Mashayekh v Transport Accident Commission
[2017] VCC 1434
•9 October 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-15-00691
| ALI MASHAYEKH | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 and 4 July 2017 | |
DATE OF JUDGMENT: | 9 October 2017 | |
CASE MAY BE CITED AS: | Mashayekh v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1434 | |
REASONS FOR JUDGMENT
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Subject: Transport accident
Catchwords: Serious injury; spinal injury; aggravation; non-organic
sequelae; extent of consequences
Legislation Cited: Transport Accident Act 1986 s93(17)
Cases Cited:Richards v Wylie [2000] 1 VR 79; Petkovski v Galletti [1994]
1 VR 436; AG Staff Pty Ltd v Filipowicz [2012] VSCA 60, 34 VR 309; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Poholke v Goldacres Trading Pty Ltd [2016] VSCA 232; Meadows v Lichmore Pty Ltd [2013] VSCA 201
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D. Purcell with Mr S. Davison | Slater & Gordon |
| For the Defendant | Mr G. Lewis QC with Ms A. Wood | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1 Ali Mashayekh seeks leave pursuant to section 93 of the Transport Accident Act 1986 (“the Act”) for leave to claim damages in respect of injuries received in a transport accident which occurred on 16 February 2009.
2 The application relies primarily upon an injury to the plaintiff’s spine, which is said to be a serious injury in accordance with paragraph (a) of the definition contained in section 93(17) of the Act. Alternatively Mr Mashayekh claims an entitlement on the basis that the injuries satisfy the definition of a severe long‑term mental or behavioural disturbance or disorder in accordance with the definition of serious injury set out in paragraph (c).
3 At the commencement of this application Mr Purcell of counsel, who appeared with Mr Davison on behalf of the plaintiff, described the psychiatric response suffered by Mr Mashayekh as being more relevant to a Richards v Wylie[1] assessment than as constituting a separate injury capable of satisfying the definition for serious injury required by paragraph (c).
[1][2000] 1 VR 79
4 At the time of the hearing of this application Mr Mashayekh was 68 years of age. The transport accident occurred a few weeks prior to his 60th birthday at which time he was working with one of his sons in a family member’s painting and decorating business. He was driving his motor vehicle in Old Warrandyte Road, Donvale when it was struck from behind by another car. His son Mohammad was travelling with him as a passenger at the time of the collision. His vehicle was struck in the rear and he suffered injuries.
5 Mr Mashayekh was taken by ambulance to the Royal Melbourne Hospital and a complaint was noted of pain in the area of the thoracic spine. There was also an injury to the left wrist, although this was not a basis upon which leave was sought.
6 There was no real dispute that the plaintiff had suffered a whiplash-type injury in the transport accident, nor that he had continued to have a level of ongoing symptomatology.
7 The plaintiff relied essentially on a combination of pecuniary disadvantage and pain and suffering consequences as the basis of the application.
8 The defendant, through Mr Lewis QC, who appeared with Ms Wood, argued that the case fell to be assessed as one of aggravation referring to pre‑existing spinal radiology and an earlier disability pension application, some two years prior to the transport accident. The defendant also referred to the incomplete histories recorded by some of the medical practitioners relied upon by the plaintiff in submitting that the application should not succeed.
The lay evidence
9 Mr Mashayekh was the only witness required for cross-examination. He had sworn three affidavits in support of his application. These were sworn 24 April 2013, 21 January 2016 and 15 June 2017. (The first affidavit was not correctly sworn with reference to an interpreter, but was nevertheless tendered in evidence without objection).[2]
[2]Exhibit A (Common Court Book) p.6-20
10 The three affidavits sworn by the plaintiff were tendered in evidence as part of Exhibit A.[3] I note that the second affidavit sworn on 29 January 2016 is in effect a slightly corrected version of the initial 2013 affidavit which did not make reference to an interpreter.
[3]Exhibit A p.6-20
11 In short compass Mr Mashayekh came to Australia from Iran in 1986 with his wife and children. He worked as a motor mechanic both in employment and in his own business for in excess of 20 years, and then ran a take-away café in Doncaster before moving into a number of businesses up until late 2008. From that time until the transport accident he was working for a family member’s painting and decorating business earning income in the order of $70,000 per year. He had not returned to employment following the transport accident.
12 Mr Mashayekh deposed to some earlier symptomatology:
“… some widespread joint and muscle pain, with some muscular pain in my back and right leg,”[4]
[4]Exhibit A, p. 8[13]
13 These pains were said to have occurred in late 2006 and 2007.
14 Mr Mashayekh continued to work up until the time of the transport accident and deposed to various difficulties with his activities of daily living described as being due to pain and weakness in his lower back, left leg and neck.[5]
[5]Exhibit A, p.8-9[14] to [18]
15 The affidavits described ongoing social and emotional difficulties and described the treatment being received for those conditions and the physical injuries.[6]
[6]Exhibit A, p.10[23] to [24]
16 Of some significance to the present application was the diagnosis and treatment of prostate cancer in early February 2013. This condition was treated surgically in Iran and has been monitored both in Australia and Iran since that time. The treatment relevant to the cancer is described in some detail in the most recent affidavit.[7]
[7]Exhibit A, p.19[9] to [11]
17 In addition to the three affidavits sworn by the plaintiff, affidavits sworn by the plaintiff’s wife, Masoumeh Tehrani, sworn 18 May 2017 and one of his sons, Mohammad Mashayekh sworn 30 May 2017 were tendered in evidence.[8] Neither of these witnesses was required for cross-examination.
[8]Exhibit A, p.21-26
18 Further, a summary of the plaintiff’s taxation records for the financial years ending 30 June 2006 to 30 June 2011 were also tendered without objection.[9] That document revealed that the plaintiff had earned $62,118 in the financial year ended 30 June 2008 and $70,686 in the financial year ending 30 June 2009. There was no cross-examination of the plaintiff in relation to these disclosed earnings, and it was not suggested that he had been engaged in any employment following the transport accident.
[9]Exhibit A, p.191
19 When the plaintiff was cross-examined I noted the following matters as relevant to my determination:
· He agreed with varying histories given to medical practitioners regarding the circumstances of the collision and whether he had lost consciousness. He stated:
“I remember the initial impact of the accident, I remember that. The rest of it I’ve been told in the hospital about what happened.”[10]
[10]T 22, L 7-10
· He maintained that his son had provided a history of him suffering pain in his mid-back to ambulance officers at the scene when he had been unconscious.[11]
[11]T 22, L 18 to T 23, L 10
· He denied telling anyone at Royal Melbourne Hospital on admission that he had not been knocked out as a result of the collision.[12]
[12]T 23, L 28-30
· He made a similar denial in relation to a history recorded by Dr Hofland, his treating doctor at Epworth Rehabilitation Hospital.[13]
[13]T 24, L 21-30
· He agreed that when he was referred to Mr Peter Turner in July 2009 he told him that he had no problems with his back prior to the accident:
“Because I didn’t have back pain, or lower back pain before the accident.
…
I had muscle ache and pain, because of the – because of my work, heavy work that I was doing.”[14]
[14]T 25, L 20-31
· He denied telling Associate Professor Stephen Doig in March 2011 that he had had any troubles with his neck or back prior to the collision.[15]
[15]T 26, L 26 to T 27, L 7
· Mr Mashayekh maintained that he had told all doctors about muscle pain and ache:
“… I have told all my doctors whatever I have been experiencing.”[16]
[16]T 27, L 12-15
· He agreed that prior to the transport accident he did have muscle pain in his neck or his back.[17]
[17]T 27, L 28-31
· He agreed that he had told his general practitioner, Dr Monk, in November 2006 that he had suffered:
“All muscle aches, severe foot pains. Pains in the knees as well.”[18]
[18]T 29, L 13-19
· He agreed that he had been referred to a specialist, Dr Metzner, many years earlier (1991) complaining of severe pain in his back and legs behind the kidney, believed to be a gall stone, but he denied discussing with the doctor whether it might be a prolapsing disc in his back.[19]
[19]T 30, L 11-31 & Exhibit 1 (Common Court Book) p.194-195
· Mr Mashayekh agreed with a note from Dr Monk on 17 May 2007 that he suffered severe back pain which he stated was due to a high mercury level.[20]
[20]T 31, L 6-19
· He could recall a discussion between himself and Dr Monk in May 2007 about applying for a pension, but denied he had suggested to the doctor that he should go on the pension, stating, “but honestly, I can’t remember.”[21]
[21]T 31, L30 to T 32, L 15
· Mr Mashayekh agreed that he had an MRI in Iran in 2005, but stated it was for osteo on his bones that maybe causing severe pain in his back. The pain at that time was radiating into his left leg.[22]
[22]T 32, L 26 to T 33, L 7
· He agreed that he had had pain in his left leg in May 2007 and sciatica in August 2007.[23]
[23]T 33, L 8-15
· Mr Mashayekh agreed that he had had a CT scan on his back in 2007, but added:
“… I was suffering from back pain, not lower back pain. They’re different.”[24]
[24]T 34, L 3-9
· He was referred by another doctor for a further CT scan in February 2008. It was for his head and mid-back.[25]
[25]T 34, L 16-20 & Exhibit A, p.173
· When pressed on the CT scans in 2007 and 2008 the plaintiff responded:
“This lower back pain that I have as a result of accident is totally different from that other pain I had in my lower back.”[26]
[26]T 35, L 23-29
· He agreed that he was seeing a general practitioner in February 2008 complaining about pain in his middle back and was then referred for a CT scan.[27]
[27]T 36, L 20-24
· He explained that he had not mentioned the earlier CT scans to doctors seen after the car accident, such as Associate Professor Doig, because:
“… there is a difference between muscle pain and pain in your bones … The difference is, I was suffering from back pain for about six, seven years, and I wasn’t diagnosed. When finally I was diagnosed, they realised that this pain was as a result of cyst on my back. The cyst was causing the pain.”[28]
[28]T 37, L 1-16
· Mr Mashayekh stated that he had had surgery on the cyst and:
“… I recovered completely and I started work again.”[29]
[29]T 37, L 28
· He could not recall the date of that operation, or even how many years ago the car accident had been.[30]
[30]T 37, L 24 to T 38, L 4
· He could not recall a history given to Professor Boys at an examination in November 2016 that he had received a disability pension in 2007 which was initially granted and after some months was then reversed.[31]
[31]T 39, L 19 to T 40, L 3
· Mr Mashayekh stated that his current activities involved him going to the gym in Nunawading twice a week for swimming. He could swim for 50 or 60 metres and then his neck hurt.[32]
[32]T 40, L 17-28
· After one lap of the pool he would struggle, stop and exercise in the water. He would use the sauna and that would be very helpful.[33]
[33]T 41, L 2-6
· He would also go walking for about 10 to 15 minutes at “a slow pace because I can’t walk fast.”[34]
[34]T 41, L 7-12
· He also had exercise equipment at home:
“… when I don’t have that much pain I try to walk on it for about ten to 15 minutes.”[35]
[35]T 43, L 26-31
· He would occasionally go out with his wife to have coffee, “maybe once a week, maybe once every fortnight.”[36]
[36]T 44, L 1-5
· With domestic activities he would not do mopping, but did vacuuming because the vacuum was modified and he did not have to carry it. Before the car accident, “I used to do all the chores at home, even cooking.”[37]
[37]T 45, L 1-6
· He further agreed that his wife and son gave him some assistance with those activities before the accident. His son would still assist, as would his daughter-in-law.[38]
[38]T 45, L 10-14
· He had been told of problems with his prostate many years ago, including a discussion with Dr Monk about prostatitis in 2003.[39]
[39]T 46, L 14-24
· Mr Mashayekh agreed that by 2009 he was getting up at night about six times to urinate.[40] In 2011 he was still getting up many times per night:
[40]T 47, L 3-5
“… they told me that there was nothing wrong. It was because of my age I was dealing with it.[41]
[41]T 47, L 8-12
· He agreed that the bladder problems became a real problem in relation to his ability to sleep. He further stated that it was not a problem anymore:
“It doesn’t matter what I eat or drink before sleep, I don’t wake up and go to the bathroom anymore.[42]
[42]T 47, L 16-18
· He did not agree with the proposition that he was very concerned about the prostate cancer in February 2015 stating:
“… I didn’t know that I – I had cancer, or suffered from cancer until I went to Iran.”[43]
[43]T 48, L 7-11
· He agreed that he was having an injection every six to eight months.
· Mr Mashayekh then explained that he had only had one injection to control his PSA levels in the last year and a half.[44]
· Mr Mashayekh agreed that the prostate cancer was a real concern for him, “before the surgery I mean.”[45]
· If the transport accident had not occurred he would probably be working at the repair shop or doing building work that he was doing, or perhaps working at Primo Painting and Decorating as a manager.[46]
· He did not comment on the proposition that Primo Painting and decorating was deregistered and was no longer a business. This was said to have occurred in April 2015 to which the plaintiff replied:
“Well I could still do painting or building work or work in the repair store, repair shop.”[47]
[44]T 49, L 1-29
[45]T 50, L 2-15
[46]T 50, L 27 to T 51, L 5
[47]T 51, L 6 to T 51, L 13
20 The following evidence was elicited in re-examination which is relevant to my determination:
· Mr Mashayekh’s son was still conducting a business working in the building industry.[48]
[48]T 51, L 17-27
· Prior to the transport accident Mr Mashayekh had considered retirement:
“It has crossed my mind to retire but the retirement money is not something that you can have a comfortable life with it. You work hard, you have a better comfortable life.”[49]
· His prostate condition would not prevent him from working for his son. He stated he could not return to work because of difficulties lifting his arm very much and holding his head up which aggravates his neck pain or sitting or bending.[50]
· Mr Mashayekh maintained that the lower back pain before the accident was totally different from the pain he had experienced since.[51]
· He had received statutory benefits from the Transport Accident Commission for a period following the transport accident and was now on the aged pension. He could not remember whether he had received some sort of pension in 2007.[52]
· In late 2006 he was experiencing problems with his arms and legs which were stated as being due to a high mercury level. These symptoms lasted about one year.[53]
· At the time of the collision he was driving his son’s Chrysler 300C, the other vehicle was a Commodore and his car was a write-off.[54]
[49]T 52, L 19-23
[50]T 53, L 23-30
[51]T 54, L 5-21
[52]T 54, L 26 to T 55, L 10
[53]T 55, L 11-30
[54]T 56, L 1-8
21 Mr Mashayekh further relied upon affidavits from his wife, Masoumeh Tehrani, sworn 18 May 2017[55] and one of his sons, Mohammad Mashayekh, sworn 30 May 2017.[56] Neither of the deponents was required for cross‑examination.
[55]Exhibit A, p.21-23
[56]Exhibit A, p.24-26
22 It is unnecessary to describe the contents of these two affidavits in any detail. Suffice to say they are both generally supportive of the impact of the transport accident upon the plaintiff.
23 Ms Tehrani in particular makes reference to her own medical condition of scleroderma, which has caused her significant difficulties in her daily activities, and no doubt placed considerable demands upon the plaintiff when he was able to assist her.
24 Neither affidavit makes any reference to any pre-existing conditions such as those which were the subject of a large part of Mr Lewis’ cross-examination of the plaintiff. There is also no reference in either affidavit to the diagnosis and treatment of the plaintiff’s prostate cancer condition.
The medical evidence
25 Dr Andrew Monk, the plaintiff’s original general practitioner, provided four reports dated 27 September 2010, 12 September 2011, 5 June 2016 and 12 June 2017. These reports were tendered as part of Exhibit A.[57]
[57]Exhibit A, p.47-56
26 In his first report Dr Monk reviewed material from the Royal Melbourne Hospital, Mr Peter Turner and Dr Hofland together with other material referred to. He concluded that Mr Mashayekh’s injuries were:
“… a musculoligamentous strain/sprain of the spinal/paraspinal musculature. He has had a secondary anxiety/depression subsequent to his accident, injuries that are slow to resolve and pain.[58]
[58]Exhibit A, p.49
27 He regarded the prognosis as poor at that stage with a protracted course of slow recovery and ongoing psychiatric issues.
28 Dr Monk’s second report in September 2011 updated the treatment and the various referrals that had been made.
29 His report in 2016 noted the diagnosis of prostate cancer and the radical prostatectomy performed in Iran in February 2013. At that time Dr Monk commented:
“… it is clear that his current medical issues have revolved more around his prostate cancer and its management than his past Chronic Pain Syndrome as noted in my prior letters. It is therefore difficult to assess his past Chronic Pain Syndrome in the light of his current condition.”[59]
[59]Exhibit A, p.53
30 In Dr Monk’s most recent report dated 12 June 2017 he commented that he had not seen Mr Mashayekh since 14 February 2015. His final report essentially confirmed the matters that had been set out previously.
31 The current general practitioner is Dr Avval of the Bulleen Plaza Medical Centre. He has provided a single report dated 12 February 2017.[60] The report notes complaints of neck and low back pain in addition to left hand pain and numbness in the legs. Dr Avval’s diagnosis was “chronic pain and inflammation in the body.”[61]
[60]Exhibit A, p.45-46
[61]Exhibit A, p.45
32 In his quite brief report, Dr Avval comments in relation to his examination:
“… he has tenderness on the left hand, limitation of the low back and numbness in the legs. He does not have good sleep because of multiple pain issues.”[62]
[62]Exhibit A, p.45
33 Dr Avval had provided a further report to the plaintiff’s solicitors on 29 June 2017. This was ultimately relied upon by the defendant and was tendered as part of Exhibit 1.[63] This report makes mention of ongoing left hand pain in addition to back and neck pain. It also makes reference to the surgery from prostate cancer and the ongoing monitoring. Dr Avval also notes that Mr Mashayekh suffers from glaucoma in the eye “which is under specialist management”.[64]
[63]Exhibit 1, p.120(a)
[64]Exhibit 1, p.120A
34 There were numerous historical medical reports tendered in evidence by both parties. Apart from the medical histories to which I have referred where relevant, it is unnecessary to comment further for the purposes of this application.
35 The plaintiff relied on recent opinions from Associate Professor Stephen Doig, orthopaedic surgeon; Professor Richard Stark, neurologist; and Dr Nathan Serry, psychiatrist. Each of these doctors had previously examined the plaintiff in 2010 or 2011.
36 Associate Professor Doig re-examined the plaintiff on 8 December 2016 and reported to the plaintiff’s solicitors on the same date. This report, and his original report of 23 March 2011, were tendered as part of Exhibit A.[65]
[65]Exhibit A, p.74-79
37 Associate Professor Doig commented that it was obvious that there were degenerative changes in Mr Mashayekh’s back and neck prior to his injury. He noted:
“He was quite specific that these did not cause him any troubles and he was working up until the time of this injury. As a consequence I consider that the injury has resulted in significant aggravation of these pre-existing asymptomatic problems.”[66]
[66]Exhibit A, p.79
38 Associate Professor Doig regarded the plaintiff’s prognosis as poor, stating that the plaintiff was unlikely to return to work and was now on the aged pension. He also made reference to the low back pain as being the worst problem.
39 Professor Stark re-examined Mr Mashayekh on 22 December 2016. He had previously seen the plaintiff in 2011 and 2013.[67] In his most recent report dated 22 December 2016, Professor Stark commented that the main ongoing issues appeared to be an aggravation of cervical and lumbar spondylosis. He believed any ongoing difficulty with memory was more likely the result of a psychological reaction rather than organic brain injury. He commented in his report:
“I accept that his physical activities have been restricted by his neck and back pain and this has prevented him from returning to work and has had some impact on his domestic, social and leisure activities.”[68]
[67]Exhibit A, p.80-89
[68]Exhibit A, p.89
40 Dr Serry re-examined Mr Mashayekh on 15 November 2016. He had previously examined the plaintiff in February 2010.[69] He noted that the plaintiff had had no formal mental health treatment following the accident and noted the ongoing complaint as being referrable to pain in the back and neck and also the left wrist. Significantly, Dr Serry noted the past history of cholecystectomy, prostate cancer and apparent glaucoma.[70] Dr Serry referred in his summary to his earlier diagnosis of a Chronic Adjustment Disorder. He went on to state:
“I am now of the opinion that your client’s psychiatric condition is more significant and is consistent with a diagnosis of a chronic major depression with anxious features and with features of traumatisation.”[71]
[69]Exhibit A, p.90-105
[70]Exhibit A, p.101
[71]Exhibit A, p.103
41 He described Mr Mashayekh’s prognosis as being:
“… rather guarded given a persistent nexus between the physical and psychiatric aspects of his presentation, a lack of improvement over time and what appears to have been a fairly lengthy period of time without appropriate treatment.”[72]
[72]Exhibit A, p.103
42 The recent medical opinions relied upon by the defendant were those from Adjunct Professor Peter Boys, orthopaedic surgeon, and Dr Timothy Entwisle, psychiatrist. Professor Boys examined the plaintiff on one occasion, 10 November 2016. His report to the defendant dated 17 November 2016 forms part of Exhibit 1.[73]
[73]Exhibit 1, p.158-169
43 In the body of his report Professor Boys noted reference to generalised myalgias and arthralgias in 2006. He also noted the pension application in 2007 and radiology of the spine involving three examinations between 15 August 2007 to 13 February 2008.[74] He diagnosed multiple injuries relevant to the transport accident including:
“Musculoligamentous injury cervical spine.”
“Musculoligamentous injury lower lumbar spine.”
“Chronic Pain Disorder in the context of anxiety and depression.”[75]
[74]Exhibit 1, p.161
[75]Exhibit 1, p.164
44 He concluded that the transport accident may have resulted in:
“… a temporary exacerbation of symptoms associated with his pre-existing neck and lower back conditions …”
The opinion continued:
“I do not believe this accident has given rise to any aggravation of that condition of an ongoing nature.”[76]
[76]Exhibit 1, p.166
45 Professor Boys noted that the plaintiff was in receipt of an aged pension and was 67 years of age. He did not anticipate any return to employment.
46 Dr Entwisle re-examined Mr Mashayekh on 5 May 2017, having previously examined him in September 2010, and provided an earlier report in October of that year.[77] Following his most recent examination he reported to the defendant’s solicitor on 9 June 2017. Dr Entwisle had previously diagnosed the plaintiff as suffering from a Chronic Pain Syndrome.[78] When Mr Mashayekh was examined in 2017, he noted the prior history of prostate cancer and also raised CPK levels apparently causing joint and muscle pains. Dr Entwisle stated:
“On questioning Mr Mashayekh confirmed this, stating that as far as he was concerned, his accident related injuries had largely settled only to discover the more recent issues involving his prostate which were currently the source of focus for him and his family, adding that more recently he had been referred to a Psychologist in regard to these problems and was talking to the Psychologist about his recent prostatic cancer issues and his sense that the development of that condition had ‘wrecked everything’.”[79]
[77]Exhibit 1, p.138-148
[78]Exhibit 1, p.144
[79]Exhibit 1, p.145
47 Dr Entwisle’s opinion on this occasion included the following statement:
“His current mood difficulties relate to his concerns over his non-accident related medical health issues as detailed (prostate cancer recurrence, rising PSA levels) with symptoms of pain and abdominal discomfort being related to those health issues rather than any accident-related symptoms.”[80]
[80]Exhibit 1, p.147-148
48 Dr Entwisle did not regard any psychiatric condition as preventing the plaintiff from returning to work.
Analysis
49 I am satisfied that the plaintiff suffered injury to a pre-existing degenerate spine as a result of the transport accident in 2009. I also accept that he developed a psychological or psychiatric sequelae to those physical injuries prior to any knowledge or diagnosis of other medical conditions.
50 I accept as a matter of probability that the plaintiff did suffer earlier symptoms affecting his back and probably his neck between 2006 and 2008. Those symptoms at that time were of sufficient severity to warrant medical investigation and to encourage the plaintiff to consider making application for a disability pension in 2007.
51 I am also prepared to accept on the basis of the plaintiff’s demonstrated capacity to work in full time employment up until the date of the transport accident that the symptomatology experienced between 2006 and 2008 had ameliorated at least to some extent.
52 Nevertheless, any application for leave in accordance with s93 of the Act should properly be viewed in terms of an aggravation injury and an assessment be made in accordance with the provisions of Petkovski v Galletti.[81]I also take into account the more recent decision of the Court of Appeal in AG Staff Pty Ltd v Filipowicz.[82]
[81][1994] 1 VR 436
[82][2012] VSCA 60, 34 VR 309
53 It is not permissible to make an overall assessment of the plaintiff’s current consequences in order to make an assessment of his entitlement for leave. The correct approach is to make an assessment based upon the injuries attributable to the transport accident and ascertain whether the plaintiff has proved sufficient consequences flowing from those injuries to entitle a grant of leave.
54 In a careful and thorough analysis, Mr Lewis QC set out a number of authorities relevant to the assessment which the Court needs to make.[83]
[83]Peak Engineering & Anor v McKenzie [2014] VSCA 67; Poholke v Goldacres Trading Pty Ltd [2016] VSCA 232 and Meadows v Lichmore Pty Ltd [2013] VSCA 201
55 These authorities were relevant to what was described in the defendant’s closing address as an inaccurate history of earlier spinal problems particularly evident from the clinical records of the plaintiff’s general practitioner, Dr Monk. The defendant also submitted that the plaintiff was not a reliable historian and had underplayed the extent of earlier back injuries.
56 The defendant was also critical of the inaccurate medical histories provided in particular to Dr Hofland, Mr Turner, Associate Professor Doig and Professor Stark.
57 Mr Lewis urged me to accept in preference the medical opinion of Professor Boys which was said to be a more complete history than that reported by others and logically concluded that the transport accident resulted only in a temporary aggravation of symptoms and the current level of restrictions was reflective of degenerative changes which would have occurred in any event.
58 The defendant’s submissions also focussed on the plaintiff’s diagnosis and treatment of prostate cancer. Criticism was levelled at the plaintiff’s claim that his sleep had been impacted following the transport accident without reference to the earlier diagnosis of prostatitis causing nocturia as early as 2003. Mr Lewis QC made reference to an early post-accident report from Dr Jeanet Hofland in May 2009 where she noted:
“He continues to have nocturia, up to six times, interrupting sleep.”[84]
[84]Exhibit 1, p.124
59 In summary, the defendant urged me to reject the plaintiff as a reliable witness and submitted that the consequences of the transport accident were in all probability of a temporary nature and needed to be disentangled from the multiple co-existing health issues suffered by the plaintiff.
60 Mr Purcell, on behalf of the plaintiff, also provided a thorough and forceful submission in support of his client’s application. He emphasised the plaintiff’s ongoing pain and need for ongoing painkillers, in addition to the apparent incapacity for heavy work, flowing from the spinal injury. It was accepted that the authority in Haden Engineering Pty Ltd v McKinnon[85] was appropriate for an assessment of the actual pain and suffering consequences flowing from the spinal injury. Whilst conceding that the plaintiff’s credit was relevant to such an assessment, Mr Purcell emphasised the ongoing treatment provided by Dr Monk, and contrasted the plaintiff’s present situation with the earlier complaints of back pain in the period between 2006 and 2008, which, he submitted, could reasonably be assumed to be related to a medical condition rather than any orthopaedic injury.
[85](2010) 31 VR 1
61 Whilst it was conceded that there were variances between Mr Mashayekh’s affidavit material and the evidence given in cross-examination, Mr Purcell argued there was nevertheless objective evidence which would entitle the plaintiff to a grant of leave.
62 It was submitted that an examination of the clinical records revealed that for a period approaching two years pre-dating the transport accident, the plaintiff had been at work with his son and earning in the range of $70,000, which should be regarded as objective proof that the plaintiff was not suffering significant spinal problems in the period immediately preceding the transport accident.
63 In so far as the plaintiff’s prostate cancer was concerned, Mr Purcell submitted that the medical evidence supported a conclusion that the condition had been treated appropriately by surgery and ongoing further monitoring. He further submitted that, in any event, the use of medication and the limitations flowing from the plaintiff’s spinal condition could easily be disentangled from any symptoms related to the prostate condition.
64 The plaintiff’s application based upon spinal impairment needs to be assessed on the basis of an aggravation injury in accordance with Petkovski v Galletti. It is immaterial whether the symptomatology reported to medical practitioners in the period 2006 to 2008 arose by way of symptomatic spinal degeneration or some other medical condition. The fact is the plaintiff was having symptoms in that period which undoubtedly impacted upon his enjoyment of life and probably his ability to work. Although there is no clear evidence that he actually received a pension, I am satisfied that he at least considered applying for a disability pension at that time, which indicated that his capacity for unrestricted work was then affected. Nevertheless, for a period approaching two years prior to the transport accident the plaintiff was engaged in full-time employment and was earning income in the order of $70,000 per annum.
65 I accept that but for the occurrence of the transport accident the plaintiff would have continued this employment on an indefinite basis into the future. Undoubtedly there would have been some interference with his employability when he was undergoing active treatment for prostate cancer in 2013.
66 I also accept that the initial treatment for the plaintiff’s spinal injury, under the care in particular of Dr Hofland, involved the prescription of opiate-based painkillers indicative of a relatively high level of actual pain.
67 I am also satisfied that the clinical notes from the plaintiff’s long-term general practitioner, Dr Monk, disclose the ongoing prescription of strong painkillers, particularly Endone and Mersyndol Forte, from the date of the accident in 2009 up until at least 27 April 2012, being the period covered by the clinical notes.[86] It is also apparent that the current general practitioner, Dr Avval, has continued to provide these painkilling medications at least up until the date of his report in February 2017.[87]
[86]Exhibit 1, p.114-118
[87]Exhibit A, p.45
68 Whilst I have some reservations about the accuracy of the plaintiff as a historian, I am satisfied that the prescription of strong painkilling medication by Dr Hofland initially, and subsequently by the two treating general practitioners, supports a conclusion that his actual level of pain and suffering from the spinal injury is a major issue for the plaintiff on a daily basis.
69 I do not accept that this is a case where the plaintiff can attribute his sleeping difficulties to the consequences of pain from the spinal injury. It is clear to me that he has suffered from urinary problems for many years pre-dating the transport accident, presumably as a result of his worsening prostate condition. I accept the defendant’s submissions that the frequency of nocturnal urination would in any event have impacted on the plaintiff’s ability to sleep.
70 It is also clear that the diagnosis, surgical treatment, and ongoing management of an underlying prostate cancer condition must necessarily result in anxiety and probably more general emotional and psychological problems. Although the authority in Richards v Wylie enables the psychological sequelae of an organic injury to be taken into account in applications of this type, I do not believe the evidence here satisfies me that those non-organic features were prominent prior to the diagnosis of the prostate cancer condition.
71 Nevertheless, I am prepared to accept that the plaintiff’s inability to work has caused, in particular, stress and anxiety about his future security, and I am assisted in this regard by the affidavit sworn by his wife.[88] I am also satisfied that the impact of the spinal injury and the ongoing pain has been of greater degree to the plaintiff, given that his wife has suffered the long-term medical condition of scleroderma, which impacts on her ability to attend to domestic household activity.
[88]Exhibit A, p.21-23
72 I am therefore able to conclude that by reason of the transport accident the plaintiff suffered a spinal condition which has required ongoing treatment by way of strong painkilling medication, impacting on the plaintiff’s daily enjoyment of life and his ability to continue in employment.
73 I am not satisfied that the spinal injury could be regarded reasonably as a temporary aggravation. The ongoing prescription of painkilling medication over the years militates against a conclusion such as that reached by Professor Boys.
74 When a qualitative evaluation of the impact of the plaintiff’s spinal injury is made, I take into account in particular his relatively high level of earnings and the medical condition suffered by his wife, which places necessarily a higher burden on the plaintiff in relation to domestic activities. I am also satisfied that the condition and its consequences can be reasonably described as long-term. The special circumstances of the plaintiff, to which I have previously referred, satisfy me that the consequences of the transport accident in terms of the spinal injury can fairly be described as at least very considerable and more than significant or marked.
Conclusion
75 I am satisfied that the plaintiff has proved an entitlement for leave to be granted. I propose to grant leave in accordance of the provisions of s93(4)(d) of the Act.
76 I will hear the parties in relation to the formal orders sought and on the question of costs.
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