Lagaras v Transport Accident Commission
[2021] VCC 786
•17 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-04022
| DIMITRIOS LAGARAS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 May 2021 | |
DATE OF JUDGMENT: | 17 June 2021 | |
CASE MAY BE CITED AS: | Lagaras v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 786 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – paragraph (a) of the definition of “serious injury” – impairment to the spine – range
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Chorley v Victorian WorkCover Authority [2012] VCC 612; Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Dordev v Cowan & Ors [2006] VSCA 254; Transport Accident Commission v Zepic [2013] VSCA 232; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Richards & Anor v Wylie (2000) 1 VR 79; Davidson v Transport Accident Commission [2015] VSCA 12; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC with Mr R Stanley | Zaparas Lawyers |
| For the Defendant | Mr A Moulds QC with Ms A Wood | TAC Legal |
HER HONOUR:
1This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident (“the accident”) which occurred on 12 October 2016 (“the said date”).
2Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3The definition of “serious injury” relied upon by the plaintiff is under s93(17)(a) – “a serious long-term impairment or loss of a body function”.
4While the Particulars of Injury included the cervical and lumbar spine and right shoulder/arm, the application was confined to the spine.[1] There was no separate application in relation to the right upper limb, with right arm pain claimed as a consequence of referred pain from the neck.[2]
[1]Transcript (“T”) 4
[2]T12
5The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then, by reference to the consequences of that impairment, to determine whether it is serious and long term.
6The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.
7The plaintiff relied on three affidavits and was cross-examined. Further, the parties relied on medical reports and other documents which were tendered. I have read all the tendered material.
8Range, and the level of pre-accident spinal complaints were the main issues in dispute.[3]
[3]T4
The Plaintiff’s evidence
9The plaintiff is presently aged seventy-eight, having been born in Greece in February 1943. He is married with two children. He has three grandchildren, aged nineteen, sixteen and fourteen.
10The plaintiff migrated to Australia in about 1968, when he was about twenty-five years old. He retired when he was sixty-five, in February 2008. His last job was with Mr Donut, where he worked for about seventeen years as a labourer.
11Over the years, the plaintiff had experienced some back pain on and off, knee pain, hip pain and neck pain. He had also had some problems with his shoulders. He had been under the care of his general practitioner, Dr Kounnas. He had undergone CT scans, x-rays and ultrasounds. He could not remember the specific dates of these tests, but they were noted in his clinical records.
12The plaintiff had back pain before the said date. He had back pain since about 1987 or 1988, normally in the context of his work. He was usually treated conservatively, taking paracetamol, sometimes stronger analgesia, and the pain would settle.
13His only claim for compensation was with respect to bilateral hearing loss after years of factory work.
14The plaintiff was cross-examined at length about his pre-accident spinal condition.
15He thought it was impossible he told Mr Menz he had never had any neck, back, or shoulder problems before the accident.[4]
[4]T30 – examination 2019
16He did not recall telling Professor Bittar[5] that he had worked for many years as a labourer without any issues with his spine. He had some small problems, but only small ones. There were minor issues in his back in the two to three years leading up to his retirement.[6]
[5] Examination December 2020
[6]T16
17At Mr Donuts, the plaintiff made donuts on an automatic machine, where the donuts would fall into a vat of oil to be cooked. He really did not do anything to them, although he paid attention to what was happening. He did not press any buttons or handle the donuts.[7]
[7]T21
18The plaintiff could not remember Dr Kounnas providing light work certificates. His job was light. He did not have time off work during the dates Dr Kounnas noted providing certificates.[8]
[8]T57
19The plaintiff was taken in detail through Dr Kounnas’ notes from December 2003. He agreed that in 2004, he had back pain going down his right leg and was prescribed Panamax. He agreed that he attended for lower back pain, at times into the legs and buttock, in March, May, August and December 2005.
20In March 2006, he complained of pain in the back of his neck, pain in the low back and left leg. In June that year, he had pain in the right side of the head going to the neck, pain in the low back, and pain in the left leg.[9] In August 2006, there was a complaint of severe low back pain and pain down the right leg. A CT scan was arranged.
[9]T18
21On 15 September 2006, the CT scan results were discussed. There was a complaint of severe pain, and the plaintiff was prescribed Panamax and Panadeine Forte. He did not remember, but this would have happened.[10] He agreed these were not minor problems, but Dr Kounnas gave him medication and he took it, “but it was a different pain then”.[11] On 20 September 2006, he was still unwell with low back and neck pain.
[10]T22
[11]T22
22The plaintiff thought he retired in 2006, but he could not remember. He retired when he was sixty-five. It was exactly when he turned sixty-five that he received his pension.[12] He did not remember getting certificates or being certified for alternative duties. He never had a light-work certificate. He did not change his tasks at all in the last couple of years he was working. He just worked the same work, not lighter, and he was not having any time off.
[12]T22
23On 8 December 2006, Dr Kounnas noted low back pain, pain in back of neck and left knee.
24On 28 February 2007, there was a note “pain in the lower back, neck, and headache, left knee”. Low back pain and pain in legs was noted in March 2007 and the plaintiff was taking medication.
25On 27 April 2007, there was a complaint of pain in the left leg going up to the low back. On 25 May 2007, it was noted “unwell, persistent pain in low back, pain in back of neck, pain in left knee”.
26On 17 August 2007, there was low back pain, pain in back of the neck, pain in both knees, left more than right. The plaintiff was given some anti-inflammatory medication and a further certificate for three months.
27Dr Kounnas provided certification from 23 June to 21 September 2006, and from 20 September to 18 December 2006. The plaintiff really did not remember: “It’s too long ago ... what happened.”[13]
[13]T20
28There was also a certificate from 8 December 2006 to 6 March 2007, but it was not possible the plaintiff was off work then.[14] He could not remember getting a certificate from 28 February to 27 March 2007. Of course, he remembered low back pain, but not the certificate.[15] In November 2007, pain in legs from back and headaches were noted. Further certificates from May to August 2007 and then through to February 2008 were noted.[16]
[14]T24
[15]T24
[16]T25 – his 65th birthday
29It was not possible that the plaintiff had not seen Dr Kounnas from November 2007 to August 2012. He used to see that doctor probably every four to six weeks right through.[17]
[17]T26
30The plaintiff accepted that on 8 March 2014, he had his blood pressure taken, and was complaining of back pain and given Panadeine Forte.[18] When seen on 13 January 2015, he was given Panadol, and low back pain was noted.
[18]T27
31They were minor pains in the two or three years leading up to retirement. He did not have major problems with his back. He admits he had pains, but they were not major.[19]
[19]T28
32In re‑examination, the plaintiff explained that his earlier pain was different. Back pain then was light. It was not severe. Nowadays, he gets a lot of pain, severe pain in his low back and neck.[20]
[20]T55
33As at the said date, the plaintiff was happily retired. He was healthy and his main responsibility was taking his grandchildren to and from school. He was able to mow his own lawns, look after the garden and help his wife with the housework. He did not have any difficulty with his legs, except some pain in his left knee, which he understood was arthritic. He and his wife socialised with family and friends and with the local Greek community without difficulty.[21]
[21] First affidavit sworn 9 October 2019
The accident
34On the said date, a Budget truck coming in the opposite direction collided with the plaintiff’s car. The truck struck a vehicle travelling in front of it, before mounting the median strip and colliding with the plaintiff’s car on the driver’s side, pushing it off the road (“the accident”).
35The police report set out Vehicle 1 veered onto the wrong side of the road and collided with the plaintiff’s vehicle.
36The plaintiff’s Claim for Compensation Summary detailed “neck injury shoulder. Injuries Lower back injury shock and fear”.
37The plaintiff recalled being in shock and may have momentarily lost consciousness before being helped out of his car by a bystander. The police and an ambulance attended, however, the plaintiff refused to go to hospital. The tow truck driver drove him home and later that day, the plaintiff saw Dr Kounnas. He told the plaintiff to take it easy and take pain medication and advised that the symptoms should abate.
38Over the next few days, the pain increased. The plaintiff returned to Dr Kounnas about a week later because of persistent neck, back pain, right shoulder pain and arm pain. He was then unable to use his right shoulder properly. While he had low back pain, the main pain was in his neck and shoulder. He was prescribed Panadeine Forte and Mobic.
39Over the next few days, the pain was getting worse, particularly in his low back and into his right hip, and the plaintiff went back to Dr Kounnas, who arranged x‑rays of his low back and right hip, which were carried out on 31 October 2016. He was told these scans did not show any significant damage to his neck. He was reassured by Dr Kounnas that he was suffering from muscle damage from the accident and there was nothing seriously wrong with him.
40However, over the next few weeks, the plaintiff’s right shoulder, neck and low back pain was worsening. He had a right shoulder x-ray in January 2017, which he was told showed some damage. He had a right hip x-ray later that month. He was told that did not demonstrate any damage.
41Due to ongoing back pain, the plaintiff had a lumbar CT scan in June 2017, which he was told showed disc bulges at three levels. Dr Kounnas told him that the back pain was likely to be coming from this damage. He had a further scan in October 2017, which he was told was essentially the same as the earlier CT scan.
42Due to ongoing back pain, with the pain radiating down into his legs and a burning sensation into the soles of both feet, worse at night, the plaintiff was prescribed Lyrica. That drug was too heavy and made him feel dizzy and out of it, and he was advised by Dr Kounnas to stop taking it and to take Tramal.
43The plaintiff was becoming frustrated by his pain, but Dr Kounnas told him that no medical treatment other than conservative would likely assist.
44With time, the plaintiff’s right shoulder and neck symptoms improved, but the low back pain into the legs and feet worsened. He continued to experience persistent low back pain and stiffness, with pain radiating down both legs and into the soles of his feet. The burning sensation into the soles of his feet was worse at night. He had some pain in his neck with some headaches, but that was not as bad as his low back pain and pain in his legs and feet.[22]
[22]First affidavit sworn 9 October 2019
45He did not remember it was the case, as he swore in October 2019, that “with time, the symptoms in my right shoulder and neck have improved but the low back pain with the symptoms into my legs and into my feet have gotten worse”. He knows today his problems are getting worse. They had not improved, and that was why he had the injections: “Look really I may have improved a little bit for a short while.”[23]
[23]T33
46The plaintiff agreed his neck pain was not as bad as his low back pain and pain in his legs and feet, but then said his neck pain was worsening. As at October 2019, when he swore his affidavit: “It was the back, it was the neck, it was partly the shoulder, and it was my legs, and my feet.” He found it difficult to get to sleep and was woken after a few hours by a burning sensation in his feet and low back pain.[24]
[24] T34
47The burning sensation in his feet was maddening. It was like he could not feel anything. It made his legs feel unstable. At times, it felt like his legs would give way, particularly his left, because of the pain.
48His neck and shoulder slowly got worse after the accident, and no better. There were times they caused him a lot of pain, so much pain that he could not sleep. He again confirmed he was getting worse and not better in his neck and right shoulder.[25]
[25]T32
49When it was suggested his low back was the only problem mentioned with his sleep, all he could say was he had problems; he had pain in both the back of the neck and the low back. He agreed he deposed that his difficulty driving long distances was due to his low back and leg pain.[26] He could not drive for longer than 10 minutes.[27]
[26]T35
[27]T36
50He had difficulty walking from home to the local station, which was only about 100 metres away. Before the accident, he had no difficulty walking, driving or sleeping.
51Similarly, while he tried to be as active as he could around the house, and was very house-proud, he struggled to cope with the gardening and lawnmowing and to help his wife with the household chores after the accident. He was then becoming very depressed by his symptoms.
52Physiotherapy in Springvale was helping to some degree. The pain improved for a short period after treatment but then returned. He was frustrated by his injuries and his conditions.
53In his second affidavit, sworn on 11 May 2021, the plaintiff described his situation as remaining essentially the same; if anything it was worse.
54He continues to experience ongoing back pain, with the pain radiating into his buttocks and into his legs, particularly his right, and at times the soles of his feet. His back pain remains constant, but is aggravated by activity and varies from day to day.
55He also continues to experience constant ongoing neck pain, which radiates mainly into the right side of his neck and down into his right shoulder. The pain is normally a sharp one and made worse by activity, particularly overhead or repetitive movements. His neck feels stiff and sore, and on those days, he finds it difficult to fully rotate his neck. He also experiences headaches, especially when he has bad neck pain, but that is not all the time.
56The plaintiff was referred to neurologist, Dr Russell Rollinson, by his current general practitioner, Dr Stabelos. The plaintiff was advised nerve conduction studies in November 2019 were normal. He was told a cervical MRI scan in December 2019 showed damage in his cervical spine.
57Post-accident, the plaintiff had pain in his right shoulder, but there was then some improvement. However, since October 2019, that pain had increased. He had an ultrasound in December 2019, following which he was advised he had a full thickness tear of the right supraspinatus. He had an injection of cortisone into that shoulder in March 2020 but found that did not help his symptoms. Dr Stabelos arranged a further shoulder injection in May 2020, but that provided the plaintiff only temporary relief.
58Dr Stabelos referred the plaintiff to neurosurgeon, Mr Adamides, for his ongoing symptoms of burning pain in both soles of his feet, and numbness and tingling in his right shoulder and arms. The plaintiff saw Mr Adamides at the Royal Melbourne Hospital on 11 September 2020. The solicitor did not have anything to do with that referral.[28]
[28]T37
59Mr Adamides recommended the plaintiff have an injection into his neck, and given the pain he was experiencing, the plaintiff agreed to have a CT-guided nerve root injection that day.
60Mr Adamides told him that the symptoms he was experiencing into his right shoulder and arm were likely coming from the discs in his neck compressing his nerves, and he recommended a course of nerve root injections. He also recommended the plaintiff have nerve conduction studies, which were arranged by Associate Professor (“AP”) Timothy Day, neurologist, on 28 October 2020. The plaintiff was told the studies showed carpal tunnel in both arms, worse in the right.
61Mr Adamides recommended CT-guided nerve root injections carried out on 12 November 2020, 26 March 2021 and, more recently, 6 April 2021. The procedures were very painful, but the plaintiff received some short-term benefit, with the pain reducing for a short period. However, when the effects of the injections wore off, the pain returned. After each procedure, his right arm felt swollen and sore for a few days and then settled down.
62To date, the plaintiff continues to experience persistent low back pain and stiffness, with pain radiating down both legs, but mainly the right, and into the soles of his feet. The burning sensation into the soles of his feet is worse at night.
63The back pain and leg symptoms wake him at night. Often, he finds it difficult to get to sleep and after a few hours is woken by pain and the burning sensation in his feet. He finds it difficult to get restful uninterrupted sleep and if he wakes up at night, it is hard to get back to sleep. Consequently, he feels fatigued and tired during the day.
64The plaintiff has sensory issues in his hands. He feels that the pain comes down from his neck, into his arm, into his hand, around his wrist, and he gets numbness in the right limb, but the left.[29]
[29]T51
65He has difficulty driving long distances because of neck and back pain. He can still take his grandchildren to school about ten minutes away but prefers not to drive any further. Since COVID, he has not driven them to school.[30]
[30]T13
66If it was not for the pandemic, he would try to take his fourteen-year-old granddaughter to school at Oakleigh Grammar. If he could, he would. There were times after the accident and before the pandemic that his daughter or son-in-law would take his granddaughter to school, because he had too much pain and could not go.[31]
[31]T44
67On a good day, when he feels better, he drives to see his grandchildren, who live in Rowville and East Oakleigh. Probably once every fortnight he goes to see them in their homes. Mostly they come to visit him. [32]
[32]T41
68Before the accident, the plaintiff exercised most mornings in his backyard for about 30 minutes, skipping and doing resistance-based exercise, such as pull ups. He also used to walk several kilometres most days for exercise. Post-accident, he has been unable to do these exercises due to the pain in his neck, back and right shoulder and arm. He still has difficulties walking even 150 metres from his home.
69He did not have any ongoing neck problems after the 2015 attendance at Monash, before the transport accident.[33] He was able to do ten pull‑ups on a bar he had put across a tree in the backyard, lifting himself off the ground. He also did push-ups, had a skipping rope, and exercised for 15 to 20 minutes in the morning. It could have been a bit more, but he always did it. He could not do these exercises after the accident.[34]
[33]T55
[34]T56
70Similarly, while he tries to be as active as he can around the house, as he is very house proud, he struggles to cope with gardening and lawnmowing. He probably last mowed the lawn two or three years ago. He does not have a very big garden and he does not do very much gardening. He rakes the leaves. There is not much more to do in the winter. He and his wife have planted vegetables which they look after in the summer.[35]
[35]T54
71He also struggles to help his wife with the household duties. He does what he can, but he is very restricted in what he can do. For instance, if he wants to tidy up the backyard and he feels up to it, he takes his time and is careful not to aggravate his pain. At other times, he takes rest breaks or finishes whatever he is doing another day. He finds it frustrating and upsetting that he cannot do the things he wants to.
72The plaintiff used to socialise a lot more than he does nowadays. He does see his friends, and goes to other people’s places, and they come to his. He goes to church every two weeks.
73The plaintiff has been his wife’s carer since before the accident, and receives $120 a week from Centrelink in that role. Dr Kounnas filled out the necessary forms for him to become her carer.[36]
[36] T53
74Before the accident, the plaintiff used to do most of the housework. Now, he tries to help his wife. He does anything that is light, like doing a couple of dishes, sweeping.[37] He cannot cook. His wife washes the clothes and hangs them out. He does all the driving.[38]
[37]T53
[38]T54
75The plaintiff feels very depressed by his injuries and inability to do the things he previously did. He has become less tolerant and is short-tempered. He does not like a lot of noise and finds himself snapping at his family when there is too much noise around. This was not the situation pre accident.
76He is frustrated by his injury and conditions. The accident, and injuries he has sustained, have impacted his life.
77He takes Somac for ulcers, Endep and over-the-counter paracetamol for pain and symptoms. He was taking 75 milligrams of Lyrica, which was doubled due to his pain and symptoms, but it made him feel dizzy and he ceased taking it. He also takes ProCalm medication.
78Dr Stabelos continues to prescribe medication for pain. When the plaintiff has pain in the day, he takes Panadol and Nurofen, but there are other pills he takes, including Endep.[39]
[39] T31
79He consults Dr Stabelos for this medication, once every three to four weeks or so. He also remains under the care of Mr Adamides, whom he consults about every six weeks or so.
80The plaintiff does not go for walks at all now, but goes locally on errands to the shops. There is always some problem, but he does walk slowly.[40]
[40] T44
81The plaintiff was then shown about 8 minutes of film taken of him in early May this year. [41]
[41]T45
82On 1 May 2021, the plaintiff was briefly shown walking along the street. He was walking quite slowly, not at a brisk pace. He said there were times when he walked at a slower pace.[42]
[42] T49
83On 4 May 2021, the plaintiff went to Aldi with his wife. He was shown lifting a jar of olives in his left hand and slightly supporting it in his right hand.[43] At times, he was shown pushing the trolley and his wife did so at other times. He took some of the weight of a sewing machine with his left hand which he helped his wife put it in the car.[44]
[43] T50
[44]T58
Medical evidence
Treaters
Dr Kounnas
84Dr Kounnas reported in July 2018 in relation to the accident injuries.
85He noted the plaintiff presented on 12 October 2016 and gave a history of the accident in which his car was written off.[45]
[45] Same description as first affidavit
86On presentation, the plaintiff complained of multiple aches and pains, but on examination there were no specific findings to be made.
87When seen on 18 October 2016, the plaintiff complained of persistent pain on the right side of his neck going down to the shoulder, and was given Panadeine Forte and Mobic.
88When seen on 29 October 2016, the plaintiff also complained of pain and crepitus in the right hip. He had tenderness of the lumbosacral spine, with reduction of movements and some hip tenderness. An x-ray of the lumbosacral spine and right hip were ordered.
89The plaintiff also complained of pain in his neck and right shoulder. There was some limitation of neck movement and tenderness of the right shoulder. X-rays of the neck and right shoulder were also ordered and Celebrex, 200-milligram capsules, were prescribed.
90The plaintiff also complained of pain going down both legs and burning in the soles of both feet, worse at night, and complained of low back pain radiating down the right leg.
91Dr Kounnas thought the history was compatible with the October 2017 CT findings. Increasing Lyrica did not help, and the plaintiff was also prescribed Tramal.
92Dr Kounnas reported in July 2018 that the plaintiff had been seen multiple times since and complained of persistent low back pain as well as stiffness and pain radiating down both legs, predominantly the right, and also burning of the soles of the feet. He also complained of persistent pain in the back of his neck and associated headaches. He complained of persistent right shoulder pain. Neck examination revealed tenderness at the back of the cervical spine, as well as muscles in the neck. There was reduction of cervical spinal movement.
93In summary, Dr Kounnas thought that the plaintiff had been left with disc damage involving his lumbosacral spine, with radiculopathy down both legs, but predominantly the right, following the accident. He also had a persistently stiff and painful neck and right shoulder, accident related. Treatment had been conservative and would remain so. It was likely, given the chronicity of his problem, the plaintiff would have a permanent degree of impairment and discomfort.
Dr Stabelos
94The plaintiff’s current general practitioner, Dr Stabelos, reported in January 2021, having seen the plaintiff since 19 September 2019.
95In his report, Dr Stabelos repeated much of Dr Kounnas’ notes and reports detailing earlier treatment.
96Dr Stabelos noted, since the plaintiff started presenting at his practice, he especially complained of low back and bilateral leg pain and burning in his feet. There were also complaints of persistent neck and right shoulder pain, together with pain and paraesthesia down both arms, especially the right. Those symptoms served to also result in significant sleep disturbance as well as chronic pain. There had also been aspects of depressive symptoms and anxiety.
97Dr Stabelos also had a history from the plaintiff of hypercholesterolaemia, for which he was taking medication. He noted there was a left knee x-ray in 2012 and an attendance at Monash for neck pain in 2015.
98Since presentation to his practice, they had also found evidence of mild osteoarthritis of the cervical spine, hips, left knee and right shoulder, osteopenia, right shoulder tendinopathy, bilateral carpal tunnel syndrome, ureteric calculus, prostatomegaly and impaired fasting glucose.
99The plaintiff denied any significant past medical history associated with his back, neck, shoulders or legs prior to the accident, and it certainly appeared he did not have any ongoing problems in those areas prior to the accident.
100Since the initial presentation, examinations revealed facet stiffness and stiffness and muscle tenderness both in the cervical and lumbar spine. There had also been signs of impingement syndrome associated with the right shoulder and also right arm muscle weakness.
101Dr Stabelos noted the medical imaging and other investigations, and referral to Dr Rollinson.
102He thought the likely scenario was exacerbation of likely pre-existing neck and back osteoarthritis with radiculopathy and referred arm and leg pain as a result of exacerbation of underlying osteoarthritis and disc degenerative issues with the accident and associated forces being significant contributors to the exacerbation, acceleration and perpetuation of these conditions.
103There was exacerbation of probable underlying right shoulder tendinopathy and pre-existing AC joint osteoarthritis, resulting in right shoulder bursitis, tendinopathy and impingement syndrome. This situation with the right shoulder in all likelihood, was significantly contributed to by the accident and also any related chronic pain leading to reactive sleep disturbance and mood issues. There was right worse than left Carpal Tunnel Syndrome. There were also reactive depressive and anxiety symptoms to be quantified by an expert.
104In terms of management, there had been prescription of analgesic anti-inflammatory medication, referral for physiotherapy rehabilitation, osteopathy, neurological referral to Dr Rollinson and neurosurgical referral to Mr Adamides, including for opinion on injection techniques versus surgery for the neck, and injection techniques for the right shoulder.
105Dr Stabelos thought it is possible that some treatment would have been required eventually for any pre-existing spinal or right shoulder condition, however, the plaintiff stated he did not have any significant or persistent issues in those areas prior to the accident. Therefore, it was likely that given the mechanism of injury and the immediate onset of symptoms thereafter, that the accident was a significant contributing factor to the acceleration and exacerbation of the plaintiff’s neck, back and right shoulder conditions.
106The combined effect of those conditions had caused restriction in social, domestic and recreational activities. The plaintiff’s sleep was said to be always disturbed, waking regularly through the night, leading to irritability, reduced interest in socialising and issues with his family and social relationships.
107In terms of further management, Dr Stabelos suggested awaiting opinion from a neurosurgeon and a pain management specialist, with a view to pain management and injection techniques, and any need for surgery, for example for carpal tunnel.
108He thought the prognosis regarding the neck, back and shoulder condition was poor. All conditions were likely to deteriorate with time, resulting in worsening joint and bone changes leading to increased pain, stiffness and impairment. He noted it is well known that the forces involved in these types of accidents will often generate significant soft tissue injuries with long term sequelae.
Mr Adamides
109The plaintiff had a telemedicine attendance at the Royal Melbourne Hospital Neurosurgery on 11 September 2020 with Mr Adamides. It was noted:
“MVA 2016 right brachialgia and burning pain both soles of feet. Right shoulder pain no weakness brisk reflexes but plantars downgoing. Phalens positive bilaterally.
PMRI whole spine.
R C6 nerve root injection.
Nerve conduction studies.”
110In that document, “current clinical problem” was described as right C6 brachialgia, burning pain and numbness both feet. The clinical question for test was whether there was cord compression and conus compression. Imaging was booked for four weeks’ time.
111There was a clinic/practice visit at the RMH on 26 March 2021. It was noted “has not had MRI, P.NRI. RV 9th April by telephone to assess result”.
112In that document, “current clinical problem” was described as right shoulder pain and brachialgia, MRI shows right C5 and right C6 nerve root compression.
113The clinical question for test was whether the C5 nerve root compression was the cause of shoulder pain. There was to be an injection for diagnostic and therapeutic purposes.
Investigations
114Dr Kounnas organised an x-ray of the plaintiff’s lumbosacral spine in October 2016. Mild facet joint arthropathy was seen at L4-5 and L5. There was no pars defect or slipping seen.
115An x-ray of the right hip was essentially normal.
116An x-ray of the right shoulder, organised by Dr Kounnas on 3 January 2017, was reported to show mild osteoarthritic change at the AC joint with inferior osteophyte. There was no soft tissue calcification detected.
117An x-ray of the right hip organised by Dr Kounnas on 28 January 2017 was essentially normal.
118Dr Kounnas arranged a lumbar MDCT scan in June 2017. It was reported no nerve root impingement was seen.
119Dr Kounnas organised a lumbar MDCT scan on 3 October 2017. It was reported there were multi-level degenerative changes with multiple level disc bulging. There was lateral recess narrowing at L3-4 and L4-5, which could be further clarified with an MRI scan. It was noted the facet degenerative changes were probably worse at L4-5.
120Dr Stabelos organised right shoulder investigations in September 2019. It was reported on ultrasound that there was a near full thickness tear posterior supraspinatus tendon.
121Following a cervical MRI scan on that date, it was reported a shallow posterior disc osteophyte complex resulted in mild to moderate spinal canal stenosis at C6-7. There was moderate right neural foraminal stenosis at C4-5.
122A nerve conduction study organised by Dr Stabelos on 13 November 2019 was normal.
The Plaintiff’s medico-legal evidence
123Mr Anthony Menz, orthopaedic surgeon, examined the plaintiff in February 2019.
124The plaintiff then reported continuing low back and neck pain and was also complaining of a burning pain in the soles of both feet. On specific questioning, he said he had no problems with either shoulder.
125Mr Menz diagnosed a soft tissue injury of the cervical and lumbar spine and also an aggravation of degenerative change in those areas. There was a direct relationship between the accident and those conditions.
126He thought the plaintiff’s quality of life in terms of his daily functioning, leisure activities, personal relationships, family activities and relationships had been significantly affected by the accident.
127Mr Menz noted it was two and a half years since the accident. The plaintiff continued to have significant neck and lumbar spine problems, but he thought it was unlikely he was going to improve from there. Mr Menz felt he would have ongoing problems that would significantly interfere with his normal quality of life.
128In his supplementary report, Mr Menz advised the pathology was that in both cervical and lumbar areas there was mild to moderate spondylosis – a degree of disc degeneration and facet joint osteoarthritis, which was present pre accident. However, more importantly, the plaintiff stated prior to the accident, he never had any cervical or lumbar symptoms at all.
129Mr Menz noted the plaintiff stated he had no symptoms in the right shoulder following the accident.
130On re-examination in February 2021, the plaintiff said his right shoulder pain was worse and he had had two steroid injections, neither of which had helped. He also said his neck pain was worse, rating it at 8 out of 10, and apparently had an appointment at the RMH for an injection. He said his lumbar pain was worse as well, rating it at 8 out of 10 with no radiation.
131The plaintiff reiterated that prior to the accident, he had never had any neck, back or shoulder problems.
132Mr Menz diagnosed soft tissue injury to the cervical and lumbar spine, aggravating pre-existing degeneration in those areas, and also the shoulder. There was a direct relationship between the accident and the aggravation of the spine and right shoulder. He confirmed the plaintiff’s quality of life had been significantly affected by the accident. The prognosis for improvement was poor.
133Dr David Freilich, neurologist, examined the plaintiff in July 2019.
134The plaintiff then said he became very nervous and angry easily, he got pain in both legs and a burning sensation like fire burning that was constant, constant back pain, which was severe, and constant neck pain. He could hardly lift his right arm at times, sometimes not being able to pick up a cup of coffee in his right hand.
135All the symptoms had continued since the accident without improvement.
136Neurological examination showed evidence of sensory impairment and distribution at the L5-S1 nerve root. The remainder of the examination was normal.
137Considering the accident occurred over two and a half years ago, it was likely the plaintiff’s symptoms would continue into the foreseeable future and that no significant improvement would occur.
138The plaintiff said he had no history of neck or back problems pre accident, however, Dr Freilich noted earlier imaging and also the neck pain attendance at Monash, which he thought seemed a fairly minor episode as there were no x-rays. He accepted the plaintiff’s account that, at the time of the accident, he was not suffering from neck or back pain, and therefore there was no pre-existing or non-accident related condition.
139Dr Freilich thought the plaintiff suffered injuries to the cervical and lumbar spine in the accident. The lumbar injury also resulted in nerve root impingement with evidence clinically, of right L5-S1 nerve root impairment of a sensory nature. The accident was a direct cause of the plaintiff’s conditions.
140The plaintiff stated, as a result of his ongoing pain from accident injuries, he was unable to do much, and using his words, “I can’t do anything”. He was able to take the grandchildren to school and pick them up and do some shopping with his wife but could no longer do any gardening or mow the lawn. He could not paint the house when necessary, activities he was able to do pre accident.
141On re-examination in February 2021, the plaintiff stated he continued to experience symptoms that had been present since the accident. He said his nervousness and anger had become worse. The burning feeling in his legs continued, which was worse at night and could often wake him from sleep but was present during the day.[46]
[46] The plaintiff had not mentioned these waking him at night on the earlier examination
142The plaintiff also reported constant lumbar back pain continues, has not improved, and is more severe at times. He has constant neck pain and is awaiting an appointment at the RMH on 26 February 2021 for an assessment with a view to an injection in the nerve. His right shoulder pain continued. His medications were Somac, Endep and Crestor. Lyrica, which was previously prescribed, had ceased.
143The plaintiff had also had a nerve conduction study which showed carpal tunnel, but he made no mention of his hands on either examination.
144The findings on the earlier examination of sensory impairment on the right leg involving the L5 and S 1 dermatomes were no longer present. The plaintiff had no symptoms or signs of any neurological complication form the spinal injuries. It was unlikely the symptoms of bilateral carpal tunnel related to injuries in the accident.
145Dr Freilich thought the plaintiff’s condition is likely to continue long term.
146Professor Bittar, neurosurgeon, examined the plaintiff in December 2020.
147The plaintiff then described constant low back pain, which was dull and aching, in the lumbar region, and right sided, with an average severity of 7 out of 10. He experienced constant neck pain, which was predominantly right sided, radiating into the right shoulder. It was generally sharp in character with an average severity of 8 out of 10.
148He noted the plaintiff’s past medical history was non-contributory for previous neck or back injuries, or symptoms, suggestive of a pre-existing cervical or lumbar spine condition. The plaintiff worked for many years as a labourer, without issues with his spine.
149Daily medications included Panadeine Forte, Endone, Panadol and non-steroidal anti-inflammatory medications. The plaintiff was awaiting a cervical spine injection.
150On examination, there was a mild restriction of cervical flexion with moderate restriction of extension, moderate restriction of lumbar spine flexion, and mild restriction of extension. Neurological examination was normal.
151Professor Bittar diagnosed aggravation of cervical and lumbar spondylosis.
152He thought the plaintiff should be reviewed by a pain specialist for consideration of a full series of diagnostic blocks to determine the source of his pain. The plaintiff required further imaging of his neck and he would recommend an MRI scan, and also a nuclear medicine scan of his cervical and lumbar spines, to determine whether there is an increased radiotracer uptake in the facet joints.
153He considered the prognosis is guarded, given the plaintiff has been significantly symptomatic for four years, and he was likely to continue to experience significant pain and disability in the long term.
154Professor Bittar thought there was a direct causal relationship between the accident and the diagnosed cervical and lumbar spine conditions. The accident had been a significant contributing factor to the aggravation of pre-existing, but minimally symptomatic, cervical and lumbar lordosis.
155Professor Bittar considered the plaintiff’s quality of life in terms of daily functioning, leisure activities, personal relationships and family activities had been adversely affected as a result of the accident, with equal contribution of both conditions.
156The plaintiff was examined by psychiatrist, Dr Nigel Strauss, in January 2019 and, more recently, in March 2021.
157On the initial examination, Dr Strauss diagnosed a mild Post Traumatic Stress Disorder (“PTSD”), and anxiety and depression, as a consequence of the accident.
158He noted that although the plaintiff may have had physical problems involving his back pre accident, there was no evidence of any pre-existing psychiatric problems. He thought the accident was obviously quite frightening for the plaintiff and had left him with a mild PTSD. His ability to engage in social, domestic and recreational activities remained mildly impaired as a consequence of the effects of the accident.
159Dr Strauss then thought the plaintiff would be left with a mild psychiatric impairment.
160On re-examination, the plaintiff said he had taken himself to Sandringham Hospital because of significant back pain since he was last seen and was kept there overnight.
161The plaintiff still complained of a good deal of low back pain, as well as neck pain, and said, in particular, he had right shoulder pain and limited movement. Despite two cortisone injections, there had not been an improvement. He also described paraesthesia in his feet.
162The plaintiff took medication for reflux and Endep in subtherapeutic dosages. He occasionally took Nurofen and also Lyrica.
163The plaintiff advised he slept poorly because the pain woke him up and made him feel agitated and restless.
164Dr Strauss thought nothing much had changed in this case since the plaintiff was last seen. The plaintiff still has a mild PTSD and symptoms of anxiety and depression, of which the accident is the only cause. His quality of life and ability to engage in social, domestic and recreational activities remain reduced as a consequence of the accident effects. He believed the plaintiff should continue to take a low dose antidepressant to help him relax and sleep.
The Defendant’s medical evidence – treatment
165Pre-accident, the plaintiff attended at Monash Emergency on 9 March 2015. He presented primarily for midline neck pain, starting after breakfast that morning at around 9 o’clock.
166It was noted:
“Woke up normally, feeling very well. Had some toast for breakfast and did normal exercises out in the backyard - has a tree that he climbs and does pull ups on. After the exercises he had 7-8/10 midline pain at base of neck. No other symptoms - no radiation of pain into arms, no tingling, no weakness, no dizziness, no blurry vision.”
167There was also chest burning, which spontaneously settled after he went inside and took Panadol Osteo. The neck pain also settled with Panadol Osteo to 2 to 3 out of 10 by the time the plaintiff was seen in Emergency.
168It was noted under “Past Medical History”, “hernia operation … Very fit and Well”. Current medications were Panadol Osteo PRN, Ibuprofen PRN once or twice a year. The provisional diagnosis was “MSK neck sprain, settled with simple analgesia”.
Treaters’ notes
169Notes from Dr Kounnas, now deceased, were available from 18 June 1977 until October 2016, save for the period 9 November 2007 and 22 August 2013. The parties agreed during that period, the plaintiff attended on thirty-two occasions, with no visits in relation to his lumbar or cervical spine.[47]
[47] T60
170There were notes of the plaintiff’s attendances at Valewood Medical Clinic in Mulgrave from 19 September 2019.
171On the first visit and when seen on 3 October 2019, there was a history of a motor vehicle accident three years ago, “back pain since, legs burning, hard to put up with”. A CT scan of the lumbar spine was requested.
172When next seen on 24 October 2019, there was –
“?neurology review monash neuro[l]ogy- await NCS Russell … [Rollinson] written referral given ? physio under TAC … .”
173On 4 December 2019:
“R[ight] neck and shoulder pain hard to lift up and put behind back = sleep disturbed due to pain
? small fibre peripheral neuropathy
? tendinopathy Cx radiculopathy.”
174The reason for the contact was peripheral neuropathy, and Endep was added to the prescription.
175On 31 January 2020, under “? CT result”, it was noted:
“R[ight] neck and arm pain since M[otor] V[ehicle] A[ccident] 2016. R[ight] sh[oulder] abduction and [elbow] flexion/extension 4/5
CT shows disc osteophyte complex and bursitis
back pain since, soles of feet burning, hard to put up with.”
176The reason for contact on that occasion was “radiculopathy cervical” and further investigations were noted.
177During February 2020, there were a number of visits with complaints of ongoing right arm and neck pain was noted. Right low back and hip pain was also noted, stiff, worse since motor vehicle accident, hard to sleep at night due to uncomfortable position. There was a diagnosis of mechanical back pain and the organised investigations were noted.
178Dr Stabelos provided a Health Assessment on 16 March 2020. In that document, he set out that ambulation and activities of daily living were normal, as was social contact.
179Under “Recommendations”, he noted the plaintiff still gets pain in the back and right shoulder, and bilateral burning feet post motor vehicle accident 2016.
“Had recent cortisone inj in R) shoulder with some relief. Does a little gardening.
Informed about My Aged Care, but doesn’t wish to be put on list yet. Only sleeps approx. 2 hrs per night & feels tired in morning. Has some bilateral hearing loss, attends audiologist yrly. Attends own footcare. Informed re EPC for allied health for future reference. All own teeth & sees Dentist regularly. Social with friends & family. Attends local church.”
180On 14 May 2020, “back and loin aches longstanding”. On 21 May 2020, right shoulder pain was noted. A week later, it was noted there had been a second shoulder injection, and improving.
181During June 2020, right shoulder pain persisted. “Discussed surgery, prefers not.”
182When Dr Stabelos saw the plaintiff on 30 September 2020 for right shoulder pain for review he noted, it was still the same – atrophy noted [right] rotator cuff. He also recorded “low back aches daily and persistent feet burning bilat leg aches”.
183It was also noted the plaintiff was waiting CSI (an injection) RMH. “? repeat MRI adamides ... solicitor has sent him to MRI via neurosurgeon.”
184On 22 October 2020, the dosage of Endep was increased from 10 to 25 milligrams. Awaiting CSI was again noted.
The Defendant’s medico-legal evidence
185Professor Stephen Davis, neurologist, examined the plaintiff in March 2021.
186He noted the plaintiff said he had no memory of a history of low back pain in the late 1980s related to his work that was set out in attached documentation, and that he never complained to Dr Kounnas in this regard. He also denied seeing a physiotherapist or chiropractor in the past related to these issues.
187Professor Davis noted the plaintiff had a lumbosacral spinal x-ray in December 2005, a CT scan in September 2006 and a plain x-ray in May 2007. He had also attended Monash Medical with midline neck pain in 2015.
188The plaintiff advised that ever since the accident he had had severe pain in the low back, with burning in the legs and also pain in the neck.
189The plaintiff advised that he drove, but only locally. He did not have the ability to do gardening, which was now done by his wife, and he could not employ someone to do it. She had a constellation of medical problems and he had to assist in the house to some extent. He helped with some light dusting, while she did the vacuuming. Since COVID, his daughter picked up the grandchildren, because she worked from home.
190The plaintiff complained of low back pain, with burning pain into the legs. Of equivalent degree, he had neck pain, particularly radiating to the right shoulder, and also pain in that region. He also pointed to the right trapezius region. He had difficulties elevating his right arm.
191The plaintiff described sensory disturbance radiating down the right arm from the neck into the hand and described numbness in the right hand at night. He described anxiety rather than depression since the accident.
192On examination, the plaintiff appeared to have stiffness of the neck and lumbar regions, limited lumbar flexion, in particular. There were no objective neurological signs and certainly no signs of radiculopathy or myelopathy. Right shoulder movements appeared to be normal and unrestricted.
193Professor Davis noted the plaintiff was involved in a jolting type collision and it was likely the impact led to the exacerbation of pre-existing cervical and lumbar spondylosis. The imaging had shown no major cervical or lumbosacral stenosis, but the plaintiff did have multilevel degenerative disease in the lumbar and cervical regions.
194He noted the plaintiff had chronic neck pain which was chiefly axial. The plaintiff also reported symptoms consistent with radicular radiation down the right arm. Matters were further complicated, as he appeared to have local shoulder pathology which may have been triggered or exacerbated by the accident. Furthermore, he had electrophysiological evidence of carpal tunnel, but the symptoms in the right arm suggested nerve root irritation without objective radiculopathy.
195The plaintiff had pain in the back, again, mainly axial, but reported bilateral pain in the legs with burning in the feet. There was no evidence of peripheral neuropathy on the basis of the nerve conduction studies and there were no objective findings. There may be some relevant psychosocial issues, particularly the health of his wife.
196The plaintiff reported an impact of his symptoms on his daily life, including domestic activities to some degree.
197Professor Davis emphasised there were no objective neurological signs, and he did not think the plaintiff required any further investigation or specialist opinions. He noted the referral to Mr Adamides, who had apparently recommended an injection, which Professor Davis presumed may be a cervical nerve root injection. He did not think there was any role for cervical or lumbosacral neurosurgery.
198In his supplementary report, Professor Davis confirmed the accident led to the exacerbation of pre-existing, but apparently asymptomatic, cervical and lumbosacral spondylosis. The injuries were consistent with the accident circumstances. The symptoms had not resolved, but there were no objective findings.
199Professor Davis confirmed his earlier view of the relevant imaging and evidence of multilevel degenerative changes in both regions. He thought that suggestions by Professor Bittar and the general practitioner of a pain management specialist was perfectly appropriate but doubted whether further investigations would add anything useful in terms of specific non-surgical interventions.
200He thought there had been an impact on the plaintiff’s domestic activity. The plaintiff indicated that he was able to help in the house to some extent, but only some light dusting, and had to stop gardening. He said he had to give up the garden, which he enjoyed before the accident.
201Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff in April 2021.
202The plaintiff then complained of ongoing back and neck pain, headache and right shoulder girdle pain since the accident. He believed, overall, his pain was worse after recent injections, with right-sided headache and worse neck pain with referral to the RMH.
203The plaintiff did not give a specific history of back or neck pain in the past, but Mr Dooley noted the attached documentation set out that the plaintiff was investigated previously for neck and back pain.
204On examination, there was tenderness of the right lower lumbar region, restriction of movement and straight leg raising bilaterally to 30 degrees on both sides, but neurologically there was no abnormality.
205There was tenderness along the dorsum of the cervical spine and some restriction of movement with pain. Power, tone, sensation and reflexes in the upper limbs were intact.
206There was some restriction of right shoulder movement.
207Mr Dooley noted the plain x-rays of the lumbar spine of December 2005 and the September 2006 and October 2017 CT scans and also the report of a cervical MRI scan in December 2019. Mr Dooley thought radiological investigation had shown naturally occurring and age-related degenerative change.
208Mr Dooley believed the plaintiff sustained the following orthopaedic injuries in the accident: a soft tissue injury to the cervical spine region, lumbar spine region and right shoulder region.
209He thought the mechanism of the accident would be consistent with the plaintiff sustaining soft tissue injuries to the spinal regions. The injuries may have involved some musculoligamentous damage and some aggravation of underlying degenerative change. He noted the plaintiff had reported ongoing back and neck pain since the accident.
210Currently, clinical examination revealed moderate restriction of active range of motion of both levels of the spine. There was no evidence of objective neurological deficit affecting the limbs. There were some inconsistent signs in relation to straight leg raising.
211From an orthopaedic viewpoint, the plaintiff would be advised to remain generally active, undertake low impact exercise and sensibly modify his activities. The injections the plaintiff had, had not only not helped, but made the pain worse.
212Mr Dooley thought carrying out extensive investigations and treatment of the spinal region was most unlikely to be helpful.
213Accepting the injuries the plaintiff sustained in the accident, Mr Dooley thought the constancy and intensity of his ongoing pain, and his described disability, were greater than one would expect to see for his organic condition. He believed the plaintiff had an understandable psychiatric reaction to a situation which influences his ongoing symptoms, and in that setting, continuing to carry out investigations and provide treatment only tended to reinforce the psychological component of a patient’s presentation. Spinal injections were not without risk.
214Mr Dooley believed the plaintiff would have sustained subcutaneous muscular bruising to the shoulder girdle and chest region in the accident. At the time thereof, he had underlying established degenerative rotator cuff change of his right shoulder, and it is possible some aggravation of that had occurred. Some of the pain he experiences in his right shoulder girdle could be referred to the cervical spine pain, as well as some reflecting his psychological condition.
215The fact the injection to the plaintiff’s shoulder made his symptoms worse meant one needed to be very careful attributing his shoulder girdle symptoms to the changes noted on MRI scan.
216While the normal healing processes have occurred, the plaintiff does describe residual symptoms. From an orthopaedic viewpoint, Mr Dooley would expect him to note some intermittent neck, right shoulder and lumbar spine pain. He would not expect the plaintiff’s orthopaedic condition to deteriorate in time over and above the natural evolution of his underlying degenerative musculoskeletal condition.
217He did not believe the plaintiff required ongoing investigation and treatment.
218Mr Dooley thought the injuries the plaintiff had sustained would interfere with his ability to carry out heavy household chores and heavy gardening duties. He noted the plaintiff is relatively inactive and his walking distance is reduced, he drives locally.
Overview
219The plaintiff maintains that his back and neck contribute equally to his current spinal pain and restrictions. He also has referred pain from his neck down his right arm which is being treated by Mr Adamides.
220The defendant did not argue that the plaintiff’s neck was not injured in the accident, but did not concede that the underlying neck condition had been significantly aggravated by the accident as his affidavits focussed largely on his back and feet pain.[48] It was also submitted the plaintiff could not establish seriousness based on his lumbar condition alone.[49]
[48]T10
[49] T87
221While counsel for the defendant submitted given the plaintiff’s age and pre-existing problems, degeneration can cause pain and make things worse in any event without an accident,[50] the consensus of medical opinion is that there was an aggravation of cervical and lumbar spondylosis in the accident – a view shared by Professor Davis and Mr Dooley, who had full details of the plaintiff’s pre-accident spinal condition.
[50]T82
222As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[51]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[51] (2010) 31 VR 1 at paragraph [12]
223There was no real attack on the plaintiff’s credit other than his failure to give a history of, or his denial of, any pre-accident spinal problems. Counsel for the defendant submitted this went to the plaintiff’s general reliability and the veracity of his complaints.[52] However, the defendant was not suggesting that the plaintiff does not have a “crook back”.[53]
[52]T47
[53]T91
224In my view, the plaintiff was a credible witness, although he did not give inaccurate histories of his pre-accident spinal condition to a number of examiners.[54] However, even those examiners with the full history, accepted the plaintiff suffered spinal injuries in the accident.
[54] Chorley v Victorian WorkCover Authority [2012] VCC 612
225Further, there was nothing on the short surveillance film that, in my view, was inconsistent with the plaintiff’s evidence as to his level of restriction. In fact, he walked slowly and tended to avoid using his right arm in the limited activities shown.
Pre-accident spinal problems
226In this case, where there is a pre-existing spinal condition, I must consider what the evidence discloses as to the pre-accident condition of the plaintiff and determine whether the additional impairment resulting from the accident is serious and permanent.
227In Petkovski v Galletti,[55] the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
[55][1994] 1 VR 436; followed in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309
228Counsel for the defendant submitted there was good quality evidence of significant low back problems of real substance demonstrated by Dr Kounnas’ earlier clinical notes. It was “a nonsense” to say the plaintiff did not have problems while working as he told some examiners.[56]
[56] T67
229While there were thirty‑odd attendances without spinal complaint or treatment between 2007 and 2014, back pain “arrived again” in 2014 and an attendance in 2015 required medication – Panadol – the same medication the plaintiff is now taking.[57]
[57]T67 – the plaintiff has taken a range of stronger medications since the accident
230It was submitted the lack of history or denial thereof is relevant to the opinion of medical practitioners such as Mr Menz and Professor Bittar, who specifically relied on the plaintiff and were not told of his previous history or were told he had no previous history. They would have been assisted with this history going back to when the plaintiff was sixty or sixty-five.[58]
[58]T67; See Dordev v Cowan & Ors [2006] VSCA 254
231However, as I indicated during the hearing, it was significant there was a seven-year gap in treatment or complaint of spinal pain after the numerous attendances over 2005-2007.[59] No claim was made in relation to any work-related spinal issue in that earlier period, and the plaintiff did not require any time off work. There was no specialist referral.[60]
[59]T68
[60]T98
232As counsel for the plaintiff submitted, the flurry of treatment in 2005−2007 ultimately made very little difference to medico-legal opinion. Professor Davis and Mr Dooley knew about it, and nonetheless came to very similar conclusions. Further, the level of activity engaged in by the plaintiff doing relatively strenuous exercise, indicated he had no real problem with his spine in the years before the accident.[61]
[61]T97
233I accept the 2015 attendance at Monash for neck pain and the 2014 and 2015 one off visits to Dr Kounnas for back pain were isolated incidents and that the plaintiff was not experiencing ongoing spinal pain of any significance immediately before the accident.[62]
[62]T99
234Pre accident, I accept he was able to undertake a significant exercise regime and lead a relatively active lifestyle domestically and socially. He was ageing extremely well and had largely recovered from the episodes of spinal pain which were frequent during 2005-2007.
235While the plaintiff has at times described an improvement in his neck condition,[63] he has complained of neck pain since the accident, fluctuating in intensity.
[63] October 2019 affidavit; T85
236His neck was included in the Claim Form and the original complaint to Dr Kounnas.[64] At the time of his first affidavit, the plaintiff’s neck was still symptomatic, and soon after, on 4 December 2019, he reported ongoing neck problems to Dr Kounnas.[65] In his January 2021 report, Dr Stabelos noted the plaintiff had complained of persistent neck pain since first seen by him in September 2019.
[64]T100
[65]T101
237Both Mr Dooley and Professor Davis accept the plaintiff has an accident-related cervical spine condition, with Professor Davis describing the plaintiff’s symptoms as consistent with radicular radiation down the right arm.[66]
[66]T104
238There has been ongoing treatment to the neck with the referral to Mr Adamides, whose limited evidence refers to brachialgia – arm pain emanating from a nerve – and also issues at C5-6. The plaintiff has had three injections to his neck, the last on 6 April 2021. These gave him only short-term benefit.[67]
[67]T106
239Counsel for the defendant conceded on the limited evidence available, the referral to Mr Adamides was neck related.[68]
[68] T89
240In any event, while at times the plaintiff has focussed on his back and leg complaints in his affidavits,[69] I am permitted to aggregate the consequences of his lumbar and cervical conditions when considering his spinal impairment.[70]
[69]T87
[70] Transport Accident Commission v Zepic [2013] VSCA 232
Pain
241As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[71] “The evidentiary basis of the pain assessment will ordinarily comprise [inter alia] what the plaintiff says about the pain [both in court and to doctors].”
[71](Supra) at paragraph [11]
242The plaintiff continues to experience ongoing back pain, with the pain radiating into his buttocks and into his legs, particularly his right, and at times the soles of his feet. His back pain remains constant, but is aggravated by activity and varies from day to day.
243He also continues to experience constant ongoing neck pain, which radiates mainly into the right side of his neck and down into his right shoulder. The pain is normally sharp, made worse by activity, particularly overhead or repetitive movements. His neck feels stiff and sore and rotation is difficult. He also experiences headaches, especially when he has bad neck pain.
244The plaintiff has described a continuous substantial level of back pain and neck pain – referred to the right arm, to all medico-legal examiners and treaters, examiners.[72]
[72] Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph [48]
Treatment
245The plaintiff has had ongoing treatment for his spinal and right arm complaints from his general practitioners. Investigations have been organised by them at various times.
246The only mention of an inpatient attendance for back pain was in the plaintiff’s history to Dr Strauss on examination in March this year where he mentioned an overnight stay at Sandringham Hospital. This seems to have post-dated the first examination by Dr Strauss in January 2019. However there is no documentary evidence of this attendance.
247The plaintiff has been prescribed strong painkilling medication at various times since the accident. He was prescribed Lyrica at an early stage but this was ceased because of the side effects. He was also prescribed Mobic, Celebrex and Tramal for a time. He now takes Endep, which was not prescribed for psychological reasons. It was prescribed for pain relief when he could not tolerate Lyrica. He takes over-the-counter paracetamol – Panadol and Nurofen – for pain relief, and also takes ProCalm.[73]
[73] T111
248In Kelso v Tatiara Meat Company Pty Ltd,[74] Dodds-Streeton JA said, at paragraph 199:
“... The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”[75]
[74](2007) 17 VR 592
[75]T111
249Recently, the plaintiff has had three injections into his neck under the care of Mr Adamides. The procedures were painful and the benefits short lived.
250As counsel for the plaintiff advised, there have been strenuous attempts to get a report from Mr Adamides who works in the public system. He has been requested to write a report, and even been paid for it, and he returned the money rather than write the report.[76]
[76] T2
251In terms of future treatment, a number of practitioners have recommended the plaintiff undergo pain management.[77]
[77] Dr Stabelos, Professor Bittar and Professor Davis
Consequences
252In general terms, counsel for the defendant submitted there had been a minor effect of any accident injury, and, save for a complaint of pain and some treatment, not much has changed, and any impairment could not be described as serious.[78] There were some interferences and restrictions, but they could not be described as “serious” – “Very many people of his age are in a similar position anyway.”[79]
[78]see Neave and Mandie JJA in Sabo v George Weston Foods [2009] VSCA 242; on the use of the adverb “very”
[79]T94
253It was submitted there is a minor to moderate interference with domestic and household activities which “all dovetails in with the age issue.”[80] In any event, the plaintiff is not a man with a great deal of hobbies.[81]
[80]T91
[81]T92
254In my view, the interference with exercise and the plaintiff’s general mobility are serious consequences for him. He was relatively active for a man in his 70s with the exercise regime and walking he described. He no longer is able to exercise and is only able to walk slowly over very short distances.
255The plaintiff mainly has to lift things with his left arm because of problems with his right arm, as the film showed.[82]
[82]T108
256The plaintiff had been his wife’s carer since before the accident; however, thereafter, he has been able to do only light housework and not give his wife the help he previously provided.
257The plaintiff is less social, going to visit his family and friends less frequently.[83] He is only able to drive very short distances as he cannot sit for prolonged periods without an increase in spinal pain.
[83]T109
258Pre accident, the plaintiff was a house proud man. He is no longer able to do the things he wants to around the house, like mowing the lawn or tidying the garden.[84]
[84]T110
259He has difficulty sleeping due to back pain and as a result, is tired during the day.
260The consensus of medical opinion is that the accident spinal injuries would interfere with the plaintiff’s social and domestic activities.[85]
[85] Dr Stabelos, Mr Menz, Dr Freilich, Professor Bittar, Mr Dooley and Professor Davis
261As Maxwell P said in Peak Engineering & Anor v McKenzie,[86] in circumstances where the plaintiff is also suffering from the effects of a non-compensable injury, as well as the relevant injury, the Court is required to identify the consequences properly referable to the relevant injury and exclude any consequences referable to the non-compensable injury.
[86] [2014] VSCA 67
262Any actual right shoulder condition must therefore be considered and the consequences thereof excluded when considering the consequences of his spinal injury.[87]
[87] At paragraph [1]
263Local shoulder pathology has been shown on investigations. The plaintiff had an x-ray of his right shoulder in 2017, and a tear of the right posterior supraspinatus was shown on ultrasound in 2019. He has had three injections into his shoulder. This treatment is not related to any relevant injury in this application.
264The plaintiff’s right shoulder condition has fluctuated. At times, he has reported no right shoulder pain.[88] At times, there has been a full range of right shoulder movement on examination and at times, a full range of shoulder movement.[89]
[88] Dr Freilich’s 2019 report and Mr Menz’s February 2019 report
[89] Professor Davis’ examination in 2021 and Dr Stabelos’ examination in July 2018
265Counsel for the defendant conceded, in those circumstances, the plaintiff’s shoulders were “probably not a major issue”.[90]
[90] T81
266Most examiners consider the plaintiff’s right arm pain is referred pain from his cervical spine. His limited movement and difficulties lifting are also related to his cervical condition.
267I am also permitted to take into account the expected mental consequences of the plaintiff’s spinal injury when considering seriousness.[91] As Dr Strauss described, the plaintiff has suffered anxiety and stress as a result of his accident injuries, frustrated at the limitations caused by his accident injuries. The plaintiff is depressed by his injuries and his inability to do things.
[91]Richards & Anor v Wylie [2000] VSCA 50; T82 and T111
268There was some debate as to what could be made of the plaintiff’s advanced age when assessing seriousness.
269Counsel for the defendant did not submit that if the plaintiff was elderly, he was not going to be able, save in exceptional circumstances, to obtain a serious injury certificate, but on the basis of Davidson v Transport Accident Commission,[92] advanced age was a relevant matter. Counsel for the defendant submitted that in that case, the Court “pulled back” Hawkins.[93]
[92][2015] VSCA 12 (“Davidson”) at paragraph [50] and footnote to that paragraph
[93] Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; T73
270Counsel for the plaintiff submitted there had been no change whatsoever in the law as a result of Davidson.[94] It will depend on the circumstances of each case whether the age of the worker and ailments associated with age exacerbate the impairment consequences experienced.[95]
[94]Supra
[95] T108
271Clearly, there is no presumption that it is more difficult for an older plaintiff to satisfy the serious test. Each case depends on its own facts.
272Taking into account all the evidence, I am satisfied that the consequences of the accident related aggravation of his spinal impairment are “serious”.
273The plaintiff suffers constant spinal pain for which he requires significant medication- not a situation he would have been in at the age of 78 not having suffered injury in the accident. His lifestyle which was previously active is now significantly restricted by his spinal condition.
274As there has been no real improvement in the years since the accident despite ongoing medication and treatment, I am satisfied the spinal impairment is long term, as most medical examiners have opined.
275Accordingly, I grant leave to bring proceedings for damages in relation to the accident.
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