Mehri v Transport Accident Commission
[2017] VCC 851
•27 June 2017
She was a that you break the we are the regular
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-05080
| Ali Jan Mehri | Plaintiff |
| v Transport Accident Commission | |
| Defendant |
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JUDGE: | SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 and 19 June 2017 | |
DATE OF JUDGMENT: | 27 June 2017 | |
CASE MAY BE CITED AS: | Mehri v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 851 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT COMPENSATION
Catchwords: Serious Injury Application - aggravation and acceleration of underlying cervical and lumbar spondylosis
Legislation Cited: Transport Accident Act 1986
Cases Cited: Richards v Wylie (2000) 1 VR 79.
Sentence: Leave to commence Common Law proceedings allowed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Griffin and Ms F Ryan | Zaparas Lawyers |
| For the Defendant | Ms A Magee QC and Ms D Manova | Transport Accident Commission |
HIS HONOUR:
1 In this application leave is sought to commence a proceeding claiming damages pursuant to section 93 of the Transport Accident Act (“the Act”) in respect of injuries suffered by the plaintiff in a transport accident which occurred on 19 January 2015.
2 The injury involves an aggravation and acceleration of underlying cervical and lumbar spondylosis. The relevant impairment of function is that of the spine.
3 In the application the plaintiff relies upon two affidavits sworn by him on 3 August 2016 and 6 June 2017, and an affidavit sworn by his wife on 6 June 2017.
4 In addition:
(i) the plaintiff gave viva voce evidence consisting primarily of cross examination; and
(ii) the parties rely upon medical reports, records and other sundry documents which they have tendered.
5 The evidence given in the application by way of affidavit, medical reports, tended documents or cross examination is a matter of record. No point is served by my repeating the content of that material in detail and I do not propose to do so unless it becomes necessary for the purpose of disclosing my path of reasoning in making my findings in this instance.
6 No issue arises as to whether the plaintiff is a truthful witness. It was put on behalf of the defendant that the plaintiff, by reason of his poor memory, is an unreliable historian both as to:
· the symptoms with which he presented in his spine both prior to and following the transport accident; and
· his capacity.
7 Whilst I accept the potential for the plaintiff’s poor memory affecting his reliability, in reality the issues identified by the defendant in the course of cross examination in so far as they relate to the level of the plaintiff’s pre-transport accident injuries and level of activity are well documented by the records of the plaintiff’s treating general practitioner which in turn tend to corroborate the plaintiff’s evidence. In so far as they do so the position taken by the defendant largely falls away. That is not to say, however, that the point is without merit that I should not carefully analyse those aspects the plaintiff’s evidence which may be affected by his memory before making my findings in this instance.
8 In the present proceeding there is no issue that in assessing whether the consequences of the transport accident are serious within the meaning of that term as employed by the provisions of the Act, I am required to:
(i) make findings as to the incapacity with which the plaintiff presented immediately prior to the transport accident;
(ii) assess the difference in the plaintiff’s incapacity as at the present date when compared with the incapacity with which he presented immediately prior to the transport accident; and
(iii) determine whether the effect of the transport accident has been such as to increase the incapacity from which the plaintiff suffers, such that that increase in incapacity is “serious” within the mean of the Act.
9 Further, the defendant raises the issue as to whether or not the plaintiff’s symptoms are sponsored by a psychiatric condition and contends that the effect of that condition must be disentangled in order to make findings as to the severity of the nature of any organically based symptoms which the plaintiff presents in his spine.
10 It is appropriate that I record that my impression of the plaintiff as he gave his evidence was that he was a witness of truth who was not prone to deliberate exaggeration. That impression was consistent with the opinions expressed by each of the medical practitioners, whether they be treating or consulting doctors, who have opined in this instance, none of whom took issue with the plaintiff’s truthfulness or for that matter his reliability.
11 As to the viva voce evidence given by the plaintiff it is clear that the plaintiff suffers from memory problems.
12 He has made that complaint to his treating doctor and has been referred for specialist assessment as to that condition.
13 In the circumstances it is not surprising in my view that the plaintiff often answered historically based questions non-responsively by commenting that he could not remember.
14 At no time however did I take the view that the plaintiff was being deliberately evasive, given his manner which was always polite and respectful. Equally there were instances in which the plaintiff made various concessions as to activity which if undertaken which might be regarded as being marginally against his interest.
15 There is no issue that the plaintiff presents with symptoms of anxiety and depression as diagnosed by his treating doctor and admitted by the plaintiff in his affidavit evidence.
16 Given the plaintiff’s emotional state when considered in the context of the absence of any formal education and the difficulty for him in answering questions in the unusual and relatively emotionally charged atmosphere of a courtroom, the plaintiff struck me as being an honest, sensible witness who did his best to answer questions truthfully and reliability.
17 It is appropriate that I deal at this stage with an issue which arises as to the evidence which the plaintiff gave during the hearing as to the frequency with which he was in the habit of playing volleyball immediately prior to the transport accident.
18 It was put to the plaintiff that his evidence that he played sport virtually every day unless his symptoms of back pain were such that they precluded that activity was an exaggeration in that it was inconsistent with his affidavit evidence.
19 As to this issue whilst there is an apparent inconsistency between the plaintiff’s affidavit evidence and the evidence given by him in cross examination I am satisfied:
(i) that volleyball is a game which the Afghan community is particularly drawn to; and
(ii) that the evidence establishes that the plaintiff was an active participant in sporting activities in the years prior to his transport accident. In that respect I note that the plaintiff’s medical records in:
· April 2013 recorded the fact that the plaintiff exercised by walking one hour seven days a week and by cycling for 30 to 40 minutes seven days a week;
· July 2013 recorded the plaintiff is exercising at the same level as previously documented;
· September 2013 recorded the plaintiff as walking 60 minutes and cycling 60 Minutes ; and
· March 2014 recorded the plaintiff as walking daily and playing volleyball for 2.5 hours daily and cycling sometimes.
20 The vehemence with which the plaintiff maintained his position that he was regularly playing volleyball immediately prior to the transport accident was such that it caused me to find the plaintiffs evidence as to that issue to be persuasive. It is even more so when it is considered in the context of his sporting history as documented in his medical records.
21 For those reasons I accept his evidence on this issue.
22 Even were I mistaken in that approach, the combination of the plaintiff’s affidavit evidence, when seen in the context of the medical entries to which I have referred, convinces me that:
· the plaintiff was in the habit prior to the accident of engaging in unusually significant levels of activity of a sporting nature;
· activity of such nature must have been important to the plaintiff given the frequency with which the plaintiff engaged in sporting activity and the hours which the plaintiff allocated to that pastime; and
· the loss to the plaintiff of those activities, which the evidence satisfies most probably arose by reason of the transport accident, represents a significant loss to the plaintiff in so far as his enjoyment of life is concerned.
The evidence as to the organic impact of injury suffered by the plaintiff to his spine in the transport accident
23 In his report dated 7 April 2017 Mr Michael Dooley, an orthopaedic surgeon, provides what is in my opinion a good description of the injury suffered by the plaintiff in the transport accident which accords generally with the medical evidence in the case, namely:
“I believe that the mechanism of the motor vehicle accident is consistent with Mr Mehri sustaining soft tissue injuries to the cervical and lumbar spine regions as outlined above. I believe that these injuries have involved some musculoligamentous damage and some aggravation of naturally occurring age related degenerative disc disease of the spine.”
24 While Mr Dooley expressed the opinion that the plaintiff would, from an orthopaedic point of view, struggle to carry out regular heavy physical work (thus in my opinion accepting that the plaintiff was precluded from working as a butcher) he opined nevertheless that the extent of symptoms of which the plaintiff complained suggested that a psychological reaction was influencing his current presentation.
25 These statements by Mr Dooley in my opinion represent the high point for the argument put by the defendant as to the influence which a psychological reaction has upon the plaintiff’s current presentation.
26 Dr Quasim Hamimi has for many years been responsible for the plaintiff’s primary management as a general practitioner. In two reports dated, 20 March 2016 and 15 June 2017, Dr Hamimi:
· diagnosed the plaintiff as presenting with chronic lower back and neck pain together with anxiety and depression; and
· opined that:
(i) the plaintiff’s back pain had persisted since his motor vehicle accident, which rendered him incapable of employment until there was some improvement in his symptoms if his work involved bending and lifting;
(ii) the quality of the plaintiff’s life had diminished due to the injury sustained in the transport accident; and
(iii) the plaintiff’s prognosis is uncertain due to the chronicity of his condition and his failure to respond to therapy
27 In his initial report Dr Hamimi commented that the plaintiff had:
“ been suffering from chronic back pain and neck pain as a result of MVA, Mr Mehri also has been suffering from depression anxiety irritability and stress which exacerbated after MVA.”
He continued
“ Mr Mehri (sic) injury have continued to cause him constant pain stress and tiredness he has been unable to sleep at night need medication to help him relax and sleep”
28 He made similar comments in his second report.
29 In his second report Dr Hamini observed:
“Based on my observation of Mr Mehri and using the diagnostic and statistical manual disorders. In my opinion he is suffering from chronic pain disorder associated with depressive and anxiety he need a lot of psychological support and I recommended counselling(sic)”
30 The defendant points to this statement as involving the expression of an opinion that the plaintiff’s presentation with a chronic pain disorder involves a disorder which has a psychological and not a physical basis.
31 There can be no issue that the phrase “chronic pain disorder” is employed by some medical practitioners to describe the presence of emotionally based symptoms, and by others to refer to the physical process of pain sensitisation.
32 Whilst it may be argued that the meaning of the words employed by Dr Hamimi are unclear in that they could equally:
(i) refer to a physical condition the presence of which made the plaintiff depressed and anxious; or
(ii) refer to the presence of an emotionally based condition which made the plaintiff depressed and anxious;
in my opinion when the words are considered in the full context of Dr Hamini’s report they are being employed by Dr Hamimi to refer to the former position and not the latter.
33 In October 2015 Dr Hamimi had referred the plaintiff to Dr Barry Rawicki, a specialist in neurology and spinal cord and pain. At that time Dr Rawicki reports that the plaintiff presented with chronic back, neck and right hip pain since the transport accident, which was getting worse.
34 Dr Rawicki commented that the plaintiff presented with negative signs for non-organic pain and whilst recommending that the plaintiff be referred to attend a coordinated outpatient rehabilitation program commented that there was nothing available of that type in the Dandenong area and suggested the plaintiff be referred for treatment by physiotherapist.
35 In a further report dated 10 February 2016, Dr Rawicki commented that the plaintiff did not present with “a lot in the way of non-organic signs and I think that his pain is likely mostly musculoskeletal or muscular and ligamentous in nature”.
36 I am satisfied that in each of his reports Dr Rawicki was expressing the opinion that the plaintiff presented with ongoing back and neck pain which made his life difficult, the cause of which was organic in origin, and that his area of practice was such that he was in an authoritative position to do so.
37 In February 2016 the plaintiff was referred by Dr Rawicki to the St John of God Hospital for further treatment and assessment. In three reports dated 23 February 2016, 19 July 2016 and 5 December 2016 Dr B Shirazi comments upon the plaintiff’s progress whilst a patient at the hospital and notes that at the time of his discharge the plaintiff was employing treatment in the form of Celebrex, Tramal, Lyrica and infrequent use of Mersyndal and Norspan depending on the severity of his pain.
38 It is not suggested by Dr Shirazi that the plaintiff was presenting with anything other than an organic condition and the medication prescribed for his use to which I referred above is inconsistent with what would be expected in the management of a condition which was not organic in nature.
39 Mr Charles Flanc, a vascular and general surgeon, has reported as to the plaintiff’s presentation on two occasions, namely May and August 2016, at which time he had been provided with the full history of the plaintiff’s presentation to his general practitioner.
40 In his first report Mr Flanc diagnosed the plaintiff as presenting with an aggravation of a pre-existing degenerative condition in his cervical and lumbar spines and opined that a significant component of the plaintiff’s pain was caused by the aggravation by the transport accident upon the pre-existing degenerative condition in his spine. At the same time he commented that the plaintiff’s symptoms were probably also being influenced by non-organic factors.
41 Mr Flanc described the plaintiff as presenting with a chronic pain syndrome which given his description was clearly organic in nature and opined that the plaintiff was unfit for any work involving physical activity which included heavy lifting, bending, twisting or climbing. I am satisfied that the latter opinion was given taking into account the organic effects of the plaintiff’s injury upon him.
42 Mr T Kossmann, an orthopaedic surgeon opined as at March 2017 that:
· the plaintiff presented with an aggravation of pre-existing degenerative changes in his cervical and lumbar spines;
· there was a direct relationship between the transport accident, his diagnosed injuries and his present condition that the plaintiff’s prognosis was poor; and
· he would require further treatment with pain management, anti-inflammatories, physiotherapy, hydrotherapy and possibly acupuncture.
43 It is clear from the content of this report that Mr Kossmann was of the view that the plaintiff presented with organically sponsored pain.
44 In March 2017 Prof Richard Bittar, a neurosurgeon, opined that the plaintiff presented with an aggravation of lumbar and cervical spondylosis and on examination noted the presence of a muscle spasm in the plaintiff’s lumbar spine. Prof Bittar opined that the transport accident had been a significant contributing factor to his cervical and lumbar conditions and remained so. He recommended the plaintiff should be reviewed by a qualified pain specialist and opined that the plaintiff’s condition was substantially stable.
45 In opining that the plaintiff’s neck and lower back injuries were likely to continue to impact detrimentally upon his quality-of-life and lifestyle indefinitely, Prof Bittar was clearly of the opinion that the plaintiff presented with organically sponsored pain.
46 In putting the position that a component of the plaintiff’s presentation involves the impact of a psychologically based pain disorder, the defendant relies primarily upon the opinion of Dr Paul Kornan, a psychiatrist.
47 In opining to that effect Dr Kornan relied upon the following diagnostic criteria for his diagnosis namely:
“psychological factors are judged to have the major role in the onset, severity, exacerbation, or maintenance of pain. (If a general medical condition is present, it does not have a major role in the onset severity exacerbation or maintenance of the pain)”.
48 It is clear from the above definition that the basis upon which a pain disorder with psychological factors is based involves the absence of a medical condition which appropriately accounts for the onset, severity, exacerbation or maintenance of, in this instance, the pain reported by the plaintiff as emanating from his spine.
49 Given that Dr Kornan expressed the above opinion largely in the absence of access to the body of medical opinion which directly assesses the nature of the plaintiff’s transport accident related physical injuries and their influence in the plaintiff’s current presentation to which I have referred to above[1], I am satisfied that the opinion should be accorded no weight upon the issue as to whether the plaintiff presents with symptoms which are organic or psychological in origin.
[1]See the extremely limited medical evidence as to the organic condition with which the plaintiff presents which was made available to Dr Kornan at PCB 94.
50 Whilst Mr Dooley expresses an opinion which supports the diagnosis by Dr Kornan, in my opinion Mr Dooley is largely a lone voice in this regard.
51 In my view, given both the authority and weight of the medical opinion to which I have referred which supports the position that the plaintiff’s symptoms:
· were initially caused by the organic injury sustained in the transport accident; and
· continued to be so caused.
an overwhelming case exists in support of the proposition that the plaintiff presents with a primarily organic condition and that any emotional condition with which the plaintiff presents is secondary to, and caused by, the disability associated with his physical condition.
52 It follows, given this finding, that I am satisfied that the opinion expressed by Dr Hamimi as to the plaintiff’s mental state being a factor in his ability to return to work[2] may be taken into account as a consequence of the plaintiff’s physical injury in accordance with the decision of the Court of appeal in Richards v Wylie.[3]
The responsibility for the transport accident in the cause of the plaintiff’s current symptomology and disability.
[2]Plaintiffs Court Book for 47.11
[3]Richards v Wylie (2000) 1 VR 79
53 Whilst the plaintiff had presented on a number of occasions prior to the transport accident with symptoms of cervical spine pain I am satisfied, having regard to the sporadic nature of those attendances and the treatment instigated in management of that condition, which in my opinion is consistent with that required by an association with mild musculo-ligamentous strains which resolve with minimal treatment or spontaneously, that I should assess the plaintiff as at the time of the transport accident as presenting with a largely asymptomatic condition in his cervical spine.
54 As to the plaintiff’s lumbar spine it is clear that the plaintiff had consulted his general practitioner with symptoms of pain in his lumbar spine with the regularity set out in the agreed log which has been helpfully provided to me by the parties.
55 Equally there is no evidence to suggest that at the time of the transport accident the plaintiff was suffering from any significant symptoms of lumbar pain.
56 Ms Yasmine Arslan is a physiotherapist who treated the plaintiff in respect of his back complaint both before and after the transport accident. Given her position in that respect I am satisfied that she is well placed, if not best placed, to comment upon the influence of the transport accident upon the condition of the plaintiff’s lumbar spine.
57 In her report dated 30 May 2016 Ms Arslan opined:
“As stated previously I had seenAli Jan for the management of his lumbar spine condition in 2014, where he was referred under the Medicare program for five sessions. Following the 5th session[4] he reported that he was pain free. He sustained the MVA accident on 18/1/ 2015 and as a result of the accident sustained injuries to his lumbar spine and survival spine. From 2014 to the time of the accident he reports that he was pain free. However following the accident he reported significant pain in the lumbar spine and survival spine and over the last 1 ½ years his condition has not returned to preaccident level.”
[4]Ms Arslan is here referring to the session of 9 October 2014
Ms Arslan continued:
“In my opinion the MVA that he was involved in on 18 January 2015 further aggravated his lumbar spine condition due to the force of the accident this has most likely further aggravated the disk and cause more irritation around the nerve hence this is caused increased level of pains and affected his recovery. When I last saw Ali Jan in March 2016 who reported significant lumbar spine pain with referral into the right lower limb and also survival pain with referral into the left upper limb. Overall there was no real improvement in his condition following the MVA”
58 Taking into account the plaintiff’s history of presenting with symptoms of lumbar pain which appeared to resolve with treatment, I am satisfied that I should assess the pre-transport accident condition of the plaintiff’s lumbar spine as involving an underlying condition which was prone to exacerbation and which, absent the transport accident, would most probably have continued to affect the plaintiff as it had in the past, namely such that it:
· did not impact upon the plaintiff’s significant level of sport type activity or life generally but did so when the condition was exacerbated, at which time those activities were precluded to some extent; and
· was not such that it involved chronic long-term symptoms of the type with which the plaintiff now presents.
59 In making that statement I do so on the basis:
· that between September 2011 and September 2014 the plaintiff attended his general practitioner for treatment of back pain three or four times each calendar year;
· of the evidence of Ms Arslan to which I have referred; and
· of those aspects of the affidavit evidence of both the plaintiff and his wife relevant to the issue which were not the subject of challenge.
Analysis of other issues raised on behalf of the defendant.
60 It is put on behalf the defendant that an adverse inference should be drawn as to the relevance of the organic condition with which the plaintiff presents in the cause of his symptomology by reason of the failure by the plaintiff to adduce medical evidence from Dr Kianmer to whom the plaintiff was referred in December 2016.
61 Given:
· that the cornerstone for the defendant’s position that the plaintiff presents with a pain syndrome which is caused by psychological factors involves the evidence of Dr Kornan which I have discounted for the reasons to which I’ve previously referred; and
· the quantity and diversity in area of practice of the medical practitioners who have opined in this instance, the dates of their respective opinions and the nature of the opinions expressed;
I am not satisfied that it is appropriate to draw any adverse inference in this instance.
62 It is put on behalf of the defendant that the absence of radiological change in the plaintiff’s lumbar and cervical spine in some way attests to the significance of the plaintiff’s symptoms or their longevity. Given the medical opinions expressed in this instance to which I have referred and the absence of any medical comment in support for the position contended for on behalf of the defendant, I find that position to lack persuasion.
63 In closing submissions Senior Counsel for the defendant made diametrically opposed statements as to the stability of the plaintiff’s condition, contending on the one hand that no issue was taken by the defendant as to that point and immediately thereafter pressing the same point. Given the totality of evidence in the matter it is clear that the assertion that the plaintiff’s condition is not stable has no substance.
64 It is put that Mr Bittar’s opinion was expressed in the absence of access to the full medical history as to the pre-existing condition of the plaintiff lumbar spine, and for that reason should be accorded little weight.
65 Given the content of the report by Mr Bittar which refers to statements made by a number of other doctors which suggests that Mr Bittar had access to their reports, I requested in the course of preparing this judgement that I be provided with the briefing letter to Mr Bittar.
66 It is clear from that letter that Mr Bittar had access to the medical records and opinions provided to Mr Kossman whose capacity to report authoritatively was never questioned. It follows that the position taken on behalf of the defendant has no substance. Further I find it surprising that the point was taken in the absence of such a call being made by the defendant.
67 An issue arises as to whether I should be satisfied that the consequences of the transport accident have been such as to impact upon the plaintiff’s memory. Given the relative lack of medical evidence to establish a causal link between the transport accident and that condition I propose to exclude that complaint in considering the consequences to the plaintiff of the transport accident.
Findings and conclusions
68 I am satisfied that the transport accident has been responsible for the following conditions described by the plaintiff in his affidavits;
· Constant and ongoing back pain, and to a lesser extent neck pain, which largely restrict his ability to engage in any form of physical activity in the manner described in his affidavits and which cause him to employ medication as described therein in the attempt to deal with his symptoms;
· An interference with his ability to sleep such that his sleep pattern generally involves broken sleep which causes him to feel tired during the day;
· An inability to stand or sit for long periods as demonstrated by the plaintiff in the course of his evidence;
· The loss of the ability to engage in any form of robust physical activity with his children or around his house and garden;
· The loss of the ability to engage in the exercise and sport which was a day-to-day feature of his life and assumed the importance to which I previously referred;
· The destruction of the plaintiff’s capacity to engage in work involving manual labour which, having regard to his age, education and work history was likely to be the only work which the plaintiff may have been able to find in Australia. Whilst this in reality involves only a potential loss having regard to the fact that the plaintiff had not worked since arriving in Australia it is nonetheless in my opinion one which is significant;
· The anxiety and depression referred to by Dr Hamimi which I am satisfied are associated with the pain and restriction to activity caused by the plaintiff’s organic injury.
69 In effect I am satisfied that the transport accident has been such as to change the plaintiff from being an active man capable of engaging on a day-to-day basis in the normal activities of life without considerable restriction, to a man whose life has lost momentum and direction and is plagued by the presence of chronic pain significant enough to substantially restrict him in his day-to-day life.
70 For the reasons set out above, I am satisfied that the consequences of the plaintiff’s transport accident related symptoms upon his life are such that:
· it is appropriate to describe the consequences of the plaintiff’s resultant impairment as being “more than significant or marked” and as being “at least very considerable” when judged by a comparison with other cases in the range of possible impairments; and accordingly
· they satisfy the definition of “serious injury” as employed by s93 of the Transport Accident Act 1986.
71 In the circumstances I am satisfied that the plaintiff is entitled to the leave which he seeks in this proceeding, and I will hear the parties as to the order which I should make in the proceeding and also upon the issue of costs.
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