Markos v Transport Accident Commission
[2024] VCC 1933
•4 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-22-04710
| TONY MARKOS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 July 2024 | |
DATE OF JUDGMENT: | 4 December 2024 | |
CASE MAY BE CITED AS: | Markos v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1933 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – consequences – credit
Legislation Cited: Transport Accident Act 1986 (Vic), s 93(4)(d).
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Poholke v Goldacres Trading Pty Ltd [2016] VSCA 232.
Judgment: Leave refused to commence proceedings for damages at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Dimsey with Mr D O’Brien | Arnold Thomas & Becker |
| For the Defendant | Mr R Middleton KC with Ms V Katotas | Hall & Wilcox |
HIS HONOUR:
1On 8 March 2018, the plaintiff, Tony Markos, was standing on Sydney Road, Brunswick in an empty parking space when a motor vehicle reversed into him at low speed, causing him to stumble forward. He reported to both Victoria Police and his general practitioner that he had no immediate pain.[1]
[1]Plaintiff’s Court Book (“PCB”) 158 and 39; Defendant’s Court Book (“DCB”) 29
2Mr Markos’s evidence included it was only later that night he noticed neck and lower back pain, including referred pain into his legs.
3Mr Markos seeks leave to bring common law proceedings pursuant to s 93(4)(d) of the Transport Accident Act 1986 (Vic) (“the Act”) under paragraph (a) of the relevant definition of “serious injury”, being for the permanent serious impairment or loss of a body function. The body function relied upon is the lumbar spine.
4His claim in relation to both shoulders and his cervical spine was abandoned at trial.[2]
[2] Transcript (“T”) 85, Line (“L”) 29
5The Transport Accident Commission (“TAC”) defended the application on the basis that causation was a very significant issue, having regard to Mr Markos’s pre-existing problems with his lower back; and his credit. Further, even if Mr Markos was able to establish that the symptoms he experiences are caused by his lower back, that the consequences of his injury, when judged by comparison with other cases in the range of possible impairments or losses of a body function, could not fairly be described as being at least “very considerable” and certainly more than “significant or marked”.[3]
[3] Humphries and Anor v Poljak [1992] 2 VR 129 at 140
6The plaintiff’s counsel, Mr Dimsey, appropriately conceded that Mr Markos’s credibility had been impugned by the cross-examination of Mr Middleton, counsel for the TAC.[4]
[4]T81
7Mr Markos relied on three affidavits sworn 2 December 2021, 6 July 2023 and 6 July 2024. The application was not supported by any other lay evidence to corroborate Mr Markos’s account of his transport accident-related problems.
8For the reasons which follow, even if I was satisfied as to causation, I am not satisfied that the consequences Mr Markos relies upon are sufficient to meet the test of “serious injury”. I would make this finding even absent the significant problems with the reliability of Mr Markos’s evidence.
Background
9Mr Markos has been on a disability support pension for twenty years as at the day of the hearing for bilateral shoulder conditions.
10Mr Markos has a long history before the transport accident of taking strong pain medication; and also regular referrals for chiropractic treatment from his general practitioner for his lower back. He has been prescribed Endone, Valium, Nexium and Panadeine Forte regularly for many, many years as a result of pain, including pain in his lower back.
11The clinical notes record back pain following an incident carrying boxes in 2012.[5] He had massage and physiotherapy for his back. Mr Markos has been prescribed Panadeine Forte and other strong prescription medication, such as Tramal, on an ongoing basis since this time.
[5] DCB 48
12Having made various complaints of lower back pain since then, including sciatic pain from in or about June 2014.[6] Mr Markos was diagnosed with a disc prolapse in November 2014.[7]
[6] DCB 44
[7]DCB 41
13The clinical notes establish that Mr Markos suffered from chronic back pain during 2017, for which he was prescribed strong pain medication.
14He also suffered a lower back injury either two or three years prior to the motor vehicle accident, when he fell off a ladder at home.[8]
[8]Paragraph [8] of the plaintiff’s affidavit sworn 12 December 2021 at PCB 13
15He was prescribed Temaze tablets for his sleep problems before the transport accident, and his general practitioner diagnosed insomnia in 2014. As at the date of the transport accident, he was still taking Temaze.[9]
[9]DCB 54, history to Dr Quinn
16Critically, in the weeks leading up to the transport accident, there were a number of attendances upon general practitioners. Still taking Panadeine Forte, on 24 January 2018 Mr Markos attended on Dr Raymond Khoosal with a recurrence of pain in his lower back against a history of a prolapsed disc.[10]
[10]DCB 30
17Later during the evening on 24 January 2018, Mr Markos consulted another general practitioner through a home-doctor service. Dr Yi Cheng attended Mr Markos’s home and recorded a presenting complaint and history of chronic disc bulge on the right hand side with lumbar back pain, initially occurring while vacuuming. He had significant pain around his lower back and associated radiation into the right leg and a slight antalgic gait. The doctor noted the current medication as being Valium, Panadeine Forte, Nexium, Endep, Periactin, Temaze, Seretide, Dulcolax, Donnatab and Iberogast. Dr Cheng refused to prescribe Mr Markos any further medication.[11]
[11]DCB 58
18On 26 January 2018, Dr Jack Deady from the home-doctor service attended Mr Markos.[12] Dr Deady obtained a history of severe lower back pain for about two years, and that “he injured his back last week when bending down and has now got very severe pain … in his lower back and going down both his legs”.[13] Mr Markos told Dr Deady:
(a) he had been extensively investigated for his lower back pain with MRI scans, and had suffered from chronic pain in his neck and back for many years;
(b) he gets regular injections of painkillers and is on many medications at the moment.
[12] DCB 56
[13] Ibid
19Dr Deady recorded a similar history to Dr Cheng in terms of current medications and diagnosed an acute exacerbation of chronic lower back pain, and “probably anxiety”. Although Mr Markos was asking for injections of painkillers, the doctor apparently declined to administer these.
20Mr Markos then attended upon Dr Ghassan Markabawi at his usual clinic on 16 February 2018 for his back pain. The history records that he “feel (sic) few weeks ago landed on his back” and was “get muscle spasm”.[14] Dr Markabawi prescribed Tramal and various other medications, including Diazepam. He noted that Mr Markos seemed to be addicted to benzodiazepines.[15]
[14] DCB 29
[15]Ibid
21The day after the transport accident, on 9 March 2018 Mr Markos arranged another home-doctor appointment. Dr Alistair Quinn attended his home sometime that evening, and noted a two-week history of exacerbation of chronic back pain, which had started three months ago after falling off a ladder. His notes record:
“Was collecting leaves from his gutters when he slipped and prolapsed a disc
Ongoing pain since then”[16]
[16] DCB 53
22Mr Markos also gave a history to Dr Quinn of the incident when he was struck in the back by a car and “pushed forward ‘half a meter (sic)’”; and that since then he had “worse than usual” pain in his thoracic spine and shoulders, and in his lumbar spine and legs.[17]
[17] DCB 54
23His general practitioner, Dr Khoosal, later referred Mr Markos to the Emergency Department of The Royal Melbourne Hospital with his complaints of lower back pain, where there was no adverse finding upon examination on 14 March 2018. Mr Markos was given simple analgesics, advice on pain management strategies and encouragement to have physiotherapy treatment.[18]
[18] PCB 28
24Distilling those histories and attendances on various practitioners, it seems that, by the time of the transport accident, Mr Markos had suffered various insults to his lower back, including:
(a) picking up boxes in 2012,
(b) disc prolapse with sciatica in 2014,
(c) falling off the ladder in or about 2015 or 2016,
(d) chronic back pain throughout 2017, and
(e) in the weeks before the transport accident, a flare-up of lower back pain following a fall where he landed on his back, involving a prolapsed disc and very severe lower back pain.
25Without determining the matter, I note the history he provided to Professor Richard Bittar of having no previous neck or back pain immediately prior to the motor vehicle accident. I reject that history, which affects the weight of Professor Bittar’s opinion that:
(a) Mr Markos suffered an aggravation of cervical spondylosis with intermittent neck pain and an aggravation of lumbar spondylosis with lower back pain and leg pain;
(b) the transport accident had a significant role in Mr Markos’s ongoing pain; and
(c) his injuries have had a “significant detrimental impact on his social and recreational pursuits”.[19]
[19] PCB 123
26Although orthopaedic surgeon, Mr Russell Miller,[20] accepted that it “might be reasonable” to attribute half of Mr Markos’s impairment of the lumbar spine to transport accident-related effects, he was at pains to emphasise that “there are particular difficulties in this case due to apparent inaccuracies in the history”.[21] Mr Markos told Mr Miller there were no pre-existing symptoms in his lower back.
[20]PCB 92
[21] Ibid
27There is no suggestion surgical intervention is appropriate in relation to his back.
28Consultant orthopaedic surgeon, Dr Ron Haig, examined Mr Markos at the request of the TAC. Mr Markos confirmed he was not knocked over in the incident, “felt alright at that time”, but started to experience “a bizarre constellation” of symptoms from later that night. When questioned about his lower back prior to the transport accident, Mr Markos answered, “no problems”.[22] Upon Dr Haig’s examination of the lower back, Mr Markos moved freely, walked with a normal gait and could heel-and-toe walk satisfactorily. He was able to dress and undress himself, and get on and off the examining couch without difficulty. The lower back had a normal lordosis, no scoliosis and no tenderness. Although flexion and extension were reduced, Dr Haig questioned his compliance.
[22] DCB 7, 8 and 10
29Dr Haig noted Mr Markos was a rambling, poor historian and quite garrulous; and he exhibited abnormal pain behaviour. In Dr Haig’s opinion:[23]
(a) Mr Markos’s symptoms pre-existed the transport accident, including a long history of lower back complaints and a diagnosis of chronic pain syndrome;
(b) there was nothing in the radiology that would explain his lower extremity symptoms;
(c) there was no musculoskeletal basis for his complaints; and
(d) other non-organic factors dominated the clinical picture.
[23] Report dated 8 March 2023 at DCB 5
30In addition to bilateral shoulder pain and loss of function, find that at the time of the transport accident, Mr Markos suffered from chronic and severe lower back pain, for which he took strong prescription pain medication, and which - in combination with his bilateral shoulder condition and anxiety - had resulted in very significant loss of function for many years prior, including sleep disruption.
31On the doubtful assumption that Mr Markos aggravated his lower back in the relatively minor accident on 8 March 2018, I turn to consider the consequences relied upon by him in this application.
What consequences are relied upon by Mr Markos?
32By the time of the transport accident, Mr Markos already had a diminished quality of life because of his pre-existing conditions. His application falls for consideration in that light.[24]
[24] See discussion in Poholke v Goldacres Trading Pty Ltd [2016] VSCA 232 at paragraphs [110]-[113]
33In opening the case, Mr Markos relied upon the consequences referred to below.
34When cross-examined, Mr Markos’s affidavit evidence was demonstrated to be unreliable, misleading and/or inaccurate in relation to each.
The gym
35Mr Markos stated he had always been a fit person who loved to go to the gym and do weights. His affidavit evidence included that, although he stopped going to the gym for a period of time, he slowly built himself back up to his usual routine with lighter weights.[25] I reject that evidence. In cross-examination, Mr Markos conceded he had not been to the gym since 2013, some five years prior to the motor vehicle accident.[26]
[25]First affidavit of the plaintiff, dated 2 December 2021, paragraph [6] at PCB 13
[26]T56
Sleep
36In the months leading up to the transport accident, Mr Markos was being prescribed Temaze for his sleep-related difficulties.[27] I find he experienced significant pre-existing issues with sleep, as recorded in his general practitioner’s clinical notes, together with the diagnosis of insomnia in 2014.
[27]DCB 54, history to Dr Quinn. See also histories to Dr Khoosal.
37Mr Markos claims to wet himself periodically in bed,[28] which is why his sleep is interrupted. He does not know how this is related to his back or other pain. There is no medical evidence to connect this condition with the transport accident.
[28] DCB 7; T10
38Even allowing Mr Markos the benefit of the doubt that there is some effect on his sleep, this consequence does not rise to “significant” or even “marked”, having regard to his significant pre-existing problems and difficulties with sleep.
Medication
39Although reliance upon regular pain medication was abandoned at trial as a consequence of the transport accident, in his affidavits, Mr Markos deposed to pain and suffering consequences based on having to take medication for his pain, and the effects of that medication on his memory and ability to concentrate, and other matters.
40In cross-examination, Mr Markos conceded there had been no change to his medication regime as a result of the motor vehicle accident.[29]
[29]T54. See also concession of his counsel at T4.
41This reflects poorly on his credit, and makes reliance upon his affidavit evidence generally problematic, particularly as there is no corroborative affidavit material to support his account of his symptoms.
42That Mr Markos has not required any additional medication for his lower back pain since the transport accident also informs my consideration of the pain consequences of his claimed condition.
Pain
43Unfortunately, Mr Markos’s evidence was shambolic at times, difficult to follow and tended to be internally inconsistent. I am not able to rely upon his evidence in terms of his account of his ongoing pain, including whether it was significantly worse than he experienced prior to the transport accident.
44Although his general practitioner, Dr Khoosal, is supportive, he makes no attempt to explain the level of symptoms suffered by Mr Markos prior to the transport accident. Like any doctor, his opinion relies upon the accuracy of the history provided to him, and I find that Mr Markos is an unreliable witness.
45Further, his reports emphasise pain from an aggravation to previous shoulder injuries, which are not relied upon in this application.[30] Various attendances on Dr Khoosal recorded in the clinical notes relate to pain in both shoulders, the neck and elbow. There is no evidence Mr Markos’s symptoms of pain and numbness over his whole body are caused by any aggravation of his lower back condition in the transport accident. This raises the difficulty of disentangling due to his comorbidities, which Mr Markos has been unable to do.
[30]See report of Dr Khoosal dated 30 August 2018 at PCB 39
46The generalised complaints of pain certainly do not assist Mr Markos’s application.
47The medical evidence, including clinical notes, also record that many of Mr Markos’s problems relate to his anxiety, which again has been present for years prior to the transport accident. This poses yet another considerable problem for Mr Markos’s application, which is under paragraph (a) of the definition of “serious injury”.
48In his more recent report, Dr Khoosal sets out the treatment and referral history and, other doctors’ diagnoses, then provides the following opinion:
“It was difficult to arrive at a diagnosis as he complained of widespread, diffuse and intermittently severe pain in the neck radiating to his shoulders and into his arms. He also had numbness and tingling and weakness in both hands.
He also complained of pain and numbness in his lower back.
He suffered with chronic pain syndrome and adverse mental state reaction of anxiety and depression. He has been seen previously for his anxiety and depression by a psychiatrist.It is difficult to give an opinion on his prognosis at this time.”[31]
[31]PCB 57-58
49Like Dr Khoosal, I am unable, on the basis of the evidence before me, to identify a diagnosis that would explain Mr Markos’s ongoing complaints by reference to a lower back injury suffered in the transport accident.
Physical restrictions
50I reject Mr Markos’s evidence that his running was affected by the transport accident. He conceded in cross-examination he had not been to the gym for years before the transport accident, but this concession was only elicited upon Mr Markos being shown the subpoenaed records from his gym. His evidence was generally unreliable, and uncorroborated.
51While he deposed to difficulty sitting and standing, I was able to observe his relative lack of discomfort sitting for a period of hours in cross-examination. This affects the weight of his evidence of difficulties cooking because he “cannot stand at the stove”. Although any impact on his cooking may well be significant to him, I am not persuaded this is a consequence which relates to the transport accident, or that it is a “very considerable” consequence in any event.
52The evidence overall does not permit a finding that any aggravation to Mr Markos’s pre-existing lower back condition satisfies the narrative test.
Conclusion
53Based on Mr Markos’s evidence before me, and his very significant pre-existing lower back condition, I am not satisfied that the consequences of increased pain and physical restrictions relied upon, alone or in combination, are at least “very considerable”.
54This finding makes a specific determination as to causation unnecessary.
55The plaintiff’s application is dismissed with costs.
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