Panagiotidis v Transport Accident Commission
[2018] VCC 1971
•30 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-02309
| GEORGE PANAGIOTIDIS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 20 November 2018 | |
DATE OF JUDGMENT: | 30 November 2018 | |
CASE MAY BE CITED AS: | Panagiotidis v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1971 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to cervical spine and right shoulder in transport accident – long history of transport accidents and injuries – failure to disclose in affidavits and histories to the medical practitioners – credibility of the plaintiff – fall after transport accident leading to total hip replacement – whether related – whether injuries occurred in accident – whether consequences of various injuries ‘very considerable’ – disentangling consequences of one injury from another.
Legislation Cited: Transport Accident Act 1986, s93(17)
Judgment:Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram SC with Ms E Anderson | Slater and Gordon |
| For the Defendant | Mr G A Lewis QC with Ms A L Wood | Transport Accident Commission |
HIS HONOUR:
Preliminary
1 Mr Panagiotidis was born in Greece in 1941 and is now seventy-seven years old. He trained as an electrician and worked in Greece as an electrical fitter and mechanic. He migrated to Australia in 1963. He worked in Australia on various jobs. He has not worked since being made redundant in 1993. He has been on the Age Pension since he turned sixty-five.
2 Mr Panagiotidis has a long history of injuries suffered in various transport accidents over the years from 1979. These include injuries to his neck and right shoulder. He has a long history of a range of physical and psychological problems.
3 The subject transport accident occurred on 14 March 2014 at Point Cook. Mr Panagiotidis came to a stop in his vehicle, which was struck by another vehicle from behind. He claims he was forcefully jolted and sustained an injury to his neck and right shoulder.
4 The neck injury is said to have led to aggravation of the underlying degenerative condition, in particular at the C3-4 and C4-5 discs.
5 Mr Panagiotidis also claims to have suffered an aggravation of a pre-existing right shoulder condition, including a large full-thickness tear of the supraspinatus tendon.
6 A few days after the accident because, he says, of a bout of dizziness or vertigo, he fell while getting out of his car and fractured his right neck of femur. As a result, on 17 March 2014, he had a total right-hip replacement. He says the fracture of the femur and related hip replacement arose as a result of his neck injury in the accident.
7 This is a serious injury application. The body functions said to be lost or impaired are the cervical spine, the right shoulder and the right hip.
8 Mr Lewis, for the defendant, identified the issues in the application as:
· There were significant credit issues to be put to the plaintiff in cross-examination, in particular his failure to make any, or any complete, reference in his affidavits and histories to the medical practitioners as to the earlier transport accidents, injuries and conditions, and attendances on his doctors (“Was the plaintiff a credible witness?”);
· In relation to the neck injury, the defendant denied it was related to the accident, and even if it was, the consequences did not meet the “very considerable” test (“Is the neck injury a “serious injury”?);
· In relation to the right shoulder injury, the defendant denied it was related to the accident, and even if it was, the consequences did not meet the “very considerable” test (“Is the right shoulder injury a “serious injury”?);
· In relation to the right-hip replacement, any dizzy spell or vertigo was not related to the neck injury, and was not thus related to the transport accident (“Is the right-hip replacement related to the transport accident?”);
· Even if the neck, the right shoulder or the right hip were causatively related to the accident, the plaintiff had not disentangled the consequences sufficiently to enable the Court to identify the consequences in respect of each body function (“disentanglement”).
Was the Plaintiff a credible witness?
9 I will first analyse the earlier transport accidents in which the plaintiff was involved and the consequences of the injuries suffered.
Transport accident of 4 May 1979
10 In this accident, Mr Panagiotidis was taken to St Vincent’s Hospital. He was reviewed in the Outpatient’s Department. He suffered an injury to his neck.[1]
[1]Defendant’s Court Book (“DCB”) 28
11 According to the report of Mr Brendan Dooley, orthopaedic surgeon,[2] Mr Panagiotidis made a full recovery.
[2]DCB 34
Transport accident of 26 February 1982
12 Mr Panagiotidis was again involved in an accident and suffered pain in his neck and back. He attended his general practitioner, was provided with physiotherapy and given some medication. He was off work for a period.[3]
[3]DCB 28-30
13 According to Mr Dooley, Mr Panagiotidis was off work because of this accident (or possibly an accumulation of symptoms from the first accident) for a period of six years to March 1988. In cross-examination, he admitted he was off work for six years as a result of neck pain.[4]
[4]Transcript (“T”) 20, L (“Line”) 28
Transport accident of 16 May 1983
14 Mr Panagiotidis suffered a jolt to his neck and developed backache. At the time, he was still suffering neck pain from the second accident. He was off work at the time of the third accident. An x-ray of the cervical spine taken on 1 March 1982 showed osteoarthritic change at C4-5. The disc spaces were said to be well preserved.[5]
[5]DCB 31
15 Mr Dooley said this was not a major accident, although Mr Panagiotidis suffered an aggravation of neck and low-back pain.
Transport accident of May 1985
16 Mr Panagiotidis was driving when hit from behind and suffered pain in his back and right leg. He was taken to Preston and Northcote Community Hospital, where x-rays were performed. A CT scan of the lower spine showed a moderate bulge at L4-5. When examined by a consultant surgeon, Mr James Guest, in May 1986, Mr Panagiotidis complained of continuous neck pain, loss of power in the right arm and right leg, dizziness and headaches. On examination, neck movement was restricted to 80 per cent of the normal range.
17 Mr Guest found the clinical situation difficult to assess. He thought all of the accidents had contributed in some way to the clinical picture. He thought Mr Panagiotidis was not as disabled as he made out.[6]
[6]DCB 33
Fall of March 1988
18 In the course of his employment, Mr Panagiotidis was climbing a ladder when he felt dizzy. He fell to the ground, although did not suffer any major injuries. He was off work for four months. Upon his return, he was complaining of neck pain.
Accident of 30 November 1989
19 As a result, Mr Panagiotidis suffered neck pain, low-back pain and right leg pain. He was off work until he saw Mr Dooley in March 1990. Mr Dooley thought his symptoms were largely psychosomatic and that there was no significant structural damage to his spine.
20 Mr Panagiotidis complained to Mr Guest in September 1990 of pain in both shoulders, headaches, pain in the low back and trouble with walking. He was working four hours a day, five days a week at that time, on light duties. Mr Guest did not think that the accident was serious, but the jolt may have aggravated symptoms in his neck and low back. He also thought the symptoms were largely psychosomatic, although noted degenerative changes on the CT scan of the neck and lumbar spine.[7]
[7]DCB 38
21 According to a report from Mr Robert Marshall, surgeon, of September 1990:[8]
“… He has, however, been off work for a long time before that and, even since he went back to work, he has very frequently not worked his five days per week because he suffers very severe headaches and, when he gets up, he very frequently stays away from work.”[9]
[8]DCB 39
[9]DCB 39
22 Mr Marshall considered he had psychological problems. Mr Marshall set out in some detail the history of the various motor vehicle accidents. He noted Mr Panagiotidis had been off work for five or six years up to March 1988, and then when he had a fall from the ladder he was off for a further four months. After the car accident of November 1989, he complained of headaches and was off work for two weeks. He then returned to work, four hours per day, five days per week.
23 To Mr Marshall, he complained of regular headaches which often stopped him going to work. He said the pain was intense. He complained of frequent pain in the shoulders. Mr Marshall did not think any of the various incidents left any lasting physical problems. He thought there was no impediment to a return to full-time work.
24 Mr Panagiotidis was examined by Dr Bruce Batagol, consultant psychiatrist, in September 1990.[10] To that practitioner, he complained of ongoing headaches, pain in his low back and pain in his neck, spreading into both shoulders. He said that sometimes his symptoms were so severe that he could not do anything at all by way of physical activity. At other times he was able to carry out light duties. He said that he saw an orthopaedic surgeon, Mr Hadley, on a regular basis, had physiotherapy, manipulation of his neck and some hydrotherapy. He took Panadeine Forte, several tablets per day, and other analgesic medication. He provided a history of the various car accidents, and the fall from the ladder. Dr Batagol thought Mr Panagiotidis was suffering from Depression, although not sufficient to render him unemployable. He thought the problem was a combination of physical and psychiatric symptoms.
[10]DCB 43
25 Ms Judith McKenzie, orthopaedic surgeon, in 1991[11] obtained a history of the various accidents. In respect of each of the various accidents, she said Mr Panagiotidis had suffered some minor soft-tissue injuries to the cervical spine and by November 1989 he was suffering some troublesome symptoms, including headaches, shoulder pain and neck pain. She also noted complaints of low-back pain. She thought his complaints of pain were consistent with minor post-traumatic scarring to the soft tissues of the neck and minor chronic lumbar ligamentous sprain. She thought he was physically capable of carrying out unrestricted full-time work.
[11]DCB 49
Accident of October 2011
26 In October 2011, Mr Panagiotidis was involved in another transport accident. According to a claim form, apparently completed by his general practitioner, Dr Nicholas Sevdalis, he was suffering from right and left-sided neck pain, which had worsened. In the general practitioner’s notes of 9 November 2011, the neck pain was said to radiate down to his upper back and neck movements were painful, although there was a good range of motion. Anti-inflammatories were prescribed.
27 By July 2012, the notes of another general practitioner in the same practice, Dr George Haralambakis, recorded worsening neck pain over the last six months and a diagnosis of degenerative facet joint disease causing inflammation and spasm was made. An anti-inflammatory was again prescribed.
28 The clinical notes of the general practitioner of 19 January 2013 record “Dizziness+Vertigo Recurrent+Headache”, apparently related to sinusitis. In February 2014, those notes referred to several weeks of right shoulder and arm discomfort.
29 In cross-examination, it was put to Mr Panagiotidis that he had not provided details of these various accidents, the treatment for them or his time off work, in his affidavits, nor to the various doctors he saw for the purposes of this application. He refused to acknowledge that the failure to disclose was any fault of his. He said:
“Well, it’s their mistake, not mine.”[12]
[12]T22, L26-27
30 Despite having had the affidavits read to him, he said he did not know what was written in them. He also blamed his solicitors.[13] He said he was told not to worry about the other accidents.[14] He blamed the interpreters.[15]
[13]T23
[14]T23
[15]T23, L26
31 In cross-examination, he was then taken to extracts from the clinical records of his general practitioner which, over the period from 2009 and 2014, recorded various complaints of dizziness, right shoulder problems, including four injections into the right shoulder, neck and back pain, Depression, dizziness, low back pain, poor sleep, headaches, a collapse at home because of vertigo, worsening neck pain, and the provision of medication for those issues.[16]
[16]Defendant’s counsel provided a document “Panagiotidis – GP attendances”
32 In July 2012, the notes of Dr Sevdalis recorded:
“Over the last year, he has tended to go to bed for days and refused to get up, as he has no motivation to get out of bed, despite increasing his Antidepressant Doses. He is not a severe threat to himself or others, enough to be certified as an involuntary patient, but he is very reliant upon his supporting family to deal with his basic life, day-to-day needs … His psychiatrist of many years, Dr Dinesh, Parekh retired in 2011, and I continue the treatments that have worked for this patient for many years.”[17]
[17]DCB 23
33 Dr Sevdalis, in a report of March 2012, apparently related to a criminal court case, listed the medications Mr Panagiotidis was taking. They included Panadeine Forte and Panadol Osteo.
34 He gave a range of bizarre explanations for these problems and his failure to disclose them, including that he had never received any compensation over the earlier period, had lost his house as a result of the debts incurred, and that his wife had left him.
35 Nowhere in the plaintiff’s various affidavits was there anything like an accurate description of these pre-existing injuries and conditions. In his final affidavit, apparently prepared as a result of seeing a medical report from a consultant retained by the defendant, he said he had some episodes of cervical and lumbar pain, which he said was nothing compared to the pain he suffered after the relevant transport accident.[18]
[18]Plaintiff’s Court Book (“PCB”) 18
36 He admitted to being involved in a number of accidents for which he said he received no compensation. He mentioned the latter incident of 1988. He said that in relation to dizziness he had taken Stemetil intermittently, but not as much as subsequent to the accident. His daughter’s affidavit in support[19] made no mention of the pre-existing problems.
[19]PCB 21
37 Mr Panagiotidis was examined by Mr Russell Miller, orthopaedic surgeon, in July 2015 and again in July 2018. He received a history only of some minor neck problems, with no problems to the right shoulder or hips. He received a history that the right-hip problem arose in the transport accident. In August 2018, Mr Miller was provided with additional documentation, including records of The Alfred hospital about the fall after the transport accident. He was also provided with the earlier medical reports. He found it difficult to reconcile the many transport accidents and the fall after the subject accident with the history he obtained. He said:
“Taking this further information into account it is now my view that the cervical spine problem reflects the effects of the fall on the nature strip and pre-existing disease, but does not relate to a motor vehicle accident.
In relation to the right shoulder, it is now my view that the client's problem with the right shoulder reflects pre-existing disease and effects of the fall on the nature strip … .”[20]
[20]PCB 91
38 Yet, in a supplementary report of October 2018, he reviewed further documents, including clinical notes of the general practitioner and various other consultants and treaters. He then determined that his view had changed and the pre-existing cervical spine problem was aggravated in the transport accident, as was the right shoulder. He then decided that the right hip was related to dizziness he suffered from the motor vehicle accident a few days earlier (he did not say how), which contributed to the right-hip injury.
39 Whatever I make of Mr Miller’s various opinions, it is clear there was no proper disclosure of the long history of physical problems to him, and it was only when he received reports and notes from other practitioners that he became aware of that previous history.
40 To Dr Peter Blombery, Mr Panagiotidis said the only relevant past history was a motor vehicle accident thirty years ago, as a result of which he had some neck pain. When provided with further reports in 2018, he noted from additional documentation, a range of inconsistencies. He said:
“I am unsure as to whether he actually was involved in a motor vehicle accident on 14 March 2014 unless there is some other independent documentation. Given the fact that there are only rare references in Dr Sevdalis' notes to vertigo, it is difficult to know whether in fact he may have only had a mechanical fall in Elsternwick on 16 March without vertigo or previous motor vehicle accidents being involved.”[21]
[21]PCB 102
41 In a report of 19 November 2018, Dr Blombery recorded that he had been provided with further reports from other practitioners. From those reports, he said that although Mr Panagiotidis was a poor historian, he was satisfied that indeed Mr Panagiotidis was involved in a transport accident on 14 March 2014, as a result of which he suffered increased pain in his neck and right shoulder (it is difficult to see how he came to such a conclusion). He said:
“Clearly the subsequent hip surgery was related to vertigo which occurred after the motor vehicle accident on 14 March 2014, which was an exacerbation of previously existing vertigo.”[22]
[22]PCB 130
42 To Professor Mark Cook in August 2018, Mr Panagiotidis said there was no significant past history and that he was otherwise well. From correspondence (as opposed to history received), Professor Cook noted a single motor vehicle accident thirty years ago in which Mr Panagiotidis suffered a mild whiplash and made a complete recovery. However, he was provided with further information which showed an extensive history of neck and back injuries in various car accidents, together with episodes of dizziness, which he thought might be postural, or perhaps hypotensive in origin. As a consequence, he concluded that the whiplash injury in the subject transport accident contributed to the fall. He thought the failure by Mr Panagiotidis to refer to the previous problems was more related to psychiatric and age-related cognitive issues.
43 In 2018, Mr Panagiotidis was examined by Professor Andrew Sizeland in relation to his dizziness and vertigo. To that practitioner, Mr Panagiotidis said that he first noticed suffering recurrent dizziness in 2010, and that he suffered imbalance and would sometimes fall. Professor Sizeland reviewed the general practitioner’s notes and saw that he presented with headaches and dizziness, possibly related to a viral illness in 2010 and 2013. Mr Panagiotidis said immediately after the transport accident he noticed that he was unsteady and became very dizzy. This persisted until he had the fall, which he was told, related to balance issues. Professor Sizeland diagnosed “benign positional vertigo, possibly cervical vertigo. Injury to the occipital nerves with paresthesia.”[23] He said that Mr Panagiotidis’ vertigo before the accident was less severe and had stabilised subsequently. He concluded that the aggravation of benign positional vertigo was consequent upon his neck injury.
[23]PCB 112
44 In addition to the histories already referred to, Mr Panagiotidis gave different histories as to how he came to fall on 17 March 2017. To the treating physiotherapist, he said it occurred while getting out of his car, when he felt dizzy and fell to the ground.[24] To the orthopaedic surgeon, Mr Lyon, and to Mr Miller, initially he said that the car accident itself caused a fracture to the femur.[25] To Dr Nathan Serry, psychiatrist, he said that he went to get out of his car, but felt dizzy and fell over.[26]
[24]PCB 38
[25]PCB 45, PCB 73
[26]PCB 64
45 To Mr Robert Webb, an otolaryngologist retained by the defendant, Mr Panagiotidis said two days after the car accident he was “walking to his car when he felt dizzy and fell over”.[27]
[27]DCB 63
46 The ambulance report records:
“72YO is normally fit and well Today pt [patient] had a mechanical trip on the footpath. Nil head strike. Nil LOC.
Pt landing heavily on R side. Pt unable to get up / unable to weight bear. Staff from restaurant carried pt inside. Pt. called son. 0/A or son, pt unable to weight bear. Pain++ to R hip area. AV called.” [28]
[28]DCB 173
47 The discharge summary of The Alfred hospital records:
“Mechanism: Fell as getting out of car secondary to some pain in his arm … Occasional neck and arm radiculopathy which may have lead (sic) to fall … .”[29]
[29]PCB 50
48 There is no mention of dizziness or vertigo in these records. A Greek interpreter was said to be present.
49 The Austin Health Physiotherapy home visit notes record a history of “fell bwds [backwards] when opening car door”.[30] Again there was no reference to dizziness or vertigo.
[30]DCB 198
50 According to Mr John Owen, orthopaedic surgeon, the injury of the hip injury was:
“On Sunday of that weekend he was feeling well and went to see a friend. As he was leaving the friend’s place, walking to his car, he felt dizzy, fell and fractured his right hip.” [31]
[31]DCB 72
51 A Greek interpreter was present.
52 In addition to the matters above, in cross-examination Mr Panagiotidis was asked whether he used another surname “Kouros”. The explanation for the use of that name, and his initial denial of being charged with theft in this Court in 2013, were comprehensively unimpressive.
53 In submissions, Mr Ingram said I should accept the plaintiff as frank and honest. He said the failure by the plaintiff to disclose a full history could be explained on a number of bases. As was evident from the reports of the consultant practitioners, the injuries suffered to the neck, and possibly the right shoulder, were minor only, that no doctor could find any significant pathology, nor was there a diagnosis of any significant physical injury. The incidents all happened many years ago, the earliest over thirty-five years ago, and the plaintiff could not be expected to have an accurate memory of those events. Further, his understanding of English was poor and the difference in histories, in particular in relation to the fall, could be explained by language problems.
54 I am of the view the plaintiff is a dishonest and comprehensively unreliable witness. He has little, if any, credibility. I am of the view that his failure to disclose details of pre-existing accidents, injuries and attendances upon his doctor for a range of physical and psychological complaints had nothing to do with a lack of understanding of the need to provide an accurate history, and everything to do with intentionally hiding these matters to enhance the prospect of success in the current application. In the histories to the practitioners in the 1980s and 1990s, he was able to give a complete history of the various transport accidents. Even though many years have passed, it is incomprehensible he had simply forgotten about them.
55 Mr Ingram’s submission that the failure by Mr Panagiotidis to give a full account of past accidents is a reflection of the paucity of the injuries suffered is difficult to understand when one considers that after the 1982 accident he was off work for six years because of neck pain. He was off work for months after the fall from the ladder. It is also difficult to understand how he could forget four injections into his right shoulder over the years before the subject accident.
56 He was completely unimpressive in the course of cross-examination. He denied matters which were obvious, regularly would not answer responsively and at every turn focused attention upon the symptoms from the subject transport accident.
57 Because of these matters, I find myself unable to rely upon his evidence to any real extent. Wherever possible, his claims should be supported by objective evidence and findings.
Is the neck injury a “serious injury”?
58 I accept that in the subject transport accident there was some aggravation of Mr Panagiotidis’ longstanding degenerative neck condition. That is recorded in the notes of the general practitioner on the day of the accident.[32] There was muscle spasm observed in the neck and the right shoulder.
[32]DCB 120
59 Many of the practitioners, both treating and consultant, have relied upon the plaintiff’s account of what occurred in the accident. As stated, he is a comprehensively unreliable witness. Their conclusions are therefore affected. The reports of the more recent treating practitioners, Mr Lyons, Dr Tan and Ms Manolopoulos, saw Mr Panagiotidis years after the accident and rely upon the accuracy of his history.
60 Given the comprehensive turnaround by Mr Miller and Dr Blombery in their last reports without, in my assessment, thorough explanation, I was not assisted by their opinions. The plaintiff relies on the opinion of the general practitioner, Dr Sevdalis, who draws a clear link between the accident and what he says are the current neck problems. That practitioner did not comprehensively analyse the clear reference in his own notes to pre-existing problems with the neck. He, further, does not make any reference to the reports of the practitioners who examined the plaintiff in the 1980s and 1990s. I was not assisted by his reports.
61 I prefer the opinion of Mr John Owen, orthopaedic surgeon, who examined the plaintiff in August 2018. He was provided with details of the pre-existing problems, in particular, reference in the general practitioner’s notes. He accepted a neck injury was suffered in the transport accident, but concluded there was no major structural problem. He noted Mr Panagiotidis had a longstanding history of multiple insults to his cervical spine going back to 1979 and thought that the accident caused an aggravation of a longstanding problem.
62 It is clear that Mr Panagiotidis’ neck problem was a significant issue going back to the 1980s. He had six years off work because of it. According to the general practitioner’s notes, as late as July 2012 he was complaining of neck pain over six months. It was noted that he had several motor vehicle accidents, and after each one the pain in his neck had become progressively worse.
63 In submissions, Mr Ingram said that although the plaintiff had neck problems on and off over the years, it became far more symptomatic after the accident. He referred to MRI scanning of 2017 which showed severe right neural exit stenosis at C3-4 and C4-5. He relied upon the accuracy of the plaintiff’s evidence. I do not view the radiology as a measure of trauma in the transport accident. It is more related to long-term degenerative disease which was identified in the 1980s. A CT scan of 1982 showed osteoarthritic change at C4‑5. There was a mild to moderate bulge of the disc annulus at that level.
64 Accepting there was some aggravation of the cervical spine problem in the transport accident, I am not satisfied the plaintiff has proved, on balance, that that has led to any significant increase in the symptoms he suffered and consequences which he claims now affect him. I do not accept his evidence that it is only since the transport accident that he has suffered significant symptoms in the neck. I simply do not believe him.
65 To the extent that he does suffer symptoms in the neck, I am not satisfied that any aggravation of the condition in the transport accident, of themselves, have led to consequences which make the “very considerable” level.
Is the right shoulder injury a “serious injury”?
66 For the same reasons, I am not satisfied that the right shoulder injury is a “serious injury”.
67 There are even more references in the general practitioners’ notes over the period from 2009 to 2014 of right shoulder problems. There were four injections into the shoulder. There were references to right shoulder problems going back to the 1980s. On 3 February 2014, a month or two before the accident, Mr Panagiotidis attended Dr Sevdalis complaining of right shoulder and arm discomfort in the preceding weeks, or possibly months.
68 Again, I did not find the reports of the recent treating orthopaedic practitioners, or those of Mr Miller, Dr Blombery and Dr Sevdalis, as helpful. I prefer the opinion of Mr Owen, who had received a comprehensive history. Again, he accepted there was some aggravation of the underlying degenerative problems of the right shoulder in the car accident. Mr Owen thought the symptoms seen in August 2018 were as a result of a longstanding degenerative process in the shoulder from the failure of his rotator cuff, which led to the development of arthritis in the shoulder. To Mr Owen, Mr Panagiotidis said he had no pain in his shoulder prior to the accident and that the pain had persisted since. This is clearly inaccurate. Mr Owen thought it was unlikely there was any significant injury to the rotator cuff in the accident. I am not satisfied the substantial tear to the rotator cuff can be related to the accident.
69 Accepting there was some aggravation to the underlying degenerative process in the accident, I am not satisfied that the symptoms and consequences specifically related to that aggravation meet the statutory definition. Again, the plaintiff’s evidence that he had few problems in the shoulder before, and very significant problems after, is clearly incorrect. In my view, to the extent he complains of shoulder pain and restriction which affects his activities of daily living, that is no more than the progress of the underlying degenerative problems in his shoulder.
Is the hip replacement related to the transport accident?
70 I am not satisfied that the fall several days after the subject accident, which resulted in a fracture to Mr Panagiotidis’ right femur and subsequent right-hip replacement was related to the transport accident.
71 The account of events closest to the time of the fall which are, in my view, of most significance, are the records of the ambulance officers, the notes of The Alfred hospital and the Austin Health Physiotherapy history. There is nowhere a reference to dizziness or vertigo leading to a fall. Even accepting there was some difficulty in language (although a Greek interpreter was present on several occasions), it is most unlikely that had the fall been brought on by a bout of dizziness, that that would not have been recorded. I conclude Mr Panagiotidis made no such statement.
72 Further, Mr Panagiotidis gave a variety of different explanations as to how the fall came about to different practitioners. To some he said he was walking towards his car, to others he was getting out of it. To still others, he claimed the fracture occurred in the accident. Mr Panagiotidis’ evidence cannot be relied upon.
73 Mr Ingram relies upon the notes and reports of Dr Sevdalis. Initially, that practitioner said Mr Panagiotidis had never suffered from vertigo or hip problems.[33] Subsequently, he referred to vertigo and dizziness on two occasions in August 2010 and June 2011.[34] He said, on both occasions, Mr Panagiotidis was dieting or fasting. His opinion was that true vertigo sufferers get recurring vertigo over prolonged periods. He said the episodes had improved.
[33]PCB 24
[34]PCB 25
74 According to the clinical notes of Dr Sevdalis of 14 March 2014:
“.. Feels dizziness+vertigo-like episodes transiently since.
Vomiting now.”[35]
[35]DCB 120
75 He was prescribed Stemetil for vertigo. He had been prescribed Stemetil in the past.
76 Dr Sevdalis’ assessment in his report of 11 August 2017[36] is not accurate. Nor is his further report of 6 November 2017.[37] The notes of the clinic would indicate references to dizziness on one occasion in 2009; several occasions in 2010; three occasions in 2011, including a collapse at home due to vertigo; one occasion in 2012 and three occasions in 2013, again with the prescription of Stemetil.
[36]PCB 24
[37]PCB 25
77 Further, Mr Guest, as early as 1985, received complaints of dizziness and headaches.[38]
[38]DCB 32
78 Mr Dooley, in 1990, recorded the fall from the ladder in 1988 as a result of feeling dizzy.[39]
[39]DCB 34
79 To Ms McKenzie, in 1991, he complained of dizziness with blurred vision.[40]
[40]DCB 50
80 I do not accept Mr Ingram’s submission that the records of the general practitioners recording dizziness shortly after the accident provide any reliable support for the plaintiff’s contention. I do not accept the plaintiff as an accurate historian, and I do not accept Dr Sevdalis’ view that the fall was obviously related to dizziness.
81 Of the various practitioners who have examined Mr Panagiotidis, I prefer the opinion of Mr Webb, otolaryngologist. His report would indicate he was provided with all the relevant facts. He diagnosed a vestibular migraine which had been occurring on and off since 1988. Mr Webb said that the underlying condition could have been aggravated by the accident but was not the primary cause. Even if the accident did aggravate the underlying migraine or dizziness, I am not satisfied that caused Mr Panagiotidis to fall. The records of The Alfred hospital, and the ambulance officers, that there was no report of dizziness is significant.
82 Professor Cook, neurologist, in his report of August 2018,[41] was told there was no significant past history (a Greek interpreter was present). He did note there had been episodes of dizziness intermittently, clearly recorded in the doctors notes, although said that some of these events were postural and perhaps hypotensive. He thought that the whiplash injury contributed to imbalance of vestibular origin. I found Mr Owen’s assessment more comprehensive.
[41]PCB 103
83 Another otolaryngologist, Professor Sizeland, obtained a history that Mr Panagiotidis had recurrent dizziness, first noticed in 2010. The references to dizziness in the general practitioners’ notes in subsequent years were provided. He diagnosed benign position vertigo and possibly cervical vertigo, together with an injury to the optical nerve. Professor Sizeland, in his first report, did not draw any causative relationship between the accident and the fall. He thought that the vertigo had improved since the accident.
84 In a further report of 16 October 2018, Professor Sizeland was asked as to the diagnosis and the relationship to the accident. He said Mr Panagiotidis was suffering benign positional vertigo over a period. He thought that that vertigo had worsened after the transport accident in 2013 (presumably 2011) and aggravated again in the 2014 transport accident. He thought that the aggravation was due to the neck injury, however, he did not, again, attribute the fall to the vertigo.
85 I do not accept Dr Blombery’s opinion given the extreme change in view from his conclusions in the report of 1 October 2018 to those expressed in his report of 19 November 2018.
Conclusion
86 Underlying this application and my findings, is the fact that I am not able to rely upon the evidence of the plaintiff to any significant degree in respect of his various injuries. He is not only unreliable, but, in my view, has intentionally sought to hide clear and substantial problems in his neck and right shoulder going back over thirty years. The opinions of many of the practitioners who have treated and examined him cannot be relied upon because of the history they have received.
87 I am not satisfied that the fall several days after the transport accident was as a result of dizziness or vertigo, or in any other way related to the injury in that accident.
88 The plaintiff’s application fails.
89 I shall make orders as to costs.
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