Panayiotou v Transport Accident Commission
[2017] VCC 305
•31 March 2017 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-00200
| CHRISTAKIS PANAYIOTOU | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7, 8 and 9 February 2017 | |
DATE OF JUDGMENT: | 31 March 2017 (Revised) | |
CASE MAY BE CITED AS: | Panayiotou v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 305 | |
REASONS FOR JUDGMENT
---
Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – aggravation of a pre-existing injury to the spine
Legislation Cited: Transport Accident Act 1986
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Philippiadis v Transport Accident Commission [2016] VSCA 1
Judgment: Application to seek leave to recover damages for aggravation of a pre-existing injury is dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J M Forbes QC | Slater & Gordon Ltd |
| For the Defendant | Mr J Ruskin QC | Solicitor for the Transport Accident Commission |
HIS HONOUR:
Introduction
1 Mr Panayiotou wants permission to start a claim against the Transport Accident Commission for damages for injuries he received in a motor vehicle accident in 2010. The claim is slightly different, in that he relies on an aggravation of a pre-existing injury, being to the spine.[1] The question is whether the aggravation amounts to a serious injury, for this is really the story of two car accidents, separated by twelve years.
[1]The particulars of injury to the Originating Motion speaks of the cervical spine only. However, the plaintiff’s counsel told me in her opening that he relied upon the entire spine. The defendant did not object.
2 I heard from Mr Panayiotou and an employee of his then employer. As is usual, a large number of documents were tendered.
Circumstances
3 Mr Panayiotou is sixty-six years of age. He was born in Cyprus and came to Australia in December 1989. His formal education in Cyprus was limited. He then worked for three employers in Cyprus before emigrating. His first and only job in Australia after arriving was with CSR Limited (“CSR”). Throughout, he worked as a machinist on the same machine. His job was simple. He would give an “order” to the computer, watch the operation and remove defective tiles from the conveyor belt. He worked the nightshift for thirteen years until his retrenchment in 2013. This shift lasted 11 hours, with four days on and four days off. The job paid well, about $107,000 annually.
4 On 16 January 1998, Mr Panayiotou was driving his car when it was struck by a tram. Because it is vital to compare the effect of this and the second accident, his description of the aftermath of the first is contained in an affidavit:[2]
“In about 1998 a tram hit my car and I sustained injuries to my ribs and neck and back. I submitted a claim form for these injuries. I was off work for about three weeks and returned to work on light duties. In due course I believed that I made a good recovery from these injuries as I was able to work without ongoing problems.”
[2]Paragraph 6 of the plaintiff’s affidavit sworn 10 December 2015
5 In October 2013, he told Kevin King, orthopaedic surgeon:[3]
“…and he assures me that the neck pain settled by about 2000 and the low back pain became only a mild, intermittent discomfort to him from about 2001 onwards.”
[3]Page 2 of a report dated 16 October 2013
6 On 9 December 2010, Mr Panayiotou drove a car into an intersection in Roxburgh Park. He entered the intersection on a green light. Another car entered the intersection against a red light. It hit his car. He was injured. He may have lost consciousness briefly. He vomited. He felt dizzy, confused, with chest pain. Apart from the police telling him to sit down, he remembers nothing until he woke the next day. He was still dizzy, felt lost and had neck pain. His son took him to the Roxburgh Park Medical Centre where a doctor referred him to a local hospital for tests. CT scans were made of his brain and neck. The results were unremarkable. A neck brace was fitted. He went home. After resting for a few days, he went back to work, but the dizziness and neck pain continued. So much so that he took time off work, disguising the reason as sick leave rather than compensation leave. He was retrenched on 27 July 2013 and has not worked since.
7 At present, Mr Panayiotou still suffers dizziness, with pain and stiffness in his neck. Pain is usually present and made worse by activity. He avoids moving his neck, holding it rigid for long times. His memory is poor. Concentrating is difficult. For pain relief, he takes Panadeine Forte and Voltaren. His dizziness is persistent, in that it happens three or four times each week. He cannot drive, walk or use machines when dizzy. He has difficulty sleeping due to the neck pain. He takes sleeping tablets and Somac for his stomach.
8 Mr Panayiotou’s search for work has been unsuccessful. He has sought part-time work with machines.
9 As has been happening for some years, the defendant obtained the records of Mr Panayiotou’s general practitioner. The main doctor is Dr Maher Luka, but sometimes other doctors make entries. In light of the passage I quoted from his affidavit, these make interesting reading.
10 In the Defendant’s Court Book, the entries start on 4 August 2001. This entry does not record the complaint, it merely records the printing of two prescriptions. The first entry recording a relevant complaint is on 16 August 2001, where three different drugs are prescribed. The plaintiff complained about back pain. On 13 September 2001, the complaint is about neck pain, and three different drugs are prescribed. On 24 December 2001, the complaint is neck pain, and four different drugs are prescribed.
11 The next relevant entry is on 11 January 2002, where the doctor wrote: “worsening neck pain after sneezing”. He prescribed another three drugs, Mersyndol, Panadeine Forte and Di-Gesic.
12 On about 18 February 2002, Mr Stephen Doig, orthopaedic surgeon, saw Mr Panayiotou at the request of his then solicitors. Mr Doig had seen him once before in June 2000. What Mr Panayiotou told Mr Doig in 2002 appears in the latter’s report at paragraph 3.2:[4]
“He says now that his neck remains very still and sore. He gets pain radiating into both arms. Occasionally it is extremely bad and he cannot do anything. He feels dizzy and if he sneezes it gets much worse. His back has also remained very sore. He finds it hard to sit and hard to stand for too long. He says that he gets an occasional radiation down to the legs but the back is by far in a way the worst. He is currently on MS Contin, Digesic, Mersyndol forte, Panadeine forte, Voltaren and Prothiaden and he has no allergies.”
[4]Report dated 18 February 2002
13 At paragraph 4.4, Mr Panayiotou told Mr Doig, under the heading “Lifestyle evaluation”:
“He says it affected him quite markedly. He cannot garden. He use to go to the soccer but cannot do that anymore because of the ongoing pain. He cannot dance and he says that he has no social life as a result of this.”
14 Having diagnosed exacerbations of pre-existing cervical and lumbar spondylosis, Mr Doig said of the future, at paragraph 5.0:
“I consider the prognosis here is very guarded. It is likely that he will continue to have pain and disability no matter what is done. Although I have no doubt there is a significant organic components here it would appear that there is also a psychological component which is contributing to this.”
15 On 20 February 2002, Dr Luka wrote in the clinic’s records, “letter to work to consider no heavy lifting because of an old accident”. I assume such a letter was written. There are entries on 5 and 18 March 2002 concerning headaches. The first entry also described back pain and trouble with sleeping. On 19 April 2002, another doctor in the clinic prescribed further drugs under the heading of back pain. On 9 May 2002, the neck and back pain are said to be worsening. The next two visits concern troubles with his stomach and oesophagus. Then, on 28 July 2002, Dr Luka records “continued back and neck pain, nausea after medications”. He prescribed Di-Gesic, Mersyndol Forte, Panadeine Forte and Stemzine. Mr Panayiotou recalls Dr Luka telling him he had “some sort of arthritis”.
16 The same complaint appears on 10 September 2002. There are two relevant visits in October, one about neck pain and the other about “increasing shoulder pains”. In the first, Dr Luka prescribes Mersyndol Forte and Valium, and in the second, Ibilex, Mersyndol Forte, MS Contin SR and Panadeine Forte.
17 On 22 October 2002, Mr Stephen Davis, neurologist, saw Mr Panayiotou at the defendant’s request. Professor Davis found no neurological impairment. He was told of an inability to look up and bend due to pain; headaches three or four times each week; recurrent dizziness, worse when he had a severe headache and lasting up to three days. He saw him moving around constantly on his chair during the interview with apparent pain and, similarly, he writhed around on the examination couch, unable to lie in the normal supine position.
18 On 19 November 2002, Mr Michael Shannon, a surgeon, saw Mr Panayiotou at the defendant’s request. He found Mr Panayiotou uncooperative, in that there was virtually no neck or back movements on a formal examination and yet an ability to rotate his neck through at least 60 degrees while speaking outside the examination, and a near normal range of rotation of the thoracolumbar spine while sitting. Mr Shannon was puzzled by the contrary observation of him being uncomfortable while sitting in a chair. He diagnosed soft-tissue injuries to the neck and back. These injuries had aggravated pre-existing degenerative changes to the neck and back. He saw the pain as part of a pain syndrome, saying the prognosis was largely dependent upon its management.
19 On about 7 December 2002, Dr Jacques Joubert, neurologist, saw Mr Panayiotou at the request of his then solicitors. According to Dr Joubert, the neurological examination was entirely normal.[5] He recorded these complaints:
“He has continued having pain both in his neck and his lumbar spine from that time, and has regular headaches, at least three to four times a week and migraine, with all the features of migraine such as nausea, vomiting, light and sound sensitivity once a month … .”
[5]Report dated 7 December 2002
20 Dr Joubert linked the headaches to the neck injury in giving an impairment assessment.
21 On 12 December 2002, Dr Luka wrote, “headache and neck pain. Could not go to work today.” His examination of Mr Panayiotou revealed extreme neck stiffness and frontal headache. The next day, Dr Luka wrote to Mr Panayiotou’s then solicitors, painting a dismal picture. Under diagnosis, he wrote:
“Neck pain, stiffness, chronic headaches. Mr Panayiotou suffers high degree of neck stiffness, in other words I could not establish any degree of neck movement in neck examination. Virtually he does not have neck movements and derives change of his head position through movements of his upper body. His chronic disabling headache stops him from working in many occasions.”
22 Under fitness for work, Dr Luka wrote:
“Mr Panayiotou has to use all his sick leave and annual leave for the days he is unable to work. He had to stay home in many occasions because of neck pain and headache.”
23 Dr Luka advised of the need for continuous medical treatment. He even estimated the degree of permanent impairment of the neck at 30 per cent. He considered there was a severe and permanent neck injury. Under a series of other headings, Dr Luka did not expect any improvement. The level of pain was now unchanging. He had no neck movements. His headaches were persistent and recurrent.
24 There is a final visit for the year on 31 December where the note reads, “neck pain and headaches, neck stiffness, trouble sleeping”.
25 During 2003, there were four visits to his doctor concerning his neck, back or stomach. On 11 April 2003, Dr Luka prescribed Mersyndol Forte and noted, “patient is trying to take less medicines and try more natural ways of curing his pain”. On 24 July 2003, Dr Michail noted “back and neck pain needs pain killers”. He prescribed Panadeine Forte, Voltaren and Amoxil. On 19 November 2003, Dr Michail saw Mr Panayiotou again. Under “history”, he noted “back pain and neck pain since 1998 TAC”. He prescribed Voltaren and tramadol hydrochloride. This last medication was related to headaches, for the doctor noted “Also Pt feel headache and need a strong pain killer”.
26 In 2004, there is only one relevant visit to Dr Luka’s clinic on 1 July. He noted “neck pain and stiffness, diminished neck movements in all directions”. Dr Luka prescribed Panadol and Voltaren. Except for an unrelated visit, Mr Panayiotou does not apparently go to this clinic again until January 2007. I say “apparently” because the numbering of the pages jumps from 14 to 16 without a 15.
27 There are two visits in 2007, of which one concerns his thoracic spine and pain. On 23 November 2007, Dr Luka prescribed Panadeine and referred Mr Panayiotou to a specialist, Dr Matthew Campbell. I do not know whether he saw Dr Campbell.
28 There are no visits in 2008.
29 The next visit is on 12 March 2009. The complaint is recorded as recurrent thoracic back pain from an “old car accident”. Apart from prescribing Voltaren and Mersyndol Forte, Dr Luka arranged for x-rays of his thoracic spine. There are seven other visits in 2009, none of which are relevant except, perhaps, the visit on 25 October 2009, where the doctor noted “some dizziness”.
30 On 4 March 2010, Mr Panayiotou saw Dr Luka, who noted: “Continued neck pain recurring since the accident. Strong pain killers upset his stomach.” The same day, Dr Luka wrote to the defendant:
“I request approval for Mr Panayiotou to undergo physiotherapy for neck and back pain. Mr Panayiotou has been suffering pains affecting the above mentioned areas since the accident.
He had to cease strong narcotic medications as they upset his stomach but all the time he has used over the counter medications to relief his pain.
This explains why there are no invoices to TAC for his treatment over a long period of time. His pains are continued and he is at a point to have some physiotherapy treatment rather than very strong narcotics.
This letter also explains my invoice for his attendance today.”
31 On 8 April 2010, Dr Luka noted “increased numbness right thigh and leg more at night”.
32 On 21 May 2010, the defendant wrote to Mr Panayiotou. The letter follows a standard form with changes for the particular case. The author missed the point of Dr Luka’s letter, for it asked for approval for physiotherapy treatment. Implicitly, it also asked for payment of the doctor’s invoice. The author took little notice of what the doctor said and wrote to Mr Panayiotou. The first three paragraphs read:
“I am writing to you about a request received from Dr M Luka, dated 4 March 2010 for the TAC to pay for your general practitioner consultations.
The TAC can only consider paying for the reasonable cost of treatment for an injury or condition directly resulting from a transport accident.
The TAC notes that some time has passed since treatment was last paid for on 12 March 2009. Due to this gap in treatment, the TAC requires further information to assist us review the request and determine how general practitioner consultations is related to your transport accident injuries.”
33 On 1 July 2010, Mr Panayiotou wrote to the defendant. He was probably unaware of the contents of Dr Luka’s letter:
“I’m writing to you to answer your question.
For many years all those heavy pain killers I use to have every day have been effected my stomach causing many problems. So when I’ve visited Dr Lucas I told him I have decided to give up the strong medication and I tried very hard for that cause I wanted to be normal like other people. Besides my work did not allow any medication at workplace. So I stopped getting medication from my chemist, I was buying Panadol and panadeine from everywhere, paying myself. That wasn’t easy. I was, and I’m suffering of neck and backache.
Every year I lose all my sick leave cause of that. One day long time ago I have visited my chemist with my doctor’s prescription and I been told that the TAC stopped paying for my medication. I have a question now. Who is going to pay for all the medicines I’ve bought and who is going to put my sick leave back?”
34 Despite saying “I was, and I’m suffering of neck and backache” and “Every year I lose all my sick leave [be]cause of that”, Mr Panayiotou said he was referring to pain occurring “a long, long time ago before this” and his back and neck were getting better. He stopped taking stronger medicines two or more years before writing the letter.
35 The following visits during 2010 did not concern his spine until one comes to the anomalous entry on 5 November 2010. This is the last entry before the accident on 9 December 2010. Dr Luka records:
“His car was hit from behind, developed acute lower back pain and acute neck pain. He is unable to turn his neck. He jolted his neck and his seat skid backwards.”
36 The doctor ordered x-rays of his neck and lower back. I say “anomalous”, for although Mr Panayiotou says he had a car accident, he denies being injured in it. He says a woman drove her vehicle into the rear of his vehicle, damaging one of his tail lights. He was surprised Dr Luka made such a record, for Mr Panayiotou did not tell him about it. He was unsure whether this accident happened on 5 November 2010, but made no claim on the defendant in respect of it.
37 The accident happened on 10 December 2010. At 1.17pm on 11 December 2010, Mr Panayiotou arrived at the Emergency Department of The Northern Hospital. The findings of the examination and tests were largely normal, including CT scans of the brain. The diagnosis was concussion which would last up to two weeks. He was told that if symptoms lasted longer, he should return. He did not.
38 On the day of the accident, Mr Panayiotou saw a new general practitioner, Dr Cresencio Umali, at a different medical clinic. Dr Umali gave his solicitors two reports, one in June 2013 and the other in January 2017. To him, in June 2013, the accident caused a whiplash injury. The prognosis was good, with the possibility of occasional exacerbations of his neck pain. There was no incapacity for work except for the occasional day off due to the exacerbation of pain. By January 2017, Dr Umali saw Mr Panayiotou differently. His condition was now chronic, with recurrent neck pain, vertigo and headache. No longer was his capacity for work largely unimpaired. Now he had a capacity, limited by a warning against repetitive movements of the neck. Where, previously, there might be the need for medicines for occasional pain, now there was an ongoing need for medicines and referrals to physiotherapists, orthopaedic surgeons, or neurosurgeons, and a pain specialist.
39 The Defendant’s Court Book contains the records of Dr Umali’s clinic between 3 August 2010 and 28 July 2013. The records are incomplete. They reveal seventeen attendances, of which four are before the 2010 accident. Between 29 July 2011 and 16 January 2012, there are seven attendances related to the accident. The next such attendance is 12 July 2013. The records do not go beyond 28 July 2013.
“On 7 June 2013, Professor Jennie Ponsford, neuropsychologist, examined Mr Panayiotou at the request of his solicitors[6]. She asked him to do tests. His performances were poor. His general ability was low average to borderline while very poor for new learning and memory. However, for the latter, she said: “These performances are certainly poor and though not inconsistent with his general ability levels, one cannot rule out mild effects of the head injury on his performances”.
[6]Report dated 25 July 2013
40 As to capacity for work, Professor Ponsford did not think his cognitive impairments interfered.
41 CSR has a plant at Vermont. It makes tiles. On 20 June 2013, a senior employee wrote to all employees at the plant. He said, owing to less demand for its products, the company would reduce production at the plant by stopping the nightshift. This shift comprised four employees, of which Mr Panayiotou was one. The author asked for expressions of interest for voluntary redundancy. Mr Panayiotou did not express an interest and his employment ended on 27 July 2013. Of the four nightshift employees, only Mr Panayiotou was not given another job by CSR.[7] Based on a conversation with the operations manager, Simon Robinson, in March 2013, Mr Panayiotou believes he was not offered another job because he took too much time off work due to illness. Unsurprisingly, I did not hear from Mr Robinson: The evidence was unexpected; and he had left CSR’s employ.
[7]Mr Panayiotou speaks of these employees being employed on the dayshift at the “new plant”
42 Mr Panayiotou says he managed the disabling effects of the 2010 injuries by taking leave. The parties gave me documents setting out the time taken before and after the 2010 accident. Working on 11 hours as his standard working day, it says:
·2009: sick leave – 10.30 days; annual leave – 44.58 days
·2010: sick leave – 7.26 days; annual leave – 6.11 days
·2011: sick leave – 8.07 days; annual leave – 15.58 days
·2012: sick leave – 6.4 days; annual leave – 13.06 days
·2013: sick leave – 6.36 days; annual leave – 17.30 days.
43 I will discuss these figures later.
44 On about 16 October 2013, Mr Kevin King, orthopaedic surgeon, examined Mr Panayiotou at the request of his solicitors. Judging from his report, Mr King worked hard to take a “reasonable” history.[8] Relating to the aftermath of the 1998 accident, Mr King made these assumptions:
“I have questioned him carefully and I have looked through the various sets of general practice notes and the overall impression is that he did continue to work continuously over this period from 2000 to 2010, lost only an occasional day from work, continued with the same employer, and he assures me that the neck pain settled by about 2000 and the low back pain became only a mild, intermittent discomfort to him from about 2001 onwards.”
[8]Report dated 16 October 2013
45 Mr King uses the word “settled” to mean symptomless.
46 Mr King’s examination showed neck movements restricted by pain and spasm to about a quarter of normal, and lower back movements restricted by the same factors to about three-quarters of normal.
47 On the assumption the neck was symptomless by 2000, Mr King largely disregarded the back, saw Mr Panayiotou in terms of his examination and complaints, and concluded he was chronically disabled to a moderately severe degree. The complaints about the neck were:
“His main worry is constant, aching pain and stiffness in the neck, present day and night, dating back to the second car accident on 09.12.10 (the original neck pain had settled completely in 2000) and this pain in the neck is of moderate severity at the time with periodic severe flare-ups for a few hours for several days a week.”
48 On 18 December 2013, Mr David Brownbill, neurosurgeon, examined Mr Panayiotou at the request of his solicitors. On the basis of the history and examination, Mr Brownbill considered the 2010 accident had further aggravated the degenerative state of Mr Panayiotou’s cervical spine, causing increased pain, which would continue indefinitely, although fluctuating in intensity. Neurologically, he was normal. Mr Brownbill could not explain the dizziness and suggested an examination by an ear, nose and throat surgeon.
49 On 3 March 2014, Dr Michael Epstein, psychiatrist, saw Mr Panayiotou at the request of his solicitors. Although consultant psychiatrists take detailed histories, Dr Epstein’s effort is remarkable. The solicitors gave him many reports, some of which were not given to me. He also had the records of two medical clinics. His report sets out the history of treatment and examination. From a psychological point of view, Dr Epstein answered a variation of the issue I face: the effect of the 2010 accident on Mr Panayiotou compared with the effect of the 1998 accident.
50 Dr Epstein diagnosed mild forms of a Post-Traumatic Stress Disorder and an Adjustment Disorder with depressed effect. He described the latter as chronic; the former is so by its nature. The symptoms of the Post-Traumatic Stress Disorder were recurrent intrusive thoughts about the 2010 accident, distress with reminders of it, increased concern for his own safety and security and that of his son, hypervigilance, emotional withdrawal and a sense of bleakness. Dr Epstein gave a poor prognosis. He thought treatment or counselling was not warranted as they would not lead to a marked improvement.
51 Mr Panayiotou told Dr Epstein he had had similar symptoms following the 1998 accident but they had settled “over some four or five years”.
52 On 15 August 2016, Mr Michael Dooley, orthopaedic surgeon, saw Mr Panayiotou at the defendant’s request. Mr Dooley saw him in relation to the 2010 accident. He took a brief history of the 1998 accident:[9]
“Mr Panayiotou was involved in a motor vehicle accident in 1998. He said that he was driving his car when a collision occurred with a tram. Mr Panayiotou said that he sustained fractures of his ribs and that after the accident he noted neck and back pain.”
[9]Paragraph [3.3] of the report dated 15 August 2016
53 Later in his report, Mr Dooley discussed this accident. It appears he had medical reports “from around the time” of the accident. These contained complaints of significant neck and back pain and permanent impairment assessments to the cervical and lumbar spines based on movement restrictions.
54 On examination, Mr Dooley found marked movement restrictions to the cervical spine and significant restrictions to the shoulders. With the former, flexion, lateral extension and rotation were all limited to 10 degrees.
55 Mr Dooley diagnosed a soft-tissue injury to the cervical spine region due to musculoligamentous damage and aggravation of the existing degenerative disc disease. He believed there was a significant psychological reaction present.
56 As to prognosis, Mr Dooley said:[10]
“From an orthopaedic point of view only, I would expect Mr Panayiotou to note some ongoing intermittent cervical spine pain. I would not expect his orthopaedic condition to deteriorate over and above the natural evolution of his underlying degenerative disc disease.”
[10]At paragraph [5.0]
57 On 10 November 2016, Mr Russell Miller, orthopaedic surgeon, examined Mr Panayiotou at the request of his solicitors. He took a history of both accidents, complaints about his neck and lower back.[11] Most neck and all back movements were restricted, as was straight-leg raising. For both the cervical and lumbar spine, he diagnosed both musculoligamentous strain and aggravation of degenerative disease. In each case, the prognosis was only fair.
[11]Report dated 15 November 2016
58 Under the sub-heading “Relationship to accident”, Mr Miller wrote:
“This is clearly a complex and multi-factorial presentation. It is likely that this man had pre-existing disease in the cervical spine. It is likely this was aggravated by the first accident and by the second accident. On the information available to me it would appear that the second accident has a dominant factor in his current clinical presentation. I acknowledge the difficulties in making that determination.”
59 Mr Miller said the same for the lumbar spine, adding that its symptoms are “somewhat less severe” than those in the cervical spine.
60 Returning to Dr Umali’s 2017 report, he says under “Treatments” – “Pain medications – Tramadol, Ibuprofen, Panadeine Forte, Voltaren, referrals to specialists – Please referral to complete medical records”. I do not have the complete medical records.
Legal considerations
61 Mr Panayiotou must prove:
(a)He suffered an “injury” as a result of the 2010 “transport accident”. The “injury” is the aggravation of a pre-existing injury;
(b)The “injury’ must be a “serious injury”. Sub-section 93(17) of the Act defines the expression. Mr Panayiotou relies on paragraph (a): “serious long-term impairment or loss of a body function”. The impairment or loss is confined to the cervical spine;
(c)In Humphries & Anor v Poljak,[12] Crockett and Southwell JJ explained the meaning of “serious” in this context:
[12][1992] 2 VR 129
“…we think that the task of the judge confronted with the requirements 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. These 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 is 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’?”
Where the “injury” is the aggravation of an already existing injury, then this paragraph from Philippiadis v Transport Accident Commission[13] is important:
“Where a transport accident is said to cause an aggravation of an existing injury, the aggravation must satisfy the definition of ‘serious injury’ in the sense of producing a serious long-term impairment or loss of a body function. In assessing whether the definition is satisfied it is impermissible to take into account the cumulative effect of the pre-existing injury and the aggravation. Rather, an analysis must be made of the extent of the impairment of the relevant body function before and after the relevant injury to determine the extent of the additional impairment that was caused by the injury. Where, as in the present case, there is more than one accident which is said to aggravate an existing injury, the aggravation resulting from each accident must be considered separately to determine whether it satisfies the definition of ‘serious injury’.”
[13][2016] VSCA 1 at paragraph [27]
62 The defendant relied upon the records of general practitioners. Again, there are helpful passages from Philippiadis.[14]
[14](Supra) at paragraphs [105] and [106]
Discussion
63 Mr Panayiotou must prove the consequences of the aggravation amount to a “serious injury”. This involves a comparison between the effects of the 1998 accident and those of the 2010 accident.
64 The injury is a musculoligamentous strain and an aggravation of the degenerative changes in the cervical and lumbar spine.
65 The defendant’s counsel described Mr Panayiotou as an unreliable witness. He drew my attention to a passage in Mr King’s report, which I have already quoted.
66 At the start of these reasons, I quoted from Mr Panayiotou’s affidavit and from Mr King’s report. The expression “in due course” is vague. Mr King is specific. When cross-examined, Mr Panayiotou gave this answer:
Q: “Mr King says that you told him that you assured him that your neck pain settled, that is, got pretty better, by 2000, within a couple of years. Do you agree with that? Pretty much better within two years?---
A: 2000, I was getting better, yeah. Can’t – but I don’t – can’t remember, been so many years. Yeah, I was getting better, yes.”
67 Getting better by 2000 is simply wrong. The picture painted by the specialists in 2002 is of someone sorely affected by neck and back pain. The year culminated with Dr Luka writing to his solicitors and saying he suffered from a high degree of neck stiffness and his headaches stop him from working on many occasions. His prognosis was disastrous. I disagree that his back was a greater problem than his neck. As the treating doctor, Dr Luka’s report makes no mention of his back. In 2002, his neck was the main problem.
68 I have quoted from the letter Mr Panayiotou wrote to the defendant on 1 July 2010. In the second paragraph, he explained why he gave up “strong medication” and bought Panadol and Panadeine instead. In the last two sentences of that paragraph, he said: “That wasn’t easy. I was, and I’m suffering of neck and backache.”
69 Mr Panayiotou gave up strong medicines because they hurt his stomach, not because he does not need them. In the next sentence he says, “Every year I lost all my sick leave cause of that”. I do not know the extent of his annual sick leave entitlement. The figures for 2009 and 2010 are not large.
70 Mr Panayiotou’s letter to the defendant arose out of an earlier letter from Dr Luka to the defendant. His letter is significant for three reasons: There is an ongoing need for Mr Panayiotou to see Dr Luka for treatment; Dr Luka sees the need for physiotherapy in view of Mr Panayiotou taking weaker analgesics; and this is happening in March 2010. Mr Panayiotou may have stopped using strong medicines some time before his letter, but it is the letter of Dr Luka which is significant, not his. Whether there was any physiotherapy is irrelevant. Dr Luka thought it was necessary.
71 Mr Panayiotou’s description of the state of his neck and back since the early 2000s is incorrect. At the end of 2002, the prognosis was poor. He is still complaining in 2010, with his doctor seeking physiotherapy. I agree Mr Panayiotou is an unreliable witness where he speaks about the state of his neck and back before the December 2010 accident. This is so, even though the evidence of Ms Tribe suggests that nothing much was happening with the effects of the 1998 accident for a number of years before the 2010 accident.
72 Mr Panayiotou continued to work in the same job until retrenched. He told Mr Miller he did not return to normal duties after the accident. He told of his return to a “controlled area” not involving physical work. His duties were restricted until his retrenchment, but his duties did not change after his return to work. They were the same as before. He worked the same machine as before. The only physical aspect was the removing of defective tiles from a conveyor belt. This happened from time to time. Removing these tiles was painful. There was some temporary accommodation.
73 Mr Panayiotou was one of four workers on the nightshift. For economic reasons, his employer stopped that shift. He did not accept voluntary redundancy. Neither did the others on that shift. He sought other employment. It was not offered. Presumably, the others did, and were given other employment. I can understand his belief that he was not offered other employment because of the effects of his injuries. Ms Tribe did not make the decision about his non-re-employment. She does say “his behaviour and attitude towards colleagues and some supervisors were lacking at times”. He was short-tempered and fellow workers baited him. He, and them, were counselled.[15]
[15]Statement of Milly Tribe made on 20 July 2016 at paragraph [25]
74 Mr Panayiotou’s pattern of annual leave is unusual. Between 2009 and 2013, he never took more than four consecutive days. Most people take annual leave in blocks of a week or more. Mr Panayiotou never took more than four days’ annual leave at a time. Frequently, he took a day or part of a day. For example his annual leave for 2011 consists of two four-day blocks, one three-day block, four one-day blocks and three part days (1.67 hours, 3.75 hours and 1 hour). This pattern is useful for three reasons. First, given he was on nightshift, replacing him might be difficult and expensive. Over time, his supervisors could well have seen him as a nuisance. Mr Robinson could well have said the words attributed to him. Second, it supports his evidence of taking leave to cover absences due to ill health. Third, it does not point to a greater use after the 2010 accident.
75 Mr Panayiotou has not been employed since he stopped with CSR. He has unsuccessfully sought part-time employment in light machinery work. At the time of his redundancy, he was sixty-two. Since arriving in Australia, his only employer has been CSR. For the thirteen years before ceasing work, he worked on the same tile-making machine. This was an undemanding job. Despite a good work record he has not found other work.
76 Mr Panayiotou is now sixty-six. Two specialists saw him recently: Mr Miller and Mr Dooley in 2016. From a medical perspective, Mr Miller noted difficulty with work involving repetitive bending or repetitive lifting of weights greater than 5 kilograms. He must shift his posture on a regular basis. Mr Dooley said Mr Panayiotou would have difficulty in carrying out heavy physical work and work requiring a lot of duties at and above head level. Taking Mr Miller’s restrictions into account, he could still do his old job, but would have difficulty in the open market. The loss of this employment is a significant consequence for him. Absent his retrenchment, one supposes Mr Panayiotou would have worked until retirement.
77 Two and half years after the accident, Dr Umali wrote to Mr Panayiotou’s solicitors, saying Mr Panayiotou’s prognosis was good, with the possibility of occasional exacerbation of neck pain. There was no incapacity for work save for the occasional day. Dr Umali had seen him since August 2010. Dr Umali wrote just over a month before Mr Panayiotou was retrenched. At face value, Mr Panayiotou’s condition had improved since March 2010, not worsened.
78 By January 2017, Dr Umali’s view was different. He now considered Mr Panayiotou’s prognosis was poor due to chronic neck pain, vertigo and headaches. From an unrestricted capacity for work, he had gone to a restricted capacity, the restriction being no repetitive neck movements. Future treatment had moved from the prescription of Panadeine Forte and Voltaren to those medicines, coupled with Tramadol, Ibuprofen and future treatment from a physiotherapist, an orthopaedic surgeon, or neurosurgeon, and a pain specialist.
79 Returning to the test asked by Philippiadis,[16] and comparing one with the other, Mr Panayiotou was injured in 1998. In 2002, he was examined by several doctors. He complained about his neck and back. He complained about nightmares, anxiety and nervousness. Mr Doig thought it likely he would have pain and disability whatever was done. Attending doctors in 2003 and 2004 is unsurprising. The gap afterwards is surprising. Re-attending in 2009 is unsurprising. In March 2010, his neck was sufficiently painful for Mr Panayiotou to see Dr Luka, who recommended physiotherapy instead of resuming stronger medicines.
[16]Supra
80 Presently, Mr Panayiotou suffers severely from neck and back pain accompanied by dizziness. Dizziness, alone, is an important factor. In 2014, Dr Epstein diagnosed both a Post-Traumatic Stress Disorder and an Adjustment Disorder with Depressed Mood, with a poor prognosis for both. If I ignored the effects of the 1998 accident and looked at his present state, then I would say he has suffered a “serious injury”. However, in March 2010, the effects of the 1998 accident were still significant after twelve years in the ways I have described.
81 I do not accept Mr Panayiotou’s advice to Dr Epstein that the psychological effects of the 1998 accident settled over some four or five years. Each of the reports of the practitioners who examined him in 2002 speak of his psychological state. Dr Joubert said he became very depressed. In giving his very guarded prognosis, Mr Doig said there was a significant organic component and a psychological component contributing. Professor Davis saw a mismatch:
“… between the objective severity of the accident which occurred nearly five years ago and the presentation today, suggesting that functional features of a psychological or psychiatric nature are playing a significant part.”
82 Even Mr Panayiotou, in his statement dated 27 May 2002, spoke at some length about the psychological impact of the 1998 accident.[17] Speaking in the present tense, he had become very worried, depressed, very upset, tired, irritable, bad-tempered and very easily frustrated. He had lost interest in socialising. He was afraid when driving, and was a nervous passenger. He dreams about the accident and has nightmares. He had flashbacks of the accident.
[17]Paragraphs [10] to [12]
83 If these psychological effects were present in May 2002 and continued through the rest of 2002, I cannot accept that they disappeared in 2003, 2004 or even 2005. They had existed for four years after the accident and were at a high level in May 2002.
84 Philippiadis requires an analysis of the extent of the impairment of the relevant body function before and after the relevant injury to determine the extent of the additional impairment that was caused by the injury. I do not accept Mr Panayiotou’s evidence about the extent of the impairment before the 2010 accident. I am left with some evidence raised by the defendant. It suggests a significant impairment twelve years after the 1998 accident. However, I cannot determine the extent of the impairment. I am unable to subtract the before from the after to arrive at the additional impairment. I cannot find the additional impairment or loss to which the serious injury test can be applied. For Mr Panayiotou, this is a problem of proof. He bears the task of proving a relevant difference. He does not do so. As I cannot determine the extent of the additional impairment, I cannot find he has a “serious injury”.
85 Before finishing, I will mention three matters. First, I give no weight to Dr Luka’s entry on 5 November 2010. The defendant sought to use it to attack Mr Panayiotou’s credit. It could well be a mistaken entry. Mr Panayiotou denies such an accident where he was injured and, in that regard, I believe him. Second, the submission about the failure of Mr Panayiotou to call other witnesses is meritless. In these applications, I would not necessarily expect him to do so. Third, I do not consider Mr Panayiotou stoic. In truth, he is anything but stoic.
Conclusion
86 I will not give Mr Panayiotou permission to seek damages from the defendant.
- - -
0