Niknam v Transport Accident Commission
[2021] VCC 979
•22 July 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-05692
| OMID NIKNAM | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE O’NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 July 2021 | |
DATE OF JUDGMENT: | 22 July 2021 | |
CASE MAY BE CITED AS: | Niknam v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 979 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – whiplash injury to neck – lack of complaints of neck pain to early treating practitioners – causative relationship between transport accident and neck injury – credibility of the plaintiff –whether consequences of neck injury “very considerable”
Legislation Cited: Transport Accident Act 1986
Judgment: Leave granted to bring common law proceedings.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Saunders with Ms P Prossor | Zaparas Lawyers |
| For the Defendant | Mr W R Middleton QC with Ms J E Clark | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Preliminary
1Mr Omid Niknam was born in Iran, where he qualified as a cartographer and draftsman. Seeking a better life for himself and his family, he came to Australia in 2013; however, at the outset, things were difficult. He spent a year in immigration detention. He was then able to enter the community, but on a detention visa. This meant he was unable to work or study. Eventually he was granted a bridging visa.
2Mr Niknam’s English is limited. He completed an English language course. He was unable to find employment despite the assistance of the Asylum Seeker Resource Centre and undertaking an occupational health and safety course.
3On 12 July 2017, he was driving his car when struck with force from behind by another vehicle. Neither police nor ambulance attended. His wife came to the scene and drove him home. According to her affidavit, he complained of neck pain and on the way home she purchased pain-relieving medication.
4His primary problem at that time, however, was low-back pain. Eventually, he consulted his general practitioner. He said the neck pain continued and became worse. The low back pain subsided. The pain extended down into his right arm and into his right hand. He was prescribed various pain-relieving medications.
5Mr Niknam was referred to a neurosurgeon, Dr Ales Aliashkevich, and saw him first on 15 December 2017. Dr Aliashkevich said radiology showed a moderate-sized disc protrusion at C6-7, impinging upon the exiting C6 and C7 nerve roots. There was further central canal narrowing at C4-5 and C5-6. Dr Aliashkevich offered surgery in the nature of a discectomy and fusion, but Mr Niknam declined because of the risks. He underwent a pain management course in 2018.
6It took Mr Niknam some time to associate his neck and arm pain with the transport accident. In consultation with his general practitioner, Dr Mehrdad Eshraghi, Mr Niknam considered whether some incident had occurred while he was exercising at a gymnasium.
7Prior to the transport accident, Mr Niknam was under the care of a psychiatrist, Dr Sam Asadi, who reported he was suffering long-term psychological problems and had developed anxiety symptoms from aged fifteen. That practitioner noted marital discord and concerns about an uncertain future in Australia, which had led to anxiety and depression. He diagnosed a Generalised Anxiety Disorder.[1] Mr Niknam has since separated from his wife, although sees her regularly.
[1]Defendant’s Court Book (“DCB”) 6
8Mr Niknam has had physiotherapy over the years and takes pain-relieving medication, currently OxyContin and Lyrica. He has not worked since the transport accident. He claims a range of recreational, social and domestic activities are affected or lost. He says he suffers significant ongoing pain in the neck and down the right arm. He claims the pain has affected his mental health, and he sought treatment from a psychiatrist, Dr Ehsan Rahimikia.[2]
[2]Plaintiff’s Court Book (“PCB”) 47
9Ongoing treatment is conservative. He says, in his current state, it would be difficult for him to undertake any work.
Application
10This is a serious injury application. The body function said to be lost or impaired is the cervical spine or neck. Although Mr Niknam claims to have suffered a severe mental disorder, in the nature of a Major Depressive Disorder, that application was not pursued with any vigour.
11Mr Middleton, counsel for the defendant, identified the issues in the application as:
· Credit – Mr Middleton submitted I should have significant reservations about the credibility of the plaintiff, because of exaggerated or inconsistent histories provided to various practitioners, and because surveillance film taken earlier this year showed him capable of a range of unrestricted activities and pain-free movement.
· Causation – Mr Niknam had not complained to his treating practitioners of neck symptoms for a considerable period, and then attributed his problems to exercise at the gymnasium. While accepting he was involved in a transport accident on 12 July 2017, Mr Middleton said the injury was only modest and did not cause any significant consequences.
· Range – when compared to other injuries, the consequences to Mr Niknam of the injury sustained in the transport accident could not be accepted as “very considerable”.
Credit
12Mr Middleton submits there are significant credit issues facing the plaintiff. In particular, he submits I should have serious reservations about his credibility for the following reasons:
· Video surveillance taken on 28 March 2021, in particular, showing the plaintiff washing his wife’s car, depicted unrestricted movement and no indication of pain at the levels Mr Niknam claimed in his evidence.
· To a number of practitioners, Mr Niknam described the vehicle which struck him as travelling at 80 or 90 kilometres per hour. This is in contrast to his evidence that he was unable to assess the speed of the vehicle and inconsistent with the damage to his vehicle as depicted in insurance photographs.[3]
· Mr Niknam gave evidence that his current level of pain was 5 out of 10 at best; up to 8 out of 10 at worst. That is significantly different to that described to a number of practitioners as 8 out of 10 at best and 10 out of 10 at worst, and different to the surveillance video.
· Mr Niknam’s complaint of neck pain immediately following the transport accident, albeit increasing subsequently, is inconsistent with the histories provided to the early treating general practitioners where there is no mention of neck pain, nor any attribution of neck pain to the transport accident until months after it occurred.
[3]DCB 93
13Video surveillance film of 28 March 2020 shows Mr Niknam performing various activities.[4] For a period of about an hour, he is seen washing his wife’s car. He appears to move without restriction. At times, he bends low to clean the wheels, squats, and moves his neck to one or other side. He occasionally looks around as a neighbour passes. There is further surveillance video of 21 March 2021 which is not of significance.[5]
[4] Exhibit Three
[5] Exhibit Three
14It should be noted that the video surveillance was only for one hour on one day. While Mr Niknam did appear to move relatively freely, the work was not strenuous, it did not involve holding his neck in a particular way or a particular angle for any period and was not repetitive. The film was not shown to any doctor to obtain an opinion as to whether it was inconsistent with his complaints or the doctor’s assessment.
15While Mr Niknam did complain that at times his pain was severe, he said that at other times it was less so and reduced by strong pain-relieving medication. I did not view the surveillance film as significantly impinging his credit.
16I accept Mr Niknam did make differing complaints of the severity of his pain to different practitioners. To Dr Christopher Woodgate, pain and rehabilitation medicine specialist, in July 2018,[6] he described the pain as 8 out of 10 at best and 10 out of 10 at worst, whereas in evidence, he described the pain at between 5 out of 10 and 8 out of 10.[7] Further, he described to Professor Stephen Davis[8] and to Associate Professor John Laidlaw,[9] neurologists, that the vehicle which struck him was travelling at 80 or 90 kilometres per hour.
[6]PCB 59
[7] Transcript 23-24
[8]PCB 68
[9] DCB 7
17I do not see these matters as significant credit issues.
18In terms of the speed of the other vehicle, I accept Mr Niknam’s explanation in cross-examination that he may have given those speed estimates as he was asked to do so by the practitioners. I accept that the pain in his neck fluctuates and that on any one day it may be better or worse than on another day when his activities aggravate the pain, and depends on the pain medication he has taken. In my view, there are likely to be cultural issues involved; that is, Mr Niknam is likely to give a more florid description of matters such as speed of the other vehicle and pain in his neck, not with a deliberate intention to exaggerate his symptoms, but rather to bring the seriousness of his plight to the attention of the doctors.
19In relation to the history of the onset of neck pain, and its relationship to the transport accident, I will analyse those matters when dealing with causation. I am satisfied that the neck pain which he suffered after the transport accident, and through to the present time, is related to that accident.
20I am not satisfied there are any significant credit issues that cause me to doubt the version of events given by the plaintiff. That view is enhanced by the fact I was impressed by the manner in which Mr Niknam gave his evidence. Despite the submissions on behalf of the defendant, I found him a responsive witness, attempting to answer questions put to him honestly. That assessment coincides with that of his treating general practitioner, Dr Eshraghi, who, in the course of cross-examination, described him as “a very simple, honest man … he always showed me he was genuine … ”.[10]
[10] Transcript 39, Line 13
Causation
21The issue as to causation arises in a number of ways. The first is that there is a considerable delay in Mr Niknam complaining to his treating practitioners of neck pain, a further delay in relation to any attribution by him of that pain to the transport accident and the contemplation as to whether some event occurred while he was at the gymnasium.
22The first consultation after the transport accident was on 28 July 2017 to Dr Nader Mahani, of the Sunshine City Medical Centre.[11] The consultation on that day records:
“has had low nback (sic) pain
no pins and needles.”[12]
[11]DCB 83
[12] DCB 83
23Panadeine Forte was prescribed.
24At the same clinic, on 30 August 2017, Mr Niknam saw Dr Iman Tahmasebi, and there is reference to a lower back pain problem. The notes state:
“chronic pain
taking panadein[e] fort[e] for pain.”[13]
[13]DCB 84
25A further prescription for Panadeine Forte was made.
26Then, on 23 September 2017, Dr Soolmaz Miri records:
“muscle spasm since 3days ago
can’t lie down on this side
pain in neck and back of hand
no other symptom
no radiation to fingers
no loss of sensation
no other symptom
going to gym as well
maybe did heavy weight.”[14]
[14]DCB 84
(sic)
27On examination, there was no cervical tenderness, although there was paraspinal muscle tenderness on the neck. Voltaren was prescribed.
28On 29 September 2018, Dr Seyed Salehi recorded:
“MVA accident last night/ sitted at the front left seat
vip lash inj and bruise over the lower part of abd.”[15]
(sic)
[15]DCB 85
29It was said Mr Niknam was referred to Sunshine Hospital for radiology review. The reference to a motor vehicle accident occurring the night before 29 September 2018 is likely to be a mistake.
30Mr Niknam also attended the Epping Plaza Dental and Medical Centre. On 22 August 2017, he saw a Dr Akhter Hossain with unrelated symptoms.[16]
[16]DCB 79
31On 24 September 2017, he saw Dr Majid Mehdipour.[17] On that day, there is reference to muscle pain and “neck right side is stiff”.[18]
[17]DCB 79
[18] DCB 79
32On 27 September 2017, he saw Dr Hossein Yaraghi. There is recorded:
“neck pain
pain in R arm for 1 week.”[19]
[19]DCB 78
33The next day, 28 September 2017, Dr Yaraghi records:
“still has nexk (sic) pain and low back pain.”[20]
[20]DCB 78
34Dr Yaraghi prescribed Endone. There is reference to radiculopathy onto right hand.
35On 29 September 2017, he sees Dr Eshraghi and the pain medication, Targin, is prescribed.[21]
[21]DCB 78
36On 7 October 2017, there is reference to a CT scan being undertaken.
37Dr Eshraghi, on 29 September 2017, referred Mr Niknam for an MRI scan of the cervical spine.[22] It is recorded that he “injured his neck at gym”.[23] The referral further states:
“severe pain in neck and right arm and hand. numbness in right hand.”[24]
[22]DCB 80
[23] DCB 80
[24] DCB 80
38There are some further attendances in October 2017, with complaints of neck pain and the prescription of medication; however, it is not until 6 November 2017, when Dr Eshraghi records:
“pain in neck
mentiosn that had car accident 3 months ago some one hit his car fro mback and his neck was hyperextended .pa nwas little initially then got worse
initially he was not sure that the pai nis related to accident but whiel pain is gettign worse thoguht about it.”[25]
(sic)
[25]DCB 75
39In the course of cross-examination, these matters were put to Mr Niknam, and it was suggested that he had not disclosed his neck pain nor any attribution of pain to the transport accident to these treating practitioners, most of whom spoke Farsi,[26] until a long time after the event. Mr Niknam admitted the clinical records were likely to be correct. He said at the outset he suffered pain in the lower spine which, after some short time, went away. He suffered pain in his neck shortly after the accident, but it was mild and masked by the lower back pain. The pain in his neck continued. At the outset it was not strong pain but it developed and became worse with time. Mr Niknam said, as the pain worsened, he felt pain down his right arm and into the hand. He did not understand how it could be that the neck pain had worsened, or how the pain came to be referred down his right arm.
[26]Farsi is the Persian language, and spoken in Iran
40In August 2017, he went to a gymnasium and undertook an exercise program. This was not strenuous and did not involve lifting weights. It was walking on a treadmill and involved cardiac exercises.[27] When he spoke to Dr Eshraghi, Mr Niknam was asked whether there was anything that he had started doing which might account for the neck and referred arm pain. He told Dr Eshraghi that he had attended the gymnasium, although at no time said he had injured his neck there. The comments in the clinical notes about the gymnasium were, as Dr Eshraghi explained in his reports of 14 June 2019[28] and 2 July 2021,[29] contemplation as to what could account for the pain. The doctor speculated that it might have been something that happened at the gymnasium.
[27]Transcript 23
[28]PCB 53
[29]PCB 51
41Rather curiously, in a physiotherapy report of 3 May 2018,[30] Ms Eilis McCarthy, while receiving a history of neck pain since the transport accident, recorded that Mr Niknam had been unable to return to “bodybuilding”. In cross-examination, he denied he ever undertook bodybuilding.[31] I accept the submission of Mr Saunders, counsel for the plaintiff, that this reference is likely to be explained by difficulties with translation.[32]
[30]Exhibit 1
[31] Transcript 12, Line 19
[32]Mr Niknam gave his evidence through a Farsi interpreter
42A number of consultant practitioners referred to the history of the onset of symptoms. To Professor Davis, Mr Niknam described the gradual buildup of neck pain, with referred pain over the right arm over a period of weeks. Dr Peter Wilde, orthopaedic surgeon, who examined Mr Niknam on behalf of the Transport Accident Commission (“TAC”), noted there may have been difficulties in translation. He was provided with the relevant clinical notes, and said:
“On careful perusal of the GP documentation, the first mention of low back pain is Friday 28.07.2017, which is two weeks after the motor vehicle accident. The GP record refers to low back pain, no pins and needles, no red flags, no weakness. The next visit is on 30.08.2017 and once again the general practitioner entry is for back pain.
On Saturday 23.09.2017 he once again attends the local doctor, on this occasion complaining of pain in the neck and the back of the hand. There is no explanation for the development or cause of this neck pain. The general practitioner notes ‘going to gym as well’. The general practitioner contemplates ‘maybe did heavy weight’.
Yes, I concede it is difficult to corroborate what the claimant told me and what is entered in the GP records. There is no evidence that he sustained an injury in the gymnasium. The comment regarding gym exercise is merely contemplation as to possible causation by the local doctor. Unfortunately, given the claimant’s statements to me, I am forced to accept what he told me is true. The explanation for the development of neck pain some weeks after the motor vehicle accident might be that the dominant first complaint was injury to the lumbar spine which distracted him from the more minor neck injury.”[33]
[33]PCB 89
43Dr Wilde noted that a transport accident such as occurred would be a “potent cause of neck trauma”.[34] He concluded that the most likely cause of Mr Niknam’s persistent neck symptoms was the accident.
[34]PCB 90
44Mr Niknam’s Claim for Compensation,[35] filed 5 December 2017, under “Injury Details” refers only to “back injury”.[36] However, as pointed out by Dr Wilde, the claim was lodged electronically and as such could only have been prepared with the assistance of an English-speaking colleague.
[35]DCB 86-88
[36] PCB 87
45In his reports and his evidence before the Court, the treating general practitioner, Dr Eshraghi, was firmly of the view that Mr Niknam’s neck and arm symptoms were related to the transport accident. He described Mr Niknam as a genuine person giving an accurate account of what had occurred. He said the delay in the onset of symptoms and the attribution of them to the transport accident was understandable given the slow development of neck symptoms and Mr Niknam’s uncertainly as to how they had arisen.
46In his comprehensive report of 15 April 2021, Professor Laidlaw, was provided with a range of documentation, including relevant clinical notes. He records:
“Omid said that at the time of the accident he had some pain in the neck region but he was not too worried. However, he said that that gradually the pain in the right side of [the] neck became worse and after a month he also started to get pains down the upper limbs to just below elbow (right upper limb pain being worse than left). He said these upper limb pains just started … suddenly one night. Since then he also has had numbness and tingling in the hands (mainly on [the] dorsum) and tips of the fingers, mainly middle and thumb (right worse than left). His hands, particularly the right, also feel a little bit weak.”[37]
[37]DCB 12
47Professor Laidlaw accepted Mr Niknam suffered a whiplash-associated disorder. He said this was the primary diagnosis of injury resulting from the transport accident. He did not accept the disc prolapses at C4-5 and C6-7 as being caused by the accident, but were rather attributable to an underlying degenerative condition of the cervical spine. He expressed some puzzlement at the failure to refer to the motor vehicle accident and the notation of something arising in the course of attending the gym. Nonetheless, he attributed the transport accident as a cause of the neck symptoms.
48The treating neurosurgeon, Dr Aliashkevich, also received a history that –
“… A couple of months later, he started experiencing progressive pain in his right arm and numbness in his arm and hand. … .”[38]
[38] PCB 37
49There was reference to the onset of pain radiating from the neck, down the right hand to the thumb, consistent, said Dr Aliashkevich, with a predominantly C6 dermatomal pattern.[39] Dr Aliashkevich said the transport accident materially contributed to the significant aggravation of the degenerative condition in the cervical spine.
[39]PCB 37-38
50I accept that the history as obtained by the treating practitioners shortly after the transport accident makes no reference to neck pain until September 2017, and no reference to the transport accident until early November 2017. While unusual, I am of the view these notations can be explained because of the predominance of lumbar pain at the outset, the delayed onset of symptoms in the neck and arm, and that Mr Niknam, a relatively unsophisticated man with little knowledge of the complexities of whiplash injuries, was attempting to work out what was causing the symptoms, and searching around for activities he had only recently undertaken, including attending the gym, which might explain them.
51All of the practitioners who have treated him and consultants who have provided the reports for the purpose of this Court case accept the relationship between his neck injury and the transport accident.
52Marrying these opinions with my assessment of the plaintiff as an honest witness, I accept his explanation as to the onset of symptoms and accept the causal relationship between the transport accident and his neck pain and restriction to the present time.
Range
53I accept the opinion of most practitioners that Mr Niknam had an underlying degenerative condition in the cervical spine. This included degeneration at a number of levels, but, in particular, bulges at C4-5 and C6-7 with foraminal stenosis. I accept that there is impingement of the exiting nerves at C6 and C7. This pathology adequately explains Mr Niknam’s significant neck symptoms and referred pain to his right arm.
54Such is the seriousness of the condition that Dr Aliashkevich recommended major surgery, being cervical discectomy and fusion at those levels. Professor Davis agreed surgery was in Mr Niknam’s best interests.
55This injury has required physiotherapy from time to time and a C6 nerve root injection performed by Dr Aliashkevich. Mr Niknam has undergone pain management programs through Dr Babak Farr and Dr Christopher Woodgate in 2018, without significant improvement.
56I accept the opinion of Professor Davis that the transport accident has likely precipitated the C6 radiculopathy and that the radiological features are “fairly striking”.[40] Dr Aliashkevich and Dr Wilde come to similar conclusions.
[40] PCB 72
57I accept Mr Niknam’s evidence of ongoing pain and restriction in his neck and referred pain down his right arm. I accept this affects various aspects of his life, including poor sleep quality and an inability to undertake recreational activities as he describes in his affidavits. I accept he takes a range of powerful pain-relieving medication on a regular basis.
58A few practitioners suggest Mr Niknam has some capacity for limited light work. This may be the case but, given his language difficulties and the lack of any prior work history, with his injuries, his work capacity is significantly reduced.
59In these circumstances, I am satisfied the consequences of his injuries related to the transport accident meet the “very considerable” test. Leave will be granted to bring common law proceedings.
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