those due to the injuries received in the transport accident. As Maxwell P pointed out, the “disentangling” is a pre-condition to determining the consequences of the relevant injuries, which is also a pre-condition to the application of the proposition in Petkovski’s case.
136In his first affidavit, Mr Krajnc referred to his spinal surgery in 2008 and 2011 and his hip replacements in 2012 and 2015. After the second bout of spinal surgery he said:[32]
“…I obtained a very good result and was able to return to my full array of pre-surgery activities which included playing golf and the like.”
[32]Affidavit sworn 1 July 2019 at [8].
137After the second hip replacement, he said:[33]
“…Again, after these hip replacements I was able to resume a full array of pre-operative activities.”
[33]Affidavit sworn 1 July 2019 at [9].
138The implication of these passages being that his troubles with his lumbar spine and hips were a thing of the past. Is that so?
139Mr Krajnc has been a patient at the Bulleen Plaza Medical Centre for many years and had complained of lower back pain as long ago as 2003. He had had two operations on his lower back. Despite the apparent success of Mr de la Harpe’s surgery in 2011, from time to time, he continued to complain of lower back pain through 2012, 2014, 2015 and into 2016. Yet when Mr de la Harpe reviewed him in June and September 2011, Mr Krajnc was pleased with the result of the surgery. When reviewed again on 19 September 2014, he told Mr de la Harpe he had been doing well over the last few years. He also told him of a jump from a truck three weeks earlier and his experience of left leg pain. Mr de la Harpe sought to settle his pain through nerve root blocks.
140When reviewed for the last time on 12 August 2015, Mr de la Harpe thought Mr Krajnc’s complaint of diffuse left leg pain was referrable to the lack of movement of the left hip. He was satisfied with the result of his surgery. In November 2015, Mr Blackmore replaced that hip and was satisfied with the result of his surgery.
141It is possible the 2015 left hip replacement eased the pressure on the lower back by getting that hip moving and explains the lack of complaint about his lower back in 2016.
142On the other hand, on these records, one cannot determine the extent to which Mr Krajnc’s problems with sleep were affected by the transport accident.
143Although Mr Krajnc told Mr Miller he had no pain in his neck before the transport accident, this was plainly incorrect. The clinical records have several complaints regarding the neck as far back as 13 March 2009 when CT scans were ordered.
144There was a debate between counsel over the interpretation of Dr Abraham’s entry in his clinical notes for 13 March 2009. I must say the note is too vague for one to conclude Mr Krajnc received a pethidine injection for his neck. But whether he did or did not is of little importance.
145There is external support for Mr Krajnc’s statements about the state of his lumbar and cervical spines despite their degenerative state.
146Mr Krajnc continues to reside in the same residence. His living arrangements have remained the same. His injuries have not forced him into some form of supported accommodation.
147Mr Krajnc still attends his warehouse in Diggers Rest from time to time. How often was not disclosed. He drives there and back, a round trip of about 90 minutes. The business still sells products. He is developing a new product. He looks after the financial side of the business by preparing and submitting business activity statements.
148Immediately before the transport accident, Mr Krajnc says he assembled parts of equipment himself and did not engage other persons to do so. He says he has engaged other persons to do that work since the accident. There is no documentary evidence to support this claim where one would expect there to be. In the years leading up to the accident, his business was unprofitable and was barely so in 2019. If he did that work before the accident, it was to a small degree for the business was not in a financial position to do so after the accident.
149There was no attempt to tender into evidence the taxation returns of the company and none was shown to him. Yet he was cross-examined as to their contents and accepted the accuracy of what was said they revealed. It was the conflict between their failure to disclose payments to third parties and his belief in their accuracy which led to his statement about cash payments.
150Before the transport accident, Mr Krajnc says he played golf with his friends at two golf courses, one near Whittlesea and the other in Bulleen. It appears they played irregularly. The question is whether he had ceased playing golf before the accident. Mr Krajnc says not. Although Ms Burgar was an uncertain witness, she was under the impression he ceased playing before. Given his unreliability as a witness, I would not conclude Mr Krajnc ceased playing after the accident.
151Mr Krajnc has trouble sleeping now but he has had that problem all his life. He has been prescribed Normison to help with sleep for years and certainly before the transport accident. I could not find there is any appreciable difference in his sleeping patterns before and after the accident.
152The strangest piece of evidence arose in relation to a truck and attached crane which Mr Krajnc owns. It is depicted in a photograph in the defendant’s first court book.[34] He parks the truck in a street near to where he lives. In the photograph, the crane is very tall for it is in its extended state. Unextended, it is 4 metres long. In the photograph, he was using the truck and crane to remove heavy items from the garden of the home where he lives. He also uses it to transport machinery from his premises in Diggers Rest and will drive the truck for that purpose.
[34]At p 68.
153Mr Krajnc presents an unreliable picture of the consequences of the body function associated with his lumbar and cervical spines due to the transport accident. I accept there is a pain component and ongoing medical and like treatment with the prescription of medicines. There are the headaches emanating from the cervical spine. There are the trauma-related psychological symptoms. On the other hand, there is his continued, frequent involvement in the business with no acceptable evidence of a change in the level of involvement following the transport accident and, in that, I include his use of the truck and crane. On the evidence, I could not find any material difference in his golfing habits or his sleep. Despite the apparent improvement in the condition of his lumbar and cervical spines in 2016, a comparison between his pre-accident and post-accident state does not yield a difference which justifies the finding of a “serious injury”.
Consequences: psychological
154Ms Elyas is in the best position to evaluate Mr Krajnc’s mental state. After nearly three years of regular treatment, his condition has worsened. Despite continuing to treat him and outlining a wide-ranging program of treatment, her prognosis is uncertain. I have no doubt she is treating him for the correct disorders, which she diagnoses. I have already described the areas of abnormality she found in his mental state. They have persisted over the time of her treatment. They are broad and very disturbing from the perspective of his mental health. An uncertain prognosis with those disorders after three years of regular treatment is proof of the long-term nature of his disorders.
155Ms Elyas incorrectly thought Mr Krajnc was high functioning and had optimal well‑being before the accident. These are incorrectly assumed facts but they do not alter the validity of her opinions as to his condition.
156It appears Dr Serry places the reactive symptoms at a level justifying a diagnosis but traumatic features do not. The latter are considered part of the former. The extent of his overall symptoms is “considerable”. His prognosis is somewhat guarded. Moreover, my reservations about Mr Kranjc’s credit do not affect my acceptance of her opinions even though largely based on what he tells her. She has had plenty of opportunity to assess the validity of what he tells her and it is plain she accepts his presentation, verbal and non-verbal, as accurate.
157I have noted the stern test imposed for mental or behavioural disorder or disturbance and am satisfied that the accident resulted in Mr Krajnc suffering a severe long-term mental or severe long-term behavioural disturbance or disorder. There is very slight evidence of Mr Krajnc suffering from depressive symptoms before the transport accident in that, on 4 May 2004, Dr Abraham apparently gave him a sample of Zoloft tablets and on 28 May 2004, he noted “no change e (sic.) zoloft”.
158There is no legitimate basis to doubt Mr Krajnc’s evidence he was not prescribed anti-depressant medicines before the transport accident. Inferentially, his psychological state immediately before the transport accident was good. Since he was functioning without psychological impediment before the transport accident, there is no scope for the application of the principle in Petkovski v Galletti.[35]
[35][1994] 1 VR 436.
159Based on his erratic presentation as a witness due, in part, to his mental state, I share Ms Elyas’ reservation about his capacity for work. However, there is no need to make findings in this regard given my view as to his claim under paragraph (c).
160I am satisfied Mr Krajnc has suffered a “serious injury” under paragraph (c) of the definition of that expression.
Conclusion
161I will grant leave to Mr Krajnc to commence a proceeding to recover damages. I will hear the parties on the form of my order and the question of costs.
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