Lobos Garcia v Transport Accident Commission
[2021] VCC 1362
•23 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-00581
| WALTER LOBOS GARCIA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 September 2021 | |
DATE OF JUDGMENT: | 23 September 2021 | |
CASE MAY BE CITED AS: | Lobos Garcia v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1362 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Transport accident – serious injury – paragraph (a) of the definition of “serious injury” – injury to lower back, neck and spine
Legislation Cited: Transport Accident Act 1986
Cases Cited:Transport Accident Commission v Katanas [2017] HCA 32; Mobilio v Balliotis [1998] 3 VR 833
Judgment: Leave granted to the plaintiff to commence common law damages for injuries suffered in the transport accident on 28 March 2014.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with Mr N J Dunstan | Slater and Gordon |
| For the Defendant | Mr P D Elliott QC with Ms A L Wood | Solicitor to the Transport Accident Commission |
HER HONOUR:
1On 28 March 2014, in Ballarat Road, Sunshine, Mr Lobos Garcia was driving a bus in the course of his employment, when a car suddenly pulled out in front of him to enter a McDonald’s restaurant, forcing Mr Lobos Garcia to hastily apply the bus brakes so as to avoid a collision (“the transport accident”). Mr Lobos Garcia said this caused the bus to come to an abrupt halt, throwing a passenger to the floor. As the bus braked, Mr Lobos Garcia’s body was jolted forward onto the steering wheel of the bus. Mr Lobos Garcia claims that in this accident, he suffered injuries to his head, neck, lower back, arms and right lower limb, and also suffered psychiatric upset.
2In order for Mr Lobos Garcia to be entitled to claim common law damages for the injuries he suffered in the transport accident, his psychiatric condition must satisfy paragraph (c) of the definition of “serious injury” contained in s93(17) of the Transport Accident Act 1986 (“the Act”). In the alternative, Mr Lobos Garcia must satisfy me that his physical impairment meets the definition of “serious injury” contained in paragraph (a) of the same section of the Act.
3Only Mr Lobos Garcia was called to give evidence. Also in evidence were medical reports, clinical records and other material. I have read these tendered documents, together with the transcript of the proceeding. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence which I consider necessary to give context to, and explain, the conclusions reached in this judgment.
4For the reasons which follow, I am satisfied that the consequences to Mr Lobos Garcia from his psychiatric condition can be described as “at least very considerable”, such that he should be granted leave to commence common law proceedings.
Mr Lobos Garcia’s life before the transport accident
5Mr Lobos Garcia was born in San Salvador, El Salvador, in August 1961. He completed secondary school and then commenced working with his father in the construction industry.
6In 1981, Mr Lobos Garcia moved to Mexico, where he worked as a carpenter and electrician’s assistant.
7In 1985, Mr Lobos Garcia migrated to Australia and began working as a cleaner. Later, in 1985, Mr Lobos Garcia commenced working as a bus driver. He remained in full-time employment as a bus driver up until the time of the transport accident.
8Mr Lobos Garcia married his wife, Rosa, in 1986 and has two children, who were born in 1988 and 1996.
9In respect of his medical history, Mr Lobos Garcia stated that he suffered from high blood pressure which is controlled by medication and that he underwent right anterior cruciate ligament (ACL) surgery in 1994.
10Mr Lobos Garcia stated that he suffered aches and pains, and a degree of stress, in the lead up to the transport accident. He said he occasionally sought treatment for those pains, predominantly from his general practitioner.
11The defendant tendered medical records which demonstrated that Mr Lobos Garcia had initially suffered back pain following an incident at work in October 2011, in which a bus that he was driving on a bumpy road became airborne, causing a jarring and shaking of his body. Mr Lobos Garcia said that this was not an actual accident, but rather, the poor quality seat caused him to suffer some back pain. Mr Lobos Garcia said that he continued working after this incident.
12The clinical records from Mr Lobos Garcia’s previous general practitioner, Dr Satma Karim, indicated that on 6 January 2014, Mr Lobos Garcia attended him and reported that his lower back was getting worse after this incident in October 2011. At that time, Dr Karim prescribed Celebrex medication and arranged an x‑ray.
13On 8 January 2014, Dr Karim noted that the Celebrex was not helping Mr Lobos Garcia’s pain, which Dr Karim considered to be disproportionate with the x‑ray results. Dr Karim arranged for a CT scan and certified Mr Lobos Garcia unfit for work for two days.
14On 10 January 2014, Dr Karim informed Mr Lobos Garcia that the CT scan was normal and provided Mr Lobos Garcia with back exercises.
15When these clinical records were put to Mr Lobos Garcia in cross-examination, he said he could not recall the attendances, but did not dispute what was in the notes. Mr Lobos Garcia initially said that he could not recall being off work for two days, but after seeing the records, he acknowledged that he took a brief period off work as he had been told that he could not drive whilst taking the medication he was given.
16On 7 February 2014, Mr Lobos Garcia attended a new general practitioner, Dr Luz Conejera. Her clinical records indicated that Mr Lobos Garcia complained of low back pain, for which she prescribed Celebrex and Panadeine Forte, as well as referring Mr Lobos Garcia to orthopaedic surgeon, Mr Michael Khan. In addition, Dr Conejera noted that she had a long discussion with Mr Lobos Garcia about stress, and she suggested he manage it with walking and meditation. When this clinical record was put to Mr Lobos Garcia, he said he could not recall this either.
17In a further attendance on 15 February 2014, Dr Conejera noted that Mr Lobos Garcia required advice regarding his pain management, and that she recommended heat, rest, analgesia and anti-inflammatory medication (and she provided him samples of Celebrex and Tramal). There was also a reference in the records for a General Practitioner Medical Plan at that time. Once again, when this clinical record was put to Mr Lobos Garcia, he said he could not recall this attendance.
18In a letter from Mr Khan dated 2 April 2014, he stated that Mr Lobos Garcia was suffering low back pain which had worsened since the incident in October 2011. Mr Khan noted that Mr Lobos Garcia’s sleep was disturbed, and that although he could walk, he had considerable stiffness in his back. It was noted that Mr Lobos Garcia had not improved with anti-inflammatory medication, and therefore Mr Khan recommended that an MRI scan be performed. Although the date of this letter is subsequent to the transport accident, as there was no reference in it to the accident, the parties appeared to accept that it was reasonable to infer that it related to a consultation prior to the accident.
19In cross-examination, Mr Lobos Garcia said that Mr Khan did not treat him and again stated that he did not have any injury and continued working at that time.
20Mr Lobos Garcia said that in his spare time, he enjoyed being a “backyard mechanic” and also enjoyed gardening.
The transport accident and its consequences to Mr Lobos Garcia
21Mr Lobos Garcia stated that the transport accident occurred when suddenly, without warning, another vehicle cut in front of his bus to get into the driveway of a McDonald’s restaurant. Mr Lobos Garcia said that he had to “slam the brakes” to avoid a collision. He said that the force of the bus stopping suddenly was such that in the incident, a passenger was thrown and ended up lying next to the door.
22Mr Lobos Garcia said that after the accident, his body was shaking and he felt numb. Mr Lobos Garcia described it as if there had been an “explosion” in his whole body.
23Mr Lobos Garcia said that he and some of the passengers went inside McDonald’s to confront the driver who had caused the accident. Mr Lobos Garcia said that some passengers from the bus threw punches at the other driver and ultimately the driver apologised to Mr Lobos Garcia for his actions.
24Shortly after the accident, Mr Lobos Garcia stated that he developed numbness in his body and particularly his right leg and also developed pain in his lower back and left arm, particularly his shoulder and wrist, and pain in his right knee and foot. Mr Lobos Garcia stated that he continued to drive his bus for the remainder of his shift, for four to five hours, but his pain increased, and that by the end of the day, he realised he should not have been working as he did not “have any feelings in his body”.
25On 1 April 2014, Mr Lobos Garcia attended on Dr Conejera and completed a WorkCover Claim Form which was accepted by his employer’s statutory insurer. The clinical records of Dr Conejera indicate that she requested diagnostic x‑rays of Mr Lobos Garcia’s cervical, thoracic and lumbar spine, and right knee, and ultrasounds of his right knee, right shoulder, left shoulder and left wrist.
26Mr Lobos Garcia said that he did not see Dr Conejera after that as she considered that he was “looking for something” which Mr Lobos Garcia said she abused him for.
27In April 2014, Mr Lobos Garcia started seeing general practitioner, Dr Cesar Tan, whom he has continued to consult since that time.
28On 28 April 2014, a CT scan was taken of Mr Lobos Garcia’s lumbar spine. It was reported as demonstrating a mild broad-based left paracentral disc protrusion at L4-5.
29On 1 May 2014, a CT scan was taken of Mr Lobos Garcia’s cervical spine. It was reported as demonstrating moderately severe right C2-3 facet joint arthritis without foraminal stenosis and a moderate left paracentral posterior marginal osteophyte at C5-6 level without significant nerve root or spinal cord compression.
30On 24 June 2014, an MRI scan was taken of Mr Lobos Garcia’s lumbar and cervical spine. It was reported as showing mild posterior disc osseous complex at C5-6, slightly more prominent on the left, abuts the cord and slightly deforms the left side of the cord, and noted that the signal remained normal. Additionally, the report noted that there was no significant disc herniation, canal stenosis or nerve root impingement seen.
31In May 2014, Mr Lobos Garcia was certified as fit to return to work, to perform administrative tasks, such as checking stickers inside the buses. He said that under his return to work plan, he initially worked for two to three hours a day, two days a week. However, Mr Lobos Garcia said that he did not last in this arrangement very long.
32Mr Lobos Garcia said he attempted another return to work in July 2014, although once again, he said this did not last very long. Mr Lobos Garcia explained that on a very cold day, he was struggling to get into the buses and he lost feeling in his foot. Therefore, Mr Lobos Garcia said he went inside the office for a break. However, Mr Lobos Garcia said once inside, his supervisor abused him in front of staff and told him that he should be resting in a bus, not the office. Mr Lobos Garcia said that he went home after the incident and felt humiliated and embarrassed.
33Mr Lobos Garcia subsequently complained to Dr Tan about this incident, and he was thereafter referred to psychologist, Mr Antonio Ferrero, for counselling. In a report dated 27 July 2014, Mr Ferrero detailed this incident and described Mr Lobos Garcia as being in an acute state of emotional distress in response to it.
34In cross-examination, Mr Lobos Garcia said that he remained very upset about this incident as he felt he was not treated with respect.
35In addition to attending upon Mr Ferrero for several months, Mr Lobos Garcia was also referred to psychologist, Mr Antonio Pordenone.
36In November 2014, Mr Lobos Garcia was referred to neurosurgeon, Mr Brendan O’Brien. In a letter dated 11 November 2014, Mr O’Brien stated that, in his opinion, Mr Lobos Garcia suffered an exacerbation of lumbar and cervical spondylosis, without evidence of nerve root compression. Mr O’Brien did not recommend surgery and instead proposed that Mr Lobos Garcia undergo a rehabilitation program.
37In September 2015, Mr Lobos Garcia was referred to orthopaedic surgeon, Mr Douglas Li, in relation to his left shoulder injury. Mr Li was of the opinion that Mr Lobos Garcia was suffering from a frozen left shoulder, which had been initially triggered by bursitis and the injury suffered in the transport accident, but which had been subsequently perpetuated by chronic pain. Mr Li recommended that Mr Lobos Garcia’s shoulder injury be treated non-operatively with a hydrodilatation procedure. This was performed soon thereafter.
38In February 2016, Mr Lobos Garcia was referred to consultant in rehabilitation and pain management, Dr Clayton Thomas. In an attendance on 12 February 2016, Dr Thomas noted that Mr Lobos Garcia complained of “fairly diffusive widespread pain”, with his pain on a level of somewhere between 7 to 9 out of 10 at all times. Following Dr Thomas’s review of the medical imaging in his examination of Mr Lobos Garcia, he considered that it was “actually hard to work out what the underlying organic problem was”. Dr Thomas considered that Mr Lobos Garcia’s presentation was more in keeping with an emotional response in the development of a psychological chronic pain syndrome.
39On 15 March 2016, an MRI scan was taken of Mr Lobos Garcia’s cervical spine and was reported as showing no acute fracture, disc herniation or spondylolisthesis, no facet joint or atlantoaxial joint dislocation, desiccation and mild posterior bulges/protrusions at C4-5 and C5-6 levels consistent with mild cervical spondylosis, mild indentation of left half of spinal cord at C5-6 level noted without significant compression. No evidence of significant neural impingement anywhere in the cervical spine was recorded.
40On 8 March 2016, Mr Lobos Garcia was referred to psychologist, Ms Lisa Costa. In a letter dated 6 September 2016, Ms Costa noted that Mr Lobos Garcia had been involved in an accident which had resulted in injuries to his back, knee, wrist and shoulder, as well as related anxiety and depression. At that time, Ms Costa considered Mr Lobos Garcia was suffering Post-Traumatic Stress Disorder (PTSD), with comorbidity existing, together with a Major Depressive Disorder. Ms Costa stated that she considered Mr Lobos Garcia’s PTSD was due to the psychological trauma of the bus crash, and his major depression was attributed to him dealing with chronic pain on a daily basis.
41In 2016, Mr Lobos Garcia was also referred to occupational therapist, Ms Sushil Sharma, to assist in the management of his multiple injuries. Ms Sharma considered that Mr Lobos Garcia suffered “quite severe” physical and psychological injuries and that he would benefit from treatment, including hydrotherapy and a TENS machine.
42Mr Lobos Garcia stated that he continued to undergo conservative treatment including physiotherapy and chiropractic treatment. He stated that this was funded by his ex‑employer’s insurer until September 2016, when it was terminated, and he said he has since received Medicare and self-funded treatment including acupuncture, physiotherapy and psychological treatment at Sunshine Medical Centre.
43On 28 August 2019, an MRI scan of Mr Lobos Garcia’s lumbar spine was taken. It was reported as demonstrating a mild primary lumbar spinal canal stenosis and a minor disc bulge at L4-5. No large disc herniation or neural impingement was identified at any level.
44In November 2019, Mr Lobos Garcia commenced physiotherapy treatment with Ms Samantha Teo. Under a Medicare plan, he was able to attend her for five physiotherapy visits which involved soft-tissue work, spinal mobilisation and gentle neck and back stretches. Ms Teo stated that she considered Mr Lobos Garcia would benefit from physiotherapy treatment on an ongoing basis as well as the commencement of some gym and hydrotherapy exercises in the future.
45On 9 July 2020, Dr Tan wrote to Centrelink in respect of Mr Lobos Garcia’s capacity for employment. In this report, Dr Tan noted that in respect of Mr Lobos Garcia’s anxiety and depression, he finds it very difficult to concentrate for more than ten minutes and also finds it hard to follow complex instructions. Dr Tan noted that Mr Lobos Garcia had difficulty coping with situations involving stress, pressure or performance demands, and he had very limited social contact and involvement with others. It was noted that this was in the context of Mr Lobos Garcia having previously received extensive counselling, psychology and psychiatric treatment. In addition to identifying Mr Lobos Garcia’s psychiatric restrictions, Dr Tan also detailed that as a consequence of his lower back injury, this impacted upon his self-care and he was unable to perform light day-to-day household tasks. Accordingly, Dr Tan was of the opinion that Mr Lobos Garcia was totally incapacitated for any type of employment.
46In November 2020, Mr Lobos Garcia was referred to pain specialist, Dr Richard Sullivan. In addition to recommending a pain management program, Dr Sullivan arranged for Mr Lobos Garcia to be referred to neurosurgeon, Dr Hazem Akil.
47On 14 December 2020, Mr Lobos Garcia had an MRI scan of his lumbar and cervical spine. In a report dated 30 July 2021, Dr Sullivan reported that the MRI of the cervical spine showed structural change at C3-4 potentially affecting the left C4 nerve root. Further, Dr Sullivan reported that the MRI of the lumbar spine demonstrated spondylotic change from L3-4 to L5-S1 with multilevel facet joint degeneration most prevalent at L2-3 and L3-4. A cystic change was noted at the base of the spinous process at L3. Diffused disc bulge was noted at L4-5 and L5‑S1, though without significant neural impingement. Dr Sullivan also reported that Mr Lobos-Garcia had also undergone nerve conduction studies that demonstrated likely chronic C7 neural impingement.
48Mr Lobos Garcia was subsequently referred to neurosurgeon, Dr Hazem Akil. Dr Akil did not recommend neck surgery. Mr Lobos Garcia stated that Dr Akil said there was nothing he could do to help with his neck pain.
49In January 2021, Mr Lobos Garcia was referred to musculoskeletal physician, Dr Shahram Sadeghi.
50On 24 March 2021, Mr Lobos Garcia underwent a nerve conduction study. Dr Sadeghi recommended physiotherapy, hydrotherapy, and a pain management program; however, WorkCover declined to fund the pain management program, and Mr Lobos Garcia has therefore not participated in the program.
51In a report dated 16 June 2021, Dr Sadeghi stated that, in his opinion, Mr Lobos Garcia suffered from aggravation of cervical and lumbosacral spondylosis, together with symptomatic mild bilateral carpal tunnel syndrome. Dr Sadeghi considered that the transport accident was the major contributing factor to the development of his current symptoms. He considered that Mr Lobos Garcia did not have the capacity to return to his previous job or any other employment on a consistent and reliable basis. Dr Sadeghi recommended that Mr Lobos Garcia undergo a pain management program, as well as undergoing ongoing physiotherapy and hydrotherapy.
52In June 2021, Mr Lobos Garcia was referred to psychiatrist, Dr Justin Lewis. Dr Lewis noted that since the transport accident, Mr Lobos Garcia had struggled with diffuse pain symptoms which had significantly impacted his general functioning and quality of life. Dr Lewis diagnosed Mr Lobos Garcia as presenting with an Adjustment Disorder with depressive symptoms, and a differential diagnosis was one of a Major Depressive Disorder. Dr Lewis considered that Mr Lobos Garcia had no realistic work capacity in the context of chronic pain symptoms. He considered that Mr Lobos Garcia would require long-term monitoring of his psychiatric medication, and he also recommended that he see a psychologist on a monthly basis for coping tools to manage his mood and pain symptoms.
53In a report dated 31 August 2021, Dr Lewis stated that he considered Mr Lobos Garcia’s psychiatric condition had stabilised and that he was totally and permanently incapacitated for work from a psychiatric perspective.
54Mr Lobos Garcia said that Ms Costa still provides him psychological treatment approximately five times per year pursuant to an Enhanced Primary Care referral. In addition, he stated that he has also seen psychologist, Dr Michael King, at the same clinic. In a report dated 1 July 2021, Dr King stated that he had treated Mr Lobos Garcia on three occasions from mid-2020 until early 2021, under a mental health plan from Dr Tan. Dr King stated that, in his opinion, Mr Lobos Garcia was suffering a Major Depressive Disorder and Anxiety, linked to a Chronic Pain Syndrome. Dr King noted the treatment which Mr Lobos Garcia had received in the previous years, and was of the opinion that his medical condition was continuing and permanent and would not undergo positive change with treatment or time. Dr King was of the opinion that Mr Lobos Garcia’s mental health rendered him incapable of any work.
55In Ms Costa’s most recent report dated 23 August 2021, she stated that, in her opinion, Mr Lobos Garcia was suffering PTSD. She stated that she had treated his condition with cognitive-based behaviour therapy, which she recommended continued on an ongoing basis. Ms Costa stated that, in her opinion, Mr Lobos Garcia’s prognosis was poor due to his severe PTSD and associated depression and anxiety symptoms. Ms Costa was of the opinion that Mr Lobos Garcia was unfit for any work duties.
56In cross-examination, Mr Lobos Garcia was asked about the efficacy of the cognitive-behavioural therapy he received from Ms Costa. He said that nothing helps, but that he felt that Ms Costa was the only person that he can talk to about how he feels.
57In Dr Tan’s most recent report dated 14 April 2021, he stated that as a result of the transport accident, Mr Lobos Garcia suffered injuries to his lower back, tenosynovitis of the left wrist, adhesive capsulitis of the left shoulder, neck injury, right foot injury, together with an Adjustment Disorder, anxiety and depression, and a Chronic Pain Syndrome. Dr Tan considered that Mr Lobos Garcia’s prognosis was poor and that he was totally incapacitated for all work.
58In a report from Dr Sullivan dated 30 July 2021, Dr Sullivan stated that he considered that Mr Lobos Garcia had suffered aggravation of cervical spondylosis and aggravation of lumbar spondylosis, which had triggered the onset of a chronic pain condition, with hallmarks of central sensitisation affecting his neck and lower back. Dr Sullivan was of the opinion that Mr Lobos Garcia was completely incapacitated from returning to his pre-injury work, or any other form of meaningful work, both now and into the foreseeable future.
59Mr Lobos Garcia stated that he continues to suffer constant pain and stiffness in his spine, particularly around his neck and lower back. He described it as unremitting and unrelenting. He stated that the pain in his neck has also continued and radiates into his head, causing severe headaches. He stated that the neck pain also radiates into his shoulders and he continues to suffer pain in both shoulders, arms, hands and wrists, with the left side being worse when compared to the right side. Mr Lobos Garcia also stated that pushing, pulling, lifting, twisting and bending movements increase his pain.
60Mr Lobos Garcia said that the pain from his lower back goes down into his right leg and foot and that his right foot is numb. Mr Lobos Garcia said that his walking worsens his pain. Mr Lobos Garcia also stated that sitting and standing or walking for long periods aggravates his pain.
61Mr Lobos Garcia stated that he has suffered extensive periods of depression since the transport accident. He stated that he becomes teary and miserable whenever his pain is bad or if he dwells on the degree of physical incapacity. He stated that he feels guilty about being unable to financially support his family and that he cannot work. He stated that he enjoyed working very much and misses driving a bus, as well as the social elements of employment. He said that he did not choose the life he is living and he feels like he is a different person now.
62Mr Lobos Garcia stated that the pain has been so severe that he has previously contemplated suicide.
63Mr Lobos Garcia said that he has flashbacks to the transport accident, and is sensitive to reminders of it, such as when he sees a TAC advertisement or hears of an accident in the news. He said that he now avoids driving and is a nervous driver, as well as a nervous passenger. He said that his wife has encouraged him to drive to the shops or drive his daughter to the train station near his house. He said that he is able to do this sometimes, when he is feeling okay.
64Mr Lobos Garcia stated that he is restricted in domestic, social and recreational activities. He stated that he is limited in his capacity to do maintenance work around the house and in the garden, as he used to do.
65Mr Lobos Garcia stated that his sleep is interrupted by the pain, even if he takes analgesic medication. He stated that he wakes several times a night, causing him difficulty in managing on proceeding days. He stated that he dreads going to bed at night.
66Mr Lobos Garcia stated that he takes significant amounts of medication in an effort to deal with his ongoing pain. Dr Tan prescribes Mr Lobos Garcia the following:
· Cymbalta – 60 milligrams in the morning;
· Palexia – 50 milligrams twice a day;
· Pregabalin (Lyrica) – 150 milligrams at night;
· Mirtazapine – 15 milligrams at night; and
· Over-the-counter Nurofen and Advil every three to four hours.
67Also in evidence was an affidavit of Mr Lobos Garcia’s wife. In an affidavit sworn on 2 February 2021, Mrs Lobos Garcia described her husband before the transport accident as being very hardworking and someone who enjoyed socialising with family and friends. Mrs Lobos Garcia said that since the accident, she has observed her husband become irritable and that most of the time he looks uncomfortable. She stated that she observed her husband to take medication and she often has to help him put on clothes or rub ointment on him. She said that she has observed her husband having difficulty staying in one position for too long, either standing or sitting. She stated that her husband rarely helped her with the housework, as he used to. Mrs Lobos Garcia also stated that she had never seen her husband teary prior to the transport accident, but she now observes this regularly. Further, Mrs Lobos Garcia stated that she has observed her husband’s memory deteriorate, such that he now forgets many things, whereas before the transport accident, she said his memory was good.
Medico-legal evidence
68In January 2015, Mr Lobos Garcia was examined by orthopaedic surgeon, Mr Rodney Simm. In a report dated 22 January 2015, Mr Simm detailed Mr Lobos Garcia’s history, including the circumstances of the transport accident and the treatment subsequently provided to him. At that time, it was noted that Mr Lobos Garcia complained of constant pain in his neck, as well as pain in his left wrist, left elbow, left shoulder, right shoulder and right wrist. It was noted that his most severe pain was in the central region of his lumbar spine. There was also noted to be some generalised pain around the front of his knee and pain in his right ankle. On the basis that Mr Lobos Garcia had not suffered any prior back pain, Mr Simm was prepared to state that the relatively minor trauma of the accident had the potential to aggravate Mr Lobos Garcia’s advanced asymptomatic degenerative disc disease at L4-5. However, Mr Simm commented that Mr Lobos Garcia’s residual painful lumbar dysfunction was consistent with evidence of widespread Chronic Pain Syndrome and an associated emotional disorder, rather than there being evidence of physical injury.
69On examination, Mr Simm noted that there was a slow but full movement on examination of the spine, no abnormality in the movement of the shoulders or arms. It was noted that on examination of his thoracolumbar spine, Mr Lobos Garcia was guarded and his movements indicated it was extremely painful. Mr Simm noted there were no clinical signs of radiculopathy. Mr Simm considered that there was only evidence of painful dysfunction in his lumbar spine, but that the radiological investigations indicated that the changes in his lumbar spine were consistent with commonly found pre-existing age-related changes which were not in isolation predictive of pain. Mr Simm considered there was a possibility the transport accident was responsible for an injury to Mr Lobos Garcia’s lumbar spine, but he could not clearly identify any specific injury of the other symptomatic regions.
70In an addendum to his report, Mr Simm, having reviewed the clinical records of Mr Lobos Garcia’s general practitioner in January and February 2014, together with the letter of Mr Khan, considered that such records were inconsistent with Mr Lobos Garcia’s history to him that he had no history of a back injury or back symptoms. In view of that, Mr Simm stated that his symptoms appeared to be consistent with stress and psychological factors.
71In February 2017 and April 2020, Mr Lobos Garcia was examined by orthopaedic surgeon, Mr Garry Grossbard. In his most recent report dated 5 May 2020, Mr Grossbard noted that Mr Lobos Garcia’s physical assessment was difficult, because of its association with a chronic pain response and parallel psychological issues, which related to both the transport accident as well as the subsequent relationship Mr Lobos Garcia had with his employer and insurers. Mr Grossbard considered that the mechanism of injury in Mr Lobos Garcia’s back and his ongoing symptoms, in particular back spasms, related to aggravation of pre-existing underlying degenerative change.
72Mr Grossbard, however, was not able to reconcile Mr Lobos Garcia’s multiple sites of pain and ongoing disability with the claimed incident as described, on “the physical aspects alone”. Mr Grossbard considered that it was clear that Mr Lobos Garcia suffered significant psychological injury, that being a Chronic Pain Disorder with somatic symptoms, associated with depressive disorder; however, Mr Grossbard noted, as he was not a psychiatrist, he was not qualified to comment on that. However, Mr Grossbard stated that, irrespective, it was apparent to him that Mr Lobos Garcia was suffering a major combination of disabilities of both a physical and psychological nature, and that as a result of his injuries, he was not able to return to active employment in the foreseeable future.
73In March 2017 and May 2020, Mr Lobos Garcia was examined by psychiatrist, Dr David Weissman. In his most recent report, dated 19 May 2020, Dr Weissman detailed the circumstances of the transport accident, the treatment that Mr Lobos Garcia had subsequently received, and his reports of physical symptoms, as well as his psychological and emotional symptoms. Dr Weissman noted that Mr Lobos Garcia reported to him that he was very anxious, did not have interest in “anything at all” and that he considered that the life he was experiencing “was not worth living”. Further, Dr Weissman noted that Mr Lobos Garcia stated that he avoided passing the accident site and that he feels anxious when driving.
74Dr Weissman performed a mental state examination on Mr Lobos Garcia and then concluded that he has slight to mild residual traumatisation features directly due to the circumstances of the transport accident itself. However, Dr Weissman did not consider that Mr Lobos Garcia suffered a full-blown chronic PTSD. Dr Weissman considered that Mr Lobos Garcia continued to suffer from a moderately severe to severe mixed reactive depressive and anxiety syndrome with frustration and irritability, anodynia, hopelessness and possibly passive suicidal ideation as a consequence of, or secondary to, the transport accident and his pain, injuries and disabilities, limitations and restrictions. Further, Dr Weissman considered that Mr Lobos Garcia suffered from a Somatic Symptom Disorder with predominant pain, persistent, also known as a Chronic Pain Disorder associated with psychological factors and a general medical condition.
75Dr Weissman considered that Mr Lobos Garcia was totally and permanently incapacitated for all work as a consequence of his psychiatric symptoms. Overall, Dr Weissman considered that Mr Lobos Garcia’s psychiatric prognosis was uncertain, guarded, poor, negative and unfavourable.
76In November 2020, Mr Lobos Garcia was examined by pain medicine physician, Dr Meena Mittal. In a report dated 10 November 2020, Dr Mittal detailed the circumstances of the transport accident and the treatment which Mr Lobos Garcia had received for it. Dr Mittal noted that at the time of the examination, Mr Lobos Garcia reported pain in his neck, bilateral shoulders, left wrist, lower back, right lower limb and left lower limb. Dr Mittal stated that she considered Mr Lobos Garcia suffered from a differential diagnosis in respect of his neck pain and headaches, left shoulder pain, right shoulder pain and lower back pain. Dr Mittal stated that she could not explain the symptoms in Mr Lobos Garcia’s bilateral upper limbs, pain in his left wrist, pain in his right knee and right lower limb. Dr Mittal was of the opinion that there was evidence of negative maladaptive conditions, and she agreed with a diagnosis of Somatic Pain Disorder that was contributing to some, if not all, of his presentation.
77Dr Mittal was of the opinion that Mr Lobos Garcia did not have a current capacity to work either on a part-time or full-time basis.
78In November 2019, Mr Lobos Garcia was examined by psychiatrist, Associate Professor Saji Damodaran. In a report dated 13 November 2019, Associate Professor Damodaran noted that Mr Lobos Garcia reported that at the time of the transport accident, he was quite terrified, as the accident could have been more serious to both the driver and his passengers. It was noted that Mr Lobos Garcia was terrified at the time and remained quite anxious thereafter. It was also noted that Mr Lobos Garcia had since lost his confidence in driving the bus, and the matter had been further complicated by pain symptoms affecting his neck and hands. Associate Professor Damodaran noted that over time, Mr Lobos Garcia’s psychiatric condition became progressively worse, such that by the end of 2015, he was not sleeping well, was crying easily, was not coping well and was having intense anxiety. Associate Professor Damodaran then noted Mr Lobos Garcia’s subsequent psychiatric symptoms and noted that at the time of the examination, Mr Lobos Garcia reported being persistently sad, having no energy, no enjoyment, no enthusiasm and being consumed with nightmares, as well as flashbacks and intrusive memories. It was also noted that Mr Lobos Garcia reported that his concentration was poor and he was forgetful.
79Associate Professor Damodaran then performed a mental state examination. Associate Professor Damodaran was then of the opinion that Mr Lobos Garcia had developed PTSD in relation to the near-miss transport accident. In addition, he considered that Mr Lobos Garcia had developed a Major Depressive Disorder along with a Chronic Pain Disorder associated with a medical condition in relation to the pain, limitation, sense of grief and secondary consequence of his injury on his financial status and his work capacity. Associate Professor Damodaran considered that no part of Mr Lobos Garcia’s psychiatric illness was unrelated to the transport accident and that as a consequence of it, he had no current capacity to work. Associate Professor Damodaran considered that it was important that Mr Lobos Garcia see a psychiatrist on an ongoing basis and that he have psychological therapy to be targeted in relation to his grief and loss he is going through.
80In July 2021, Mr Lobos Garcia was assessed by psychiatrist, Associate Professor Mark Taylor. In a report dated 4 August 2021, Associate Professor Taylor detailed the circumstances of the transport accident and the treatment which Mr Lobos Garcia subsequently received. Associate Professor Taylor then undertook psychological testing which included a patient health questionnaire and a generalised anxiety disorder screen. In addition, Associate Professor Taylor conducted a mental state examination of Mr Lobos Garcia. Associate Professor Taylor considered that there was no diagnosis of PTSD but that he would accept that Mr Lobos Garcia had developed a depressive illness. Associate Professor Taylor noted that Mr Lobos Garcia remained symptomatic despite long-term psychology and antidepressant medication, which he said was “medically hard to explain”. Associate Professor Taylor was not convinced that Mr Lobos Garcia’s depressive illness was related to a one-off emergency braking episode in the transport accident of 2014.
81Associate Professor Taylor stated that he considered there were some inconsistencies which were present upon his examination of Mr Lobos Garcia, which he stated he did not believe were deliberate but had been perpetuated by Mr Lobos Garcia’s financial situation, marital issues and social isolation. Associate Professor Taylor stated that he could not make a causal connection between Mr Lobos Garcia’s current presentation and the relatively minor transport accident.
82Associate Professor Taylor considered that the most likely formulation was that Mr Lobos Garcia’s presentation appeared to be a Somatic Symptom Disorder resulting in chronic pain and loss of function which then resulted in a secondary depressive illness. However, he again stated that he did not consider that he could make a causal connection between the transport accident and that condition. Overall, Associate Professor Taylor considered this a “complex case with a severe presentation that is hard to explain chronologically from the minor incident that occurred in March 2014”.
83In April 2021, Mr Lobos Garcia was examined by rheumatologist, Dr Tony Kostos. In a report dated 3 May 2021, Dr Kostos detailed Mr Lobos Garcia’s history, including the circumstances of the transport accident and the subsequent treatment he had received. Dr Kostos then examined the plaintiff and considered the radiological investigations. Dr Kostos was then of the opinion that it was clear to him that Mr Lobos Garcia had never suffered a significant physical injury in the accident and instead, his presentation was that of a Chronic Pain Syndrome which appeared to have significant psychiatric features. In view of that, Dr Kostos did not recommend that the statutory insurer cover additional costs for treatment associated with further intervention procedures or investigations.
84Overall, Dr Kostos considered that Mr Lobos Garcia’s prognosis was poor.
Credibility and reliability
85Mr Lobos Garcia gave evidence in a simple and co-operative manner. I consider that he tried his best to answer questions put to him. From the outset of his evidence, it was apparent that he was a relatively poor historian, who did not clearly recall his attendances upon doctors in the months prior to the transport accident. However, his explanation for this was credible, in that he commented, it happened “a long time ago. I cannot remember everything.” Further, I accept Mr Lobos Garcia’s explanation that the back pain he suffered prior to the transport accident was muscular, and in a different location to the pain he feels now. I also accept that save for two days off work, Mr Lobos Garcia’s back pain did not cause him an ongoing incapacity for work. In view this, Mr Lobos Garcia’s failure to inform medico-legal doctors of his prior reports of back pain does not adversely impact upon my overall assessment of him as a genuine and credible witness.
86The Transport Accident Commission tendered two short pieces of video surveillance taken of Mr Lobos Garcia in April and June 2021. On both occasions, Mr Lobos Garcia is seen driving his car. In his affidavits, Mr Lobos Garcia stated that he avoids driving as he has become a nervous driver. He said he only drives short distances. I accept his evidence that he is only able to drive when he is having a good day, and that he does so in his local area, with the support and encouragement of his wife. I consider such restrictions to be in stark contrast to a man who, for almost thirty years before this transport accident, drove for a living.
87Overall, I consider that Mr Lobos Garcia was a witness of truth.
Mr Lobos Garcia’s psychiatric impairment and its consequences to him
88Having considered the whole of the evidence, I am satisfied that Mr Lobos Garcia suffers a Chronic Pain Disorder as a consequence of the transport accident. It is relatively consistent amongst the doctors that Mr Lobos Garcia’s reports of pain cannot be readily explained by way of an organic medical condition.
89The credibility of Mr Lobos Garcia is important in such a claim. The doctors who assessed his physical condition for the purpose of this claim, that being Mr Simm, Mr Grossbard, Dr Mittal and Dr Kostos, did not suggest Mr Lobos Garcia was feigning or intentionally exaggerating his symptoms. All acknowledged there appeared to be a significant psychological component to his presentation.
90The psychiatrists also accepted that Mr Lobos Garcia was genuine in his presentation. Associate Professor Taylor, the doctor who is least supportive of Mr Lobos Garcia, expressly stated that he did not consider that Mr Lobos Garcia was being deliberately dishonest. Instead, there seemed to be a consistent view, (once again, save for Associate Professor Taylor), that Mr Lobos Garcia was suffering a genuine psychiatric condition as a consequence of the transport accident.
91I was not assisted by Associate Professor Taylor’s opinion that Mr Lobos Garcia’s psychiatric condition did not relate to the transport accident on the basis that such accident was relatively minor. I consider his opinion failed to take account of Mr Lobos Garcia’s consistent reporting of the accident being frightening and distressing to him. I prefer the psychiatric opinions of Dr Weissman, Associate Professor Damodaran and Dr Lewis, which are in keeping with my assessment of Mr Lobos Garcia being genuine in his account of the transport accident and its impact on him.
92There were different diagnoses offered in respect of Mr Lobos Garcia’s psychiatric presentation. Whether a Somatic Disorder, Chronic Pain Disorder, or Major Depression, I am satisfied that Mr Lobos Garcia suffers a psychiatric condition as a consequence of the transport accident.
93As stated previously, I consider Mr Lobos Garcia to be creditworthy and I have no hesitation in accepting his evidence. His credibility bears significantly on my assessment of his evidence regarding the consequences he claims to arise from his psychiatric condition.
94I note the evidence of Mrs Lobos Garcia corroborates the significant psychiatric impact which the transport accident has had upon her husband’s life.
95Having considered all of the evidence, I am satisfied that as a consequence of Mr Lobos Garcia’s psychiatric condition, he is unfit for employment for all work. I note that this is supported by Dr Weissman, Associate Professor Damodaran, Dr Lewis, Dr Tan, Ms Costa and Dr King.
96I am also satisfied that as a consequence of Mr Lobos Garcia’s psychiatric condition, his activities of daily living and his ability to enjoy life have been very significantly curtailed. I accept that Mr Lobos Garcia feels that his life is not worth living, whilst noting he does not presently have any active suicidal thoughts.
97I also accept that Mr Lobos Garcia has flashbacks to the transport accident, and intrusive thoughts. I accept that although he does some local driving at times, he is a nervous driver and passenger. This is in stark contrast to a man who was a professional bus driver at the time of the transport accident.
98I am satisfied that Mr Lobos Garcia requires ongoing psychological treatment as well as needing to take medication on a daily basis.
99The High Court considered the narrative test of serious injury for the purpose of a psychiatric injury claim under the Act, in Transport Accident Commission v Katanas.[1] In a unanimous joint judgment, the High Court observed that such cases involve an assessment of the severity of a plaintiff’s symptoms, the severity of their consequences, and the extent to which the symptoms or consequences inhibit a plaintiff’s daily activities, family life, social life and educational pursuits.
[1] [2017] HCA 32
100As was noted by the Court of Appeal in Mobilio v Balliotis,[2] the word “severe” is of stronger force than the word “serious”.
[2][1998] 3 VR 833
101Having considered the whole of the evidence, and when compared to other cases involving psychiatric impairments, I am satisfied that the consequences to Mr Lobos Garcia of his psychiatric condition are severe, and that he should be granted leave to commence common law damages for the transport accident.
Mr Lobos Garcia’s claim in respect of his physical injuries
102As I am satisfied that Mr Lobos Garcia’s psychiatric impairment satisfies the serious injury definition under paragraph (c), it is not necessary for me to separately determine whether the physical impairment he suffers as a result of the transport accident is also “serious”.
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