Kukac v TAC
[2025] VCC 264
•31 March 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-04171
| TROY KUKAC | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | Her Honour Judge Sanger | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 November 2024 | |
DATE OF JUDGMENT: | 31 March 2025 | |
CASE MAY BE CITED AS: | Kukac v TAC | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 264 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to the lumbar and thoracic spine – central sensitisation – post-traumatic stress disorder – major depressive disorder - pain and suffering and loss of earning capacity – credibility and reliability
Legislation Cited: Transport Accident Act 1986 (Vic), s93
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129
Judgment: Leave granted to the plaintiff to proceed with a claim for damages arising from the injuries sustained on 18 May 2021.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D O’Brien with Mr D Nguyen | Slater and Gordon Lawyers |
| For the Defendant | Mr A Moulds KC with Ms K Karadimas | Hall & Wilcox |
HER HONOUR:
Introduction
1Mr Kukac sustained injuries arising from a transport accident on 18 May 2021.
2While the facts of the accident were in dispute, it was agreed that the accident occurred when Mr Kukac was waiting to turn into Shannon Avenue from West Fynns Street in Newtown. While stationary, he was rear-ended by another vehicle driven by Ms Sarah-Jane Johnson.
3Mr Kukac alleges that he sustained injuries to his chest, lower back, neck and referred pain into his upper arms and legs in this accident.[1]
[1]Exhibit P1, Plaintiff’s Court Book (“PCB”) 15 at paragraph [8]
4Up until this time Mr Kukac led an active and independent life. He was in good health, ran his own signwriting business, played golf and soccer on a regular basis, enjoyed other sporting and recreational activities and had a healthy social life.
5His life has changed completely since the transport accident. He has not returned to work, he no longer engages in recreational and sporting activities and has become dependent on others, particularly his mother, to look after his home and wellbeing. His mother is concerned that he has become socially isolated, and worries about his health and what his future holds.
6Mr Kukac is seeking leave to proceed with a claim for pain and suffering damages and economic loss pursuant to paragraphs (a) and (c) of the definition of “serious injury” as contained in section 93(17) of the Transport Accident Act 1986 (Vic) (“the Act”).
7The part of the body said to be impaired for the purposes of paragraph (a) is the spine, and for paragraph (c) is anxiety, depression and Post-Traumatic Stress Disorder (“PTSD”).
8The hearing proceeded in the usual way. Mr Kukac was the only witness to give oral evidence and be cross-examined. The parties otherwise tendered various reports from their respective court books. While I do not propose to refer to all the evidence in providing my reasons, I shall refer to the evidence to the extent necessary to explain my reasons.
9With respect to paragraph (a), Counsel for the defendant submitted that Mr Kukac sustained soft tissue injuries to his back and cervical spine in the transport accident that have had since resolved. He submitted that any diagnosis of central sensitisation made by the practitioners was either based on an unreliable history or did not have an organic basis. He also submitted that Mr Kukac was an unreliable witness, and thus his evidence could not be accepted. He therefore submitted that Mr Kukac was not entitled to leave to proceed under sub-paragraph (a).
10With respect to paragraph (c), Counsel for the defendant submitted that the circumstances of the accident did not involve trauma of the type that Mr Kukac described, and thus the history Mr Kukac provided to the medical practitioners was unreliable, affecting the reliability of their opinions. He also submitted that if Mr Kukac’s pain condition was not organic, and he submitted that it probably was not, then Mr Kukac’s pain did not ‘fit’ into a depression caused by his pain;[2] which I have understood to mean that it was not secondary to pain caused by an organic injury. He therefore submitted that Mr Kukac was not entitled to leave to proceed pursuant to paragraph (c).
[2]Transcript (“T”) 145, Lines (“L”) 22-25
11Thus, the issues to be resolved in this case are:
(a)Was Mr Kukac a credible and reliable witness?
(b)Do Mr Kukac’s physical complaints have a physical, or organic, basis, and if so:
(i)What is the body part that has been impaired and is the impairment long-term?
(ii)What are the consequences of that impairment? and
(iii)Are the consequences of the impairment more than significant or marked?[3]
(c)Do any mental injuries referable to the transport accident produce a long-term disturbance or disorder, and if so:
(i)What are the consequences of that disturbance or disorder? and
(ii)Are the consequences severe?
[3]Humphries and Anor v Poljak [1992] 2 VR 129 at 140 (‘Poljak’)
12The relevant legal principles are well-known and were not in dispute.
13For the reasons set out below, I find that Mr Kukac is entitled to leave to proceed with a claim for damages for his pain and suffering and pecuniary loss arising from the injuries sustained on 18 May 2021.
Relevant background matters
14Mr Kukac is forty-three-years old. He lives alone in Newtown.
15He completed Year 12 in 1999 and subsequently operated his own signwriting and installation business.[4] This involved the installation of frames and panels, applying signs to shop and commercial windows, as well as installing advertising boards and banners.[5]
[4]Exhibit P1, PCB 14 at paragraph [3]
[5]Ibid
16His previous medical history included a left shoulder dislocation in early 2017 and glandular fever in his early twenties, which developed into chronic fatigue. Mr Kukac deposed that neither of these conditions affected his ability to work or engage with activities of daily living.[6]
[6]Exhibit P1, PCB 15 at paragraph [6]
The plaintiff’s evidence
17Mr Kukac swore two affidavits in this matter, dated 28 November 2022 and 4 October 2024. In his first affidavit dated 28 November 2022, he deposed to the following:
(a)During the transport accident on 18 May 2021, he was hit from behind without warning and was subjected to force.
(b)He attended his treating general practitioner, Dr Dhanushka Algama, on 20 May 2021 as his symptoms had not improved.[7] Since this time, he underwent physiotherapy and hydrotherapy.[8] He continued to undergo physical physiotherapy treatment every fortnight and had monthly hydrotherapy sessions[9]. He completed a home strengthening program daily. He saw a psychiatrist every one to two months.
[7]Exhibit P1, PCB 15 at paragraph [10]
[8]Ibid
[9] Exhibit P1, PCB 27 at paragraph [14]
(c)He has undergone a pain management program.
(d)He has severe pain in his neck, which radiates to his shoulders and upper arms, as well as pain in his back, which radiates into his left buttock, thigh, calf and heel. The pain varies in intensity. He is never pain free.[10]
[10] Exhibit P1, PCB 17 at paragraphs [14] – [16]
(e)He experiences headaches and migraines daily which at times can be severe and cause constant nausea.[11]
[11] Exhibit P1, PCB 17 at paragraph [17]
(f)He has difficulty standing or walking for long periods without experiencing a sharp increase of lower back pain. He struggles to squat, bend and lift. Heavy or repetitive tasks increase his back pain.
(g)He has difficulty sleeping.
(h)He has developed symptoms of anxiety and depression due to the pain and restrictions he experiences, including lethargy, loss of motivation and feeling overwhelmed.
(i)He has developed symptoms of PTSD, including hypervigilance, nightmares, flashbacks and panic attacks.[12]
(j)He has attempted to return to work on multiple occasions following the transport accident, but has only lasted a few hours before being unable to continue due to increased symptoms in his neck and back.
(k)As a result of his impairment, he:
(i)Is unable to watch his godson play football as he is unable to stand for long periods of time;
(ii)Has missed out on other sporting events and travelling to weddings overseas;
(iii)Has been prevented from walking his dog;
(iv)Is prevented from playing golf, outdoor soccer, running, riding his mountain bike, playing basketball, kicking a football with friends, boxing, and swimming and surfing at the beach; and
(v)Cannot drive for long periods.
[12] Exhibit P1, PCB 27 at paragraph [16]
18In his second affidavit, sworn on 4 October 2024, he deposed to:
(a)Experiencing a sudden back spasm in October 2023 while attempting to lift himself from the toilet, which caused him to fall and fracture his right elbow. He deposed to continuing to experience pain and restrictions in his right elbow, which was significant as he is right-handed.
(b)Not having consulted a surgeon about his spinal injury, as he would not have surgery to his back even if it was recommended.
(c)Having decided against undergoing a medial branch block procedure due to the risk that the symptoms could become worse, and the lack of a guarantee that his symptoms will improve.
(d)A ketamine infusion having been recommended by his pain specialist.
(e)Having attempted administrative work in late 2021 at home. He found it difficult to concentrate and sit in the same position for long periods. When that work ceased, he did not know what he could do, given the challenges he faced with this type of work.
(f)As a result of his neck and back pain and restrictions he was prevented from caring for his dog, Arrow, during the last few years of his life. He finds it difficult to accept that he does not have the capacity to care for another dog.
(g)Requiring the following medication:
(i)Two 30 mg capsules of Apo-Duloxetine;
(ii)one tablet of clonidine;
(iii)150 mg tablets of amitriptyline;
(iv)50 mg of Palexia when the pain becomes severe;
(v)Two tablets of 25 mg of pregabalin;
(vi)Panadol Rapid and Nurofen most days; and
(vii)Two 2 mg tablets of melatonin for sleep.[13]
[13] Exhibit P1, PCB 26 at paragraph [12]
19He was cross-examined extensively at the hearing of this matter. In summary, he said:
(a)He had a different recollection to Ms Johnson about the transport accident. He thought he recalled that her number plate was “smashed off” in the accident.[14]
(b)He undertook administrative work from home for the Australian Bureau of Statistics (“ABS”) from late July, early August in 2021.[15] He did the work in “bits and pieces”.[16] He did not record his hours.[17] He was paid for 50 hours a week.[18]
(c)He told Dr Algama that he was going to attempt this work.[19] He did not recall why he had not signed the worker declaration.[20]
(d)He declared that he earned income from administrative work for the ABS to the defendant. He recalled that there was a gap in time where he did not receive Transport Accident Commission (“TAC”) payments.[21] He did not recall having received payments from the TAC for a three to four week period concurrent with his earnings from the ABS.[22]
(e)He could not recall whether he had told the medico-legal practitioners about his work with the ABS. When taken through the reports of the various practitioners, he indicated that he had understood them to be asking about his attempts at returning to work in his business as a sign-writer.[23]
(f)He did not believe his business was failing or in decline at the time of his transport accident. He had undertaken work as an employee for National Personnel in 2018 through to early 2019 for approximately six months, which explained the reduction in his business earnings in the 2019 financial year. He agreed to this arrangement as he had been asked to work in this way.[24]
(g)Business expenses referred to in the financial documents for the 2022/2023 and 2023/2024 financial years related to subscriptions for products that he had contractual commitments to that were incurred prior to his transport accident such as Adobe[25] and Xero.[26] They were sometimes 24-month contracts.[27] In 2022, he was not expecting not to be able to work again.[28]
(h)He could not recall how much he sold his business equipment for.[29]
(i)His vehicle was written off by the insurance company after the transport accident. He did not recall receiving money for that vehicle. He bought a new vehicle a couple of months later.[30]
(j)He did not have a registered golf handicap prior to the accident. Rather, his handicap was calculated by a social club.[31] He sometimes played with the Croatian Social Club.[32] He would play golf casually with Mr John Wells, one of the lay affidavit writers.[33]
[14] T71, L23-24
[15] T33, L20
[16] T75, L4
[17] T75, L11-12
[18]T75, L14
[19]T35, L18-19
[20]T35, L22-25
[21]T46, L5-6
[22]T46, L13-14
[23]T47, L18-19; T47, L31; T48, L1-3; T52, L30-31
[24]T28, L16
[25]T18, L14-16
[26]T18, L28-31
[27]T18, L7-9
[28]T18, L13-16
[29]T62, L10
[30]T77, L19-26
[31]T85, L28 – T86, L6
[32]T87, L10-13
[33]T87, L14-23
The evidence of the lay witnesses tendered by the plaintiff
20Mr Kukac tendered three lay witness affidavits in his case, none of which were challenged.
21The first affidavit was from a friend of Mr Kukac’s, Mr Wells, which was sworn on 3 October 2024. In summary, his evidence was:[34]
(a)He has known Mr Kukac for approximately 20 years.
(b)They used to try to play golf at least once a fortnight.
(c)Mr Kukac had been a good golfer.
(d)He has not played golf with Mr Kukac since he had his transport accident.
(e)When he last saw Mr Kukac, he observed significant adverse changes to him, both physically and emotionally. He thought Mr Kukac’s personality had changed. He was no longer the enthusiastic and confident person that Mr Wells had once found him to be.
[34]Exhibit P1, PCB 31-32
22The second lay affidavit was from his mother, Ms Victoria Kukac, sworn on 4 October 2024. In summary, her evidence was:[35]
[35]Exhibit P1, PCB 34-37
(a)She is semi-retired and works intermittently in an administrative role. She has three children. Mr Kukac is her middle child.
(b)She sees Mr Kukac multiple times most weeks.
(c)Prior to the accident, Mr Kukac lived independently, took pride in his appearance, kept his house neat and tidy, washed his clothes, had good personal hygiene and supported himself financially.
(d)Mr Kukac now requires assistance with cleaning and maintaining his home. She attends his home multiple times most weeks to undertake heavier or repetitive household tasks.
(e)She tries to cook large meals whenever she visits him so he has enough to last for several days. She buys items for Mr Kukac when she is shopping for herself. Mr Kukac did not require this type of support prior to his transport accident.
(f)Mr Kukac often looked exhausted which she attributed to his sleep difficulties. She found him to be lethargic which she believed led to him not showering, changing his clothes or shaving for several days. She had not observed this type of behaviour from Mr Kukac prior to his transport accident.
(g)Mr Kukac no longer operated his sign business which she described as “devastating,” as she observed that Mr Kukac had always been proud of his artistic ability to create and install signs and advertising material.
(h)Prior to the transport accident, Mr Kukac regularly participated in sport, fitness activities, went swimming at the beach, played competitive indoor soccer, attended the gym and played golf. He has been prevented from doing so since the transport accident.
(i)He had been unable to care for his dog Arrow after the transport accident.
(j)He was outgoing and confident before the transport accident. He was family oriented and enjoyed the company of others. He rarely missed family events such as birthdays, Christmas and other celebrations. Since the transport accident he avoided socialising and had become increasingly isolated from his family and friends. She is concerned that he might not ever establish a romantic relationship.
(k)He was nervous while travelling as a passenger or driving a vehicle.
23The third affidavit was from another friend, Mr Arijan Veljan, sworn on 9 October 2024. In summary, his evidence was:[36]
(a)He has been friends with Mr Kukac for approximately 15 years. Their friendship has been based on their mutual interest in soccer.
(b)He played in the same indoor soccer team as Mr Kukac from approximately 2014 or 2015. They played on a weeknight at the Barwon Valley Activity centre.
(c)They also played outdoor soccer in the Geelong Soccer Sevens League. They competed in a high division. Mr Kukac usually played as goalkeeper although he also played in other positions.
(d)Soccer is a highly physical game that involves much running, twisting, turning and agility. Mr Kukac has not returned to this sport since his transport accident.
(e)He no longer has regular contact with Mr Kukac as they do not play in the same soccer team. Their catch ups are limited to having coffee together for a short period. He has observed that Mr Kukac has physically and mentally deteriorated. He thought he seemed depressed and had gained weight.
[36]Exhibit P1, PCB 38-39
The evidence of the lay witness tendered by the defendant
24The defendant tendered an affidavit from Ms Johnson which was affirmed on 7 October 2024. Annexed to her affidavit was a statement made on 14 March 2023 to M & A Investigations, who were instructed by the defendant. Within this statement, Ms Johnson deposed that:[37]
(a)She was travelling at less than five kilometres per hour immediately before the accident.
(b)The impact was minor and did not push Mr Kukac’s vehicle forward or in any other direction.
(c)When she exited her vehicle, Mr Kukac told her that the impact “had given him a fright” but he did not advise that he was in any pain or discomfort, and she could not see any visible injuries.
(d)The damage to Mr Kukac’s vehicle was minor, with only the rear bumper being dented.
[37]Exhibit D1, DFACB 204-206
25The defendant also tendered various photographs of Mr Kukac’s vehicle that had been taken on 31 May 2021 and 22 June 2021, which demonstrated a slight dent and scratch on the right side of the rear bumper.[38]
Relevant expert evidence regarding the physical impairment
[38]Exhibit D1
Mr Kukac’s medical experts
Dr Dhanushka Algama, treating general practitioner
26On 20 May 2021, Mr Kukac attended Dr Algama as he was still experiencing discomfort from the transport accident. The clinical extract notes the circumstances of the injury as:
“…
- driver of car
- turned left and was hit by a 4WD in the back
- seatbelted
- Was thrown forward
- No LOC/Head injury
- Got out of the car
- developed right sided chest discomfort, left lower and upper back pain
- did not seek immediate medical help, had some work to do
- Chest discomfort got better
- Lower back pain is getting worse
- Some radiation to the left leg
- Left sided lateral neck pain
- Some discomfort with lateral rotation
…
O/E:
Walked in
Walking without support
No Midline tenderness over the spine
No obvious step deformity
Mild tenderness to the left of spine at L3 area
- No visible bruising
Forward flexion - restricted
Extension - restricted
Lateral Flexion – restricted”[39]
[39]Exhibit D1, DFACB 132
27On 19 May 2022, Dr Algama provided a report to Mr Kukac’s solicitors. He noted that Mr Kukac had an x-ray of his lumbar spine, which was normal. He reported that he had seen Mr Kukac on six occasions at the time of this report due to Mr Kukac’s ongoing pain, and to provide TAC certificates.[40] Dr Algama noted that an MRI scan of Mr Kukac’s lower back on 29 June 2022 showed disc degeneration at L5/S1, with “subtle disc protrusion which made contact with the right descending S1 nerve”, but there was no obvious sequelae of the transport accident demonstrated, and it failed to elucidate why he had left-sided symptoms.[41]
[40]Exhibit P1, PCB 43
[41]Ibid
28Dr Algama prescribed him anti-inflammatory medication and referred Mr Kukac to a physiotherapist. He also referred Mr Kukac to a neurosurgeon, Dr Nick Hall, who Mr Kukac did not ultimately see.[42] Dr Algama also referred Mr Kukac to a pain specialist clinic, Pain Matrix.[43]
[42]Exhibit P1, PCB 44
[43]Ibid
29Dr Algama diagnosed Mr Kukac with lower back pain with left lower limb radiculopathy, which was likely due to pseudo-sciatica or chronic pain sensitisation.[44] At the time of this report, Dr Algama commented that it was difficult to ascertain whether the transport accident caused his injury and impairment, but he did not want to exclude the accident completely as being a cause, due to complex body pain mechanisms.[45]
[44]Ibid
[45]Ibid
30Dr Algama noted the following restrictions:
“Lifting, Bending, Twisting, Stooping – restricted
Prolonged sitting, standing, walking – restricted
Pushing, pulling or lifting- restricted
Waking, Standing – restricted
Kneeling, Squatting – restricted”[46]
[46]Ibid
31On 24 August 2024, Dr Algama provided a second report to Mr Kukac’s solicitors.
32Dr Algama noted that Mr Kukac had several attendances at Pain Matrix, where he was trialling several medications (anti-inflammatories, neuropathic pain medications, Codeine-based medications and anti-depressants), as well as undergoing pain physiotherapy and pain psychotherapy.[47] He also noted that they had recommended Mr Kukac undergo a ketamine infusion, which he was reluctant to do, but that recent correspondence from Pain Matrix indicated that Mr Kukac was content to proceed with the infusion.
[47]Exhibit P1, PCB 47
33Dr Algama noted the following regarding Mr Kukac’s ability to engage in the following activities:
“Lifting, Bending, Twisting, Stooping - restricted, fully incapable
Prolonged sitting, standing, walking - restricted, fully incapable
Pushing, pulling - restricted, fully incapable
Kneeling, squatting, couching - restricted, fully incapable
Waking down and up inclines - restricted, fully incapable
Using steps and ladders - restricted, fully incapable”[48]
[48]Exhibit P1, PCB 48
34Dr Algama considered Mr Kukac was unlikely to be capable of performing his pre-injury duties as a signwriter because of his spinal condition, as well as performing any other suitable employment.[49] He opined that Mr Kukac’s chronic pain syndrome was the most significant issue, rather than the degenerative disc disease.[50]
[49]Ibid
[50]Ibid
Dr Amrita Prasad, specialist pain medicine physician and pain fellow
35On 30 June 2022, Mr Kukac first attended the Pain Matrix clinic where he was seen by Dr Amrita Prasad, a specialist pain medicine physician and pain fellow. Mr Kukac attended practitioners at Pain Matrix for treatment of both his physical and psychological injuries. I have included evidence relating to both injuries when summarising Dr Prasad’s evidence.
36She wrote to Dr Algama regarding his attendance on the same day. Mr Kukac reported that his pain was predominately on the left side of his back, which was aggravated with movement and relieved with rest.[51] He also reported paraesthesia and numbness in his left leg occasionally, which was mainly in his left heel and could feel “prickly”.[52] He specified the back pain as a “burning” sensation in his lower back, and “twisting” at times.[53] She noted that his medication at this time included Panadol Rapid, Nurofen and Celebrex, and that he was averse to taking medication due to the side effects he experiences with the latter two.[54] She recorded that Mr Kukac’s mood was low and frustrated due to his pain and the fact that he could not engage in his usual activities.[55] She noted that on this day, Mr Kukac denied any depressive symptoms and that he was not under the care of a psychologist.
[51]Exhibit P1, PCB 50
[52]Ibid
[53]Ibid
[54]Exhibit P1, PCB 50
[55]Ibid
37Upon examination, Dr Prasad noted that there was marked tenderness over the lower lumbar facet joints and sacroiliac joint[56] on the left, with allodynia[57] over his lower back.[58] Neurological examination of the lower limbs showed reduced power on hip flexion on both limbs. He had reduced range of movement across all planes in his lumbar spine and reduced sensation in L5 and S1 distribution on the left, compared to his right side.[59]
[56]The joint that connects the pelvis and lower spine
[57]A type of neuropathic pain, and is the experience of pain resulting from a stimulus which would not usually cause pain, such as a light touch of the skin
[58]Exhibit P1, PCB 50
[59]Ibid
38Dr Prasad opined that the source of Mr Kukac’s pain was his facet joints and sacroiliac joint which was complicated by central sensitisation over his lower back. She recommended that he consider diagnostic medial branch blocks and a left sacroiliac joint injection, which may provide him with some relief.[60]
[60]Exhibit P1, PCB 51
39In her correspondence to Dr Algama of 2 August 2022, she noted that Mr Kukac was willing to engage with a psychologist and undergo a pain management program. He was not keen to undergo medial branch blocks at that point, but was open to undergoing a subcutaneous ketamine infusion to reduce central sensitisation and pain levels.[61]
[61]Ibid
40In her correspondence to Dr Algama of 28 November 2022, she wrote that Mr Kukac was struggling with pain that was predominantly neuropathic in nature. It was constant, but worse in the evening and was affecting his sleep. She commenced him on Lyrica 25mg and arranged to catch up with him again in two weeks’ time to assess his progress and increase his medication if he was tolerating it without side effects.[62]
[62]Exhibit P1, PCB 56
41In her correspondence of 7 December 2022, she advised that she increased his dose of Lyrica to 50mg. She noted that the Lyrica had assisted his pain at night and that his sleep was poor most nights.[63]
[63]Exhibit P1, PCB 57
42In her correspondence of 21 June 2023, she noted that Mr Kukac was frustrated with his progress, as it was not as advanced as he wished it to be, although physiotherapy had helped.[64] She wrote that he reported that his sleep was poor every night due to the pain, that his mood was low at times, and that he lacked motivation to do things.[65] She noted that he was seeing a psychologist through Pain Matrix, and she discussed Mr Kukac trialling Endep 10mg to assist with his pain, central sensitisation and to assist with his mood and sleep.[66] She noted that he said that if his pain levels improved, he would love to get back to playing golf and working.[67]
[64]Exhibit P1, PCB 58
[65]Ibid
[66]Ibid
[67]Ibid
43In her correspondence of 18 July 2023, he reported that his pain and mood had improved since commencing Endep. She increased the dose of Endep to 20mg and indicated that if he was able to tolerate that, that Dr Algama could increase the dose to 25mg.[68]
[68]Exhibit P1, PCB 59
44In her correspondence of 14 August 2023, she noted that Mr Kukac was reporting increased drowsiness with the increase in Endep though it had helped with his mood and anxiety.[69]
[69]Exhibit P1, PCB 60
45She provided a report to the defendant dated 16 November 2023. In that report, she wrote that Mr Kukac had chronic low back pain and left leg pain with underlying central sensitisation. She noted that he also had a history of PTSD, depression and anxiety. She noted that he was on Lyrica and Endep to reduce his pain and central sensitisation. She opined that Mr Kukac had been unable to progress with future planning which she believed was due to his psychological health.[70]
[70]Exhibit P1, PCB 55
46In her correspondence of 20 November 2023, she noted the radial fracture to the elbow. She said that his mental health had declined, and he was awaiting review with a psychiatrist. She requested that Dr Algama complete a mental health plan and refer him to a psychiatrist for ongoing mental health support.[71]
[71]Exhibit P1, PCB 61
47This was the last correspondence from Dr Prasad. However, Mr Kukac’s treatment continued with Pain Matrix under the care of Dr Maleeka Khullar, a psychiatrist and associate pain physician.
Dr Maleeka Khullar, a psychiatrist and associate pain physician
48On 26 April 2024, Mr Kukac first attended Dr Khullar at Pain Matrix, and she wrote a letter to Dr Algama on the same day. For the same reason outlined above at paragraph 35, I have summarised Dr Khullar’s evidence as it relates to both Mr Kukac’s physical and psychological injuries in this section.
49She noted Mr Kukac’s injury arose from a transport accident in which he was rear-ended while stationary on a slip road, and was pushed in front of oncoming traffic.[72] She recorded that he reported ongoing pain in his lower back which radiated to his left leg, but was unable to provide her with a detailed history and symptomatology in regards to his pain condition.[73] She noted that he had prominent central sensitisation.[74]
[72]Exhibit P1, PCB 62
[73]Ibid
[74]Ibid
50Dr Khullar reported that she was unable to examine Mr Kukac due to his significant central sensitisation, discomfort and pain.[75] She noted he had been using Endone for pain and that his prescription had run out. She provided him with a prescription for Palexia instead.[76]
[75]Exhibit P1, PCB 63
[76]Exhibit P1, PCB 61-62
51She noted that Mr Kukac continued to experience significant PTSD-like symptoms, which manifested in the form of nightmares, flashbacks of the motor vehicle accident, hyperarousal and hypervigilance.[77] She noted that Mr Kukac had reportedly almost stopped driving since the accident.
[77]Exhibit P1, PCB 62
52She noted that his decreased functionality had a significant impact on his mood, and that he reportedly experienced a low mood most days for most of the day in the last few months. She noted that there was prominent anhedonia,[78] amotivation, lack of energy, decreased appetite, poor sleep and decreased concentration.[79] She stated that he met the DSM-5 criteria for a diagnosis of major depressive disorder.
[78]Inability to feel pleasure in normally pleasurable activities.
[79]Exhibit P1, PCB 62
53She reported that due to his major depressive disorder, central sensitisation and PTSD-like symptoms, she recommended that he commence a course of duloxetine and clonidine.[80]
[80]Ibid
54Dr Khullar completed a questionnaire for Services Australia dated 2 May 2024.[81] She indicated on that form that Mr Kukac had an adjustment disorder with anxious and depressed mood secondary to a chronic pain condition, PTSD, persistent lumbar back pain and radicular leg pain and central sensitisation.[82]
[81]Exhibit P1, PCB 64
[82]Exhibit P1, PCB 65
55On 25 July 2024, Dr Khuller provided another report to Dr Algama, where she noted that Mr Kukac attended for a follow-up consultation after a few months. She noted that there was some stabilisation of his mood and PTSD symptoms since commencing duloxetine and clonidine, but that he remained mostly housebound due to the combination of his chronic pain and mental health issues.[83] She advised him to increase his dose of duloxetine to 120mg in the morning. She said he had decided to go ahead with the ketamine infusion and would be booked in in due course.[84]
[83]Exhibit P1, PCB 70
[84]Ibid
56In her report, she thanked Dr Algama for forwarding a letter from his psychiatrist, which confirmed his diagnosis of PTSD and major depressive disorder.[85]
[85]Ibid
57On 1 August 2024, Dr Khullar provided a report for this proceeding to Mr Kukac’s solicitors. She noted Mr Kukac’s diagnoses following the transport accident as:
(a)Central sensitisation;
(b)Major depressive disorder;
(c)Post traumatic stress disorder; and
(d)Chronic low back and left leg pain.[86]
[86]Exhibit P1, PCB 71
58She reported that his functionality had significantly declined due to the transport accident, describing his tolerances as follows:
(a)He had worked his way up to a walking tolerance of five minutes, twice a day;
(b)He was unable to stand or sit for more than a few minutes at a time; and
(c)Spinal movements, such as twisting, turning, bending, squatting, crouching, pushing or pulling increased his pain significantly.[87]
[87]Exhibit P1, PCB 72
59Dr Khullar opined that his incapacity was likely to continue for the foreseeable future. She said that due to comorbid central sensitisation and the ongoing psychological impact of the transport accident, Mr Kukac’s recovery was likely to be very gradual.
60She thought that Mr Kukac was unlikely to be able to perform his pre-injury duties as a signwriter for the foreseeable future. She did not believe that he had capacity for suitable employment at the time of the report, and for the foreseeable future, due to his comorbid pain and mental health condition.[88]
[88]Exhibit P1, PCB 72
61She noted that Mr Kukac struggled to do household chores, that he had become a social recluse due to the unpredictable nature of his spinal pain and the ongoing psychological impact from the transport accident.[89] She stated that due to Mr Kukac’s psychiatric condition and symptoms being at the forefront of his presentation, she had been unable to conduct an exhaustive examination of his pain conditions.[90]
[89]Ibid
[90]Ibid
Barwon Health
62On 8 October 2023, Mr Kukac attended the emergency department at University Hospital Geelong after he fell and injured his right elbow whilst using the bathroom. The discharge summary recorded that Mr Kukac reportedly stood up after using the toilet, when he had a spasm of severe back and sciatic pain down his left leg, causing him to fall to the ground.[91] He suffered a radial head fracture.
[91]Exhibit P1, PCB 99
Mr David Slattery, orthopaedic surgeon
63Mr Slattery saw Mr Kukac on 14 June 2022 and provided a report to his solicitors and the defendant on 28 June 2022.
64He noted the circumstances of the transport accident as Mr Kukac being stationary in a slip lane when he was rear-ended by another vehicle. Mr Kukac reported that he was unsure of the speed at which he was hit, but stated it may have been between 50 to 60 kilometres per hour.[92] He noted that Mr Kukac reported that he was wearing his seat belt and the airbags did not deploy. Mr Kukac was reportedly confused and disorientated, and he had to drive further down to go off the road that he had been pushed into.[93] Mr Kukac stated that he experienced severe chest pain, but was able to self-extricate and drive himself home, as emergency services were not called and did not attend the scene.[94] He developed low back pain and mid-thoracic back pain several hours after the accident.
[92]Exhibit P1, PCB 145
[93]Ibid
[94]Ibid
65On examination, Mr Slattery noted that Mr Kukac’s thoracolumbar spine demonstrated normal alignment on the coronal and sagittal planes, with tenderness noted on palpitation, particularly over the left paraspinal muscles in the thoracic region and the lumbar region.[95] He noted that there was significant pain inhibition of muscular power.[96]
[95]Exhibit P1, PCB 146
[96]Ibid
66He diagnosed Mr Kukac with degenerative lumbar spine with L4/5 disc protrusion and likely chronic pain syndrome.[97]
[97]Exhibit P1, PCB 147
67He reported that Mr Kukac was unable to work and had difficulties with sitting, standing, walking and any form of physical exercise or activity. However, he noted that if Mr Kukac attended a pain management program, he may be able to resume work.[98] At the time of writing his report, he believed that Mr Kukac was unfit to return to his pre-accident employment and was unable to return to any form of employment due to his severe pain, which might change after engagement with a pain management program.[99]
[98]Exhibit P1, PCB 148
[99]Exhibit P1, PCB 149
Professor Richard Bittar, neurosurgeon
68Professor Bittar saw Mr Kukac on 5 August 2024 and provided a report to his solicitors on the same date. Professor Bittar noted that Mr Kukac was the “restrained” driver of a stationary vehicle, that was struck from behind by a four-wheel drive, and he experienced “considerable jolting” on impact.[100]
[100]Exhibit P1, PCB 155
69Mr Kukac complained of experiencing constant back pain, which commenced immediately after the transport accident, and which was located predominately in the left lumbosacral region.[101] The pain varied between sharp and dull, and radiated into his left buttock, hamstrings and calf down to his heel.[102] He reported that this was exacerbated by bending, twisting, lifting more than three to four kilograms, coughing, sneezing, straining, sitting or standing for more than a few minutes, and walking for more than five minutes.[103]
[101]Exhibit P1, PCB 154
[102]Ibid
[103]Ibid
70He also complained of experiencing neck pain, which commenced several weeks after the transport accident. The pain was intermittent and left sided, radiating through his left shoulder into his biceps, forearm and thumb.[104] Mr Kukac reported that the pain was affected by sudden or repeated neck movements, maintaining his neck in a fixed position for prolonged periods, rotation of his neck, driving, sitting in one position, using a computer for longer than a few minutes, and lifting more than four kilograms.[105]
[104]Ibid
[105]Ibid
71He diagnosed Mr Kukac with aggravation of cervical spondylosis with neck pain and radicular symptoms, and aggravation of lumbar spondylosis with lower back pain and sciatica.[106] He opined that Mr Kukac was incapacitated for pre-injury full duties due to his injuries, and this total incapacity was permanent.[107]
[106]Exhibit P1, PCB 156
[107]Ibid
72He thought that Mr Kukac was likely to be significantly restricted in relation to the following activities:[108]
(a)Heavy lifting, or any sustained or repetitive bending, twisting or stooping;
(b)Prolonged sitting, standing or walking;
(c)Forceful or repetitive pushing or pulling;
(d)Kneeling, squatting or crouching;
(e)Walking up inclines or down declines;
(f)Using steps or ladders;
(g)Overhead activities, which would be likely to cause a deterioration in his condition, particularly his neck pain; and
(h)Prolonged computer use.
[108]Exhibit P1, PCB 157
73Professor Bittar opined that Mr Kukac was likely to be precluded from performing and sustaining suitable employment for the foreseeable future.[109]
[109]Exhibit P1, PCB 158
Mr Ash Moaveni, consultant orthopaedic surgeon
74Mr Moaveni examined Mr Kukac in person on 21 August 2024 and provided Mr Kukac’s solicitors with his report on the same date.
75Mr Kukac relayed the circumstances of the transport accident as a rear-end collision whilst Mr Kukac was stationary and waiting to turn into a side street. Mr Kukac described the impact as significant, as his body experienced an unexpected and intense force due to the collision.[110] The severity of the incident, his subsequent claimed injuries and the fact that his vehicle was written off were due to the sudden and unanticipated nature of the impact.[111]
[110]Exhibit P1, PCB 168
[111]Exhibit P1, PCB 168
76Mr Moaveni stated that Mr Kukac fractured his right elbow on 7 October 2023 whilst he was using the bathroom. Mr Kukac reported that his fracture had healed and he did not have any “rest pain” but he was limited in his supination of the right elbow.[112]
[112]Ibid
77Mr Moaveni noted that Mr Kukac attempted to return to work in early 2023, which reportedly caused significant pain in his lower back.[113] Mr Kukac reportedly had been unable to successfully return to work after this attempt.
[113]Exhibit P1, PCB 171
78Mr Moaveni stated that Mr Kukac’s symptoms at the time of the report as being severe, persistent pain and restrictions in his neck and back.[114] The pain was constantly present, although it fluctuated in intensity. His back pain radiated into his left lower back, thigh, calf and heel and often manifested as severe sciatic pain, which could last days.[115] Mr Kukac also reported experiencing sudden instances of his lower back locking-up, without warning.[116] Regarding the symptoms in his neck, Mr Kukac reported that his neck pain radiated into his shoulders, albeit more severely on the left side, and he experienced referred pain into his arms.[117] He also reported experiencing daily headaches and migraines due to his neck, which could be severe and caused constant nausea.[118]
[114]Ibid
[115]Ibid
[116]Ibid
[117]Ibid
[118]Ibid
79Mr Moaveni diagnosed Mr Kukac with a soft tissue injury in his cervicothoracic spine and a soft tissue injury to his lumbosacral spine.[119] He opined that Mr Kukac’s injuries were “significantly complicated” by a chronic pain syndrome.[120]
[119]Exhibit P1, PCB 175
[120]Ibid
80He opined that Mr Kukac would be precluded and restricted in relation to activities involving lifting, bending, twisting, stooping, prolonged sitting, standing and walking, kneeling, squatting and crouching, walking up and down inclines, use of steps and ladders, overhead activities and prolonged computer use.[121]
[121]Exhibit P1, PCB 176-177
81Mr Moaveni was of the opinion that Mr Kukac was not capable of returning to unrestricted pre-injury duties for full, pre-injury hours as a signwriter.[122] He also noted that Mr Kukac would be precluded from performing and sustaining suitable employment for the foreseeable future.[123]
[122]Exhibit P1, PCB 177
[123]Ibid
Dr Olivia Ong, specialist pain medicine physician
82Mr Kukac attended Dr Ong on 13 September 2024, and a report was provided to his solicitors on 20 September 2024. Dr Ong noted that Mr Kukac was not engaged in paid, unpaid or voluntary employment at the time of her report.
83She described the transport accident as Mr Kukac’s vehicle being struck from behind by a four-wheel drive, when he was stationary. She noted that he experienced considerable jolting on impact, but he was able to drive himself home and was not attended to by emergency services.[124] She noted that he experienced back pain in the hours following the accident, which persisted, and experienced neck pain as well, which later became less problematic. Dr Ong noted that Mr Kukac attended his general practitioner following the transport accident and was referred for x-rays of his lumbar spine.
[124]Exhibit P1, PCB 182; I note that the wording of the circumstances of the accident mirror what Professor Bittar reported in his report dated 5 August 2024.
84Dr Ong reported Mr Kukac’s symptoms as being persistent lower back pain with associated radicular symptoms, which was localised to his left lumbosacral region and fluctuated between sharp and dull pain.[125]
[125]Exhibit P1, PCB 183
85Dr Ong opined that Mr Kukac presented with:[126]
“1. Chronic nociplastic neck pain and left shoulder pain due to probable aggravation of degenerative cervical spine, and
2. Chronic nociplastic lower back pain with radicular symptoms due to probable aggravation of degenerative lumbar spine at L5/S1.”
[126]Exhibit P1, PCB 193
86Her opinion was that his nociplastic pain in his lower back and left leg, and nocicistic pain in his neck and left shoulder was due to central sensitisation, and thus the conditions had an organic basis. [127]
Defendant’s medical experts
[127] Exhibit P1, PCB 195
Dr Joseph Slesenger, specialist occupational physician
87Mr Kukac attended Dr Slesenger on 29 August 2022, and a report was provided to the defendant’s solicitors on 12 September 2022.
88Dr Slesenger took a history from Mr Kukac concerning the transport accident, where he noted that Mr Kukac was stationary in his vehicle when he was hit from behind and pushed into oncoming traffic, but did not hit any other vehicle.[128]
[128]Exhibit D1, DFACB 7
89Mr Kukac reported experiencing residual neck pain that was severe and constant, and radiated into his left upper limb. He also complained of shooting pain into his left arm with weakness and experiencing pins and needles.[129] Regarding his lower back pain, he reported that it was severe, constant and is centred in his lower back with shooting pains into his left leg, as well as experiencing pins and needles and weakness, in his left leg.
[129]Ibid
90Dr Slesenger noted that Mr Kukac’s reported tolerances were that he could walk up to eight minutes, he could stand for about eight to ten minutes, that he had difficulty climbing up and down stairs and walking on uneven ground, and that he could lift up to two kilograms from bench level, but he experienced difficulties with bending.[130] He could also drive for up to 20 minutes.[131]
[130]Exhibit D1, DFACB 8
[131]Exhibit D1, DFACB 9
91Mr Kukac advised Dr Slesenger that he had “not returned to work since the accident (he has trialled returning to work without success)”.[132] Dr Slesenger noted that the letter of instruction he received from the defendant’s solicitor indicated that he did return to work in “August/September 2020”.[133]
[132]Ibid
[133]Exhibit D1, DFACB 14
92Dr Slesenger diagnosed Mr Kukac with the following injuries:[134]
[134]Exhibit D1, DFACB 15
(a)Lumbar spine:
(i)Soft tissue injury; and
(ii)Chronic lower back pain with radiating features, but no confirmed evidence of radiculopathy.
(b)Cervical spine:
(i)Soft tissue injury; and
(ii)Chronic neck pain with radiating features, but no confirmed evidence of radiculopathy.
(c)Psychological impairment, although he noted that this was outside his area of expertise.
93Dr Slesenger opined that Mr Kukac’s presentation involved a “significant psychogenic component” and he noted the following inconsistencies:[135]
(a)Absence of wasting around the left shoulder despite the weakness and restricted range of movements identified;
(b)Absence of wasting on the left hand despite the weakness identified;
(c)Improved range of cervical spinal movements upon distraction and
(d)Improved range of lumbosacral spinal movements upon distraction.
[135]Ibid
94Dr Slesenger also noted symptoms beyond the site of the initial injury, particularly tenderness throughout the thoracic spine, although there was no evidence in the initial records he had before him recording a thoracic spinal injury.[136]
[136]Exhibit D1, DFACB 15
95He opined that Mr Kukac retained a capacity to work, albeit subject to restrictions, when considering the organic physical impairment alone.[137] These restrictions included:[138]
(a)No push, pull, carry or lift over five kilograms;
(b)No sustained forward reaching;
(c)Over shoulder reaching;
(d)No repetitive bending or twisting;
(e)No prolonged static postures; and
(f)No exposure to whole body vibration.
[137]Exhibit D1, DFACB 16
[138]Ibid
96He was of the view that Mr Kukac could return to work performing modified duties with the above restrictions for four hours a day, four days a week.[139] He believed that Mr Kukac’s psychological impairment, including the functional element to his presentation, was the most significant factor concerning Mr Kukac’s work capacity.[140]
[139]Ibid
[140]Exhibit D1, DFACB 16
Mr Gary Speck, orthopaedic surgeon
97Mr Speck examined Mr Kukac at his office on 17 April 2024 and provided a report to the defendant’s solicitors on 23 May 2024.
98Mr Kukac reported the accident to Mr Speck as he was waiting to turn left at a controlled intersection when another vehicle struck him from behind. He reported that he did not recall colliding with any other vehicles or objects and that his seatbelt held, and no airbags deployed.[141] He then drove further down the road, and exchanged details with the other driver, before driving home. He noted that he had “severe chest pain”, neck and back pain at that time.[142]
[141]Exhibit D1, DFACB 25
[142]Exhibit D1, DFACB 25
99Mr Kukac reported that his pain was centrally in his lower back, and extended to the left and down his leg. The pain was constant, aching and dull. He described the radiating pain from his low back down into his heel as “nerve pain”.[143] His neck pain was constant and on the left side, and he had symptoms into his left biceps and to his left thumb. He described a tingling sensation, but that this sensation was not “constantly present.”[144]
[143]Exhibit D1, DFACB 27
[144]Exhibit D1, DFACB 27
100Mr Kukac described his limitations with lifting, walking, sitting and standing as related to his back pain. He said he could lift a kilogram of milk at bench height, but acknowledged that he was lifting one and a half kilogram weights in each hand and doing step ups with the physiotherapist.[145] He said he could walk for a short period of time, and he could only sit for two to five minutes.[146]
[145]Exhibit D1, DFACB 28
[146]Exhibit D1, DFACB 28
101Mr Kukac reported that he tried returning to work two weeks after the transport accident, but whilst he was lifting a ladder he experienced a “bad reaction” with his back pain.[147] He said he had not returned to work since this attempt.
[147]Exhibit D1, DFACB 29
102Mr Speck noted that Dr Algama had organised radiological investigations for Mr Kukac, which did not reveal any discoligamentous or vertebral structural injury, and that clinical examination did not reveal any neurological deficit or radiculopathy or myelopathy.[148]
[148]Exhibit D1, DFACB 39
103Mr Speck diagnosed Mr Kukac with soft tissue injuries to the neck and low back without evidence of structural injury, radiculopathy or myelopathy.[149]
[149]Exhibit D1, DFACB 40
104Mr Speck opined that the soft tissue injuries would have resolved six to 12 weeks after the accident, and that the complaints of low back, buttock, lower extremity or neck pain were not caused by the transport accident. [150]
[150]Exhibit D1, DFACB 41
105On 4 October 2024, Mr Speck provided a supplementary report to the defendant’s solicitors, as he had been provided with further medical reports relating to Mr Kukac, as well as surveillance footage.
106Mr Speck agreed with Dr Algama’s report dated 25 August 2024, where it was noted that Mr Kukac’s chronic pain syndrome and mental health issues were the significant ongoing problems.[151]
[151]Exhibit D1, DFACB 51
107Having reviewed the surveillance footage and the further medical reports, Mr Speck stated that he did not identify any information that altered his opinion.[152]
Relevant expert evidence regarding the psychological injury suffered by Mr Kukac
[152]Exhibit D1, DFACB 58
Mr Kukac’s medical experts
Mr James Phillips, psychologist
108Mr Kukac attended Mr Phillips, a psychologist at Pain Matrix on numerous occasions. On 28 October 2022, Mr Phillips provided a multi-disciplinary assessment report to Dr Algama.
109Mr Phillips diagnosed Mr Kukac with adjustment disorder with mixed anxiety and depression secondary to a chronic pain condition in the context of PTSD.[153]
[153]Exhibit P1, PCB 79
110Mr Phillips noted that Mr Kukac possibly also had personality disorder not otherwise specified (“PD-NOS”) as he had some odd behaviours when describing, responding to and “living” his pain, and noted that Mr Kukac had difficulties in participating in certain activities, such as physiotherapy.[154]
[154]Exhibit P1, PCB 81
111Mr Phillips also provided an approval request on the same day to the defendant, where he noted that Mr Kukac scored 68/80 on the PCL5, a diagnostic tool for PTSD, where the cutoff for trauma is 33.[155]
[155]Exhibit P1, PCB 90
112On 30 November 2023, Mr Phillips provided a report to Dr Algama, following a review with Mr Kukac after trialling cognitive behavioural therapy three months prior.[156]
[156]Exhibit P1, PCB 91
113Mr Phillips noted that Mr Kukac’s coping strategies had been significantly impacted by his recent fall in October 2023, and the associated fracture.[157] He also endorsed Dr Prasad’s recommendation that Mr Kukac be referred to community psychology, to assist Mr Kukac to cope with his anxiety and distress regarding his back, shoulder and arm injuries. He also noted that Mr Kukac was reluctant to consider surgery on his elbow but was open to exploring his options regarding possible back surgery.[158]
[157]Ibid
[158]Ibid
114Mr Phillips concluded his therapeutic intervention with Mr Kukac at this time, as he felt that he had basic psychological strategies in place to help in his pain responses, and his PTSD had eased somewhat.[159]
[159]Ibid
Dr Nardine Elzahaby, psychiatrist
115Dr Elzahaby conducted a psychiatric assessment of Mr Kukac on 2 May 2024, and provided a report to his solicitors dated 23 May 2024.
116Mr Kukac advised Dr Elzahaby that he was involved in a motor vehicle accident where his stationary car was rear-ended, pushing him into oncoming traffic. He reported that his car was then hit by a four-wheel-drive in reverse.[160]
[160] Exhibit P1, PCB 93
117Dr Elzahaby noted that Mr Kukac presented with ongoing back pain, low energy, and a significant decline in his mental health. She also noted that he experienced migraines. Dr Elzahaby recorded Mr Kukac as presenting with the following symptoms:
(a)A heavy feeling at the front of his head associated with a sense of despair;
(b)Poor sleep quality, including initial and middle insomnia and feeling unrefreshed in the morning;
(c)Intrusive symptoms related to the accident, including flashbacks of the impact, the loud sound, and his actions immediately following the accident;
(d)Nightmares with similar content to the intrusive symptoms, dissociative episodes and night sweats; and
(e)A significant decrease in appetite.[161]
[161] Exhibit P1, PCB 93
118She noted that Mr Kukac no longer engaged in activities he enjoyed such as boxing, training others, golf, basketball and soccer.[162]
[162] Exhibit P1, PCB 93
119Dr Elzahaby listed Mr Kukac’s medications at the time of assessment as follows:
“- Celebrex 100mg - twice a day (irregularly)
- Lyrica 25mg - twice a day
- Endep 25mg - once in evening
- Endone 10mg - only as needed
- Duloxetine 30mg - once in morning with food
- Clonidine 0.10mg – once at night
- Palexia 50mg - only as needed
- Nurofin (sic) 500mg - most days for migraine
- Panadeine Forte 500mg- some days
- Panadol Rapid - every second day”[163]
[163] Exhibit P1, PCB 93-94
120Based on Mr Kukac’s presentation and the DSM-5 criteria, Dr Elzahaby made the following diagnoses:
“1. Post-Traumatic Stress Disorder (PTSD) …
2. Major Depressive Disorder (MDD), Recurrent, Severe”[164]
[164] Exhibit P1, PCB 94
121Dr Elzahaby noted that Mr Kukac met the diagnostic criteria for PTSD as he had been exposed to a life threatening event, experienced intrusion symptoms, demonstrated avoidance behaviours, had negative alterations in cognition and mood, showed marked changes in arousal and reactivity, and that these symptoms had persisted for more than a month. She also recorded that he met the criteria for Major Depressive Disorder with severe symptoms of low mood, anhedonia, sleep disturbance, fatigue and poor concentration. She wrote that these symptoms significantly impacted his daily functioning and precipitated passive suicidal ideation.[165]
[165] Exhibit P1, PCB 94
122Mr Kukac attended a follow up appointment on 9 September 2024. In addition to the previous symptoms reported, Mr Kukac had the following complaints:
“- Has been feeling emotionally sensitive to events happening around him
- Sensitivity to sound since the accident became more problematic now
- Difficulty sitting down with people and concentrating has been difficult
- Feels his sleep routine has been disrupted reporting hypnogogic hallucinations.”[166]
[166] Exhibit P1, PCB 96
123Dr Elzahaby recommended a Mr Kukac undergo trauma-focused therapy, and suggested changes to his medication regime.
124Mr Kukac attended a further telehealth review with Dr Elzahaby on 8 October 2024. During the consultation, he reported the following:
“1. Nightmares: Frequency has decreased from nightly to 2-3 times per week with Melatonin / increased dose of Duloxetine.
2. Sleep: Improved with the use of Melatonin 5 mg po nocte
3. Flashbacks: Still present but reduced in frequency.”[167]
[167] Exhibit P1, PCB 98
125Dr Elzahaby made adjustments to Mr Kukac’s medication and planned to review him again in December 2024.
Dr David Weissman, consultant psychiatrist
126Dr Weissman conducted an impairment assessment of Mr Kukac via FaceTime on 16 June 2022, and provided a medicolegal report dated the same.
127Dr Weissman recorded the following history of the motor vehicle accident as provided by Mr Kukac:
“He told me that he drove into the slip lane because he was going to be turning left. He was giving way to oncoming traffic coming down the hill on Shannon Avenue. He told me that a 4WD vehicle driven by a woman, hit him from behind. His car was pushed out into oncoming traffic but did not collide with any other vehicles. He told me that the impact was high. There was a very loud noise. He did not know what had happened. He looked in his rear-vision mirror. He then turned left at the intersection and parked his vehicle on the left side of the road.”[168]
[168] Exhibit P1, PCB 133
128Before providing his diagnosis, Dr Weissman made the following observations:
“The subject accident that occurred on 18.05.21 was emotionally distressing and traumatic for him, as well as physically injurious and painful for him.
He continues to experience mild to moderate post-traumatic stress and anxiety symptoms and traumatisation features directly due to the circumstances of the accident itself.
He probably does not have a full-blown chronic post-traumatic stress disorder (PTSD).
Mr Kukac is also currently suffering from a moderate mixed reactive depressive and anxiety syndrome with uncharacteristic frustration and irritability, as a consequence of, or secondary to, his accident-related pain, injuries, disabilities, limitations and restrictions, his inability to work and resultant financial strain.”[169]
[169] Exhibit P1, PCB 138-139
129Dr Weissman diagnosed Mr Kukac as:
“suffering from a Chronic Adjustment Disorder with depressed, anxious and frustrated mood of moderate intensity, associated with a mild to moderate post-traumatic stress and anxiety Syndrome, relevant to the subject transport accident.”[170]
(original emphasis)
[170] Exhibit P1, PCB 139
130Dr Weissman opined that Mr Kukac’s psychiatric symptoms, conditions and impairments had not yet stabilised at the time of examination.[171]
[171] Ibid
131Dr Weissman assessed Mr Kukac as having a collective whole person psychiatric impairment of 20 per cent, of which eight per cent was attributable to “primary, direct, non-secondary impairment’” and 12 per cent was attributable to “secondary, reactive, consequential impairment”.[172]
[172] Exhibit P1, PCB 141
132Dr Weissman did not provide a prognosis for Mr Kukac’s psychiatric condition, noting that it had not yet stabilised, but did record that his “premorbid (pre-subject transport accident) psychiatric prognosis would have been good and favourable”.[173]
[173] Exhibit P1, PCB 142
133Dr Weissman made the following observations regarding Mr Kukac’s work capacity:
“At the current time, he is probably partly/partially psychiatrically incapacitated for work but not necessary totally psychiatrically incapacitated for work.
If there is any current physical/surgical incapacity for work, then this physical/surgical incapacity would be contributed to by his partial/part psychiatric incapacity.”[174]
(original emphasis)
[174] Exhibit P1, PCB 142
134Dr Weissman summarised his evaluation of Mr Kukac’s lifestyle as follows:
“Overall, there has been, and there continues to be, a moderately severe, decline, deterioration, downturn in Mr Kukac’s quality of life, level of enjoyment and pleasure and level of function since his involvement in the subject transport accident.
Part of the above decline, deterioration and downturn is physically/surgically-based and therefore partly outside my area of expertise.
However, part of the above decline, deterioration and downturn is psychiatrically-based too.”[175]
[175] Ibid
Dr Nathan Serry, consultant psychiatrist
135Dr Serry saw Mr Kukac on 26 September 2024 via videolink at the request of Mr Kukac’s solicitors, and provided his report on the same day.
136Concerning the circumstances of the accident on 18 May 2021, Dr Serry noted that Mr Kukac was the sole occupant of his vehicle, was wearing his seat belt, and was waiting in a slip lane to turn left.[176] Whilst waiting in the slip lane, Mr Kukac was rear-ended by a four-wheel drive, which was a significant impact. His vehicle was pushed forwards, but there were no other vehicles involved.[177]
[176]Exhibit P1, PCB 200
[177]Ibid
137Dr Serry noted that Mr Kukac’s treatment involved physiotherapy, hydrotherapy, attending a pain specialist, seeing a psychologist via the pain management clinic and seeing a psychiatrist on a monthly basis.[178] He noted Mr Kukac’s medications as being:
“1. Celebrex prn;
2. Lyica;
3. Amitriptyline 10mg nocte;
4. Melatonin;
5. Catapres;
6. Cymbalta (antidepressant);
7. Endone prn;
8. Palexia prn.”[179]
[178]Exhibit P1, PCB 201
[179]Ibid
138Mr Kukac reported that his attention to self-care had diminished due to his mood and pain, and that he experienced quite a dramatic change to his social and recreational life following the accident, as he became much less social and struggled to concentrate when he was out.[180]
[180]Ibid
139Dr Serry noted that Mr Kukac reportedly had been left feeling “very grey” following the incident, and he described the feeling as though “there is a dark cloud hanging over him.”[181] He reported his mood as feeling down much of the time and whilst he has better days, his bad days outnumber the good.[182] He described his mood as being closely linked to the intensity of his pain and restrictions.
[181]Exhibit P1, PCB 202
[182]Ibid
140Mr Kukac reported that he found it difficult to motivate himself and enjoy himself with his usual interests, although he could get some pleasure from watching the football on television. He reported that his energy levels were also very low, even though he used to be a high energy person.[183]
[183]Ibid
141Mr Kukac also stated that he had difficulties with his cognitive functioning, as he struggled to sustain his concentration. Dr Serry noted that Mr Kukac was uncertain about his memory as it had never been tested.[184]
[184]Ibid
142Dr Serry noted that Mr Kukac’s sleep was very disturbed, as he struggled to go to sleep and his sleep would be broken. Mr Kukac reported that after waking he struggled to return to sleep and that he was not refreshed in the morning.[185]
[185]Ibid
143Dr Serry also noted that Mr Kukac had a fluctuating appetite, which was marked by a period of vomiting regularly although that had eased, and that he had a marked reduction in his confidence and self-esteem levels. Mr Kukac also reported to feeling suicidal at one stage, but since he had started seeing his psychiatrist, such thoughts had settled.[186]
[186]Ibid
144Mr Kukac reported that he was very stressed and anxious, as he worried about his health in the future, about being able to return to work and about being able to “just move” on a daily basis.[187] Dr Serry noted that he was also reportedly very jumpy and was easily startled by noises.
[187]Ibid
145Mr Kukac also stated that he was easily irritated and very frustrated, and that the consequences of the accident preoccupied his thoughts.[188] He had accident-related dreams about the moment of impact, which occurred a few times a week. He also experienced flashbacks on the odd occasion when he was able to relax, and that he tries to avoid driving unless necessary, and prefers to be a passenger.[189]
[188]Exhibit P1, PCB 203
[189]Ibid
146Dr Serry stated that Mr Kukac had returned to the accident site and that he felt anxious and is always reminded of what happened. He also noted that if Mr Kukac sees any other accidents on the road, whether it be in-person or on television, he feels anxious and unsettled.[190]
[190]Ibid
147Mr Kukac reportedly experienced no traumas, upheavals or abuse during his childhood and got on reasonably well with all of his family members. He also was not aware of any family history of mental health issues or substance abuse. Prior to the accident, he did not have any pre-existing mental health issues.[191]
[191]Ibid
148Dr Serry referred to other documentation provided by Mr Kukac’s solicitors, which included Mr Kukac’s affidavit sworn on 28 November 2022, the TAC claim form, and the various reports of the other medical practitioners. He was also provided with a copy of the surveillance videos, and opined that the activities Mr Kukac performed in the surveillance footage, which included Mr Kukac walking in various locations, driving and sitting, was not inconsistent with his self-reported description of day-to-day functioning.[192]
[192] Exhibit P1, PCB 207
149Dr Serry diagnosed Mr Kukac as suffering from a moderately severe chronic adjustment disorder with anxious and depressed mood, and with significant features of traumatisation.[193] He considered that the transport accident was a significant contribution to Mr Kukac’s current psychiatric condition and presentation.
[193]Exhibit P1, PCB 208
150Dr Serry opined that there was a nexus between Mr Kukac’s physical and psychological symptoms, and that:
“ … I am of the opinion that his chronic pain is to a not insignificant extent influenced by psychological factors and further still, his psychological factors appear to be influenced to a significant extent by his chronic pain.”[194]
[194]Ibid
151Dr Serry was of the view that Mr Kukac was incapable of undertaking unrestricted pre-accident work duties for full pre-injury hours as a sign writer on a regular and reliable basis as a consequence of his psychiatric condition alone.[195] He also felt that Mr Kukac was unable to perform suitable employment as a consequence of his psychiatric condition alone.[196] This was reinforced by Mr Kukac’s reported complaints about his back pain, low energy levels, difficulties concentrating and the fact that he continued to experience significant levels of anxiety and depression.[197]
[195]Ibid
[196]Ibid
[197]Ibid
Defendant’s medical experts
Associate Professor George Mendelson, consultant psychiatrist and specialist pain medicine physician
152Associate Professor Mendelson examined Mr Kukac via telehealth upon request by the defendant’s solicitors on 1 May 2024, and provided his report on 31 May 2024.
153Mr Kukac reported that the transport accident involved him being hit from behind while his vehicle was stationary, and that he experienced pain in his ribs due to the seatbelt.[198] Mr Kukac also stated that as a result of the impact, his vehicle was pushed forwards, and that he moved his car into a nearby vacant space so that he could exchange details with the other driver.[199] Mr Kukac stated that since the accident, he has had persistent pain in his lower back and neck, as well as his left leg.[200]
[198]Exhibit D1, DFACB 62
[199]Ibid
[200]Ibid
154Mr Kukac initially informed Associate Professor Mendelson that he had not been able to continue his work as a signwriter because of the pain after the accident, but then later stated that he had “tried to continue working” a few weeks after the accident, but was unable to do so due to the pain he was experiencing.[201]
[201]Ibid
155Mr Kukac described one particular incident, which occurred about two or four weeks after the transport accident, when he tried to lift a ladder during the course of his work, but had a “bad reaction”, which caused an exacerbation of his back pain.[202]
[202]Exhibit D1, DFACB 65
156Associate Professor Mendelson commented on the limitations of examining Mr Kukac via telehealth, but reported that Mr Kukac’s appeared to be somewhat tense and that his affect was mildly anxious.[203] He noted that there was no emotional distress by Mr Kukac, even when describing the transport accident, and that he did not consider Mr Kukac’s affect to be depressed.[204]
[203]Exhibit D1, DFACB 63
[204]Ibid
157After the incident, Mr Kukac was referred to a psychiatrist due to his mental health, as he had been “feeling very dark” and also referred to his low energy.[205] He also reported that he experienced headaches “almost every day” following the accident.[206]
[205]Exhibit D1, DFACB 67
[206]Ibid
158Mr Kukac stated that he experienced constant pain in his lower back, and that he “go[es] blind from the pain when it’s really bad” which reportedly occurred once or twice per week.[207]
[207]Ibid
159Mr Kukac also stated that he had difficulty sleeping, although he could not tell him for how many hours as on average he would sleep during the night. He also said that Mr Kukac told him that it was difficult to concentrate, and that after talking to someone, he felt drained and mentally fatigued.[208]
[208]Exhibit D1, DFACB 68
160When asked by Associate Professor Mendelson about whether there was anything else of importance, Mr Kukac stated that he also experienced pain in his neck, but that it was not as severe as his lower back pain, although the pain from his neck runs to his left thumb.[209] He also reported experiencing nightmares, which involved drowning, and that they occurred a few times a week.[210]
[209]Exhibit D1, DFACB 69
[210]Ibid
161Mr Kukac also informed him that he takes Endep 25mg at night for sleeping.[211]
[211]Exhibit D1, DFACB 70
162Associate Professor Mendelson opined that Mr Kukac was “not mentally ill, and does not have any diagnosable mental disorder.”[212] He disagreed with Mr Phillips’ diagnosis of adjustment disorder with mixed anxiety and depression, consequent to a persistent pain condition, within the context of PTSD.”[213] He felt that Mr Kukac had not experienced the type of traumatic stressor that could be considered capable of causing a PTSD diagnosis.[214] He also opined that while Mr Kukac complained of constant pain, he did not describe any specific symptoms of either depression or anxiety, and there was no evidence of depressed affect or of clinically significant anxiety.[215]
[212]Exhibit D1, DFACB 77
[213]Exhibit P1, PCB 89
[214]Exhibit D1, DFACB 77
[215]Exhibit D1, DFACB 78
163He opined that Mr Kukac had the capacity for his previous hours and duties as a signwriter from a psychiatric perspective, and that he was not precluded from undertaking any suitable employment.[216]
[216]Exhibit D1, DFACB 80
164In his second report dated 4 October 2024, Associate Professor Mendelson maintained his opinion that Mr Kukac did not meet the criteria for a diagnosis of PTSD or any other diagnosable mental illness, and that he felt that Mr Kukac’s pain complaints were the result of psychosocial and environmental factors, such as learned pain behaviour and secondary gain.[217]
[217]Exhibit D1, DFACB 92-3
Was Mr Kukac a credible and reliable witness?
165Given the nature of Mr Kukac’s physical complaints and the seriousness of his alleged consequences, his credit and reliability were of critical importance in this case.
166While Counsel for the defendant raised issues with both Mr Kukac’s credit and reliability, Counsel said they were more concerned with Mr Kukac’s reliability, rather than his credit, when I sought clarification of this during closing submissions.[218]
[218]T121, L13
167Counsel for the defendant submitted Mr Kukac was an unreliable witness because:
(a)No reference was made to Mr Kukac’s business deteriorating in any of Mr Kukac’s material;
(b)No reference was made to his return to work with the ABS in either his affidavits or reports to the medical practitioners;
(c)Mr Kukac had a deficient history of the circumstances of the collision as compared to the evidence of the driver, Ms Johnson;
(d)He had failed to see a neurosurgeon or undergo recommended treatment; and
(e)He was unable to remember propositions which are central to the case.
168Counsel for the defendant also relied on the surveillance material that was tendered in this case.
169I have examined the evidence and the material relating to each of these submissions. On the issues relevant for this application, I was satisfied Mr Kukac was reliable, as he had plausible explanations for the matters that were raised.
170I have addressed each of the submissions made by the defendant below.
The state of Mr Kukac’s business at the time of the transport accident
171Counsel for the defendant submitted I should infer that, at the very least, Mr Kukac’s business was struggling, and almost certainly not providing Mr Kukac with a proper income for at least nine months prior to the transport accident. Counsel submitted that the fact that this was not referred to in any of Mr Kukac’s material meant he was an unreliable witness.
172I reject this submission.
173Mr Kukac’s evidence was that his business was not struggling prior to his accident. He said that the fluctuations in the income of his business prior to the transport accident of 2021 were due to him working for National Personnel as an employee, rather than a contractor, in the 2018/2019 financial year (at the request of a client of his business), and subsequently by impact of the COVID-19 lockdowns.
174Counsel for the defendant did not rely on expert evidence regarding the financial material, nor was evidence tendered regarding the totality of Mr Kukac’s financial position during the period he worked for National Personnel and received pay.
175In the absence of such evidence, I did not find this submission compelling.
176However, even if I were to accept that the income of Mr Kukac’s business had reduced in the nine months prior to the injury, I do not accept that the absence of reference to this in the material leads to the conclusion that Mr Kukac was an unreliable witness. I found his answers to the questions he was asked about this issue to be straightforward and clear. He was not seeking to embellish the evidence, or minimise the impact of any alleged reductions. I formed the view that if there had been a reduction in income of his business, Mr Kukac did not regard it as being permanent. In the context of him having a long history of working and earning an income from his labour, this was plausible.
177Thus, I did not find that Mr Kukac’s credibility and reliability were impugned by this evidence.
Omission of his employment with the Australian Bureau of Statistics in his first affidavit and to medico-legal experts
178As outlined above, Mr Kukac swore two affidavits in this matter.
179He addressed his employment with the ABS in his second affidavit.
180Given the defendant was on notice about his employment with the ABS at the time they received his first affidavit, and given he deposed to his employment with the ABS in his second affidavit, I am satisfied he was not seeking to conceal this employment from the defendant.
181Given that he understood he had disclosed this employment to the defendant, I also accept Mr Kukac’s evidence that he understood the medico-legal experts to be asking questions about whether he had returned to work in his business, rather than having attempted to return to work generally, when he answered questions about his employment history.[219]
[219]T47, L7-13, L18-19; T47, L27- T48, L1; T48, L1-3 and T48, L23-25
182Thus, I found this evidence did not impugn his reliability as a witness.
183Counsel submitted that the opinions of the medical experts were unreliable, as they had not been made aware that Mr Kukac was able to undertake this administrative work for seven weeks.[220]
[220]T124, L23 ꟷ T126, L7
184I will address this submission when analysing the evidence below. However, I foreshadow that I did not find the omission led to their opinions being unreliable.
Mr Kukac had a deficient history of the circumstances of collision as compared to the evidence of the driver, Ms Johnson
185Counsel for the defendant submitted I should prefer the evidence of Ms Johnson to that of Mr Kukac regarding the circumstances of the transport accident because:
(a)She was not injured in the accident, so did not have a reason to make anything up;
(b)There was no damage to her car;
(c)There was no suggestion she lacked credibility; and
(d)Her evidence was unchallenged, as she was not called to be cross-examined.[221]
[221]T116, L3-8
186While there are variations in the recollections of the circumstances of the accident, the variations have not led me to conclude that Mr Kukac’s evidence was unreliable. This is because:
(a) Counsel for the defendant referred me to two cases of this Court where the plaintiff’s recitation of the history of the collision was ultimately relevant to the Judge making adverse findings of credit on the part of the plaintiff. I have reviewed those cases. They involved allegations of aggravation of pre-existing injuries, and other issues relevant to credit. I found them to be distinguishable on the facts of this case given that credit was not pressed and that there were no issues raised regarding pre-existing physical or mental injuries;
(b) There was no issue taken with the fact there was a collision, the location of the collision, that Mr Kukac’s vehicle was stationary, that Ms Johnson’s vehicle contacted Mr Kukac’s vehicle and that Mr Kukac’s vehicle was hit from behind. For this gateway proceeding, and in the absence of other issues of concern for me with respect to credit or reliability, I was satisfied these points of agreement were sufficient; and
(c) Counsel for the defendant agreed that recollections of trauma can be distorted, albeit that, in this case, he submitted Ms Johnson was more reliable.[222]
[222]T115, L28 ꟷ T116, L4
187Counsel also submitted that the opinions of the medical experts were unreliable as their opinions were based on an inaccurate history.
188While I will address this when analysing the evidence below, I can foreshadow that I did not find their opinions were unreliable based on the history they had obtained.
Failure to see a neurosurgeon or proceed with recommended treatment
189Counsel for the defendant submitted I was entitled to infer that Mr Kukac’s evidence about the voracity of his pain and the extent of his disability was unreliable, because:
(a) He was referred to a neurosurgeon, but did not go and see them; and
(b) He did not proceed with medial branch blocks or ketamine infusions, as recommended by his pain specialists.
190It was submitted this did not make sense in circumstances where Mr Kukac was claiming very significant pain which interrupted his life so significantly.
191I reject this submission.
192I am satisfied Mr Kukac did investigate the benefits and risks of the various treatment options put to him,[223] and elected not to proceed on them after considering those benefits and risks.[224]
[223] Exhibit P1, PCB 117 and PCB 119
[224] Exhibit P1, PCB 16 and PCB 26; T14, L26-30; T57, L23-27; T58, L11
193I thus find that his decision not to seek advice from a neurosurgeon, nor to proceed with the treatment recommended by his pain specialists, does not impugn his reliability as a witness.
Mr Kukac’s inability to remember propositions which were central to the case
194While Counsel did not provide any specific examples in support of this submission, I have inferred that he was referring generally to Mr Kukac’s answers to questions such as whether he had told medico-legal practitioners about his work with the ABS.
195Having reviewed the transcript and considered the propositions I have found to be central to the case, I am satisfied that, where Mr Kukac could not recall details, he said so rather than trying to guess. This was at times against his own interest, such as when he was being asked whether he told various medico-legal practitioners about his work with the ABS. I was satisfied that he took care to answer these questions honestly and to the best of his recollection. Thus, I did not find his answers to these questions impugned his reliability as a witness.
Surveillance footage
196Counsel for the defendant relied on surveillance footage which was shown to Mr Kukac during cross-examination.
197The first day of surveillance film shown was taken on 1 August 2022, where there were two short pieces of video that day. The first was at 2.40pm and showed Mr Kukac walking outside a shopping centre without the assistance of a walking stick. The second was at 3.15pm and showed Mr Kukac walking inside the shopping centre.
198The second day of surveillance film shown was taken on 21 November 2023 at 1.58pm, which shows a man entering Mr Kukac’s car from the front passenger side, which then reverses out of a driveway. Mr Kukac’s evidence was that he could not remember that.[225]
[225]T82, L8-22
199The third day of surveillance film shown was 29 September 2024, which was taken at 3.36pm and shows a man, presumably Mr Kukac, in the same vehicle as the second day of surveillance, reversing into a driveway.
200The last day of surveillance film shown was 3 October 2024, which was the longest video at six minutes and fifty-nine seconds and started at 2.27pm. It shows Mr Kukac sitting at a café table with his mother. Mr Kukac is seen adjusting his chair, and then moves to another chair so that he is not facing the sun. Mr Kukac is sitting for most of the video.
201Professor Bittar,[226] Dr Ong,[227] and Mr Moaveni[228] were provided with the surveillance footage. It did not lead any of them to alter their previously-expressed opinion. Likewise, Mr Speck[229] and Associate Professor Mendelson[230] were provided with the surveillance footage and it did not lead either of them to alter their previously-expressed opinion.
[226]Exhibit P1, PCB 156
[227]As Counsel for the defendant pointed out in the hearing at T129, L15-31, Dr Ong repeated what Professor Bittar stated and did not appear to use her own words.
[228]Exhibit P1, PCB 181
[229]Exhibit D1, DFACB 57
[230] Exhibit D1, DFACB 92
202The surveillance film shown to the Court was just under twelve minutes long in total. The defendant advised the Court they had placed Mr Kukac under surveillance for 100 hours. I have inferred that the balance of the video surveillance did not reveal anything that would have damaged Mr Kukac’s credibility or reliability.
203I did not observe Mr Kukac undertaking any movements or activities on the film that were inconsistent with his evidence. I agree with Professor Bittar’s opinion that the film did not show him engaging in anything beyond light or sedentary activity. I found the actions of Mr Kukac shown in the footage – walking, getting out of his car, driving and sitting down – the way he undertook them, and for the periods shown, did not impugn his credibility or reliability as a witness.
Conclusion on credit and reliability
204Based on the above, I find Mr Kukac was both a credible and reliable witness and I am thus able to rely upon his evidence.
Do Mr Kukac’s physical complaints have a physical, or organic, basis? If so, what is the body part that has been impaired and is the impairment long-term?
205Counsel for the defendant submitted that Mr Kukac’s injury, if he had one, was a psychiatric or mental injury, rather than a physical injury.
206To the extent that Mr Kukac sustained an organic injury in the transport accident, Counsel for the defendant submitted that it was a soft-tissue injury of a minor nature.[231]
[231]T122, L24-27
207He also submitted that the opinions of the medical experts were unreliable, insofar as they were based on an unreliable history of the circumstances of the accident. That is, Mr Kukac’s history of the accident involved greater force than that which Ms Johnson has deposed to.
208Dealing with these in the reverse order, I reject the latter submission insofar as it relates to the allegation of a physical, or organic, injury.
209This is partly because it is possible to have an orthopaedic injury of some substance from a minor collision, a concession made by Counsel during his submissions.[232]
[232] T122, L13-22
210I have also arrived at this view after consideration of the medical evidence. Despite variations in the history of the collision, for the reasons outlined below, I found there to be general agreement from the medical experts about there being an organic basis for the physical complaints.
211It is also because there was no suggestion Mr Kukac had pre-existing complaints or injuries that might explain the pathology shown on the radiology.
212For all these reasons, I am satisfied that the opinions of the medical experts are not infected by reason of any variations in the history of injury.
213Turning to the first and second of the submissions made by Counsel for the defendant, I am satisfied the medical evidence was consistent with Mr Kukac’s physical complaints having a physical or organic basis, the consequences of which continued to the date of the hearing for the reasons outlined below.
214Mr Kukac was referred to Pain Matrix by Dr Algama. He was seen by various practitioners there, although it appeared his main practitioners were Dr Prasad and Dr Khullar.
215Mr Kukac was initially treated by Dr Prasad, a specialist pain management physician with Pain Matrix, after having been assessed by a multidisciplinary team.
216After her initial consultation, she wrote to Dr Algama on 30 June 2022. In that correspondence she:[233]
(a)Referred to an MRI taken, noting both the disc degeneration at L5 and S1 and the potential contact of the right S1 nerve root, and noted that it did not explain Mr Kukac’s left leg symptoms;
(b)Referred to her physical examination of Mr Kukac, including her neurological examination, and that he had reduced sensation in L5 and S1 distribution on the left compared to the right;
(c)Stated that she believed that the source of his chronic pain was his facet joints and sacroiliac joint complicated by central sensitisation over his lower back; and
(d)Recommended diagnostic medial branch blocks and a left sacroiliac joint injection to treat his pain, with a view to progressing to radiofrequency neurotomy of his lower lumbar facet joints if he had a positive outcome from this.
[233]Exhibit P1, PCB 50
217She later recommended ketamine infusions.[234]
[234]Exhibit P1, PCB 51
218When she saw him on 28 November 2022, she wrote that he was struggling with pain which was predominantly neuropathic in nature.[235]
[235]Exhibit P1, PCB 56
219In her report of 16 November 2023 to the defendant, she wrote that Mr Kukac had chronic low back pain and left leg pain with underlying central sensitisation, and a history of PTSD, depression and anxiety. She also wrote that Mr Kukac had been unable to progress with future planning, which she thought was primarily due to his psychological health.[236]
[236]Exhibit P1, PCB 55
220This was confirmed in her next correspondence, and the last tendered from her, of 20 November 2023, where she noted both Mr Kukac’s right elbow injury and his mental health decline.[237]
[237]Exhibit P1, PCB 61
221Dr Prasad prescribed 25 mg of Lyrica and later, 50 mg, for his neuropathic pain. She recorded that Mr Kukac reported that this assisted with his pain. She also prescribed Endep to reduce his pain and sensitisation, and to help with mood and sleep.
222I have concluded Dr Prasad was of the view there was an organic basis for Mr Kukac’s physical complaints of pain, based on the following:
(a)She consistently diagnosed the source of Mr Kukac’s physical pain symptoms as being caused by central sensitisation;
(b)She believed the pain was predominantly neuropathic;[238]
(c)She formed that view after undertaking her own investigations, including a neurological examination;[239]
(d)She prescribed treatment for the neuropathic pain in the form of Lyrica;[240]
(e)She recorded that Mr Kukac reported an improvement in his levels of pain from taking Lyrica and increased his dose accordingly;[241]
(f)She also considered medial branch blocks, a sacroiliac injection, radiofrequency neurotomy and ketamine injections were appropriate treatment options to address his physical complaints, and specifically to impact the spinal nerves to control, reduce or eliminate the pain;
(g)She attributed the central sensitisation as being caused by a complication of the facet joints and sacroiliac joints, consistent with her opinion about the findings of the MRI scan;[242] and
(h)She referred to Mr Kukac’s central sensitisation and his psychological issues separately in her report of 16 November 2023. In her correspondence of 20 November 2023, she referred to Mr Kukac’s declining mental health and recommended Dr Algama complete a mental health care plan and refer Mr Kukac to a psychologist for ongoing mental health support. I found this to be consistent with her describing different treatment plans for the different injuries, those being central sensitisation and the psychological injury.
[238]Ibid
[239]Exhibit P1, PCB 50
[240]Exhibit P1, PCB 56
[241]Exhibit P1, PCB 57
[242]Exhibit P1, PCB 50-51
223I have placed weight on her opinion, given her unique position as a treating practitioner, and her expertise as a treating pain physician. She has had the opportunity to observe Mr Kukac in the consultations she had with him, to form a view about him, and to consider his response to the various treatment options either put to him, or tried by him.
224Mr Kukac was later seen by Dr Khullar.
225While she mostly treated Mr Kukac for his psychological injury, she ceased his use of Endep and replaced it with Palexia to treat his pain.
226Although she was unable to conduct a thorough examination of Mr Kukac, I concluded I could rely on her diagnosis of central sensitisation, and that she was referring to this as an organic injury, because:
(a)She prescribed medication to treat organic pain symptoms; and
(b)She treated and diagnosed his psychological injury and condition separately.
227Dr Prasad and Dr Khullar’s diagnosis of Mr Kukac’s injury is consistent with Dr Ong’s diagnosis.[243]
[243]Exhibit P1, PCB 193
228Dr Ong’s opinion was that his nociplastic pain in his lower back, left leg, neck and left shoulder was due to central sensitisation, and thus the conditions had an organic basis.[244]
[244]Exhibit P1, PCB 195
229As outlined above, she thought the nociplastic pain was due to the probable aggravation of degenerative changes in the cervical spine, and probable aggravation of degenerative changes in the lumbar spine at L5-S1.
230I have placed weight on her opinion given her expertise as a pain physician.
231Both Dr Ong and Professor Bittar found that the pathology in the cervical spine was relevant to the diagnosis of Mr Kukac’s injury.
232Professor Bittar ultimately diagnosed Mr Kukac as having an aggravation of cervical spondylosis with neck pain and radicular symptoms, and an aggravation of lumbar spondylosis with lower back pain and sciatica.
233His opinion is consistent with Mr Kukac’s physical complaints having an organic basis, as are the opinions of Dr Algama and Mr Slattery.
234While Dr Algama thought Mr Kukac’s chronic pain syndrome was more significant than his degenerative disc disease, Dr Algama accepted Mr Kukac had a spinal condition with an organic basis.[245] He thought the main treatment Mr Kukac required was pain specialist review, pain-related physiotherapy and pain-related psychotherapy,[246] which is consistent with treatment being required for both a physical and mental injury, albeit that he recommended experts with a specialisation in pain for both injuries.
[245]Exhibit P1, PCB 48
[246]Ibid
235Mr Slattery concluded that Mr Kukac had a degenerative lumbar spine with L4-5 disc protrusion and a likely chronic pain syndrome. While he hoped for improvement with engagement with a chronic pain service, he thought Mr Kukac was likely to have ongoing back pain for the foreseeable future.[247]
[247]Exhibit P1, PCB 147
236His opinion is also consistent with the lumbar spine pathology being clinically relevant to Mr Kukac’s physical complaints of pain, albeit that he also believed Mr Kukac he had a chronic pain syndrome.
237Mr Moaveni, Dr Slesenger and Mr Speck were of the view Mr Kukac sustained soft-tissue injuries to his cervical and lumbar spine, together with a chronic pain syndrome. I have not relied on their opinions with respect to the diagnosis of injury because:
(a)I have preferred the expert opinion of the pain physicians, Dr Prasad and Dr Khullar, on the diagnosis of injury. Their opinions are consistent with physical complaints of pain being referable to spinal changes shown on the radiology, and nerve damage revealed by Dr Prasad’s neurological examination;
(b)The opinions of Mr Slattery, Professor Bittar and Dr Ong are consistent with the opinions of Dr Prasad and Dr Khullar on the relevance of the pathology demonstrated on the radiology; and
(c)Mr Speck was an outlier in his view that the impact of the soft-tissue injuries would have resolved within six to twelve weeks following the injury.
238The only other medical expert to discuss the diagnosis and cause of central sensitisation was Associate Professor Mendelson.
239Associate Professor Mendelson proffered strong views about the cause of central sensitisation, citing many studies and journal articles. He did not agree with the diagnosis of central sensitisation, on the basis that he did not believe quantitative sensory testing had been undertaken in Mr Kukac’s case, demonstrating an enhanced sensory response to peripheral stimulation.[248]
[248]Exhibit D1, DFACB 78-79
240I have not relied on Associate Professor Mendelson with respect to Mr Kukac’s physical injury, as his opinion went beyond his area of expertise and he was an outlier with this view.
241Turning to the question of whether Mr Kukac has a long-term impairment, I have relied on his treating general practitioner, Dr Algama, and the opinions of the practitioners he has seen most recently, those being Professor Bittar, Mr Moaveni and Dr Ong, in arriving at my decision. They were each of the view that the consequences of Mr Kukac’s impairment would last into the foreseeable future.[249]
[249]Exhibit P1, PCB 48; PCB 158; PCB 179 and PCB 196
242This is not inconsistent with the opinion of Dr Khullar. However, Dr Khullar did not disentangle the consequences of the physical and mental injuries, which meant I did not place weight on her opinion regarding the long-term nature of Mr Kukac’s impairment.[250]
[250]Exhibit P1, PCB 72
243Dr Algama, Professor Bittar, Mr Speck and Dr Ong’s opinions were consistent with the opinion of Mr Slattery. While Mr Slattery was hopeful Mr Kukac’s symptoms would improve with pain management treatment, he believed Mr Kukac would nonetheless be left with a permanent impairment.
244Dr Slesenger was of the view that Mr Kukac had ongoing restrictions for employment because of the physical injury alone,[251] and would not be able to return to his pre-injury role.[252] While he was of the view that Mr Kukac’s psychological impairment was the most significant factor affecting his current incapacity, I have relied on his opinion within his area of expertise, that being his opinion regarding Mr Kukac’s physical injury. His opinion is consistent with Mr Kukac having a long term impairment arising from his organic injury.
[251]Exhibit D1, DFACB 16
[252]Exhibit D1, DFACB 17
245I have preferred the opinions of the above-mentioned experts to those of Mr Speck on whether the impairment is long-term for the same reasons outlined above, that is, that he was an outlier in his view that Mr Kukac’s injuries had resolved within six to 12 weeks following the injury.
246I therefore find that:
(a)Mr Kukac’s physical complaints arising from the transport accident have an organic basis;
(b)Those complaints are caused by the following injuries:
(i)Aggravation of cervical spondylosis with neck pain and radicular symptoms;
(ii)Aggravation of lumbar spondylosis with lower back pain and sciatica; and
(iii)Central sensitisation of the spine;
(c)This has caused an impairment to the spine; and
(d)This impairment is long-term.
What are the consequences of the impairment?
247There was general agreement between the medical experts I have relied on above that Mr Kukac has long-term restrictions with respect to the following movements:[253]
(a)Lifting, bending, twisting stooping;
(b)Prolonged sitting, standing, walking;
(c)Pushing and pulling;
(d)Kneeling, squatting and crouching;
(e)Walking up and down inclines;
(f)Using steps and ladders;
(g)Overhead activities; and
(h)Prolonged computer use.
[253] Exhibit P1, PCB 48, PCB157, PCB 176-177 and PCB 195
248Dr Algama,[254] Professor Bittar,[255] Dr Ong[256] and Mr Moaveni,[257] all thought Mr Kukac could not return to his pre-injury employment as a signwriter and was likely to be precluded from performing and sustaining suitable employment into the foreseeable future in light of these restrictions, his age and his transferable skills.
[254]Exhibit P1, PCB 48
[255]Exhibit P1, PCB 157-158
[256]Exhibit P1, PCB 195
[257]Exhibit P1, PCB 177-178
249Dr Slesenger listed similar restrictions, save that he restricted Mr Kukac’s weight limit for pushing, pulling, carrying and lifting to five kilograms and precluded him from sustained forward reaching.[258] He also said that:
(a)Mr Kukac could return to work within the restrictions he nominated, working four hours a day, four days a week;[259]
(b)Mr Kukac could not return to his pre-injury duties, as the job demands lay outside his capacity limits;[260] and
(c)Mr Kukac could work as an operations manager, administration officer or customer service assistant within the restrictions he outlined.[261] He thought that the position of sales representative could lie outside Mr Kukac’s capacity limits.
[258]Exhibit D1, DFACB 16
[259]Ibid
[260]Exhibit D1, DFACB 17
[261]Ibid
250Mr Speck was of the view Mr Kukac did not have restrictions arising from his physical injury. However, given he was an outlier on the diagnosis of injury and the long-term nature of the impairment, I have not relied on his opinion regarding the consequences of the injury.
251The restrictions the medical practitioners have found that Mr Kukac is subject to are consistent with the evidence of Mr Kukac.
252I set out his evidence about his pain, medication and restrictions at paragraphs 17 and 18 above. As I have accepted he is a credible and reliable witness, I am satisfied I can rely on his evidence about his consequences.
253I accept and find that:
(a)Mr Kukac is in constant pain and takes medication daily for pain relief. He continues to have physiotherapy and hydrotherapy treatment. He also completes a home-strengthening program daily. He is restricted in the movements he can undertake. He has reduced sitting, standing and walking tolerances, and he cannot engage in heavy and repetitive tasks without experiencing significantly-increased symptoms of neck and back pain;
(b)He has trouble sleeping because of his pain and restrictions;
(c)He struggles to complete household chores due to his pain. He struggles to leave the house, only doing so on days when he has successfully completed his home-strengthening program exercises. Mr Kukac’s pain has impacted his ability to sustain intimate relationships. He was unable to continue caring for his dog, Arrow, including being unable to take him for walks, prior to Arrow passing away. Prior to the transport accident, Mr Kukac was very active and enjoyed playing golf and soccer regularly. He no longer plays golf and has ceased other recreational activities such as outdoor soccer, mountain biking, basketball, football, swimming and surfing; and
(d)He is no longer able to work in his chosen profession as a signwriter and either run his own business or earn an income from personal exertion.
254Considering the restrictions outlined above and given I am required to make the decision as at today’s date, I accept the evidence of Dr Algama, Professor Bittar, Dr Ong and Mr Moaveni, that Mr Kukac does not have capacity for suitable employment into the foreseeable future. I have thus preferred their evidence to that of Dr Slesenger on the question of suitable employment.
255While Mr Kukac has retained the ability to live independently, he receives considerable support from his mother to do so. He can leave the house and drive his car, but avoids long trips and only does so when he feels able. He has become increasingly isolated, having significantly reduced his contact with friends and family since sustaining his injury.
256These are considerable consequences for a previously fit, active, social, able-bodied and, for the most part, self-employed young man. I have taken his young age into account when arriving at my decision in this case.
257I have also placed weight on the lay evidence of Ms Kukac, Mr Kukac’s mother, that Mr Kukac had always been proud of his ability to create and install signs and advertising material, and that she described this loss as devastating.
258With respect to the right elbow injury, I accept the opinion of Mr Moaveni[262] that the additional restrictions from the right elbow are relatively minor when compared to the substantial limitations caused by the spinal injury. Thus, while I accept this occurred and treatment was required, I find any consequences that may have persisted to the date of the hearing referable to the right elbow, were not “very considerable” or “marked”.
[262]Exhibit P1, PCB 177
259Taking all the above into account, I am satisfied that, when judged by comparison with other cases in the range of possible impairment or losses, that the consequences of the impairment to the spine can be fairly described as being “at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”.[263]
[263]Poljak at 140-1
260I therefore find that Mr Kukac is entitled to leave to proceed for a claim for damages for the serious long-term impairment to his spine.
Does Mr Kukac have a severe long-term mental or behavioural disturbance of disorder?
261As I have concluded Mr Kukac may bring a common law proceeding arising from his spinal injury, it is unnecessary to consider in detail the alternate claim based on a psychiatric injury.
262However, for the sake of completeness, I will provide brief reasons on that aspect of Mr Kukac’s application.
263Mr Kukac has been diagnosed with major depressive disorder, and PTSD, consequent to the trauma he alleges he experienced in the transport accident.
264Given my findings about the spinal injury, I am satisfied that the diagnosis of major depressive disorder is secondary to the physical injury and that this has continued to the date of hearing. This is consistent with the opinions of Dr Elzahaby,[264] Dr Khullar,[265] Dr Weissman[266] and Dr Serry.[267]
[264]Exhibit P1, PCB 94
[265]Exhibit P1, PCB 62
[266]Exhibit P1, PCB 138-139
[267]Exhibit P1, PCB 208
265Counsel for the defendant submitted that, based on Ms Johnson’s unchallenged evidence, the Court should not be satisfied the accident involved life-threatening trauma. Consequently, a necessary element for a diagnosis of PTSD[268] was not present and thus the diagnosis could not be substantiated.[269]
[268] T114, L10-14
[269] T123, L1-4
266For the reasons previously outlined, I have not found it necessary to make findings of fact beyond those agreed.
267As I have accepted Mr Kukac as a credible and reliable witness, I am satisfied I can rely on his evidence that he found the circumstances of the accident traumatic, and that he described both his recollection of the accident and those consequences to the relevant practitioners.
268I am satisfied, on that basis, I can rely on the opinions of the medical experts, particularly that of his treating psychiatrist, Dr Elzahaby.[270]
[270]Exhibit P1, PCB 94
269I have preferred the opinions of the practitioners referred to above at paragraph 264 to that of Associate Professor Mendelson, as he was an outlier with his view.
270I accept and find that Mr Kukac has the following consequences arising from his psychiatric injury:
(a)He experiences flashbacks, nightmares, panic attacks and sleep disturbance;
(b)He has depressed affect and mood;
(c)He suffers from anxiety and depression;
(d)He is irritable and frustrated;
(e)He is fatigued;
(f)He has poor concentration;
(g)He lacks motivation;
(h)He becomes overwhelmed;
(i)He has avoidance behaviours;
(j)He avoids socialising, becoming increasingly isolated from friends and family;
(k)He takes medication for depression, nightmares and sleep; and
(l)He attends Dr Elzahaby for treatment of his psychological injuries.
271These consequences would prevent him from working on a reliable and consistent basis into the foreseeable future.
272I have accepted the evidence of Mr Kukac and the uncontradicted evidence of Ms Kukac,[271] his mother, and Mr Wells[272] and Mr Veljan,[273] his friends, that his personality has changed and he has mentally deteriorated.
[271]Exhibit P1, PCB 36 at paragraph [13]
[272]Exhibit P1, PCB 32 at paragraph [9]
[273]Exhibit P1, PCB 39 at paragraph [5]
273I accept the evidence of Dr Serry[274] that these consequences are long-term.
[274]Exhibit P1, PCB 208
274Thus, I have concluded that the consequences of the psychiatric injury meet the test for “severe”.[275]
[275]Transport Accident Act 1986 (Vic) s93(17)(c)
275I therefore conclude that the application made pursuant to paragraph (c) is also made out.
Conclusion
276I find that Mr Kukac is entitled to leave to proceed with a claim for damages arising from the injury to his spine and his psychiatric injury arising from the transport accident.
277I ask the parties to draft orders to reflect this finding and will hear from the parties on the question of costs.
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