Nakuoka v Transport Accident Commission
[2015] VCC 1068
•11 August 2015
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-11-03216
| TONY NAKUOKA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 March, 22, 23, 24, 25 June and 27 July 2015 | |
DATE OF JUDGMENT: | 11 August 2015 | |
CASE MAY BE CITED AS: | Nakuoka v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1068 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – multiple injuries – aggravation of pre-existing conditions
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited:Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Humphries v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Bezzina v Phi [2012] VSCA 161; Dordev v Cowan & Ors. [2006] VSCA 254
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff was self represented | - |
| For the Defendant | Mr S Pinkstone | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 In this application, the plaintiff, who appears in person, seeks leave to bring proceedings for common law damages pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) in connection with injuries he suffered in a transport accident on 5 August 2005. The defendant concedes that the application is brought under sub-paragraphs (a) and or (c) of the definition of “serious injury” contained in s93(17) of the Act.
2 “Serious injury” as defined therein means:
“(a)serious long-term impairment or loss of a body function; or
…
(c)severe long-term mental or severe long-term behavioural disturbance or disorder.”
3 The plaintiff relies on two affidavits sworn 22 April 2010 and 15 August 2012.[1] He also gave viva voce evidence and was cross-examined. Further, he relied on the affidavits of Rony Elou sworn 5 September 2012,[2] the affidavit of George Batsakis sworn 4 October 2012[3] and a statement of his carer/partner, Ms Maria Sciuto, dated 19 June 2015.[4] Both parties otherwise relied on a number of medical reports and other documents which have formed exhibits in the case.
[1]Exhibit O
[2]Exhibit P
[3]Exhibit Q
[4]Exhibit E
4 In his first affidavit, the plaintiff relied on a variety of injuries which he alleged were caused by the transport accident, as follows:
· Neck injury
· Right shoulder, arm and hand injury
· Left arm injury
· Left leg injury
· Chest injury
· Lumbar spine injury
· Tinnitus; and
· Psychological/psychiatric injuries including but not limited to stress, anxiety and depression.[5]
[5]Exhibit O, Plaintiff’s Court Book (“PCB”) 4
5 Further, in the plaintiff’s second affidavit, he referred to pain and discomfort in both shoulders, both knees, his neck, back, right hip, in addition to his experience of depression, anxiety and stress.[6]
[6]Exhibit O, PCB 12, 14-16
6 In his sworn evidence before the Court, the plaintiff stated he experienced pain in his spine, right knee, right groin, both hips, chest, right shoulder, right elbow and neck.[7]
[7]Transcript (“T”) 136-137
7 The defendant, for its part, submits:
(a) The plaintiff has failed to identify an impairment of a body function said to constitute a “serious injury” as defined in the Act. In particular, defence counsel submits the plaintiff is not entitled to aggregate impairments for the purposes of establishing a serious injury.[8] I accept this submission;
[8]Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511 (4 May 2000)
(b) The plaintiff has failed to identify any organic injury which is causative of an impairment which satisfies the definition referred to above, as at the date of hearing;
(c) The plaintiff has failed to demonstrate that he is suffering presently from a severe long-term mental or severe long-term behavioural disturbance or disorder which meets the statutory criteria and which is a result of the transport accident.
Legal principles
(a) Physical injury
8 The test for determining whether an applicant has suffered a “serious injury” within the meaning of s93(17)(a) of the Act was prescribed in Humphries & Anor v Poljak,[9] which was subsequently approved by the Court of Appeal in Mobilio v Balliotis.[10]
[9][1992] 2 VR 129
[10][1998] 3 VR 833
9 In Humphries & Anor v Poljak,[11] Crockett and Southwell JJ, stated as follows:
“… the task of a judge confronted with the requirement to determine an application made pursuant to subs(4)(d) when reliance is placed upon subs(17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’? Beyond such guidance it is, we think, not possible to go. … .”
[11](Supra) at 140
10 A plaintiff who has suffered a physical injury may develop a mental or psychiatric response to the pain associated with the physical injury. In a case where a plaintiff claims that he has suffered a “serious injury” within subparagraph (a) of the definition, in assessing the seriousness of the impairment of the relevant body function, it is permissible and appropriate for the Court to take into account the development of any psychiatric condition in response to the physical injury when deciding whether the consequences of the impairment of the relevant body function, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as “serious”.[12]
[12]Richards v Wylie (2000) 1 VR 79
(b) Psychiatric injury
11 The judgment of the Court of Appeal in Mobilio v Balliotis[13] resolved the meaning of “severe”. Brooking JA held,[14] having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[15] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely, that the change in language from “serious” to “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
[13]Supra
[14]at 846
[15](1995) 21 MVR 314
12 Winneke P, in Mobilio, agreed with Brooking JA’s reasons, and further agreed with him that the word “severe”, where used in sub-paragraph (c) of s93(17) of the Act, was a word of stronger force than the word “serious” when used in that Act.
General outline of Section 93(17) of the Act
13 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future. Secondly, the impairment must have consequences in relation to pain and suffering and loss of enjoyment of life which, when judged by comparison with other cases in the range of possible impairments, may be fairly described at the date of hearing, as being “more than significant or marked, and as being at least very considerable”.
14 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments, or losses of body functions, mental, or behavioural disturbances or disorders.
The Plaintiff’s evidence
15 In his first affidavit, the plaintiff swore that he was born in December 1968 in Bagdad. He was educated to the equivalent of Grade 6, and thereafter, he left school to help his family’s business in a factory ironing clothes and preparing them for fashion stores. Thereafter, he lived for short periods of time in Jordan, and Greece. He migrated to Australia on 20 July 1995 and became an Australian citizen in 1999.
16 The plaintiff worked in a bicycle manufacturing factory in about 1996 and 1997. Thereafter, he worked at a casual job in a bakery in Preston from about 2000 to about 2002. Thereafter, he obtained work in a bakery on referral from the Department of Social Security in about 2004 or 2005.
17 In this affidavit, the plaintiff swore:
“I am not aware of any significant pre-existing injuries or conditions that would contribute to the injuries I have sustained as a result of the transport accident. To the best of my knowledge I was in good health prior to the accident.”[16]
[16]Exhibit O, PCB 2-3 paragraph 10
18 On 5 August 2005, the plaintiff swore he was stationary, standing in a bicycle lane, waiting to cross Moreland Road in Brunswick West. He alleges a car drove into the bicycle lane where he was standing and collided with him, travelling at approximately 60 kilometres per hour. He suffered a number of injuries and was taken by ambulance to the Royal Melbourne Hospital, where he was held for a short time under observation. He felt pain “all over my body and especially in the abdominal area”.[17]
[17]Exhibit O, PCB 2-3, paragraph 16
19 After discharge from hospital, the plaintiff attended his general practitioner, Dr Mourad Georgy, in Thornbury. He was referred for a CT scan of his neck and plain x‑ray of his left knee on the day of the accident.
20 The plaintiff continued to be attended by Dr Georgy until he changed practitioners to Dr Mustafa Ahmet in early January 2006. He then swore:
“… I have continued seeing him for treatment of my injuries as a result of the accident. He is prescribing very strong pain medication.”[18]
[18]Exhibit O, PCB 4, paragraph 21
21 At this stage, the plaintiff swore that he was being prescribed the following medication for the pain he was suffering:
· Meloxicam
· Panadeine Forte
· Panadol
· Ferritin
· Nurofen Plus
· Temazepam
· Tiger Balm.[19]
[19]Exhibit O, PCB 5, paragraph 22
22 In December 2007, the plaintiff began “further” physiotherapy sessions for his right shoulder. He found this made his pain worse.[20]
[20]Exhibit O, PCB 5, paragraph 24
23 Thereafter, the plaintiff swore that on 27 June 2008, he was referred for an x‑ray and ultrasound of his right shoulder, which he believed showed:
“… slight irregularity of the posterior labrum of the right shoulder joint.”[21]
[21]Exhibit O, PCB 5, paragraph 23
24 As a result of his injuries, the plaintiff swore he continued to suffer restrictions in the range of movement of his “neck, arms and lower back”.[22]
[22]Exhibit O, PCB 5, paragraph 26
25 Prior to his injuries, he swore he enjoyed playing soccer, jogging, swimming, table tennis and dancing.[23]
[23]Exhibit O, PCB 6, paragraphs 27-31
26 Since the transport accident, the plaintiff swore he suffered from mood swings and developed a short temper. He became increasingly depressed, which he believed manifested “as extreme anxiety and stress”.[24] He also swore that since the transport accident, he has suffered from a ringing sound in both of his ears called “tinnitus”. He further stated:
“… Prior to the car hitting me, I had never had tinnitus before. It began with one ear and now I hear it in both. … .”[25]
[24]Exhibit O, PCB 3, paragraph 34
[25]Exhibit O, PCB 7, paragraph 35
27 Thereafter, he swore:
“As a result of my depressed mood, my personal relationship with my girlfriend has suffered and I have experienced very upsetting relationship problems. … .”[26]
[26]Exhibit O, PCB 7, paragraph 36
28 Further, he swore that since the transport accident, he has developed a fear of cars and he has trouble sleeping. He also swore that during the night, he often had “flashbacks of the car hitting me”.[27] He swore that he has recurring dreams and he wakes feeling hot, sweaty and anxious. This in turn makes it extremely difficult for him to sleep.[28]
[27]Exhibit O, PCB 8, paragraph 41
[28]Exhibit O, PCB 8, paragraph 41
29 With respect to earning capacity, he stated he was working approximately 15 hours per week, earning approximately $200 to $250 a week. He was being paid approximately $15 per hour. He states he has been unable to return to work and been unemployed since that incident.
30 In his second affidavit, the plaintiff recalled that in fact he had experienced pain in his left shoulder in 2001 and had been referred for an ultrasound of that shoulder. He suffered a further flare up of pain in that shoulder in 2002 and attended the Royal Melbourne Hospital Emergency Department. He stated he was prescribed painkillers for some time by his general practitioners and he attended for treatment at the Physiotherapy and Human Movement Clinic for some time. He swore he was in receipt of Centrelink payments for a while as a result of those left shoulder symptoms.[29] Thereafter, he stated he made a good recovery from his left shoulder symptoms, which did not interfere with his ability to enjoy social, domestic or recreational activities.[30]
[29]Exhibit O, PCB 10, paragraph 4
[30]Exhibit O, PCB 10, paragraph 4
31 The plaintiff further swore that in the past, he had experienced symptoms of anxiety and stress related to family issues. He had consulted with a psychiatrist, and his general practitioner had prescribed him antidepressant medication. He swore:
“… However, I ceased taking these medications soon after my doctor prescribed them as they caused me to experience side-effects. I recovered substantially from these symptoms and was able to continue enjoying my social, domestic and recreational activities.”[31]
[31]Exhibit O, PCB 11, paragraph 5
32 Further, in his second affidavit, the plaintiff recalled that he used to enjoy playing golf and volleyball with his friends prior to injury.
33 The plaintiff further swore that he was continuing to take a number of medications on a daily or weekly basis.[32]
[32]Exhibit O, PCB 11, paragraph 10
34 The plaintiff also recalled that in about 2001, he had attended a psychologist for a number of counselling sessions but stopped attending as he did not feel that the treatment was helping him.[33]
[33]Exhibit O, PCB 11, paragraph 11
35 In this affidavit, the plaintiff referred to ongoing pain in his neck, causing migraines; his shoulders, particularly his right shoulder; his lower back, and both knees, particularly his right knee.[34]
[34]Exhibit O, PCB 12, paragraphs 12-18
36 The plaintiff now no longer played golf because of pain in his neck and right shoulder. He suffered similar symptoms when attempting to play table tennis. He can no longer play volleyball because of back pain and pain in his knees and right shoulder. Further, he swore:
“… I no longer go dancing as often as I used to before the accident. Moving around on the dance floor for extended periods of time causes the ongoing symptoms in my back and knees. I also find that moving my arms around when I dance causes the ongoing symptoms in my right shoulder and neck to increase. I have tried to go dancing on a few occasions since the accident. However, I had to take medications and I also consumed alcohol to help dull the pain.”[35]
[35]Exhibit O, PCB 13, paragraphs 23
37 The plaintiff related a number of everyday activities which also caused pain, and further stated:
“I now experience difficulty engaging in physical intimacy as a result of the ongoing symptoms in my neck, right shoulder, back and both knees.”[36]
[36]Exhibit O, PCB 14, paragraph 30
38 Thereafter, he swore:
“As set out in my first Affidavit I continue to experience symptoms of depression. I am very upset that I must struggle with pain on a daily basis and that I cannot enjoy my hobbies and pastimes as I did before the accident. … .”[37]
[37]Exhibit O, PCB 14, paragraph 31
39 Thereafter, he swore he continued to suffer from flashbacks of the transport accident and continued to have nightmares relating to the transport accident.
40 Despite these symptoms, the plaintiff stated that:
“In or about late 2006 or early 2007, I attempted to return to some part time work as a security officer. This was only occasional work and I recall only working a small number of hours per fortnight. I recall working as a security officer at a club and being required to guard the entrance. In or about early 2008, I ceased working in security. I found the standing for extended periods of time aggravated the ongoing symptoms in my neck, right shoulder, back and both knees. Also, I was very worried that I would be involved in a fight and I would suffer further injury to my neck, right shoulder, back and both knees.”[38]
[38]Exhibit O, PCB 15, paragraph 36
Lay evidence
41 The plaintiff was assisted capably by his partner, Ms Maria Sciuto, at the hearing of his application. He also had the assistance of an interpreter provided by the defendant. Ms Scuito swore an affidavit dated 19 June 2015 which was admitted into evidence by consent.[39] Therein, she swore that she had known the plaintiff for five years and that they had officially moved in together a year ago. She stated:
“… Together we share a daughter, and two girls from my previous marriage.”[40]
[39]Exhibit E
[40]Exhibit E, paragraph 1
42 Ms Scuito states that she is the plaintiff’s “partner and legal carer”.[41] She states that she is a witness to the physical and mental strain he obtains from his “cervical spine injury, pain on the right shoulder, neck region, chest, right hip and lower pain damage”.[42] She states she massages his back and shoulder to help minimise pain and to help “console his mind, state and emotions, assist with medical intake and undergo household tasks” that the plaintiff cannot. She washes the car, vacuums, mows the lawn and chops wood.[43] She further states:
“Tony endures anxiety, depressive moods, frustration, headaches, temperament, persistent pain, impaired sleep, reduced appetite and ongoing thoughts about the accident and its consequential effects it has on his lifestyle and daily functioning. This impacts our relationship, our family and the household.”[44]
[41]Exhibit E, paragraph 1
[42]Exhibit E, paragraph 2
[43]Exhibit E, paragraph 2
[44]Exhibit E, paragraph 3
43 Further, the plaintiff has tendered an affidavit from Rony Elou sworn 30 August 2012.[45] He swore that he is a nephew of the plaintiff and migrated to Australia in January 2005. He lived with his uncle for a couple of months prior to his injury in 2005 and now spends time with him approximately “a few times per week”.[46]
[45]Exhibit P
[46]Exhibit P, PCB 18, paragraph 8
44 Prior to the accident, they played soccer, tennis, table tennis, volleyball and ten-pin bowling together. They also went out on many occasions to locations such as bars and clubs, and he observed that his uncle was very sociable on these outings.[47]
[47]Exhibit P, PCB 18, paragraphs 10-12
45 Apparently, his uncle told him that in the transport accident on 5 August 2005, he suffered injuries to his “right shoulder, neck, lower back and both legs”.[48] He complained of ongoing symptoms but relates that the “right shoulder and neck symptoms are the worst”.[49]
[48]Exhibit P, PCB 19, paragraph 14
[49]Exhibit P, PCB 19, paragraph 15
46 Apparently, they visit each other a few times per week, and Mr Elou notes that:
“… he does not laugh and joke as much as he did before and he appears less happy. He does not tend to spend as much time socialising with us as he used to. When we have been with him for more than a short period of time, he often says that he is in pain and has to rest. He often appears tired and sleepy.”[50]
[50]Exhibit P, PCB 19, paragraph 16
47 Although he has invited his uncle to play sport with him, he has been told that it is too painful to partake.[51]
[51]Exhibit P, PCB 19, paragraph 18
48 Further, he swears:
“My uncle is less sociable than he was before and I do not see him go out as much. I have gone out with my uncle on a few occasions since the accident to get him out of the house. On some occasions, he has tried to do some dancing. However, I have observed that he does not dance for as long as he did before and he looked like he was in pain afterwards.”[52]
[52]Exhibit P, PCB 20, paragraph 23
49 Further, he swore:
“My uncle still drives his car a bit. I have been a passenger when he has driven on a number of occasions since the accident. I have observed that he often appears to be in pain when he has been sitting in the car for a while and when he has to use the steering wheel a lot. He also appears anxious and stressed around traffic. I often drive my uncle around to take some of the physical and psychological pressure off him. However, he still appears nervous as a passenger.”[53]
[53]Exhibit P, PCB 20, paragraph 25
50 Finally, he swore:
“From my observations, the injuries that my uncle sustained in the accident, particularly the right shoulder and neck injuries, have affected his ability to participate in social and recreational activities such as playing sports, performing household tasks and socialising. They have also affected his ability to work.”[54]
[54]Exhibit P, PCB 21, paragraph 27
51 The plaintiff has also tendered an affidavit of George Batsakis sworn 18 September 2012.[55] He swore that he is a friend of the plaintiff, whom he first met in the mid to late 1990s. He swore:
“… After we were introduced, Tony started coming out and socialising with us. Since that time, Tony and I have maintained a strong friendship.”[56]
[55]Exhibit Q
[56]Exhibit Q, PCB 22, paragraph 3
52 Before the accident, they would go out together a few times per week. They would attend restaurants and cafés and clubs. He often observed:
“… Tony going out onto the dance floor and dancing with people. He appeared to enjoy dancing very much and I did not observe that he was experiencing any physical pain or difficulty.”[57]
[57]Exhibit Q, PCB 23, paragraph 5
53 The plaintiff reported to him a few days after the transport accident that he had sustained injuries to “his right shoulder, neck and lower back”.[58]
[58]Exhibit Q, PCB 23, paragraph 9
54 The deponent continues to see the plaintiff regularly, “often up to a few times per week”, and continues to speak to him on the telephone. They also attend places such as restaurants, cafés and bars; however, the time “tends to be much shorter now”.[59]
[59]Exhibit Q, PCB 23, paragraph 11
55 From Mr Batsakis’ observations, the plaintiff continues to have problems with his right shoulder and neck injuries, and appears depressed and upset.[60]
[60]Exhibit Q, PCB 23-24, paragraphs 12 and 15
Paragraph (a) physical injury
56 The Royal Melbourne Hospital Ambulance Case Sheet dated 5 June 2005 relates a history of a –
“36 [year old male] pedestrian running for bus impacted with side of car (? 2003 Ford) sedan. [Patient] was seen to stumble backwards to kerb + lay half on footpath/road. 0 head injury or LOC (loss of consciousness). Car travelling approximately 60km/H. Driver stopped. MAS called.
…
O/E (on examination) Alert/ oriented [as to time and place].
…
Blood pressure 110/(?)
…
0 ABN (abdominal) sounds.
Head – NAD; Neck – NAD; Chest – L side pain. …; [Abdomen] – pain [increased on ?/Pelvis – NAD; Back – NAD; Left leg – mid femur tender on ankle. Mid tibia pain. … R leg NAD; L arm pain on palp[ation] from shoulder [to] fingers. … R arm NAD.
0 obvious deformities/swellings anywhere. … .”[61]
[61]Exhibit 1, Defendant’s Court Book (“DCB”) 1
57 The plaintiff was examined by his regular general practitioner, Dr Georgy of High Street, Thornbury, on 5 August 2005. In final submissions, the plaintiff produced a document which showed that Dr Georgy had attended him on 5 August, 8 August, 10 August, 18 August, 22 August, 30 August, 5 September, 5 October, 10 October, 24 October, 26 October, 3 November and 1 December 2005.
58 The plaintiff also tendered in evidence Medical Certificates from Dr Georgy dated 5 August 2005, 5 September 2005, 10 October 2005, 3 November 2005 and 1 December 2005.[62] Otherwise, there was no report, or clinical notes, produced from Dr Georgy.
[62]Exhibit BB
59 The first Certificate stated the plaintiff was suffering from soft-tissue injuries to the cervical spine, the left knee, and the left wrist.[63]
[63]Exhibit BB
60 The second Certificate repeated the same injuries but added:
“ depression.”
61 The third Certificate was identical in terms of diagnosis, as was the fourth Certificate and the final Certificate. All Certificates had certified the plaintiff as totally unfit to work except for the last Certificate, which certified him as:
“… fit for light job.”
62 A CT scan of the cervical spine sought by Dr Georgy concluded that no abnormality was noted, as was a CT scan or x-ray of the left knee, both dated 9 August 2005.[64]
[64]Exhibit 2
63 Despite the Certificates endorsed referred to above, the plaintiff’s Claim for Compensation dated 13 August 2005[65] stated his injuries to be:
“neck pain (severe), leg pain – left side (severe), arm pain – left side, shoulder pain – left side, hand pain – left side, headache, feeling dizzy, multiple bruises.”[66]
[65]Exhibit R
[66]Exhibit R, PCB 29, paragraph 26
64 I note there was no claim of right shoulder pain.
65 Thereafter, the plaintiff changed general practitioner to Dr Ahmet in January 2006. The plaintiff said, of Dr Georgy:
“He did not help me.”[67]
[67]Transcript 56
66 It perhaps should also be noted that the plaintiff, in final submissions, indicated he had seen Dr Georgy on a number of occasions after January 2006, as late as 7 March 2007. There is no evidence as to what happened at these various attendances.
67 In any event, when Dr Ahmet saw the plaintiff on 9 January 2006, he was treated for an irritated throat and a urethral itch following a condom breakage two weeks ago.[68]
[68]Exhibit D, page 19
68 There was no mention of, or prescriptions for, any injuries said to be arising out of the transport accident.[69]
[69]Exhibit D
69 The next attendance on Dr Ahmet was 20 August 2007 and once again, it was for complaints that could not in any way be associated with the transport accident.
70 The next attendance was on 6 September 2007 for unrelated matters and then, on 16 October 2007, he attended Dr Ahmet with the following history:
“In May stated he was hit in head by Police and since then had tinnitus.”[70]
[70]Exhibit D, page 18
71 When cross-examined on this matter, the plaintiff said that he could not remember giving this history.
72 Further, on that date, Dr Ahmet recorded:
“Stressed with the problems that exist between patient and his wife. He said he has been put on unjustified charges by the police.”[71]
[71]Exhibit D, page 18
73 He was suffering from:
“nervous stomach, diarrhoea, not sleeping, very upset.
he wants everybody to leave him alone including wife, police and Centrelink.
thoughts keep going through head and just can’t settle at night & hence not getting enough sleep.
Patient has used night time sedative in past on an as needed basis.”[72]
[72]Exhibit D, page 18
74 Further, on 26 October 2007, a CT scan of the brain was recorded as “normal”, and the clinical note is –
“bilateral tinnitus, stressed with the marital situation.
has had to leave the job.”[73]
[73]Exhibit D, page 18
75 The first mention in Dr Ahmet’s notes of the transport accident is on 19 December 2007, where the clinical note reads:
“[Patient] has been advised by TAC that they will pay the first 5 sessions [of] physiotherapy with the possibility of extension of the treatment.
chronic neck pain.”[74]
[74]Exhibit D, page 18
76 There is no mention of any other ongoing physical problem of any nature.
77 Thereafter, on 15 January 2008, and x-ray of the cervical spine is recorded as “normal”.
78 Attendances on 15 January 2008 and 15 February 2008 do not appear to be related to the transport accident.
79 On 22 May 2008, the clinical note reads:
“Court case coming soon, getting nervous & can’t sleep with the worry.”[75]
[75]Exhibit D, page 17
80 Thereafter, on 25 June 2008, it is recorded:
“received a good behaviour bond of 2 years.
neck sore at the right root of neck.
on moving the neck getting tingles in right fingers.
[On examination] neck mildly tender but the right shoulder is clicking and painful arc at 90 deg. [Compared with] bursitis.”[76]
[76]Exhibit D, page 17
81 Thereafter, a diagnostic imaging was requested of the right shoulder, together with an ultrasound of the right shoulder. This is the first clinical mention of the right shoulder, some three years after the accident.
82 On 23 July 2008, the x-ray of the right shoulder is reported as normal and the ultrasound of the right shoulder is reported as:
“Slight irregularity is noted at the posterior labrum”[77]
[77]PCB 92
with the clinical note:
“Had the right shoulder pain for the last three years.”[78]
[78]Exhibit D, page 16
83 The diagnosis was recorded as:
“… chronic pain syndrome R shoulder.
physiotherapy made the pain worse.”[79]
[79]Exhibit D, page 16
84 Thereafter, on 1 September 2008, Dr Ahmet has recorded:
“stressed: lost drivers license, has no job.”[80]
[80]Exhibit D, page 16
85 The presenting complaint was one of “pharyngitis”.[81]
[81]Exhibit D
86 Thereafter, the plaintiff was apparently referred to Mr Craig Mills, orthopaedic surgeon, in or about August 2008. The only reports from Mr Mills are first a letter dated 28 August 2008 to the Transport Accident Commission requesting authorisation for a right shoulder MRI scan and a letter to Mr Jonathan Harris, physiotherapist, dated 26 September 2008 with respect to ongoing “shoulder and neck physiotherapy”. Mr Mills reported:
“… He has undergone an MRI which shows a little bit of labral fraying but essentially a very largely normal shoulder. Surgery is not appropriate but ongoing strengthening, core stability, shoulder retraction, ultrasound, stretches and strengthening and cervical spine work is.”[82]
[82]Exhibit T, PCB 49
87 Thereafter, Dr Ahmet treated the plaintiff on 10 November 2008 and 21 November 2008 for an unrelated condition.
88 On 11 February 2009, Dr Ahmet notes:
“Pain in lower right neck and right shoulder.”
89 Mobic was prescribed.[83]
[83]Exhibit D
90 Thereafter, attendances on 19 March, 30 March and 7 May 2009 are for unrelated matters.
91 On 3 June 2009, the clinical note states:
“Neck pain persists. Chest pain.”
92 On examination, the chest was clear and the doctor queried osteochondritis.
93 On 17 June 2009, Dr Ahmet recorded:
“needs referral to psychology & physiotherapy
at this stage [patient] does not feel he wants to go psychology (sic) … ..”[84]
[84]Exhibit D, page 14
94 A further attendance on 7 August 2009 is for an unrelated matter, and on 29 October 2009, the clinical note is:
“is complaining of a great deal of nervousness.
difficulty finding a job.”[85]
[85]Exhibit D, page 14
95 On 23 November 2009, the note states:
“sore right ear after going swimming in the sea.”[86]
[86]Exhibit D, page 13
96 Attendances on 24 November 2009, 1 December 2009 and 10 December 2009 contain no relevant record.
97 On 2 February 2010, the clinical note records:
“right shoulder pain.”[87]
[87]Exhibit D, page 13
98 The plaintiff was prescribed Mobic.
99 The next relevant attendance would appear to be 14 July 2010, where the note records:
“has back pain and left leg pain.
also says he has pain in the testes.
…
the patient has been self treating the back pain with panadol for several years perhaps four years. there seems to be associated intermittent groin area pain which occurs with the back pain.”[88]
[88]Exhibit D, page 12
100 Voltaren, Panadol and Mobic were prescribed.
101 On 20 July 2010, an x-ray was taken of the lumbar spine with the record:
“loss [of] lumbar lordosis due to muscle spasm.
[Prescription:] massage.
[Patient] is using conservative treatment.”[89]
[89]Exhibit D, page 12
102 On 30 August 2010, the clinical note states:
“[Patient] has [ultrasound] booked for friday.
Persistent lower abdominal.
right shoulder pain.”[90]
[90]Exhibit D, page 11
103 On 7 September 2010, the ultrasound of the abdomen was reported as normal.
104 On 7 October 2010, Dr Ahmet reports:
“very [sore neck] giving him a headache that is making him nervous. seems to [be] highly pain focused.
had the pain more than 5 years.
the psychologist said the Mobic might be upsetting the stomach and he stopped even though he has no stomach upset!!!
actually the patient felt better when he took the mobic.
says he can’t sleep with the pain. not to use sleeping tabs every day only when he really needs them.”[91]
[91]Exhibit D, page 11
105 On 16 December 2010, Dr Ahmet reports:
“still with chronic neck pain.”[92]
[92]Exhibit D, page 10
106 On 2 February 2011, Dr Ahmet reports:
“has daily pain.
Ne[c]k movements painful.
Diagnostic Imaging requested. … .”[93]
[93]Exhibit D, page 10
107 On 8 February 2011, Dr Ahmet reports that the x-ray of the cervical spine showed:
“… no foraminal stenosis.
mild degen[erative] changes.
explained that it is likely muscular pain.”[94]
[94]Exhibit D, page 10
108 There is no other further relevant recording until 24 March 2011, where the note states:
“brian not switching off at night, stressed. nervous stomach.
has had a relationship breakup.
has moved elsewhere
is stresse[d] by no commission house.
neck pain worse.
pressure in head.
feels dizzy.
is not happy.
stressed by no work.
has overactive thoughts.”[95]
[95]Exhibit D, page 9
109 There is no further relevant notation until 7 July 2011, where it is recorded:
“neck pains persist. neck movements painful.”[96]
[96]Exhibit D, page 9
110 On 12 July 2011, Dr Ahmet records:
“[On examination] tend[e]r to the medial scapular border, right root of neck tender, pressure on vertex produces right neck pain.
Impression: largely tender muscles.
[Patient] keen to …[relate] the pain to the accident. Sometimes not much pain at all, sometimes severe.
Plan: to take the Allegron every night 2 tabs.
Gets pain in the muscular areas around neck and shoulder on doing the vacuuming at home.
MOBIC … ceased.
Added: NAPROSYN.”[97]
[97]Exhibit D, page 9
111 Thereafter, on 21 May 2012, Dr Ahmet records:
“[Complaining of] NECK PAIN CAT[C]HING HIM AND QUITE SEPARATELY RIGHT SHOULDER PAIN.
Want[s] to see an [A]rabi[c] speaking psychologist and if [patient] brings the nam[e] of a psy[c]hologist known to his family I will refer.”[98]
[98]Exhibit D, page 7
112 On 4 September 2012, it is recorded:
“‘too much stress’.
[complained of] insomnia.
…
Impression: as reports a lowered mood, likely depression. is more stressed with a rec[e]nt car accident.
had some yellow discharge from the nose blood tinged.
… .”[99]
[99]Exhibit D, page 7
113 On 19 October 2012, it is recorded:
“court has been put off till next year – (probably this case).
pain right leg – had it four days.,
says the pain in leg is the result of the accident.
it is on & off.”[100]
[100]Exhibit D, page 6
114 An x-ray of the pelvis and right hip was required.
115 On 22 October 2012, the x-ray of the hip and pelvis was reported as normal.
116 On 25 October 2012, a CT scan of the lumbar spine apparently recorded:
“L3/4 L4/5 mild disc bulges indent the theca, no nerve root compromise. As far as I can see, the back is degenerative change and not a traffic accident injury.”[101]
[101]Exhibit D, page 6
117 By 7 October 2013, there is reference to the plaintiff being referred to a psychologist, Dr Juliette Hooper.
118 Dr Hooper has provided two letters dated 9 March 2013 and 24 March 2015 which have been tendered in evidence.[102] They relate that she was treating the plaintiff during the period March to September 2013. He had given a history of being struck by a vehicle in 2005 and had sustained injuries –
“… which he had not fully recovered from, and which impacted on his ability to cope with stress, resulted in deterioration in his quality of life, and chronic pain symptoms.”[103]
[102]Exhibit L
[103]Exhibit L
119 Dr Hooper’s opinion was that the plaintiff was suffering from:
“… an Adjustment Disorder with Mixed Anxiety and Depressed Mood. … .”[104]
[104]Exhibit L
120 Dr Hooper further reported:
“Despite therapy, progress was limited and when I last saw him, he continued to report symptoms which impacted on his well-being.”[105]
[105]Exhibit L
121 The next relevant entry is 7 November 2013, with the notation:
“getting neck pain.”[106]
[106]Exhibit D, page 4
122 Thereafter, on 27 February 2014, Dr Ahmet notes:
“right neck & shoulder pain.
Is entitled to care plan for neck & [shoulder pain].
waking up at night with pain.
likely degenerative spinal pain.
get HLA B 27.[?]”[107]
[107]Exhibit D, page 3
123 Otherwise, he notes:
“… STANDARD LETTER TO MARK JANS PHYSIOTHERAPIST.”[108]
[108]Exhibit D, page 4
124 The only physiotherapy evidence consists of the clinical entries from the Physiotherapy and Human Movement Clinic for the dates 20 December 2007, 28 December 2007, 4 January 2008, 14 January 2008 and 18 January 2008.[109]
[109]Exhibit X
125 The presenting history was of a –
“… car crash 2 years ago and still gets [cervical and] upper thoracic pain.”[110]
[110]Exhibit X, PCB 94
126 The last entry records:
“Struggling getting [cervical] stabilisation.
Still tender neck and upper [thorax].”[111]
[111]Exhibit X, PCB 93
127 Otherwise, the final clinical note concerning the transport accident appears to be 27 February 2014 with respect to the right neck and shoulder pain.[112]
[112]Exhibit D
128 Accordingly, from a treating practitioner’s point of view, it would appear that it is only the cervical spine which has in some form presented as an ongoing complaint since the accident. There is no mention of the right shoulder pain whilst being treated by Dr Georgy in the first six months after the accident, and when the plaintiff changes practitioners to Dr Ahmet on 9 January 2006, there are five attendances before 19 December 2007, wherein there is no mention of any of the injuries arising out of the transport accident. On the latter date, there is a reference that the Transport Accident Commission will pay for five sessions of physiotherapy on account of chronic neck pain. There would appear no doubt that the plaintiff himself attributes the neck pain to the transport accident but the lack of contemporaneous complaints for two years from December 2005 until December 2007 makes the issue of causation problematical.
129 In addition, the plaintiff reported on 16 October 2007 that he had been hit in the head by a policeman, and since then had tinnitus. Thereafter, he suffered from a nervous stomach, diarrhoea, insomnia and general upset. He related to his general practitioner that thoughts kept going through his head and he just could not settle at night and was not getting enough sleep. In addition, the plaintiff considered that the police were unjustified in charging him arising out of his relationship with his wife. It would appear after this episode, that Dr Ahmet commences to take a history of the chronic neck pain ostensibly referrable to the transport accident. It is also at this time that we find a referral to the physiotherapist as referred to above.[113]
[113]Exhibit X
130 Added to this situation is the fact that the only radiological investigation of the cervical spine in evidence is dated 19 December 2007, with the conclusion:
“Normal plain film examination of cervical spine.”[114]
[114]Exhibit W
131 Although, there is reference in the general practitioner’s notes of a further x-ray being taken of the cervical spine in or about 2 February 2011 with the general practitioner reporting:
“Mild degenerative changes. Explained that it likely muscular pain.”
132 Accordingly, it would appear to me that the plaintiff has not discharged the onus of proof with respect to ongoing causation with respect to the cervical spine. If I am wrong in this assessment, I would also find that he has failed to prove that any impairment of the cervical spine which is attributable to the transport accident can satisfy the “very considerable” test.
133 With respect to the right shoulder, there was no complaint with respect to same until 25 June 2008, nearly three years after the accident. Accordingly, I am unable to find that the onus has been discharged with respect to causation and, in any event, the treating medical material would not justify a finding that the impairment to the right shoulder satisfies the “very considerable” test.
Paragraph (c) claim
134 There is a reference to “depression” on the Certificates prepared by Dr Georgy dated 5 September 2005, 10 October 2005, 3 November 2005 and 1 December 2005. As stated earlier, the first complaint to the treating general practitioner, Dr Ahmet, concerning psychological symptoms was on 16 October 2007 in the context of an altercation with the police, whereby he was hit on the head and charged. Once again, the gap in complaints in the meantime gravitate against a finding of causation with respect to the transport accident.
135 The next mention of stress after the police incident is on 1 September 2008, where Dr Ahmet has recorded:
“stressed: lost drivers licence, has no job.”[115]
[115]Exhibit D, page 16
136 There is no corresponding complaint of physical pain on that occasion that could be attributable to the transport accident.
137 The plaintiff has adduced in evidence a treatment plan from a psychologist, Mr Muradiye Selvi, dated 2 September 2009.[116] Mr Selvi therein records a number of symptoms for “stress and panic since motor vehicle accident”. Mr Selvi certifies his diagnosis as “Pain Disorder” and “Generalized Anxiety Disorder” which he believes are related to the transport accident. Within that document however, there is no analysis of how the psychological condition may be related to the transport accident, nor any reference to the other factors which may have affected his condition.
[116]Exhibit Z
Pre-existing injuries
138 The defendant adduced evidence of pre-existing injuries including anxiety and depression, shoulder and upper arm disorder and hearing loss. The plaintiff had been certified by general practitioners, Dr Mendis and Dr Sewak, as unfit for work for various periods between 1998 to 2004 on account of these conditions. See Centrelink documents.[117] Further, the plaintiff was suffering from tinnitus in January 2001.[118] Further, he was referred for a personal support program through Centrelink for anxiety and depression in February of 2003.[119]
[117]Exhibit 16
[118]Exhibit 20
[119]Exhibit 23
139 The plaintiff was examined on a number of occasions by psychiatrist, Dr David Weissman, on behalf of the defendant.[120] His ultimate view was that the plaintiff–
“… has a significant and moderate amount of (combined) pre-existing and unrelated psychiatric impairment … .”[121]
[120]Exhibit 10
[121]Exhibit 10, DCB 107.14
140 In addition, psychiatrist, Dr Timothy Entwisle, examined the plaintiff on 12 October 2012[122] and was of the opinion that the plaintiff’s–
“… complaints of pain occur in the context of pre-existing factors and are not explained by the accident. He had not adjusted to life here, had not worked for many years and was clearly disabled psychologically and psychiatrically.”[123]
[122]Exhibit 14
[123]Exhibit 14, DCB 106
141 In all the circumstances, the plaintiff has not adduced satisfactory evidence concerning the effect and the likely effect in the future of his pre-existing injuries.[124]
[124]Bezzina v Phi [2012] VSCA 161 per Beach AJA
142 In all the circumstances, histories provided to medical practitioners such as Mr Peter Mangos[125] are not able to retrieve the situation for the plaintiff in terms of the problems of proof that he has faced, in particular, with respect to the continuity of history of complaints from the date of the accident.[126]
[125]Exhibit JJ
[126]See Dordev v Cowan & Ors [2006] VSCA 254
143 In all the circumstances, the application must be dismissed and I will hear the parties as to any consequential orders.
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