Makrides v Transport Accident Commission
[2021] VCC 2041
•17 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-01096
| MARIA MAKRIDES | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TRAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 November 2021 (via Zoom technology) | |
DATE OF JUDGMENT: | 17 December 2021 | |
CASE MAY BE CITED AS: | Makrides v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2041 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – credibility and reliability of plaintiff
Legislation Cited:
Cases Cited:
Judgment: Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett QC with Mr L Perilli | Henry Carus & Associates |
| For the Defendant | Mr S Smith QC with Ms E Golshtein | Solicitor to the Transport Accident Commission |
HER HONOUR:
1Ms Makrides is seventy-one years of age. She currently lives in Cyprus. From 2001 to around 2015, she was on a disability pension. She then moved onto an aged pension. While on the pension, she worked for a company associated with her son as a telephone psychic. She says this work was entirely voluntary, although when she lived in Australia, the company made a contribution to her rent for use of her house as her workplace.
2On 15 March 2016, Ms Makrides was driving some people she had met as a psychic along the Melton Highway in Taylors Lakes. She slowed her car down to a stop as she approached a red light. The car behind her failed to stop and ran into the rear of her car.
3She was transported to The Royal Melbourne Hospital by ambulance. She was ultimately diagnosed with undisplaced fractures of the fourth to seventh ribs.
4Ms Makrides says that, since that time, she has suffered ongoing pain in her neck and back. She says she wears a brace to support her neck and back. She says she has difficulty turning her neck and that this makes long drives hard because it is difficult to perform head checks. She says she requires extra assistance with the housework. She says her sleep is significantly affected. She says her social life is affected. She says her capacity to engage in enjoyable activities such as swimming and walking is limited.
5Ms Makrides gave evidence at the Zoom hearing wearing a full brace that extended from her neck down to her waist.
6This is a serious injury application. Ms Makrides says that she has suffered a serious injury in the form of an impairment of her spine. The defendant denied that Ms Makrides’ current spinal impairment was causally related to the car accident. However, its primary submission was that any impairment of her spine which resulted from the car accident was not a serious injury, in the sense that it was at least “very considerable” and more than “significant” or “marked”.
7This was very much a credit case.
The reliability of Ms Makrides’ evidence
Parties submissions on reliability
8The defendant submitted that Ms Makrides was not a credible or reliable witness and that her evidence should not be accepted. It relied upon:
(a) her failure to disclose her prior history of severe depression and its consequences on her activities in her affidavits, which the defendant submitted amounted to a deliberate attempt to conceal her history;
(b) her unsatisfactory evidence in relation to her affidavits when challenged, which the defendant submitted should lead to the rejection of her evidence in its entirety;
(c) her inconsistent statements in relation to the impact of the accident upon her weight, and her failure to inform the Court that her weight had returned to normal by the time of her third affidavit;
(d) her argumentative manner; her refusal to answer questions and her tendency to answer different questions to the questions asked; and
(e) her shifting and changing evidence in relation to panic attacks, depression and her work as a psychic.
9The plaintiff submitted that:
(a) Ms Makrides did, in fact, give straight answers and that, in reality, the defendant’s complaint was that Ms Makrides did not give the answers that the defendant wanted;
(b) although Ms Makrides had severe panic attacks and depression before 2010, in the lead up to the accident she was much better. This was supported by the summary of clinical notes in the report of the defendant’s medico-legal orthopaedic surgeon, Mr Gary Speck;
(c) her failure to refer to her psychiatric history in her affidavits should be understood in the context of her difficulties reading English; the fact that her case was fundamentally always a “para (a)” case for impairment of the spine; and the fact that her affidavits were drawn by her lawyers and she has simply answered questions put to her;
(d) although her evidence in relation to her weight was not completely clear, her weight changes may have been caused by a thyroid problem, or may have been caused by inactivity due to the accident;
(e) she is wearing a very cumbersome and restrictive brace and has done so for years. This is indicative of the level of pain she is suffering;
(f) over the years she has demonstrated a determination to find the source of her pain, including consulting many specialists and having numerous imaging studies conducted. Again, this was indicative of someone who was genuinely experiencing pain; and
(g) she has been proven right in relation to her shoulder. She complained of pain in that shoulder and was referred to Mr Ash Chehata, who performed surgery for a tear of the long head biceps tendon,
Findings on reliability
10In oral evidence, Ms Makrides admitted to severe depression and panic attacks over many years. She agreed that she was on the disability pension from 2001 until around 2015. Although she claimed to be much better in the years 2013, 2014 and 2015, she accepted that she was still depressed and that she remained on the disability pension.
11Despite this, none of her affidavits contained any reference to a history of depression or panic attacks. Her first affidavit mentions a motor vehicle accident when she was nineteen and a fractured left ring finger in March 2014. In her second affidavit, she claims to have been “in good health” prior to the accident and “troubled with only minor health issues”.[1] Associate Professor Nick Paoletti, the medico-legal psychiatrist relied upon by the plaintiff, records her as reporting “[n]o other psychiatric illness”.[2] Associate Professor Peter Doherty, the medico-legal psychiatrist relied upon by the defendant, records her as saying she “never did”[3] have any psychiatric complaints, symptoms or other psychiatric treatment prior to the accident.
[1] Plaintiff’s second affidavit, paragraphs [6] and [7], Plaintiff’s Court Book (“PCB”) 16
[2] PCB 138
[3] Defendant’s Court Book (“DCB”) 76
12In oral evidence, Ms Makrides initially said that she had read her affidavits recently and confirmed that they were true and correct.[4] However, when confronted with her failure to include reference to her mental health problems, she said she had not read the affidavits since they were first sworn.[5]
[4] Transcript (“T”) 6, Lines (“L”) 1-12
[5] T28, L14-24
13In oral evidence, Ms Makrides initially said that there was no reason for her to disclose her mental health issues as it was not relevant because she was not claiming for mental injury.[6] She agreed that it would be false to suggest that her mental health became worse because of the car accident.[7] She was then shown paragraphs 22 and 23 of her first affidavit, in which she stated that:
“… my mental health has been severely impacted by my transport accident and subsequent injuries and restrictions … I am more tearful and irritable than usuaI.
I find it hard to cope with the constant physical pain and subsequently do not feel optimistic about my prospects for the future.”[8]
[6] T21, L5-13
[7] T22, L13-15
[8] PCB 15
14She then said that the accident did impact on her mental health and that the inconsistencies in her evidence were because she had not understood all the words of the question, or because she could not hear the question properly.
15Her evidence in relation to her weight was also inconsistent. In her second affidavit, sworn 28 August 2020, she stated:
“I used to exercise a lot before I was injured and weighed around 55kg. I am now more limited in activities and weight 75kg”.[9]
[9] PCB 19
16She was asked in cross-examination whether she stuck by this as being correct. She replied “Yes”.[10] However, she was then shown the history recorded by Associate Professor Nick Paoletti, which was that her weight after the accident “dropped from ‘nearly 70 kilos’ to 59kg, and it is now back up to 66kg”.[11] She then said her weight had gone up and down. When asked to explain why she had referred to her weight going up in her second affidavit and she had not referred to it in her third affidavit, she said that she did not know it was important and was not a lawyer. She then proffered the explanation that she actually put on weight because of her thyroid. When it was put to her that this was inconsistent with her evidence that she had put on weight because of inactivity, she said:
“Is it the thyroid, I was thinking it’s the thyroid. I was not working, I was not walking anymore, I was not exercising anymore, I was sitting a lot, I was in bed nearly most of the time when I had the accident about five, six months ago. I was in bed, I couldn’t walk, so it’s normal I’m going to put weight … .”[12]
[10] T43, L24
[11] PCB 141
[12] T47, L4-9
17Due allowance must be made for the difficulties of the Zoom platform and the fact that Ms Makrides was an elderly woman from a non-English speaking background, giving evidence from Cyprus in the early hours of the morning. However, Ms Makrides was clearly an alert, intelligent and articulate woman, who had a good understanding of the English language. I found Ms Makrides’ protestations that she did not understand or hear questions whenever those questions became challenging, or inconsistencies in her evidence were identified, unconvincing. For example, at one stage she claimed not to understand what the word “relevant” meant,[13] despite the fact that she herself used that word for the first time in an earlier part of her evidence.[14] Overall, Ms Makrides gave the impression of a witness who was constantly trying to mould her evidence to address and justify inconsistencies and inadequacies as they arose.
[13] T26, L17-20
[14] T21, L8
18Her physical presentation during the course of her evidence was also inconsistent with her written evidence. In both her second and third affidavits, she stated that she was not able to sit for more than five to ten minutes without an increase in back pain.[15] However, I observed her to sit for periods far longer than that without any noticeable symptoms of pain. A similar observation was made by Mr Speck, the medico-legal orthopaedic surgeon called by the defendant.[16] At other times, she made somewhat melodramatic expressions of pain. However, when distracted by questioning, she became quite animated, moving her body around freely and gesticulating without any signs of pain or restriction. Even allowing for the protective function of the neck and back brace she wore, these were not the movements of someone experiencing “constant pain and discomfort in my spine, across my neck, mid-back and lower back”.[17]
[15] Second affidavit, paragraph [31], PCB 19; Third affidavit, paragraph [19], PCB 24
[16] DCB 15
[17] Third affidavit, paragraph [15], PCB 24
19I did not find the fact that Ms Makrides wore a restrictive brace in Court, or consulted multiple specialists and obtained numerous imaging studies, particularly helpful in assessing the reliability of her evidence. I note that it appears from her reports to medico-legal experts that her use of the neck brace, in particular, is only occasional. She, herself, gave evidence that she did not wear it when driving. Wearing such a brace while giving evidence may be consistent with a high level of pain; it may also be consistent with a desire to present as in pain in order to obtain compensation.
20I accept that it is likely that Ms Makrides’ affidavits were drawn by her lawyers, and that their content was to some extent dictated by their questions of her, and their understanding of what was relevant. This may explain omissions from the affidavits, but it does not overcome concerns as to inconsistencies in her evidence. It does not explain her failure to disclose her history of mental illness to either of the medico-legal psychiatrists. It does not explain her shifting oral evidence. It does not explain the contrast between her sworn evidence of her symptoms and her presentation in Court.
21I accept that Ms Makrides’ report of shoulder pain was genuine and has largely resolved with treatment.[18] However, I do not accept that, as a matter of logic, the fact that she has truthfully reported pain which she has experienced overcomes concerns about the credibility and reliability of her reports of other pain.
[18]Report of Mr Ash Chehata, dated 6 April 2021, PCB 106; report of Mr Ash Chehata, dated 22 August 2021, PCB112
22I am also conscious that a demonstrated lack of credibility or reliability in one area of evidence does not necessarily mean that a witness’s evidence should be rejected in its entirety. In the present case, probably the most unsatisfactory part of Ms Makrides’ evidence was her evidence in relation to her prior psychiatric history. As it turned out, this prior psychiatric history was not of critical relevance to her case; as Ms Makrides’ primary case was that she has suffered an impairment to her spine. Nevertheless, her evidence in relation to this issue raises more general concerns about the weight that can be put on her evidence. Further, other concerns I have outlined above, such as her evidence in relation to her weight and her appearance in Court, impact directly on the reliability of her reported physical symptoms.
23In all the circumstances, I find myself unable to accept Ms Makrides as a credible witness, or to accept that her evidence of her symptoms can be relied upon. In particular, I find that her reports of symptoms of neck and back pain, and the consequences of that pain, are not reliable, and are at the very least significantly exaggerated and embellished.
The objective evidence of spinal impairment
24Numerous reports from treating medical practitioners were tendered. I have read and considered all of these reports. It is clear from each of the medical experts relied upon by Ms Makrides that a fundamental plank in their diagnoses is the acceptance of her self-reported pain. In particular:
(a) Dr Tanya Yuen, a treating neurosurgeon, identifies multilevel degenerative changes in Ms Makrides’ spine and “uptake in the endplates of C4/5 which could account for her neck pain and cervicogenic headaches”[19], but “no significant neural compression” [20] in the cervical or lumbar spine;
[19] PCB 80 (emphasis added)
[20] PCB 78
(b) Mr Yi Yang, a treating spine surgeon, on 23 August 2018, identifies changes at C4 to C7 which “may lead to some of her symptoms she is experiencing” and says the accident “may well” have exacerbated her neck and back pain.[21] However, on 20 September 2018, he says “I cannot identify any significant lesions within her cervical and thoracic spine which would explain her back pain”;[22]
[21] PCB 85 (emphasis added)
[22] PCB 87
(c) Mr John Cunningham, a treating orthopaedic spine surgeon, says:
“Maria’s bone scan from shortly after her accident reveals that she has widespread degenerative changes in her lower spine … The other scans … do not reveal anything abnormal or too concerning.
…
Maria seems quite anxious about her spine and I reassured her today that nothing catastrophic is going on with it. Whilst her pain may fluctuate nothing too serious is going to become of her symptoms.”;[23]
(d) Ms Natia Pantelidou, a treating osteopath, diagnoses spasms of deep thoracic and lumbar erector spinae muscles, having observed that:
“Active and passive range of movement was very limited and painful in the cervical thoracic and lumbar spine. Upon palpitation, the soft tissues had little passive response, tenderness, redness and heat evident of inflammation. There was no abnormality detected for SLRT or neurological exam of Reflexes power and sensation”’;[24]
[23] PCB 94
[24] PCB 101 (emphasis added)
(e) Dr David de La Harpe, a treating orthopaedic surgeon, stated that: “The old MRI and current CT scan is consistent with mild multilevel degenerative change but there is no surgical lesion”;[25] and
(f) Dr Antoine Tohmeh, an American spinal orthopaedic surgeon who Ms Makrides consulted in Cyprus, identified “a very hot spot at the C4-5 facet joint on the left side very consistent with her symptoms and with the level of her pain”.[26] I note that none of the Australian experts endorsed his opinion that surgery was appropriate. In any event, it is apparent that his views relied upon his acceptance that her predominant symptom was left-sided neck pain. This is not consistent with her evidence in this proceeding, in which she described pain across her neck, mid-back and lower back.
[25] PCB 104 (emphasis added), see also PCB 105
[26] PCB 99
25The medico-legal experts were also reliant upon Ms Makrides’ reported history and symptoms. Dr David Kennedy, a medico-legal sports and industrial physician retained by Ms Makrides, diagnosed her with acceleration and exacerbation of cervical and lumbar spondylosis. He was particularly reliant upon the accuracy of Ms Makrides’ description of her symptoms as he assessed her by video link only.
26Associate Professor Bruce Love, a medico-legal orthopaedic surgeon retained by Ms Makrides, diagnoses “probable … aggravation of a degenerative condition of the cervical and lumbar spine resulting in asymmetry of movement and wedge compression”.[27] His reliance upon Ms Makrides reported symptoms is demonstrated by his statement that:
“… It is not possible in my opinion to determine absolutely whether these wedgings are due to longstanding changes or whether they are a consequence of the road traffic accident. She did however report significant pain following the accident and denied having pain prior to the accident.”[28]
[27] PCB 180
[28] PCB 180
27Two careful and detailed reports were prepared by Dr Richard Sullivan, a medico-legal pain specialist retained by Ms Makrides. He recorded Ms Makrides premorbid situation as being “energetic and active”[29] and that she used to enjoy swimming, weights for exercise, using exercise machines and socialising with friends. No mention is made of Ms Makrides’ depression and panic attacks, nor the fact that she was on a long-term disability pension until around 2015. The role of Ms Makrides’ reported symptoms in his diagnosis is apparent from his reports. For example, in his second report dated 8 December 2020, Dr Sullivan states:
“… In my interview of Ms Makrides, she described … pain in the posterior cervical region extending into the interscapular region. She also described pain in her lower back extending through to the sacrum that was more pronounced on the right side than the left and also a burning pain running into the posterior aspect of her right thigh…
I do not believe that this [Ms Makrides reported pain] constitutes a widespread pain syndrome, but represents pain associated with aggravation of the described spondylitic change in her cervical spine and lumbar spine and is consistent with referred pain to relevant dermatomal and myotomal areas that can be related directly to not only the clinical presentation but also the radiological findings.
… the long-term diagnosis in my opinion remains aggravation of cervical spondylosis and lumbar spondylosis culminating in a chronic pain condition.”[30]
[29] PCB 205
[30] PCB 209
28The views of Dr Sullivan can be contrasted with the views of Mr Speck, the medico-legal orthopaedic surgeon retained by the defendant. He provided three equally careful and detailed reports, which incorporated a review of Ms Makrides’ clinical records. He recorded that Ms Makrides had a greater range of cervical flexion and rotation when observed, than when specifically measured. He diagnosed Ms Makrides with fractured left fifth and sixth ribs, with some bruising to the adjected fourth and seventh ribs and associated soft-tissue injuries to the chest and neck, without any other structural injury identified. He notes that:
“Her current symptoms in the neck are widespread and not related to any specific local tenderness in the midline or individual structure. She is not tender to either side in the trapezius or other adjacent neck muscles.”[31]
He concludes that her current presentation is consistent with “a somatic symptom disorder or chronic pain disorder”.[32]
[31] DCB 27
[32] DCB 28; see also DCB 42
29I have considered all of the medical evidence, including the reports of other doctors who I have not specifically referred to in these reasons, such as general practitioners and specialists in other disorders. Having considered that evidence, I am prepared to accept that Ms Makrides suffers some pain in her neck and back as a result of the accident. I am also prepared to accept Mr Sullivan’s opinion that this pain is of organic origin – whether because of aggravation of degenerative changes in her spine or because of a pain syndrome of organic origin. I prefer Mr Sullivan’s view to that of Mr Speck on this point. Mr Speck does not have the expertise to diagnose a somatic symptom disorder and does not specifically address the question of whether Ms Makrides has a pain syndrome of organic origin.
30However, the medical evidence does not provide cogent objective evidence of the extent of the pain suffered by Ms Makrides. Radiology is identified by a number of doctors which may explain her symptoms, but the radiology (and other objective observations) do not dictate those symptoms. All of the medical experts are dependent upon the reliability of Ms Makrides’ self-report of her symptoms. As I have already found, Ms Makrides’ self-reported symptoms are not reliable.
31Ms Makrides bears the onus of proof. Although I accept that she has suffered some neck and back pain as a result of the accident, I am not satisfied as to the extent of that pain. I am not satisfied that she suffers constant pain and discomfort. I am not satisfied that her neck and back pain are so severe as to require the wearing of a neck and waist brace. I am not satisfied that her neck and back pain are so severe as to restrict her capacity to engage in self-care or to considerably restrict her capacity to care for her home. I am not satisfied that her neck and back pain have had any significant or long-term impact on Ms Makrides’ weight. I am not satisfied that her neck and back pain have had a considerable impact on her sleep.
32I note that Ms Makrides is able to cope with her pain without prescription pain medication. Although she has had physiotherapy in Cyprus, she did not have any significant physiotherapy in Australia, and is not currently receiving any treatment.
33Before the accident, Ms Makrides moved from a long-term disability pension to an aged pension. Although she had improved over the years, the severe depression and panic attacks which qualified her for the disability pension were still impacting upon her capacity to work and socialise at the time of the accident. She is now seventy-one years of age and still works as a psychic,[33] although claims that this is on greatly reduced hours. In the circumstances, I am not satisfied that her capacity to work, socialise or engage in activities such as swimming, have been considerably impacted by her pain.
[33] Third affidavit, paragraph [27], PCB 25
34I am not satisfied that Ms Makrides has suffered an impairment of her spine, the consequences of which are “very considerable”.
35For completeness, in view of the expert evidence of both medico-legal psychiatrists, I am also not satisfied that Ms Makrides has suffered a severe mental or behavioural disturbance or disorder as a result of the accident.[34]
[34] See also T94, L9-27
36I will dismiss the proceeding.
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Certificate
I certify that these 13 pages are a true copy of the reasons for decision of her Honour Judge Tran, delivered on 16 December 2021.
Dated: 16 December 2021
Jane Le
Associate to her Honour Judge Tran
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