Monterosso v Transport Accident Commission

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-21-01943

MARIO ANGELO MONTEROSSO	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE TSALAMANDRIS
WHERE HELD:	Melbourne
DATE OF HEARING:	3 December 2021
DATE OF JUDGMENT:	11 February 2022
CASE MAY BE CITED AS:	Monterosso v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2022] VCC 35

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – injury and/or aggravation to the cervical spine, left shoulder, left wrist, right wrist, right shoulder, Post-Traumatic Stress Disorder and Major Depression – sub-paragraphs (a) and (c) of the definition of “serious injury” – permanent serious impairment or loss of a body function – severe long-term behavioural disturbance or disorder
Legislation Cited: Transport Accident Act 1986, s93(17)
Judgment:Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Blanden QC with Mr E Makowski	Henry Carus + Associates
For the Defendant	Mr S Smith QC with Ms L Burke	Lander & Rogers

HER HONOUR:

1On 13 January 2016, Mr Monterosso was asleep in his bed, when he was woken by his wife, who was concerned about noises coming from outside their house. Mr Monterosso went outside to find that his boat had been attached to another vehicle and was in the process of being stolen. Mr Monterosso attempted to open the rear passenger-side door of the offending car, and as he did so, the vehicle moved and struck him on his right thigh and hip (“the transport accident”). There are varying accounts as to how Mr Monterosso was thrown to the ground, and which of his body parts were injured in the fall.
2Mr Monterosso claims that as a consequence of the transport accident, he suffered injuries to his cervical spine, left shoulder and arm, as well as Major Depression and Post-Traumatic Stress Disorder (“PTSD”). In order for Mr Monterosso to be entitled to claim common law damages, he must satisfy me that he suffered such injuries in the transport accident, that such injuries are long term and if so satisfied, that the impairment from these injuries to either his spine or left arm satisfies sub-paragraph (a) of the definition of “serious injury” contained in s93(17) of the Transport Accident Act 1986 (“the Act”). In the alternative, he must satisfy me that the psychiatric injury arising from the transport accident satisfies the definition in sub-paragraph (c).
3Prior to the transport accident, Mr Monterosso had suffered from a number of injuries including to his spine, both shoulders, left elbow and wrist, right ankle, and according to his medical records, had previously been diagnosed as suffering depression and PTSD.
4The Transport Accident Commission defended this claim primarily on the basis that Mr Monterosso was not a credible witness. It submitted that Mr Monterosso’s account of his pre-accident health, the circumstances of the transport accident, and his account of pain in the period thereafter, was so unreliable that I could not be satisfied that he suffered any long-term injuries in this accident, and in the alternative, that any consequences arising from any permanent aggravation of his pre-existing impairments, could not be described as “at least very considerable”.
5Only Mr Monterosso was called to give evidence, and he was cross-examined. Also in evidence were medical reports, clinical records[1] and other material. I have read these tendered documents, together with the transcript of the proceedings. I will not refer to all of that material in the course of this judgment, but rather to those aspects of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my judgment.
[1]Tendered records included extracts of Dr Alex Wynd covering 19 February 2021 to 28 May 2021; Dr Anupam Pokharel covering 2 February 2018 until 4 November 2019 and 23 August 2019 to 28 October 2019; Dr Babak Farr covering 8 November 2017 to 26 June 2018; Dr Christopher Pullen covering 10 February 2017 to 25 July 2017; Dr Gabriel Goh dated 12 December 2016; Dr Heidi McAlpine dated 19 May 2017; Dr Joel Ye covering 28 February 2017 to 4 April 2017; Dr Neels du Toit covering 17 January 2020 to 26 February 2020; Dr Sajee Fernando dated 22 August 2017; Dr Shalini Wickramasinghe covering 23 February 2018 to 20 February 2021; Dr Yvonne Pun covering 8 November 2019 to 20 April 2021; Eastern Health covering 8 April 2011 to 12 February 2014 and 28 April 2020; Mr Richard Dallalana dated 1 June 2020; St Vincent’s Hospital clinical records from 18 October 2013 to 1 December 2014; the Forest Hill Family Clinic covering 5 January 2017 to 15 January 2021 and the Forest Hill Medical & Dental Centre covering 20 July 2007 until 28 April 2020

Mr Monterosso’s life prior to the transport accident
6Mr Monterosso was a poor and unreliable historian. Accordingly, it was difficult to obtain an accurate account as to his life prior to the transport accident. The following is a summary, prepared as best as is possible, from the evidence before me.
7Mr Monterosso was born in Gippsland in 1954 and attended school until Year 11. Mr Monterosso deposed that when he was about eight years old, he was involved in an accident in which he was hit by a car, whilst riding a bicycle. Mr Monterosso stated that in that accident, he suffered a number of fractures and was in a coma at the Royal Children’s Hospital for about six months.
8After leaving school, Mr Monterosso completed a glazier apprenticeship and worked as a tradesman and manager at different glazing companies. When he was twenty-five years old, Mr Monterosso became a self-employed glazier and ran his glazing business for around thirty years.
9Mr Monterosso has been married twice, with his first marriage ending some time between 2001 and 2006. He has four children from his first marriage.
2004
10On 4 February 2004, Mr Monterosso had a CT scan of his neck at the Accident and Emergency Department of the Angliss Hospital in Ferntree Gully, which reported the following:
“A mild curve is present convex to the left with the alignment on the lateral being satisfactory. Anterior to the inferior half of the body of C5 there is a triangular calcific opacity which may represent an avulsed osteophyte arising from the antero-inferior aspect of the vertebral body. The disc space heights are well maintained. The central canals are of satisfactory calibre. The facet joints demonstrate satisfactory alignment. The neural exit canals are of satisfactory calibre and there is no evidence of a cervical rib.”
11When asked about the reasons for needing a CT scan of his neck at this time, Mr Monterosso said that he could not recall why he had a CT scan done, could not recall having neck pain and could not recall being told of the results of the scan.
2005
12On 1 September 2005, Mr Monterosso fell on his left elbow while on a scaffold and was referred for an x-ray. The left elbow x-ray was reported as demonstrating degenerative changes in the left elbow joint, and a small corticated bony fragment. When cross-examined about this x-ray, Mr Monterosso said he could not recall the results, although accepted their accuracy. He said that if there had been an issue with his left elbow, it subsequently resolved.
13Also, in 2005, Mr Monterosso deposed that he and his wife were assaulted at the Metung Hotel. He said he suffered a fractured sternum, fractured skull and a broken nose and was incapacitated for work for about twelve months.
2006
14In approximately 2006, Mr Monterosso’s neighbour intervened in what was considered a suicide attempt after Mr Monterosso had placed a rope over a rafter in his garage. The reference to this attempted suicide was contained in subsequent records of the Maroondah Hospital in 2011. When this history was put to Mr Monterosso in cross-examination, he expressly denied it had been a suicide attempt and that “it’s a load of rubbish”.
2007
15In 2007, Mr Monterosso deposed that he strained his right shoulder lifting glass at work and was referred for radiological investigations and treatment by his general practitioner and then an osteopath. Mr Monterosso said that he was subsequently able to continue working.
16When cross-examined in respect of this injury, Mr Monterosso said that “some rubs and some rest, eventually cleared that up”. He later conceded that the rest included reducing his workload to allow his right shoulder to recover. Mr Monterosso said that it took a couple of weeks to recover, and stated that if it had not improved, he would have been unable to work.
17Mr Monterosso also deposed that in 2007, he sought psychological treatment for marital issues.
2008
18Mr Monterosso said that in 2008, he had a fall and suffered subsequent back pain.
19On 19 December 2008, a CT scan was taken of Mr Monterosso’s lumbosacral spine and was reported as follows:
“Degenerative changes present in relation to the intervertebral disc at the level of L5/S1 at which level the disc space also appeared to be reduced.
Facet joint degenerative changes noted to involve the L3/L4 being slightly more so marked on the right side.
Disc space between T11/T12 narrowed with degenerative changes involving its intervening vertebral disc.”

2009
20Mr Monterosso deposed that for many years, he suffered from osteoarthritis in his right ankle. When cross-examined in respect of this, Mr Monterosso said that in 2009, he ceased work as it was too unsafe for him to carry sheets of glass. Mr Monterosso said that he thereafter received a disability pension.
2010
21Mr Monterosso deposed that in 2010, he felt pain in his left shoulder while he was doing some work around the house. He was subsequently referred for investigations and took pain medication to manage the pain. He stated that this was effective, and the pain soon subsided.
22On 20 July 2010, Mr Monterosso attended general practitioner, Dr Korbi, who noted that he had been suffering from left shoulder pain for months and wanted immediate relief. When this clinical record was put to Mr Monterosso in cross-examination, he said he did not think that it would have been months, but maybe he had instead been suffering pain for weeks.
23On 21 July 2010, Mr Monterosso had an ultrasound-guided injection into his left shoulder, a combination of 1 mL of Celestone and 3 mL of Marcain was injected into the subacromial bursa.
24Also in 2010, Mr Monterosso deposed that his mother passed away after falling out of a hospital bed. Mr Monterosso said that he subsequently sued the hospital where she fell.
2011
25In his affidavit, Mr Monterosso stated that in 2011, his wife was violent towards him, and he subsequently attended the Emergency Department of Maroondah Hospital in distress.
26The admission notes of Maroondah Hospital were tendered as evidence. These indicated that on 8 April 2011, Mr Monterosso presented suffering from suicidal ideation, with a history of suicidal thoughts for the past seven years. When cross-examined about this medical record, Mr Monterosso stated that he was not suicidal, but he told the doctors he was having such thoughts so as to be admitted, with the hope it would enable him to get help for his wife. Mr Monterosso said that he was frustrated that his wife would not seek treatment for her mental state, but denied that he was depressed about this.
27At this hospital attendance, it was noted that Mr Monterosso attempted suicide five years earlier. When asked about this in cross-examination, Mr Monterosso said that he provided that history to the doctors as he thought it was the only way he could stay there and talk about his wife.
28On 16 May 2011, Mr Monterosso attended the Emergency Department of the Box Hill Hospital for treatment for a laceration to his left arm. In the admission notes, the record stated that the laceration was the result of an attack from his wife. When asked about this incident in cross-examination, Mr Monterosso denied that his wife’s violence towards him had an impact on his mental health. He later said that it made him frustrated and at times depressed that he was unable to get help for his wife.
29On 6 October 2011, Mr Monterosso attended on general practitioner, Dr Gamini Beneragama, and requested x-rays of his ankle and right shoulder. When this record was put to Mr Monterosso in cross-examination, he said that he required this as he was having muscular problems in his shoulder. Mr Monterosso said that a friend who was a sports scientist recommended to him that he do some calisthenics and warm-ups before he lifted anything, and Mr Monterosso said he wanted to use the x-rays to check if it was indeed a muscular condition, or something else. Mr Monterosso initially said that his shoulder pain at this time was caused when he was working, however, when it was put to him that he had been in receipt of the disability pension for two-and-a-half years by October 2011, he said that he experienced the shoulder pain when he was assisting his son in his work.
30When Mr Monterosso was asked to elaborate on the type of work he did for his son that caused such shoulder pain, he initially said that it occurred when passing a silicone gun or tape measure to his son. However, when he was asked whether those “mere” tasks caused him pain, Mr Monterosso then said that the pain mainly occurred when his son passed down broken glass rubbish. Later in his evidence, Mr Monterosso accepted that he ceased working in 2009 and did not have contact with his son until 2015 or 2016. When this inconsistency was put to Mr Monterosso, he instead proffered building his house as the cause of his shoulder pain in 2011. Mr Monterosso also said that he did see his son intermittently during that period of time.
2012
31On 24 January 2012, Mr Monterosso attended on general practitioner, Dr Premysl Kunz, who noted that Mr Monterosso was suffering from right shoulder pain and stiffness, and that Dr Kunz had discussed frozen shoulder management with Mr Monterosso. When this record was put to Mr Monterosso in cross-examination, he accepted that he had seen Dr Kunz at this time in respect of his right shoulder pain but notwithstanding his reported complaint of pain, said that he could use his shoulder very well.
32In December 2012, Mr Monterosso underwent a right ankle fusion at St Vincent’s Hospital which he claimed “virtually stopped” the pain in his ankle.
2013
33The clinical notes of general practitioner, Dr Abraham Winter, recorded that as at 23 January 2013, Mr Monterosso refused anti-depressant medication. At the time, according to the clinical record, Mr Monterosso was still on crutches following his ankle surgery, and Dr Winter recorded that Mr Monterosso was experiencing marital problems, and that his wife was abusive, resulting in the police being called twice. When this clinical extract was put to Ms Monterosso in cross-examination, he accepted that at the time, his wife was trying to force him out of the house, and that he refused to take anti-depressants.
34In his affidavit, Mr Monterosso stated that in 2013, he and his wife saw psychologist, Dr Lawrence Hayden, for counselling. The clinical records indicated that Mr Monterosso first attended on Dr Hayden in October 2012. In a report dated 2 October 2013, Dr Hayden stated that in his opinion, Mr Monterosso was suffering from significant symptoms of PTSD and acute Anxiety and Major Depression such that he diagnosed Mr Monterosso as suffering from Chronic Grief Syndrome in respect of the way that his mother died.
35In a letter dated 30 November 2013, Dr Hayden stated that Mr Monterosso was responding well to psychological treatment including relaxation therapy, cognitive behavioural therapy, and acceptance and commitment therapy, but noted that he was still having great difficulty dealing with his wife. When this was put to Mr Monterosso in cross-examination, initially he said that he could not recall a diagnosis of PTSD in respect of his mother, and said that he and Dr Hayden mainly discussed his wife and getting help for her. Later, Mr Monterosso accepted that the death of his mother may have caused a chronic mental illness.
36On 4 March 2013, Mr Monterosso attended on general practitioner, Dr Riaz Dewani. In clinical records, Dr Dewani noted that Mr Monterosso was seeing psychologist, Dr Hayden, but she considered that Mr Monterosso also needed a referral to a psychiatrist and referred him to Dr Katz Clayton. Dr Dewani also recorded that Mr Monterosso had domestic issues and that his wife was violent. When this was put to Mr Monterosso in cross-examination, he accepted that he was referred to Dr Clayton, but said that he never saw him. Notwithstanding that he did not attend on Dr Clayton, Mr Monterosso maintained that the referral to the psychiatrist was regarding his wife’s mental health problems, rather than his own.
2014
37In his affidavit, Mr Monterosso said that in 2014, he strained his left arm while lifting at home, and he thereafter experienced pain in his left bicep. He also stated that he consulted psychiatrist, Dr Zarrar Chowdary, and was prescribed antidepressant medication, Avanza. He stated that he only took this for a short time and that counselling helped improve both his marriage and his mood.
38On 11 February 2014, Mr Monterosso attended the Emergency Department at Maroondah Hospital. The triage notes indicate that Mr Monterosso was about to jump off an overpass but was intercepted by two strangers. The records further indicated that Mr Monterosso stated that he was “prepared to jump”. When these medical records were put to Mr Monterosso in cross-examination, he denied that he was about to jump when these people approached him, and that he was simply “looking outwards, thinking”. Mr Monterosso said that “It’s good to view Melbourne” from there and that the “bridge wasn’t high enough to do anything”. Mr Monterosso then accepted that he told the people who intercepted him that he needed help, but he did so as he felt that it was the only way to get help for his wife. Part of his evidence on this episode was as follows:
Q: “What’s recorded in the hospital notes is that you told them you were attempted (sic) to jump from the overpass?---
A: I said that to try and get in to see someone about my wife. I’d do anything to help her.
Q: This is another example of where you’re telling deliberate lies to the doctors?---
A: Yes, unfortunately, yes. I had to, to try and help my wife, that’s the only way to see a professional these days.
Q: So your wife’s not even there?---
A: No.
Q: None of the doctors who you see at the Maroondah Hospital can do anything for your wife because she’s not there for treatment, is she?---
A: Exactly, they asked that question, they said ‘We need to see your wife’.
Q: So and you’ve gone through this once before, on your telling of it, in April of 2011?---
A: Yeah.
Q: Where you told other - told other lies to try to get treatment for your wife who’s not even there. Now, given that that hadn’t been effective at all back in April 2011, why did you think it was going to be more effective in February 2014?---

A: Well, when you don’t know what to do and you’re so frustrated, you try anything - anything, anything to get help. You know, maybe they could transfer me on to someone else or this and that. You know, I don’t know how to get help for my wife. It’s very extreme with her what she thinks and about women, you know. She’s very insecure.
Q: But you seriously say to Her Honour, ‘This is nothing more, my attendances at hospital with complaints about suicide attempts are nothing more than me trying to get help for my wife who’s not even there’?---
A: Yep, because I couldn’t get her there … .”

39On 10 March 2014, Mr Monterosso attended on Dr Maria Flores-Vivas in respect of an “apparent injury to his left shoulder” one week prior. Clinical records of this attendance indicated that Mr Monterosso was referred for x-rays and ultrasounds at that time. When Mr Monterosso was taken to these records in cross-examination, Mr Monterosso accepted this had occurred.
40On 13 March 2014, an x-ray was taken of Mr Monterosso’s left shoulder and was reported as showing:
“Mild degenerative change is present in the acromioclavicular joint. The shoulder joint appears normal. No destructive lesion. No abnormal calcification. No dislocation.”
41On the same day, a left shoulder ultrasound was also taken and was reported as showing:
“Fluid is present in the biceps sheath. Supraspinatus and subscapularis are normal. No full – or partial-thickness tear. Slight thickening of the subacromial bursa is present. The acromioclavicular joint is normal on ultrasound.”
42Radiologist, Dr John De Campo, commented that Mr Monterosso had subacromial and biceps bursitis with no rotator cuff tear.
43On 14 March 2014, Mr Monterosso attended upon Dr Bowen Huang, who noted that he had mild osteoarthritis in his left shoulder. Mr Monterosso could not recall this attendance and said “that was the case, but I felt fine”.
44On 31 March 2014, Mr Monterosso attended St Vincent’s Hospital Outpatient Clinic. The report of orthopaedic surgeon, Ms Vikki Pliatsios, indicates that Mr Monterosso was suffering from a problem with left shoulder subacromial bursitis, bursitis and biceps tenosynovitis. In cross-examination, Mr Monterosso accepted that he had attended St Vincent’s Hospital Outpatients Orthopaedic Clinic complaining of left shoulder pain, but could not recall a recommendation to undergo an ultrasound-guided injection into his left shoulder at that time.
45On 12 May 2014, Mr Monterosso underwent an ultrasound-guided left subacromial bursa injection, in which approximately 2 mL of 0.05% bupivacaine and 2 mL of betamethasone were injected into the bursa. When the records of that injection were put to Mr Monterosso, he accepted them to be correct.
46On 3 July 2014, Mr Monterosso attended on psychiatrist, Dr Zarrar Chowdary, who noted that Mr Monterosso lost contact with his children through his divorce with their mother. When cross-examined about contact with his children, Mr Monterosso denied that he had lost contact with them. He explained that at that time, his children did not know about the fraud that their mother had committed, but once they did, he reconciled with them.
47In a report dated 8 July 2014, Dr Chowdary noted that in 2010, Mr Monterosso was prescribed Zoloft medication after the loss of his mother and noted that Mr Monterosso said he felt more depressed on the medication. Mr Monterosso accepted that record.
48On 17 November 2014, Mr Monterosso attended the Outpatient Clinic at St Vincent’s Hospital complaining of bilateral shoulder pain with gradual onset, and pain developing in both shoulders over time. When this was put to him in cross-examination, Mr Monterosso accepted the accuracy of this record. In addition, the records stated that lifting overhead made Mr Monterosso’s shoulder pain worse. When cross-examined about this, Mr Monterosso said that he had not done a lot of lifting overhead because he believed it probably aggravated his muscles.
49On 1 December 2014, Mr Monterosso again attended the Outpatient Clinic at St Vincent’s Hospital in respect of shoulder pain deep in his joints, particularly in the left shoulder, which was causing pain when he tried to sleep on his left side. When cross-examined about this, Mr Monterosso accepted he had such problems at that time. He then said that after doing home exercises and having his wife perform massages on him, as taught by the physiotherapist at the Outpatient Clinic, “it all came good”.
2015
50In 2015, Mr Monterosso said that he fell onto his left arm at his sister-in-law’s house.
51On 18 August 2015, Mr Monterosso attended on general practitioner, Dr Gabriel Goh, and it was noted he complained of left lower forearm pain. Dr Goh referred Mr Monterosso for an x-ray and ultrasound of his left forearm. The x-ray was reported as demonstrating appreciable degenerative changes in the elbow joint, but the ultrasound showed no specific abnormality.
52On 20 August 2015, Mr Monterosso attended upon his general practitioner, Dr Goh, to receive imaging results for his left elbow and left wrist. Dr Goh diagnosed him as suffering a repetitive strain injury to the left wrist, and prescribed Deep Heat and Naprosyn. When asked about this in cross-examination, Mr Monterosso said that this was caused by laying porcelain and using his big heavy grinder often. He said that the pain passed and came good after one-and-a-half to two weeks.
53In his affidavit, Mr Monterosso stated that in September 2015, he collapsed and an ambulance was called. He stated that he could not recall very much about that incident.
54On 15 October 2015, Mr Monterosso attended on Dr Goh, who recorded that he was still sore on the left lower forearm between his radius and ulna. When asked about this in cross-examination, Mr Monterosso said that he believed he had probably not given his left arm enough time to heal, as he needed to push himself to finish his house.
55On 26 October 2015, Mr Monterosso attended on Dr Goh, who noted that he was “stressed out” due to problems with his wife, and Dr Goh prepared a mental health care plan for him.
56On 16 November 2015, at what was his last attendance upon his local medical clinic prior to the transport accident, Dr Goh recorded that Mr Monterosso’s left wrist was still sore. When asked about this in cross-examination, Mr Monterosso denied that his pain would have persisted from August to November 2015. He later said that any persistence of symptoms was because he did not give his body the time to heal properly as he had commitments with people. Mr Monterosso said that he would work with the pain, and still move “pretty freely”.
57Mr Monterosso said that before the transport accident, he was able to enjoy plenty of activities, including fishing with his wife and son every couple of weeks. He also said that he did all the cleaning at home and he took pride in his garden and spent considerable time working on it.

The transport accident
58Mr Monterosso gave varying accounts as to what occurred in the transport accident and what body parts were injured.
59In his first affidavit sworn on 21 January 2019, Mr Monterosso stated that he attempted to open the rear passenger-side door of the car that was stealing his boat. Mr Monterosso said that as he did so, the vehicle moved and struck him on his right thigh and hip and he was consequently flung onto the driveway near the gutter and landed on his left wrist and shoulder. He said that as the vehicle sped away, he was immediately aware of pain in his left arm and shoulder.
60In his second affidavit sworn on 26 October 2021, Mr Monterosso stated that his left hand hit the ground first, followed by his right wrist. Mr Monterosso said his “left shoulder and neck area hit next”. Mr Monterosso said that he hurt both his wrists in the transport accident, but that his left wrist “was far worse than the right”.
61In his oral evidence, Mr Monterosso said that after the rear side of the car struck his right thigh, he went “flying up in the air” and landed on his left-hand side, then his right, and then was “sort of like catapulted” and “slam dunked” on to his shoulder and neck area. Mr Monterosso said that he felt pain in his upper body and wrist. Later in cross-examination, Mr Monterosso said that he also suffered neck pain following the transport accident. He said that it did not arise immediately, but “not long after” the accident.
62In his Claim Form completed on 15 January 2016, Mr Monterosso stated that:
“Stole boat - hooked onto a car at really weird angle.
Went on drive way, car swerved to miss telegraph pole.
Rear panel of car hit me, causing me to roll onto the ground & injure my wrist & shoulder.”

63In this Claim Form, Mr Monterosso stated that he injured his left wrist and left shoulder. When cross-examined on why the Claim Form did not refer to his neck or right shoulder or wrist, Mr Monterosso said that he did not mention these body parts as he was being optimistic and hoping he would get better.

Treatment received subsequent to the transport accident and Mr Monterosso’s claimed consequences
64On 14 January 2016, Mr Monterosso attended upon Dr Goh and reported the circumstances of the transport accident, following which Dr Goh noted that Mr Monterosso was sore in his left shoulder, forearm and wrist. Dr Goh referred Mr Monterosso for an x-ray and noted that Mr Monterosso was content to use his own Panadol Rapid as pain relief.
65On 20 February 2016, Mr Monterosso attended on general practitioner, Dr Channa Senadheera, who noted his attendance was for a post-operative review, following nasal surgery performed on 18 February 2016. At this time, Mr Monterosso was prescribed Endone and Panadeine Forte for the pain he was experiencing as a result of the recent surgery. In cross-examination, when asked to explain the absence of a report of neck, left shoulder and left wrist pain, Mr Monterosso stated he thought he told his general practitioner about such pains, but he did not know why they were not recorded by his doctor.
66On 24 February 2016, Mr Monterosso attended on general practitioner, Dr Abraham Winter, who noted that his attendance was in relation to nasal blockage following his recent surgery. In cross-examination, Mr Monterosso said that he was unsure if he also reported neck, left shoulder and left wrist pain at this attendance.
67On 4 March 2016, Mr Monterosso attended on general practitioner, Dr Graeme Freemantle, who noted that Mr Monterosso had been knocked over by a car and that he fell and injured his left wrist. Dr Freemantle then referred Mr Monterosso to a hand surgeon. However, Mr Monterosso said that he never attended upon the hand surgeon as he could not afford to do so.
68On 12 April 2016, Mr Monterosso attended on general practitioner, Dr Premysl Kunz, for a skin clinic assessment. In cross-examination, Mr Monterosso was asked to explain the absence of any record of pain related to the transport accident. Mr Monterosso said that there was only enough time to discuss his skin condition. He also said that he only talked about his ailments to Dr Goh, who he said was his “doctor at the clinic”.
69On 10 May 2016, Mr Monterosso attended on general practitioner, Dr John Lanyon. The extracts of the record of this attendance indicate that Mr Monterosso told Dr Lanyon that he suffered from rheumatoid arthritis, and had pain when he raised his shoulders. In cross-examination, Mr Monterosso said that he did not tell Dr Lanyon that he had pain in his right shoulder at that time.
70Mr Monterosso subsequently attended on doctors at the Forest Hill Medical & Dental Centre on 14 June 2016, 26 July 2016, 16 August 2016, 3 October 2016, 15 November 2016 and 12 December 2016. None of those extracts record any complaint by Mr Monterosso of any neck, left shoulder or left wrist pain. When asked to explain this in cross-examination, Mr Monterosso said that he was hoping things would improve. Further, in respect of the attendance on 16 August 2016, when he attended for Viagra medication and his general practitioner, Dr Zakir Hossain, recorded that he had “nil any other issues”, Mr Monterosso stated that the reason that he did not bring up his pain from the transport accident was his belief that if he had done so, he may not have been able to get the prescription for Viagra that he was seeking.
71In a report to the Transport Accident Commission dated 12 December 2016, Dr Goh stated that Mr Monterosso had attended on 14 January 2016, and reported suffering injuries to his left shoulder and forearm in the transport accident, but that he had “never returned for review”. Dr Goh noted that Mr Monterosso had a past history of left rotator cuff subacromial and subdeltoid bursitis, together with right ankle pain, right frozen shoulder, plus depression. Dr Goh considered that the transport accident had probably aggravated Mr Monterosso’s pre-existing left rotator cuff syndrome.
72In 2017, Mr Monterosso changed general practitioner clinics to the Forest Hill Family Clinic, as he said he was told the doctors at Forest Hill Dental & Medical Centre would not treat him in respect of his transport accident-related injuries. At his first attendance there on 5 January 2017, Mr Monterosso saw general practitioner, Dr Joel Ye, who noted the history of the transport accident, and that since the accident, Mr Monterosso had experienced pain in his left shoulder and arm.
73It was put to Mr Monterosso in cross-examination that the first recorded complaint of him suffering neck pain was not until 11 January 2017. Mr Monterosso explained the delay as follows:
Q: “And it’s not until 11 January 2017 that you first made a complaint about any issue with your neck; do you agree with that?---
A: Yeah, ‘cause probably it hit me that it’s just that bad it’s not going to go away and you’d better do something about it because it’s, you know, ridiculous how you give it so much time and you do nothing about it.
Q: It was only a year after the car accident that it hit you that you had a neck injury?---
A: Oh, not that it hit me, it was hurting all along but, you know, you think things and you think but obviously thinking things isn’t going to make it better and I should have spoke up earlier. It’s my problem - that’s my stupidity. I wasn’t happy with myself leaving it so long. Maybe I could have fixed it earlier if it was, you know, but - I don’t know, I’m not a doctor.”

74In February 2017, Mr Monterosso was referred by Dr Ye to orthopaedic surgeon, Mr Christopher Pullen. In a letter dated 10 February 2017, Mr Pullen stated that he had obtained a history from Mr Monterosso that in the transport accident, he landed heavily on his left side, and that since that time, he had had “ongoing left shoulder, neck and forearm pain”. Mr Pullen obtained a history from Mr Monterosso that he had no past history of shoulder problems.
75Mr Pullen arranged for medical imaging to be performed, which demonstrated that there was a small partial-thickness tear of Mr Monterosso’s left rotator cuff, together with evidence of adhesive capsulitis. It was also noted in an MRI scan taken of his cervical spine that there was evidence of high-grade foraminal stenosis on both the left and right side of his neck, with compression of his left C6 and C7 nerve. Mr Pullen was of the opinion that Mr Monterosso’s symptoms related more to his neck than his shoulder, but that if treatment for his cervical spine did not resolve his left upper limb problems, then it may be appropriate for Mr Monterosso to undergo a shoulder hydrodilatation.
76In a report to Mr Monterosso’s solicitors on 25 July 2017, Mr Pullen ultimately expressed an opinion that Mr Monterosso had developed left shoulder problems following the transport accident. However, in offering this opinion, Mr Pullen noted that Mr Monterosso had informed him there was no past history of left shoulder problems.
77In March 2017, Dr Ye commenced prescribing Mr Monterosso Lyrica medication to assist him in getting his neuropathic pain under control. Dr Ye was of the opinion that such pain was related to the cervical nerve root compression and cervical canal stenosis.
78In March 2017, Mr Monterosso commenced physiotherapy treatment with Mr Andrew Cobb. In a letter to the Transport Accident Commission dated 24 March 2017, Mr Cobb noted that Mr Monterosso had suffered no symptoms prior to the transport accident, and that he was currently suffering from left-sided cervical pain, left shoulder pain, and left wrist pain.
79In April 2017, Mr Monterosso was reviewed by neurosurgeon, Mr Jin Tee, at The Alfred hospital Neurosurgical Outpatient Department. Mr Tee recommended a C3 to C5 laminectomy and multi-level fusion to treat Mr Monterosso’s weakness and left arm pain. Mr Monterosso said that he was reluctant to pursue such surgery as he was concerned about the risks associated with it. Instead, Mr Monterosso said that he decided to look into more conservative treatment to alleviate his ongoing pain and symptoms in his neck, left arm and shoulder.
80In May 2017, Mr Monterosso was referred by Dr Ye to The Alfred hospital Neurosurgery Clinic. In a letter to Dr Ye dated 19 May 2017, it was noted that Mr Monterosso reported that he had suffered left-sided shoulder pain and left-sided radicular pain since the transport accident.
81In August 2017, Mr Monterosso commenced treatment with psychiatrist, Dr Anupam Pokharel. In an undated report from Dr Pokharel, it was noted that Mr Monterosso had attended for treatment every fortnight from August 2017 to May 2018. Dr Pokharel noted that Mr Monterosso used to be a very fit person prior to the transport accident and that since the accident, he had become quite unstable psychologically. Dr Pokharel diagnosed Mr Monterosso as suffering Major Depressive Disorder secondary to the pain syndrome due to his injuries in his neck, left shoulder and right foot, together with PTSD.
82In a subsequent report dated 23 August 2019, Dr Pokharel noted that he understood from Mr Monterosso that there was no past history of him suffering PTSD or depression of this severity, and that Mr Monterosso had previously seen mental health clinicians for relationship issues.
83In November 2017, Mr Monterosso consulted rehabilitation and pain-management physician, Dr Babak Farr, of the Melbourne Pain Group. Mr Monterosso said that by this time, he had ceased physiotherapy with Mr Cobb, as he felt it was aggravating his pain. Instead, Dr Farr recommended that Mr Monterosso attend an outpatient pain-management program at the Victorian Rehabilitation Centre.
84Mr Monterosso said that he attended the pain-management program between late November 2017 and early February 2018. Mr Monterosso said that he did not find the program helpful, and he discharged himself early. Mr Monterosso said that he considered the physical therapy treatment exacerbated his pain, and he also suffered severe psychiatric stress during that period.
85In a report dated 26 June 2018, Dr Farr noted that at the time of Mr Monterosso’s initial attendance, he reported a twenty‑month history of left-sided neck and shoulder pain radiating down to his left elbow. Dr Farr considered that such injuries were consistent with the transport accident. At that time, it was considered that Mr Monterosso’s prognosis was guarded.

86On 25 January 2019, Mr Monterosso re-attended upon Dr Goh to confirm that he had previously treated him in respect of his shoulder injury. However, Dr Goh advised that he was unable to do so as he had not treated Mr Monterosso for his shoulder injury. Mr Monterosso said that Dr Goh was incorrect about this and had treated him for his shoulder injury following the transport accident.
87On 11 September 2019, Mr Monterosso attended on general practitioner, Dr Shalini Wickramasinghe. She stated that Mr Monterosso had been calling the practice requesting a CAT scan of his right wrist for comparison. Dr Wickramasinghe declined to order the scan as the right wrist was asymptomatic.
88In November 2019, Mr Monterosso was referred to rheumatologist, Dr Yvonne Pun. In a report dated 8 November 2019, Dr Pun wrote that in her opinion, Mr Monterosso’s musculoskeletal symptoms were mechanical in aetiology, and the pain in his wrists likely related to the distal radioulnar joints, whereas the pain in his left shoulder was predominantly caused by local pathology rather than related to his cervical spine. At that time, Dr Pun recommended treatment options could include local pain-relief measures, braces and supports, and physical therapy.
89In December 2019, Mr Monterosso was referred to psychologist, Dr Alex Wynd.
90In mid-January 2020, Mr Monterosso was referred to sports and exercise physician and interventional pain proceduralist, Dr Neels du Toit, at the Metro Pain Group, who recommended that Mr Monterosso undergo a left shoulder hydrodilatation and manipulation under anaesthetic, as well as a sympathetic local anaesthetic block to his thoracic spine, as well as an injection into his neck and C2 with pulsed radiofrequency stimulation. Mr Monterosso said that following the injection into his thoracic spine, he was in agony and called a doctor to attend to him at home.
91In April 2020, Mr Monterosso was referred to orthopaedic surgeon, Mr Jason Harvey, in respect of his wrist pain. Mr Monterosso stated that Mr Harvey informed him that he had wrist osteoarthritis and that he could be treated with medication and splints, and there was a possibility of wrist surgery.
92Also, in approximately April 2020, Mr Monterosso said that after having been bathed by his wife, he used his left arm to reach for a towel on the vanity, and as he did so, his left shoulder locked up, he lost balance and fell onto the vanity, injuring his right shoulder. Mr Monterosso said that since that time, he has gone on to develop a right frozen shoulder.
93In June 2020, Dr du Toit referred Mr Monterosso to orthopaedic surgeon, Mr Richard Dallalana. In a letter dated 1 June 2020, Mr Dallalana noted that Mr Monterosso attributed his left shoulder pain to the transport accident. Mr Dallalana considered that Mr Monterosso’s restricted motion and pain was heightened in comparison to the average he would expect for his level of pathology on medical imaging. Mr Dallalana was of the opinion that Mr Monterosso had substantial features of chronic pain and that he was not a good candidate for surgery.
94In March 2021, Mr Monterosso re-attended upon Dr Pun for ongoing pain in his wrists. In a report dated 9 March 2021, Dr Pun noted that Mr Monterosso was holding his arms and wrists still and was reluctant to move them. Dr Pun considered that Mr Monterosso’s wrist pain and functional disability were “unusually severe”. Dr Pun arranged for MRI scans to be taken of both wrists, which she said demonstrated significant mechanical/degenerative changes, particularly in the distal ulnar joints bilaterally. Dr Pun stated this quite possibly developed secondary to the injury in 2016.

Mr Monterosso’s current complaints
95Mr Monterosso said that he continues to suffer from neck pain. He said that his neck creaks when he turns it and that it causes him a “crunching sensation”. Mr Monterosso also said that he experiences what feels to him like an “electric shock sensation which travels” from his neck down to his left forearm. Mr Monterosso said that he has restricted movement in his neck, and that his pain is easily triggered by small movements, particularly when he turns his head to the left side or looks up and down. Mr Monterosso also said that every time his neck creaks, it reminds him of the transport accident.
96Mr Monterosso said that he continues to suffer from a separate, constant pain from his left shoulder to his bicep, which he also said was an “electric type of pain”. Mr Monterosso said he has trouble reaching and lifting with his left arm, and pulling causes increased pain in his left shoulder joint. Mr Monterosso said that the level of pain and restriction that he currently experiences in his left shoulder is of much greater intensity than the “intermittent left arm problems” which he said that he suffered prior to the transport accident.
97Mr Monterosso also stated that he suffers constant pain and reduced grip strength in both wrists. He said that he often drops things he is carrying. Mr Monterosso said that he uses splints on both of his hands.
98In addition to those injuries, Mr Monterosso also said that since the fall in his bathroom in 2020, he suffers pain and restriction of movement in his right shoulder.
99Mr Monterosso said that since the transport accident, his mental health has deteriorated and his concentration is poor. He said that he is distressed by his constant pain and frequent flashbacks of the transport accident. Mr Monterosso said that he feels sad, hopeless and worthless.
100Mr Monterosso stated that his injuries are so debilitating that even basic personal care is hard for him now. He said that he has difficulty dressing, showering, tying up his shoelaces, and often has to ask his wife for help. Mr Monterosso said that he is limited in what he can do around the house, and that carrying shopping bags aggravates his pain.
101Mr Monterosso said that he no longer drives, as he finds his neck and shoulder pain is worsened going over bumps, and he would have difficulty grasping the steering wheel due to his wrist pain. In addition, Mr Monterosso said that he does not like being around cars after having been hit by one in the transport accident, and lacks the motivation to drive.
102Mr Monterosso said that his sleep is very poor due to both his physical and psychiatric injuries. Mr Monterosso said that he cannot get comfortable in bed and does not sleep well due to his neck and shoulder pain. In addition, he said that he fears someone coming into his house and he has bad dreams and flashbacks about the transport accident. Mr Monterosso said that he always feels tired and often dozes off during the day.
103Mr Monterosso said that in his home he has a number of aids and appliances to accommodate his injuries, such as a shower stool, bidet and clotheshorse.
104Mr Monterosso stated that he continues to see general practitioners at the Forest Hill Family Clinic twice a month.
105Mr Monterosso stated that due to the bilateral shoulder, bilateral wrist and neck pain, he takes the following medication: Panadeine Forte tablets once or twice a week; Palexia every second or third day; Lyrica approximately every third day; Meloxicam nearly every day; and Panadol Osteo three times a day.
106Mr Monterosso stated that he has not taken the anti-depressant medication, Zoloft, since late 2018.

Reports from Mr Monterosso’s current treating practitioners
107In a report from Dr Wickramasinghe to Mr Monterosso’s solicitors dated 20 February 2021, Dr Wickramasinghe noted that Mr Monterosso was dissatisfied with all of the specialists he had seen, and was now only seeing his psychologist. It was noted that Mr Monterosso denied suffering any of his symptoms prior to the transport accident. Dr Wickramasinghe stated as at the time of providing the report, Mr Monterosso suffered the following conditions: left shoulder AC joint with degenerative changes and adhesive capsulitis; cervical spondylosis with nerve root compression giving left arm pain; bilateral wrist and hand pain, with mild to moderate degenerative changes; chronic pain syndrome, and chronic depression. Dr Wickramasinghe noted that Mr Monterosso had been on many different oral pain medications and at that time was on Meloxicam.
108Dr Wickramasinghe stated that she was not in a position to comment on whether those medical conditions were caused by the transport accident.
109In a report from Dr Wynd dated 19 February 2021, he detailed the treatment that he had provided to Mr Monterosso since December 2019. Dr Wynd considered that Mr Monterosso had coped with the injury to his wrists which had caused him “unimaginable disability and pain” along with secondary depression and PTSD symptoms associated with the occurrence of the injury itself. Dr Wynd considered that Mr Monterosso required a continuation of the psychology sessions, as he would struggle to cope without such supports. Dr Wynd understood that Mr Monterosso had suffered his wrist injury in the transport accident. Dr Wynd was of the opinion that Mr Monterosso was suffering a major depressive episode and numerous symptoms of PTSD. Dr Wynd noted that Mr Monterosso’s primary symptoms of depression included depressed mood, loss of pleasure, a sense of hopelessness and worthlessness, and thoughts that he would be better off dead. His symptoms of PTSD included intrusive memories about the accident, nightmares, and thoughts of distrust of people in general.

Medico-legal opinion relevant to Mr Monterosso’s physical injuries
110Mr Monterosso was examined by orthopaedic surgeon, Mr Rodney Simm, on two occasions in June 2017 and June 2018. In his first report dated 1 June 2017, Mr Simm noted that Mr Monterosso stated that he had no past history of right or left shoulder symptoms, or symptoms in his neck. Mr Simm obtained a history from Mr Monterosso of the transport accident and Mr Monterosso’s description of falling backwards onto his left upper back and shoulder. Mr Simm then obtained a history as to his complaints of left shoulder and forearm pain, and noted the radiological imaging that was performed. Mr Simm then obtained a history of the treatment Mr Monterosso subsequently received.
111At the time of the examination, Mr Monterosso complained of constant pain over the front of his left shoulder, with a very restricted range of movement in it. Mr Simm then sought to examine Mr Monterosso and noted that movement of his left shoulder was undertaken cautiously, which gave Mr Simm the impression there was some involuntary inhibition of movement, which he presumed to be because he was in pain.
112Mr Simm considered that this was a “difficult case to evaluate”. Mr Simm was of the opinion that Mr Monterosso had suffered a soft-tissue injury to his cervical spine, with unresolved aggravation of multilevel degenerative cervical pathology; a soft-tissue injury to his left shoulder and a soft-tissue injury to the distal left forearm.
113In Mr Simm’s subsequent medical report dated 5 June 2018, he noted that Mr Monterosso reported his condition was no better and that he was suffering from constant pain, which frequently rose to 9 out of 10. On examination, Mr Simm considered there was a chronic adverse pain response with marked non-organic features, which he stated made it very difficult for him to assess. Ultimately, Mr Simm confirmed his previous diagnosis of soft-tissue injury to the cervical spine, although by that time, Mr Simm noted there were clinical signs suggestive of a C6 radiculopathy, which he recommended be reviewed by a neurosurgeon. In respect of Mr Monterosso’s left shoulder, Mr Simm considered that there was unexplained inhibition of his left shoulder movement, with an associated severe global pain response. Mr Simm stated that the clinical signs were not those of an identifiable physical condition from the shoulder and that investigations of the shoulder had not revealed pathology that could explain the current clinical signs.
114Mr Simm provided two further supplementary reports, but did not alter his ultimate conclusions expressed in his earlier reports. Of note, he remained of the opinion that the medical imaging could not explain the severe limitation of Mr Monterosso’s shoulder movement and that the findings of the MRI scan were compatible with a “completely normal pain free shoulder movement”. Mr Simm noted that there was only a subjective reporting of pain and a subjective presentation of inhibited movement.
115Mr Monterosso was examined by neurosurgeon, Mr Ales Aliashkevich, in July 2018. In a report dated 25 July 2018, Mr Aliashkevich noted that Mr Monterosso informed him that he did not have any significant problems with his neck or left arm prior to the transport accident. Mr Aliashkevich then obtained a history of the circumstances of the transport accident, including that after Mr Monterosso was struck by the car, he was “flung up in the air and fell backwards onto the left side of his back and shoulder”. Mr Aliashkevich then obtained a history that Mr Monterosso had complained of pain in his left shoulder and forearm and that he had significant restrictions in his neck, shoulder and wrist movement. On examination, Mr Aliashkevich noted that Mr Monterosso had significant difficulties operating his left arm and that he struggled with dressing and undressing himself.
116Mr Aliashkevich reviewed the medical imaging and then diagnosed Mr Monterosso as suffering from chronic and refractory neck, left shoulder and arm pain, with some cervical canal stenosis at C3-4, left-sided foraminal stenosis at C5-6 and C6-7, and right-sided foraminal stenosis at C3-4 and C5-6.
117Mr Aliashkevich considered that Mr Monterosso’s condition was related to the transport accident.
118In July 2021, Mr Monterosso was examined by orthopaedic surgeon, Mr Thomas Kossmann. In a report dated 12 July 2021, Mr Kossmann detailed Mr Monterosso’s past medical history. Unlike the other medico-legal doctors who examined Mr Monterosso in this matter, Mr Kossmann was aware of the medical imaging taken of Mr Monterosso’s left shoulder and left forearm in the years prior to the transport accident. However, I note in detailing the medical imaging, Mr Kossmann did not then detail the nature of Mr Monterosso’s experience with left shoulder and left wrist pain in the years prior to the transport accident, in particular, in the year immediately prior.
119In his report, Mr Kossmann detailed the circumstances of the accident and noted that Mr Monterosso injured his neck, left shoulder and left wrist in it. Mr Kossmann then detailed the medical treatment which Mr Monterosso had subsequently received and noted that at the time of the examination, he complained of pain and movement restrictions in both of his shoulder joints. After conducting an examination of Mr Monterosso, and considering the extensive medical material provided to him, Mr Kossmann diagnosed Mr Monterosso as suffering cervical spondylosis on the background of severe degenerative changes affecting all levels and structure of the cervical spine; clinical and radiological signs of osteoarthritis of the left shoulder joint; clinical and radiological signs of arthritis in the left acromioclavicular joint; partial thickness tear of the supraspinatus tendon and calcific tendinosis of the infraspinatus tendon of the right shoulder, and radiological signs of advancing osteoarthritis affecting both wrists. Then, when asked to comment on “causation”, Mr Kossmann stated that, in his opinion, Mr Monterosso suffered injuries to his cervical spine in the form of spinal spondylosis and injuries to his left glenohumeral and acromioclavicular joints, which progressed to osteoarthritis of the glenohumeral and acromioclavicular joints. Mr Kossmann also stated that Mr Monterosso suffered aggravation of pre-existing osteoarthritic changes in both of his wrists and that as a result of his left shoulder joint locking up, Mr Monterosso suffered an injury to his right shoulder joint. I note that in offering this opinion, Mr Kossmann is silent as to the attribution of any of Mr Monterosso’s pre-existing condition in his left shoulder, left wrist and neck and, further, his opinion would appear to be based on Mr Monterosso’s account to him that he had suffered neck pain since the time of the transport accident.
120In a supplementary report dated 8 September 2021, Mr Kossmann sought to clarify his previous opinion and stated that he considered Mr Monterosso suffered from an aggravation of his pre-existing osteoarthritic changes in the cervical spine, left acromioclavicular joint, and both wrists, as a result of the transport accident. Mr Kossmann considered that Mr Monterosso had suffered an acute injury to his left shoulder in the form of a tear to the supraspinatus tendon, with infraspinatus tendinopathy, degenerative frame in the biceps labral complex, anterosuperior labral tear and adhesive capsulitis as a consequence of the transport accident, and that this progressed to osteoarthritic changes.
121In September 2021, Mr Monterosso was examined by neurosurgeon, Associate Professor Laidlaw. In a report dated 26 September 2021, Associate Professor Laidlaw detailed the history he had obtained from Mr Monterosso, his clinical examination, his review of numerous clinical records and reports, together with medical imaging. Associate Professor Laidlaw then detailed what he had considered discrepancies and inconsistencies in Mr Monterosso’s history, and then conducted a literature review for ultimately providing his conclusions in respect of Mr Monterosso’s cervical spine, shoulder and upper limb problems, together with his psychological issues.
122Associate Professor Laidlaw obtained a history from Mr Monterosso that, in the transport accident, he was “thrown up in the air and then had [his] arms outstretched and came down on [his] hands and was then slam-dunked onto [his] shoulder and neck”. When this history was put to Mr Monterosso in cross-examination, he accepted that this was how the accident had occurred. He also said that he was catapulted at the time of the accident.
123Associate Professor Laidlaw also obtained a history from Mr Monterosso that straight after the transport accident he was “in extreme pain everywhere” and that he has since had extreme and constant left shoulder and left wrist pain, as well as neck pain and (initially) less severe right shoulder and right wrist pain. When this was put to Mr Monterosso in cross-examination, he said he does not believe that he told Associate Professor Laidlaw that he injured his right shoulder at that time. He said that he may have been confused, or Associate Professor Laidlaw misunderstood him, as Mr Monterosso believed it was only after the fall in his bathroom two years ago that he injured his right shoulder.
124Associate Professor Laidlaw was of the opinion that Mr Monterosso suffered chronic cervical degenerative spondylosis with disc degenerative changes, disc bulge and foraminal stenosis, predominantly caused by osteophytes. Associate Professor Laidlaw was of the opinion that the transport accident was not a contributing or aggravating factor to his chronic cervical spondylosis.
125In relation to Mr Monterosso’s shoulder and upper limb problems, as well as his psychological issues, Associate Professor Laidlaw sought to express an opinion on these medical conditions, however, in circumstances where he is a neurosurgeon, I have had no regard to his opinion on such matters.

126In November 2021, Mr Monterosso was examined by neurosurgeon, Dr Hazem Akil. In a report dated 8 November 2021, Dr Akil noted the circumstances of the transport accident and obtained a history that, after having been struck by the car, Mr Monterosso felt that he “flew in the air and fell face down”. Dr Akil then obtained a history that, when Mr Monterosso attended his general practitioner the following day, he complained of pain in his left shoulder, forearm and significant stiffness and pain in his neck, as well as bilateral wrist stiffness and pain. In respect of Mr Monterosso’s past history, Dr Akil obtained a history that Mr Monterosso had previously experienced an episode of lower back pain, but otherwise he was previously healthy, without any significant past medical history.
127Dr Akil stated that, limiting his opinion to Mr Monterosso’s cervical injury, he considered that the mechanism of injury was that of being thrown by the car and landing face down, which Dr Akil considered compatible with aggravation of cervical spondylosis, resulting in left-sided radiculopathy in the form of a C6 and C7 radiculopathy. Dr Akil considered that diagnosis was confirmed on clinical examination, where Mr Monterosso’s left biceps and left brachioradialis jerks were absent.
128In a supplementary report dated 2 December 2021, Dr Akil was asked to review the medical report of Associate Professor John Laidlaw and provide a comment in relation to Associate Professor Laidlaw’s opinion that there was no organic cause for Mr Monterosso’s pain. Dr Akil rejected Dr Laidlaw’s opinion in respect of that and stated that, in his opinion, there was a clear organic basis for Mr Monterosso’s neck and radicular pain, notwithstanding there had also been a psychological element that was likely contributing to his condition.

Medico-legal opinion relevant to Mr Monterosso’s psychiatric injury
129Mr Monterosso was examined by psychiatrist, Dr Nigel Strauss, on three occasions in May 2017, June 2018 and August 2021. In his report dated 30 May 2017, Dr Strauss noted that Mr Monterosso had been run over when he was eight years of age, but had subsequently made a full recovery, and Mr Monterosso denied any other past medical or psychiatric history. Dr Strauss then went on to obtain a history from Mr Monterosso in respect of the transport accident and his present psychiatric symptoms. Dr Strauss then conducted a mental state examination and subsequently diagnosed Mr Monterosso as suffering a major depressive illness and PTSD.
130In Dr Strauss’s subsequent report dated 5 June 2018, he made the same diagnosis, and noted that nothing had changed significantly from his last examination, although Dr Strauss considered that Mr Monterosso’s PTSD was not as severe as it had been previously. However, he considered Mr Monterosso was still suffering from Major Depression and that he was withdrawn, isolated and extremely despondent.
131In Dr Strauss’s final report dated 31 August 2021, he reiterated his previous diagnoses of Major Depression and a PTSD. In this report, he specifically reiterated his understanding that Mr Monterosso had not suffered any significant psychiatric problems before the transport accident and thus Dr Strauss confirmed his opinion that his depression had begun at that time and had persisted despite the elapse of time and treatment. Dr Strauss also noted that Mr Monterosso constantly ruminates about the accident and considered he suffers from PTSD.

Mr Monterosso’s credibility and reliability
132Mr Monterosso was cross-examined at length as to the insufficiency of the history contained in his affidavits. It was apparent from the contemporaneous medical records put to him, that his pre-accident health was not fairly described in his affidavits. Indeed, those records demonstrated that Mr Monterosso’s affidavits were patently inadequate, and at times misleading, both in respect of his relevant history of physical injuries and psychiatric illness. The same can be said of the history he provided to the medico-legal doctors who examined him for the purpose of this claim.
133In addition to the shortcomings of his affidavits and the history he gave to the doctors, I considered there were many instances where Mr Monterosso’s oral evidence either defied logic or was plainly inconsistent with contemporaneous medical records and reports.
134The following are some examples to demonstrate the unsatisfactory and unreliable nature of Mr Monterosso’s evidence:
(i) Mr Monterosso’s past psychiatric history
135In the face of a multitude of clinical records noting suicide attempts, Mr Monterosso denied such attempts or even thoughts of suicide. He instead asserted that these were lies he told the hospital in order to get help for his wife, who he claimed had mental health problems. Whether Mr Monterosso genuinely believed this at the time he was giving evidence, or deliberately lied on his oath, I considered this an example of his unreliability.
136When asked to explain the lack of detail in his affidavits as to his past psychiatric history, Mr Monterosso said that he did not think it was worth including in his affidavit as he thought the doctors were “wrong” to have previously diagnosed him with Major Depression and PTSD. Mr Monterosso consistently maintained that prior to the transport accident, he only had a feeling of frustration and helplessness, and expressly denied any ongoing depression or PTSD. I considered such evidence inconsistent with the contemporaneous medical records. Once again, irrespective of the motivation for this failing, I consider it is an indication of Mr Monterosso’s unreliability as a witness.
(ii) Mr Monterosso’s past left arm complaints
137Mr Monterosso’s affidavit and his initial oral evidence was entirely deficient in respect of the longevity and seriousness of his pre-existing left arm condition. I considered his explanation that he had not included such detail in his affidavit because he thought it was “minor” and “muscular” as entirely unsatisfactory, given the frequency in which he reported pain in his left arm in the two years prior to the transport accident.
(iii) Inconsistency in account of the transport accident
138Mr Monterosso gave varying accounts as to what occurred in the transport accident, and what body parts were injured. His first account of what occurred was in his Claim Form, at which time he stated that after being struck, he rolled on the ground. However, whilst in court, he said that he flew up in the air and was “catapulted” and “slam dunked”. This most recent account appeared more dramatic and violent than Mr Monterosso had initially claimed, which I consider a further example of his unreliability.
(iv) Unsatisfactory explanations for contents of medical records
139On several occasions, Mr Monterosso gave patently absurd explanations for contents of medical records which had the potential to be harmful to his claim. This was most notable in respect of his denial of a past psychiatric condition, as detailed above.
140Another unconvincing example was when asked about his general practitioner’s note that as at August 2016, he had nil other health issues. Mr Monterosso stated it was his belief, that if he reported all of the pains he was suffering from the transport accident, he would not be provided with a prescription for medication relating to his sexual function. I consider the more likely situation was that as at August 2016, Mr Monterosso had no persisting pains from the transport accident, and this was the explanation for him telling his general practitioner he had no health complaints at that time.
141Overall, Mr Monterosso gave his evidence in a manner that was confusing and tended towards being misleading. In cross-examination, Mr Monterosso often rescinded from previous answers when presented with a contemporaneous document that rendered his prior answers untenable. This meant his evidence was often inconsistent, difficult to follow and seemed fabricated. Ultimately, due to such major reservations, I reject Mr Monterosso’s evidence entirely, unless it was given against his interest or is corroborated by contemporaneous medical records.

Mr Monterosso’s psychiatric impairment
142In assessing this application, I must disregard any pre-existing psychiatric impairment and can only consider the consequences arising from the transport accident-related psychiatric impairment. Any aggravation resulting from the transport accident must, on its own, satisfy the definition of “serious injury”, and in the instance of a psychiatric condition, this requires the aggravated impairment to have severe consequences to the plaintiff.
143As has been outlined above, Mr Monterosso has an extensive history of psychiatric illness that has been variously detailed in tendered clinical records and hospital reports. I am satisfied that in the past, he was diagnosed with PTSD in respect of his mother’s death, had multiple suicide attempts and suffered persistent symptoms of Major Depression in the years preceding the transport accident. I am therefore satisfied that Mr Monterosso suffered ongoing psychiatric impairment prior to the transport accident.
144Given my reservations as to his reliability, I am not persuaded that Mr Monterosso’s present psychiatric consequences are as frequent, intense or intrusive as he claims.
145In circumstances where Dr Pokharel and Dr Strauss did not have a history as to Mr Monterosso’s past psychiatric condition, including his suicide attempts, and previously having been diagnosed with depression and PTSD, I gain little assistance from their medical reports. Without an adequate history, there is no analysis by either of them as to the role of the transport accident in Mr Monterosso’s current psychiatric state. Further, their opinions are substantially based upon an acceptance of Mr Monterosso’s claimed consequences. Given my unwillingness to accept Mr Monterosso as a credible witness, I gain little assistance from their opinions, which are based upon the veracity of the complaints made by Mr Monterosso, which I reject.
146In view of the above, I am not satisfied that the any aggravation to Mr Monterosso’s psychiatric impairment, arising from the transport accident, can be described as anything close to the threshold of severe. I therefore dismiss this aspect of his claim.

Mr Monterosso’s cervical spine impairment
147To succeed in this aspect of his claim, Mr Monterosso must satisfy me that his cervical spine was injured in the transport accident and that from it, he has suffered an ongoing impairment, the consequences of which can be fairly described as “at least very considerable”.
148There is no written report of Mr Monterosso suffering neck pain until January 2017, despite him attending his general practitioner on multiple occasions during the course of 2016.
149I considered Mr Monterosso’s attempts to explain the absence of such a report of neck pain for a period of almost one year after the accident as confusing, implausible, and lacking credibility.
150The clinical records in this matter demonstrate that Mr Monterosso is not reserved in complaining to his doctors about his multitude of health ailments. I consider it highly likely that if his neck had been hurting him throughout 2016, Mr Monterosso would have reported this to his doctors, and it would have been recorded in their clinical records.
151Therefore, I do not accept Mr Monterosso’s evidence that his neck pain occurred and has persisted from soon after the transport accident.
152I note that all of the doctors who supported a causal relationship between the transport accident and Mr Monterosso’s neck injury did so based upon his account that his symptoms persisted since that time. Given my rejection of that history, I am not assisted by any of their opinions in respect of the cause of Mr Monterosso’s cervical spine injury.
153In view of the above, I am not satisfied that Mr Monterosso’s cervical spine was injured in the transport accident.

Mr Monterosso’s left arm impairment
154To succeed in this aspect of his claim, Mr Monterosso must satisfy me that his left arm was injured in the transport accident, that the accident continues to be a cause of his left arm impairment, and that the consequences to him from this impairment can be described as “very considerable”. In the event that I am satisfied that there was a pre-existing injury to his left arm, I must only consider the aggravation resulting from this transport accident.
155It is apparent from the tendered clinical records, that Mr Monterosso has a long history of left arm pain. In 2010, and again in 2014, he received an ultrasound-guided cortisone injection into his left subacromial bursa. As at March 2014, it was noted on medical imaging that he suffered subacromial and biceps bursitis. Mr Monterosso thereafter attended St Vincent’s Hospital Outpatients on several occasions, and it was noted that his left shoulder pain interfered with his sleep. In 2015, Mr Monterosso complained to his general practitioners on numerous occasions of left elbow, left forearm and left wrist pain. I note that his last attendance on his general practitioner prior to the transport accident was in relation to persisting left wrist pain. Notwithstanding Mr Monterosso’s claim that such injuries were short lived, the records indicate that such left arm symptoms persisted, and I am satisfied that he suffered a degree of impairment in his left arm at the time of the transport accident.
156Subsequent to the transport accident, save for an initial report of left shoulder and left wrist pain, and a subsequent complaint of left wrist pain in March 2016, there were no further reports of pain for almost twelve months after the transport accident. I consider this lack of reported complaints telling. As observed above, I considered Mr Monterosso had demonstrated a willingness to report aches and pains to doctors. Therefore, the near void of complaints from soon after the accident, tends against a finding by me, that such pain in either his left shoulder or wrist persisted beyond a very short period of time.
157I gain no assistance from medico-legal opinions from Mr Simm, Mr Aliashkevich or Mr Kossmann, as these were all dependent upon the history provided to them by Mr Monterosso, which I reject as unreliable.
158Further, in circumstances where Mr Pullen also obtained an incomplete history, I am not assisted by his opinion in respect of the transport accident being a cause of Mr Monterosso’s left shoulder injury.
159In the absence of any contemporaneous treating medical records to corroborate persisting left arm symptoms (beyond March 2016) and given my significant reservations as to the reliability of Mr Monterosso’s account of pain in the year after the transport accident, I am not persuaded that the pain in Mr Monterosso’s left shoulder or left wrist, which he experienced following the transport accident was anything more than a temporary exacerbation of what was a pre-existing condition. As I am not satisfied that there is a long-term injury arising from the transport accident, I must dismiss this aspect of his claim also.

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[2022] VCC 35

11 February 2022