Panetta v Transport Accident Commission
[2021] VCC 124
•22 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-00039
| LOUIE VINCENT PANETTA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 and 28 January 2021 | |
DATE OF JUDGMENT: | 22 February 2021 | |
CASE MAY BE CITED AS: | Panetta v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 124 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – impairment to the lower back, right shoulder and both knees – causation
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Richards & Anor v Wylie (2000) 1 VR 79; Zlateska v Consolidated Cleaning Services Pty Ltd & NRMA Workers Compensation (Vic) Ltd [2006] VSCA 141
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC with Mr A Dimsey | Hounslow Lawyers |
| For the Defendant | Mr D Masel SC with Ms E Golshtein | Solicitor for the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident (“the accident”) which occurred on 16 March 2010 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The definition of “serious injury” relied upon by the plaintiff is under s93(17)(a) – “a serious long-term impairment or loss of a body function”. The body functions pursuant to subparagraph (a) are the back, right shoulder and both knees. The main focus was on the lumbar impairment.[1]
[1]Transcript (“T”) 10
4 The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then, by reference to the consequences of that impairment, to determine whether it is serious and long term.
5 The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.[2]
[2]See Richards & Anor v Wylie (2000) 1 VR 79
6 The plaintiff relied on three affidavits and was cross-examined. He also relied on an affidavit sworn by his son on 19 January 2021. Further, the parties relied on medical reports and other documents which were tendered. I have read all the tendered material.
7 If it was accepted that the need for medical intervention in the back (most recently the failed stimulator) was caused by the transport accident, counsel for the defendant conceded that the consequences of any lumbar impairment are “serious”. Dr Menz’s view that the present lumbar condition was not accident related was relied upon.[3]
[3]T12; T96
8 It was submitted on all the evidence, it is likely to be a low grade soft tissue insult and not a credible explanation for what are now serious consequences of the back.[4]
[4]T102
9 Further, in relation to the other applications, there were questions of range, “but, even before that, there are essentially causation issues which are intimately related to the reliability of the histories given by the plaintiff.”[5]
[5]T11
The Plaintiff’s evidence
10 The plaintiff is presently aged sixty-one, having been born in August 1959. He has been on a disability pension since suffering injury in a fall in 1993.
11 On the said date, the plaintiff was a pedestrian deliberately struck by a motor vehicle (“the accident”), in which he sustained injuries to his lower back, shoulders and knees.
12 There was lengthy cross-examination about the accident circumstances and the plaintiff’s descriptions thereof to the police, treaters and medico-legal examiners.
13 Counsel for the defendant indicated that this cross-examination was not directed to liability but to the speed and impact and the biomechanics of the accident. The Court was ultimately going to be asked to draw an inference that the force of the impact, or lack of force, could not have resulted in the accident or the injuries – “This was only part of the factual matrix. The primary issue will be attendances post-accident.”[6]
[6]T24
The Plaintiff’s account of the accident
14 On the morning of the said date, the plaintiff would have been going to get a few drinks – “three big long necks for $13”. He did not know the man who ran him over and had never seen him before.[7]
[7]T15
15 While Mr Wilde’s report mentioned the plaintiff had had an argument with a man in the park before the accident, the plaintiff could not remember doing so and thought he had been told that by the police.[8]
[8]T18
16 The other car went “boaring” past the plaintiff while he was standing on the median strip in the middle of the Burwood Highway. About 200 metres past him, the driver then did a U‑turn and came up the middle of the median strip. It then dawned on the plaintiff that the driver was coming for him. He then ran across to the other side of the road – “This man was trying to kill me … Kill me.”[9]
[9]T20
17 The plaintiff took up a position by some pillars, and at that time, the car was still coming at him, but it stopped about two metres from him.[10]
[10]T21
18 The plaintiff’s friends yelled out to him to run, and he did not know what to do. That panicked him even more, so he tried to make it, but the other driver “tramped his foot and [I] seen him come so [I] tried to make it back to the pillars, but [I] didn’t – he got me, boom”. He got the plaintiff on his right leg. He hit him.[11]
[11]T22
19 The plaintiff swung up onto the bonnet of the car and hit the windscreen He cut his head and landed on the concrete, with everyone screaming, and he jumped up and he ran into the pub and called the police straight away. He flipped onto the bonnet, hit the windscreen, off the windscreen, and landed on his feet. He then ran into the door of the pub and said someone was trying to kill him.[12]
[12]T23
20 The plaintiff agreed that the car had come at him, it had stopped, and it was revved up, and then it came at him again. He jumped up when he turned. He turned to go back, and that was why his right leg “got it”, because he was actually going back, and jumped. He “slung up onto the bonnet, hit the windscreen, come off the roof”, and on [his] feet”.[13]
[13]T25
21 The car ran into his right leg as he was turning along, which caused him to be flung up onto the bonnet, hit the windscreen, and flip over again onto his feet on the side path. He nearly made it. The car hit him as he jumped. That was what caused him to go on the bonnet.[14]
[14]T26
22 While the police summary set out the plaintiff “jumped” on the bonnet, he did not. That was where he landed when he was hit, but he jumped up and the other driver hit him and he landed on the bonnet.[15]
[15]T28
23 When the ambulance arrived, what the plaintiff really wanted to do was have a drink. “All was that was in my mind was to get a drink into me ... And that’s what I did. I went and poured some beers.” He could recall the ambulance and police attending. When they asked him if he was all right and whether he wanted to go to the hospital, he said “No, I want to go get a drink, and that’s how my mentality was them days”.[16]
[16]T30
24 The day after the accident, the plaintiff attended William Angliss Hospital (“the Hospital”), where he had numerous radiological investigations to his right shoulder, pelvis and lower back.[17]
[17]First affidavit - Hospital records indicate x-ray of right shoulder and pelvis
25 The Hospital Emergency Department notes of 17 March 2010 set out, under ‘Nursing assessment’:
“Car knocked PT over on nature strip yesterday. PT hit bonnet of car, landed on road on feet. PT states person driving was trying to run him over. PT does not know person and unsure of speed car was travelling. PT tender on right hip, lower back and right shoulder. Nil lacs noted. Nil LOC.”
26 Handwritten notes set out “hips not painful but lower R back sore on all leg movements”. The plaintiff’s pelvis was x-rayed.
27 The plaintiff’s friend, Shana, had taken him home from the accident scene. The next day he woke up in pain and decided to go to the Hospital. He could not recall there being no lacerations, as the Hospital record indicated.[18]
[18]T31
28 When asked about the note of a black eye in the records, the plaintiff thought he had been asked by a Chinese doctor at the Hospital whether that had been caused in the accident, and the plaintiff told him that was the case. He could not remember seeing a nurse before that.[19]
[19]T32
29 The plaintiff could not recall the police asking about his pain when he was interviewed in about May 2010. It was probably right that he said he continued to experience pain in his right knee and was fearful when leaving home, in particular, when walking in his local area. He did not remember whether or not he had mentioned his back or right shoulder at that stage.
30 The plaintiff was asked about his first post-accident attendance on his general practitioner on 10 April 2010, when she noted he attended for a letter to be written referring him to Eastern Drug and Alcohol Services. This visit was to do with his drinking. What was in his mind after the accident was to stop drinking, and that was why he went to see the doctor. He would not necessarily tell the doctor if he was having ongoing problems with his back, knees or shoulder at that time. He went there to get off the alcohol.[20]
[20]T36
31 The plaintiff deposed that he first saw his general practitioner, Dr Iman Elshenawy, on 23 June 2010 and she arranged for him to have a lower back CT scan and referred him to various specialists.[21]
[21]First affidavit. This is incorrect as the doctor arranged right knee investigations.
32 The note of that attendance referred to the plaintiff’s issues with drinking, and also:
“He had a car accident and injured his knee and he will bring TAC information with him next time ... I will chase up his ED presentation.”
33 The plaintiff agreed he told his doctor that he had had the car accident and injured his knee. The main focus of that attendance was his alcohol use. He told her about his knee, if the note said he did. He thought he mentioned a problem with his back later on, because he had “back therapy at her office with one of her people”.[22]
[22]T37
34 The plaintiff next saw Dr Elshenawy on 25 June 2010, when she noted:
“Right knee pain since car accident. Diagnostic imaging requested: right knee x‑ray and ultrasound query lateral compartment injury. He was run over by a car three months ago.”
35 The plaintiff did not mention his shoulder when seen on this occasion because that was already being taken care of – “ It was only one thing at a time.”[23]
[23]T38
36 The plaintiff disputed that his back was not a problem then. He disputed that greatly, because he was taken by ambulance only a month or two later, or not even that, because of his back. All he knew was the general practitioner was taking care of his back as well, “so there should be something”.[24]
[24]T38
37 When asked whether he was confused about the order in which his problems arose, he said:
“Ah, problems all were in at once. The problems were all – the – through the case of being hit by the car. That’s what that – all in a nutshell is – that’s it. They were all there.”[25]
[25]T39
38 The plaintiff attended the Emergency Department at the Hospital on various occasions because of increased lower back pain for approximately one week. He believed he was referred for physiotherapy and prescribed medication.[26]
[26]First affidavit
39 The Hospital notes of 28 July 2010 set out the presenting problem was back pain. The triage assessment set out:
“biba ... co lower l back pain radiating down l leg for past week hit by car 3/12 ago some back pain following nil new injury … .”
40 There was a diagnosis of lower back pain for one week.
41 The history of presenting complaint set out:
“50M, from home, BIBA with worsening back pain. Back pain commenced about one week ago, constant dull pain, 5/10, worst on left lower back, across the lower back, radiated down to left buttock, unbearable sharp pain when coughing or movement. Patient has not taken anything for pain. Has not seen any doctor yet. Not faecal, urinary problem, no altered sensation or weakness in lower limbs. Three months, patient was drunk and hit by a car, no pain around that area post accident. No other any trauma or precipitating factors.”
42 It was noted there was to be a referral for outpatient physiotherapy.
43 The discharge diagnosis was “backache, unspecified”. An x‑ray was requested of the plaintiff’s sacrum, coccyx and lumbar spine.
44 The plaintiff could not really remember what was said to him on his first post-accident visit to the Hospital about coming back if he had any problems, but he had to ring the ambulance. He was not sure whether it was in June. “It was a direct – from the accident.”[27]
[27]T33
45 When asked the about the reference in the Hospital notes to pain for a week, he said:
“It was always there but there was – sometimes it was severer than others. ... I have good days and I have bad days.”[28]
[28]T41
46 The plaintiff thought before going to the Hospital his general practitioner organised some massage and the government paid for five visits.[29]
[29]T41
47 When asked who was taking care of his back before he was taken by ambulance to the Hospital, the plaintiff said “Carlton United Brewery to tell you the truth”.[30]
[30]T39
48 The plaintiff could not recall at the Hospital on 28 July 2010 saying back pain came on seven days ago. It would come and go. These were bad days for him, and “in [his] mind he was insane”.[31] He could not recall what led to the note that there was no pain around that area (his back) post accident.[32]
[31]T42
[32]T43
49 The plaintiff then appeared to agree with a series of propositions including “something happening” in the week before 28 July 2010 and his back started to hurt.[33] He then said the only pain he has had from his back is on the right side of his body, not the left, but the majority was on the right side – “As a matter of fact, the only pain was on the right side of my body, that’s continuous.”[34]
[33]T43
[34]T44
50 The plaintiff agreed if he had had significant problems with his knee, back or shoulder he would have gone to the doctor.[35]
[35]T45
51 The plaintiff explained he had a bulged disc, and what happens there is that fluid builds up and creates pain. The fluid can deflate and the pain is not there as much – “… so I had pain, I didn’t have pain. I drank, I - I was all mixed up, and …, I didn’t get real treatment … until [I] came to … Hounslow … and then I got real treatment, and I got treatment and X-rays … .”[36]
[36]T45
52 The plaintiff agreed he did not see any doctor about his right shoulder until May 2015.[37]
[37]T46
53 The plaintiff stopped drinking in September 2010. He agreed most definitely his drinking problem was getting him into all sorts of trouble over many years, causing him to get into fights but he had not had any since the accident.[38]
[38]T44
54 The plaintiff agreed he did not have a good memory of things in the period leading up to the accident because of his 1993 head injury and alcohol consumption. He disagreed he had had numerous falls. He would bang his shins a lot. There were issues were with the police- “it was really resisted arrest”.[39]
[39]T48
55 The plaintiff disagreed the right black eye noted at the Hospital on the said date resulted from a fight – he hit his head on the car in the accident.[40] He denied having been involved in any fight since the accident because he was in too much pain to have a fight.[41]
[40]T52
[41]T45
Subsequent treatment
56 The plaintiff underwent a lumbar CT scan on 9 December 2011 as he was experiencing ongoing lower back pain radiating to his right leg with numbness. He was referred by his general practitioner to Simon Li, physiotherapist, and later to Sandeep Talwar, physiotherapist, for treatment of his lower back pain. This short-term physiotherapy provided only temporary relief of his symptoms.
57 The plaintiff attended the Hospital Emergency Department on 10 May 2013 with chest and left shoulder pain. He had a left shoulder x-ray that day. He had an ultrasound-guided left shoulder injection on 13 June 2013. It did not help at all and he subsequently underwent a left subacromial bursal injection on 22 April 2014. That injection reduced his left shoulder pain to an extent.
58 The plaintiff had an MRI scan of his left shoulder on 8 October 2013 and he underwent bilateral knee x-rays and MRI scans on 11 May 2015. He had an ultrasound of his left shoulder on 14 May 2015 and an x-ray of his right shoulder four days later.
59 The plaintiff first saw Mr Ikram Nizam, orthopaedic surgeon, on 11 June 2015 in relation to his knees. Surgery was recommended. The plaintiff had further x-rays and MRI scans of both knees on 15 June 2015.
60 The plaintiff first saw Mr Peter Lugg, orthopaedic surgeon, on 14 July 2015. He referred him to another orthopaedic surgeon, Mr Ash Moaveni, who arranged another MRI scan of his right shoulder, which took place on 14 July 2015. The plaintiff had a right shoulder ultrasound on 8 September 2017. Later that month, he was given an ultrasound-guided injection to that shoulder, but only got short-term relief of his pain.
61 The plaintiff had a lumbar CT scan on 11 September 2017. On 13 November that year, he had an MRI scan.
62 On 15 November 2017, the defendant agreed to fund bilateral knee surgery which Mr Nizam performed on 24 November 2017. On 4 December 2017, the plaintiff had a further MRI scan of his right shoulder.
63 The plaintiff first saw Professor Peter Teddy, neurosurgeon, on 19 December 2017 in relation to lower back pain. He recommended a right L4-5 nerve root block.
64 The plaintiff first saw Dr Gavin Weekes, pain specialist, on 4 January 2018, who agreed with Professor Teddy’s recommendation of a nerve root block and also prescribed Lyrica. On 28 January 2018, the defendant agreed to pay for the nerve block which Dr Weekes carried out on 15 February 2018. The block gave the plaintiff temporary relief of some of his pain.
65 The plaintiff first saw Mr Moaveni, orthopaedic surgeon, in relation to his shoulders on 22 January 2018. On 9 April that year, he performed a right shoulder arthroscopy and synovectomy bursectomy, rotator cuff tendon repair, longhead of biceps tenodesis and AC joint excision. The surgery was funded by the defendant.
66 The plaintiff first saw psychologist, Mr Huson, on 12 June 2018. He recommended the plaintiff undergo a pain management program.
67 On 3 August 2018, the defendant agreed to fund bilateral L3-5 medial branch blocks and bilateral L5 lateral branch blocks and lateral sacroiliac joint blocks, which the plaintiff thought he underwent in September and October 2018. These procedures provided short-term relief.
68 As at 21 February 2019,[42] the plaintiff was taking one to two tablets of Targin each day, and also Norflex, a muscle relaxant, daily. He was then attending Dr Kesarapu at the Mountaingate Medical Clinic every fortnight, having counselling with Mr Huson and also having physiotherapy for his right shoulder once a fortnight.
[42]First affidavit
69 The plaintiff then experienced constant lower back pain which varied in intensity. It was aggravated by activity and by standing or sitting for long periods. Back movement was restricted. The pain radiated into his buttock, down the right leg to his toes. He also experienced constant numbness in his right toes and the ball of his right foot. Lower back and right leg pain were the worst areas of his pain.
70 The plaintiff also had constant daily pain in his shoulders which varied in intensity and was aggravated by activity. Shoulder movement was restricted. The right shoulder was worse than the left.
71 The plaintiff experienced constant daily pain in his knees varying in intensity and aggravated by activity, particularly by weightbearing, using stairs, kneeling and squatting. Movement was restricted.
72 The plaintiff constantly felt frightened but did not know why. He experienced episodes of panic, where he felt his heart racing, he felt hot and had difficulty breathing. These episodes were triggered when he was in a crowd. He avoided going out and felt safer when at home. He feared the driver who deliberately drove into him and worried he may be attacked again.
73 The plaintiff was hypervigilant. He felt angry about the accident and thought about it most days. He relived the attack and had nightmares anywhere from once a week to once a month, when he dreamed about the driver driving towards him. He was anxious, irritable and jumpy, and fearful crossing roads, and generally preferred driving to walking.
74 The plaintiff was unable to mop or vacuum, make the bed and had difficulty dressing. His two sons, then aged twenty-six and thirty-five, lived at home and helped with chores.
75 The plaintiff’s ability to drive long distances was limited by lower back pain, as was his ability to walk or sit for long distances.
76 Prior to the accident, the plaintiff enjoyed gardening and used to plant flowers, weed his garden and mow lawns, but had not done so since the accident.
77 The plaintiff previously enjoyed swimming at the Edithvale beach in summer, two to three times a week. In winter, he went to Knox Leisureworld once a week to swim, but had not been able to swim since the accident.
78 The plaintiff’s sleep had been affected as a result of the accident. He had never had a full night’s sleep and woke up three times a night on average because of pain. He usually woke at 3.00am and got up and had a coffee and then tried to go back to sleep. He often had to have naps during the day due to fatigue.
79 The plaintiff found it difficult to exercise as a result of his injuries and had put on over 20 kilograms.
80 He described a longstanding history of alcohol dependence and abuse and also a history of depression, anxiety and panic attacks. He accepted his general practitioner’s notes and notes from various hospitals gave more detail than his recollection.
81 The plaintiff was convicted and jailed on a number of occasions as a result of his drinking and had been in and out of jail from 1983 to 2009. His last conviction was in 2007 and he was released from jail in 2009.
82 He had not had a drink since 29 September 2010. He attended AA meetings approximately once to twice a week on average.
83 Following the fall in 1993, the plaintiff initially suffered from seizures, but had not had one for many years.[43] He had had a number of brain CT scans over the years.
[43]T47
Pre accident hospital attendances
84 While the Monash Health clinical notes indicated the plaintiff attended on 23 January 1994 for a right shoulder AC joint dislocation, he could not recall this attendance. He had been shown a January 1994 x-ray of his right shoulder, showing ligamentous disruption. In any event, he had no ongoing issues with his shoulders after this time or prior to the accident.
85 The plaintiff attended Southern Health on 22 November 2005 with a sore left knee, which locked while he was squatting. He had an x-ray, which he had been told showed no loose bodies and mild degenerative changes in the patellofemoral compartment. He was assessed and discharged that day with crutches. He attended Southern Health again on 13 December that year after a scuffle, but he could not remember that attendance.
86 On 25 April 2006, the plaintiff went to the Hospital with a dislocated left knee. He did not have any ongoing issues with that knee after this and prior to the accident.
87 He agreed he had a problem with his left knee, not his right, before the accident. He thought incidents with his knee were years apart, not like two episodes in one year, but maybe five years apart or even ten. He was taken then to a number of entries, three of which were close in time, in 2005 and 2006.
88 The plaintiff had a brain CT scan on 29 November 2006, of which he had been told the findings. He had a further brain CT on 8 July 2009 and was told the findings were similar.
89 The plaintiff had suffered from hypercholesterolaemia since 2008.
90 The plaintiff could not recall attending Eastern Health in July 1998 complaining of pain in his chest, right arm and back, having been in a fight. He could also not remember falling off a horse and having back pain for which he attended Monash Health on 3 November 1978.[44]
[44]T60
91 In his TAC Claim Form, the plaintiff answered “No” to any pre-accident back problems. The Claim Form was completed on his behalf by someone from the TAC and he was asked to sign it by the TAC in its letter to him of 6 April 2010.[45]
[45]T58
92 On 28 March 2018, the plaintiff was involved in another transport accident in which he sustained injuries to his head, neck and left rib fracture. He had a number of sutures put into his head. He had a brain and cervical spine CT scan and a CT scan of his abdomen, pelvis, thoracic and lumbar spines.
93 In his second affidavit, sworn in April 2020, the plaintiff described branch block injections in April 2019 which gave very short minor term relief, but otherwise did not help his symptoms of back pain. He was then waiting for the defendant to approve the nerve stimulator recommended by Professor Teddy and Dr Weekes and had recently obtained a report from the plaintiff’s psychologist to assist in this regard.
94 The plaintiff had a further right knee arthroscopy performed by Mr Nizam on 8 June 2019. He continued to see Dr Weekes every few months and Dr Kesarapu every month for scrips. He saw his psychologist for regular counselling. He was prescribed Targin and Endone, which he required daily for pain relief.
95 The plaintiff’s back pain persisted, as previously deposed to, and that was by far the most painful of his injuries. He confirmed his right shoulder complaints in his earlier affidavit, although he had had a little improvement in that area and it appeared surgery had helped. His left shoulder continued to trouble him.
96 The plaintiff’s knees continued to trouble him as earlier deposed, his right knee was then the worse of the two. It sometimes just gave way under him, for example when he got out of a chair, or getting in or out of the car.
97 His experience of anxiety and panic attacks continued as previously deposed.
98 The plaintiff remained unable to manage household chores and relied on his sons and neighbours for help. He continued to have difficulties with driving, walking and gardening.
99 The plaintiff remained unable to swim, however, he did a course of hydrotherapy at Knox in mid 2018 after his shoulder surgery.
100 Sleep remained impacted and the plaintiff remained unable to exercise and had remained about 20 kilograms heavier than pre-accident.
101 The plaintiff had ongoing neck pain from the 2018 accident that was a minor issue and he had recovered from his head and rib injuries from that accident.
102 In his third affidavit sworn in December 2020, the plaintiff described the trial of a spinal cord stimulator in late 2020 and complications of that procedure. He understood one of the cords broke off and it remained in place and was likely to require further surgery to remove it. The trial was not successful, and he would not be proceeding to a permanent implant (although the defendant had approved the procedure).
103 The plaintiff was then seeing Dr Kesarapu every few weeks for scrips and was occasionally reviewed by Dr Weekes. He had fortnightly phone counselling during COVID, which had been very helpful for his panic attacks and anxiety. He was prescribed Targin and Endone, which he took twice a day for pain relief.
104 Back pain persisted, as earlier described, and was by far the most painful of his injuries. He was having to come to terms with the fact there was probably nothing that could be done about it. The stimulator trial was a very stressful and traumatic experience and ultimately a failure, and therefore he was reluctant to undergo any further surgical procedure until the remaining cord was removed.
105 The plaintiff’s shoulder pain was largely as previously described. His right shoulder improved for a while, but it had now stabilised. He continued to have intermittent pain, particularly if he used his right arm or shoulder. His left shoulder continued to trouble him significantly.
106 The plaintiff’s knees continued to trouble him, as previously described, with the right far worse than the left. It continued to give way, particularly when getting up from a seated position or when walking.
107 The plaintiff remained unable to manage most household chores and required heavily on assistance. He continued to have difficulty driving, walking and gardening. He remained unable to swim, as previously described. He was keen to continue hydrotherapy, as that assisted with his general physical mobility, but at that stage, the mode of treatment had ceased, he believed on funding grounds.
108 The plaintiff’s sleep remained a problem. He woke in the early hours and struggled to get back to sleep, and often did not sleep several hours in a night, then slept in until about 10.00am.
109 He remained about 20 kilograms heavier than pre-accident because he could barely exercise, save for hydrotherapy exercise and short slow walks.
Lay evidence
110 The plaintiff’s son, Marc Panetta, aged twenty-six, removalist, swore an affidavit on 19 January 2021.
111 Pre-accident, he would describe the plaintiff as a very hands-on person who loved working on cars and was very active. The plaintiff would walk everywhere and always liked to be doing something. He could not recall the plaintiff then having any problems with his back, knees or right shoulder at that time.
112 Since the accident, the plaintiff had suffered from pain in those areas and he often saw him in pain after standing for too long, or after trying to do something physical at home. His knee often gave way.
113 The plaintiff now struggled with anything physical. He could no longer go horse riding. His passion pre accident was fixing cars, but the plaintiff did not do this anymore as he felt that bending, twisting and crouching aggravated his pain. This situation upset him.
114 The plaintiff required help with domestic duties as a result of his injuries. Marc’s brother, Luke, lived with the plaintiff and helped with household chores and Marc often came over whenever he needed assistance. They helped with vacuuming, mopping and cleaning, and recently cleaned out a shed as the plaintiff could not do it.
115 The plaintiff previously enjoyed cooking, but now struggled because of increasing back pain if standing for too long and his knee became unstable.
116 Pre accident, the plaintiff loved gardening, and the garden was always very well maintained, and he took pride in it. The plaintiff now could not garden as a result of his pain, so Marc and his brother did the mowing and maintenance.
117 The plaintiff now found it difficult to exercise because of his pain and as a result, had put on a lot of weight.
118 Marc’s partner, Chelsea, had their first baby, Levi, last year. Picking up the baby aggravates the plaintiff’s pain, so he has to sit down to hold him.
119 The plaintiff is a completely different person since the accident. He used to be very happy and keen to do things. He now gets down about his pain and the accident really shook him up. He gets worried that something like that could happen again.
The Plaintiff’s treaters
120 The plaintiff attended the Emergency Department at the Hospital on 17 March 2010 and 28 July 2010.
121 On 25 November 2011, the ambulance service attended the plaintiff for back pain “post pedestrian accident 12/12 ago reports severe lumbar pain radiating to the right hip and leg”.
122 Dr Elshenawy referred the plaintiff to Monash Neurosurgery in December 2011 for management of sever back pain radiating to the right leg .. he was run over by a car in 2010 and since then he was experiencing this pan on and off but it is getting much worse.
123 The plaintiff saw Simon Li, physiotherapist, on referral from Dr Elshenawy from November 2011 to 1 February 2012. He then saw another physiotherapist, Sandeep Talwar, from September to December 2012.
124 In July 2015, the plaintiff was referred by his gp to Mr Lugg, orthopaedic surgeon, mainly for his two shoulders, although the plaintiff mentioned back pain and other issues.
125 Mr Nizam, orthopaedic surgeon, first saw the plaintiff with MRI scans of both knees in July 2015. He undertook surgery on both knees in December 2017, and again on the right in 2019.
126 Mr Moaveni saw the plaintiff in 2018 for his chronic bilateral should pain.
127 Dr Kesaparu referred the plaintiff to Professor Bittar in November 2017 for opinion and management of “low back pain with right L5 radicular pain since mva in 2009”.
128 Professor Teddy saw the plaintiff on referral from his general practitioner in December 2017. He noted the plaintiff gave an eight-year history of chronic low back pain with numbness in the foot and toes and pain radiating from the low back to the right foot. Apparently he was struck by a car on his legs while crossing the road.
129 Professor Teddy recommended a right L4-5 nerve root block as a diagnostic measure. On re-examination in August 2019, he suggested a trial of a spinal cord stimulator.
130 In his report of 4 January 2018, Dr Weekes noted that he saw the plaintiff, who was a pedestrian hit by a car who had severe lower back pain and right leg pain since. He agreed with Professor Teddy that the plaintiff may benefit from a right L5 nerve root block.
131 As of March 2018, that block had given the plaintiff significant pain control for the time being. However, by July 2019 after a number of blocks, he had not got very far in terms of the plaintiff’s pain management. The plaintiff continued on Targin and Endone, and Dr Weekes suggested a trial of neuromodulation, which was approved by August 2020.
132 In correspondence of October 2020, Dr Weekes advised that in the process of insertion of the trial leads, one electrode had disconnected from the trial lead.
Medico-legal evidence
133 This evidence was relevant as to the description of the accident given by the plaintiff and the examiners’ views as to causation.
134 Professor Vernon Marshall, surgeon, examined the plaintiff on 19 April 2016.[46]
[46]This report was not mentioned in addresses
135 The accident history was that when the plaintiff was a pedestrian he was hit by a car while crossing a highway. He was thrown into the air and sustained injuries to his low back, shoulders and knees.
136 On examination, the plaintiff had pain and restricted movement to the whole of his body. He had equivalent impairments of movement of both shoulders. He had pain in both knees, particularly the left, and had persisting pain in his back without specific radiation to the legs.
137 Professor Marshall diagnosed MVA/TAC injuries: “pedestrian struck by a car with injuries to back, shoulders, and knees, persisting problems in back and shoulders”.
138 Professor Marshall was then provided with the Alsalam Medical Centre notes from 2006 to 2015 and the Hospital notes. Having reviewed all the additional material, he did not believe there was anything which required him to alter his impairment assessment.
139 Mr Garry Grossbard, orthopaedic surgeon, examined the plaintiff on behalf of the defendant in August 2017.
140 The plaintiff told him he was a pedestrian and that he had crossed the road and was on a median strip to avoid a car which he alleged was trying to run him down. He said he stood in front of a pole in order to avoid the car before running across the road, at which point he was struck by the car, which he estimated was travelling between 30 and 35 kilometres per hour.
141 The plaintiff indicated he was thrown into the air for some meters, landing on his feet. On the way, he struck the bonnet and windscreen of the car. He was claiming injury to both knees, shoulders, and his back.
142 The plaintiff told Mr Grossbard that following the accident, he did not go to hospital. He went straight to the pub and purchased some beer, before going home. The next day, he was barely able to move and went to the Hospital, where x‑rays were taken but no fractures detected.
143 No treatment was undertaken to the plaintiff’s recollection, and he said he took Panadeine Forte.
144 The plaintiff advised that not long after the injury, there was an exacerbation of pain, and he was taken by ambulance to the Hospital, where he complained not only of an increase in back pain but also numbness in the right foot. Further x‑rays and scans were taken, and he was told he had a disc problem.
145 There was no improvement after about five weeks of physiotherapy. The plaintiff had had no further specific treatment since then, save for prescription of Panadeine Forte.
146 After several months, the plaintiff started to complain of shoulder pain, which he discussed with his family doctor, and ultrasounds were undertaken.
147 The plaintiff advised Mr Grossbard that he had had painful knees and swelling from the date of the accident, and he also described pain in the left groin from that time. None of those areas had been treated. The plaintiff was then using Panadeine Forte, two to four each day.
148 The plaintiff described low back pain, largely at the base of his spine, being constant with a sharp quality, reaching 10 out of 10 and remaining at that level, but tablets did help. Pain radiated into his right buttock and down his right leg to the toes.
149 The right shoulder was painful to move, and pain was present most of the time, and movement was restricted. There were similar symptoms in the left, with the left shoulder pain more severe.
150 The plaintiff described right knee pain inside his knee, which was constant and worse with walking. There was constant left knee pain. He took precautions against it locking.
151 On this examination, no radiological studies were available, and Mr Grossbard was provided with a range of treatment records, including the Hospital Emergency Department attendance on 28 July 2010 and a March 2010 right shoulder x‑ray.
152 Mr Grossbard noted the Hospital Emergency Department records confirmed the history, and that there was indeed a recording of pain in the lower part of the back on the right side and on movement of the legs. There was also pain largely in the right shoulder.
153 Mr Grossbard also mentioned the general practitioner’s note of 25 June 2010 in relation to right knee pain, and noted that most of the examinations around those entries relate to alcohol and drug withdrawal and detoxification.
154 In November 2011, the plaintiff was complaining of back pain and was referred to a physiotherapist. The following month, he was still complaining of numbness in his leg and he was referred to the Monash Medical Centre Neurosurgical Department. The back pain was present when he re‑presented at the clinic in early 2012, having not heard from Monash.
155 The first entry regarding left shoulder pain appeared on 21 May 2013, and it was noted a week later “left shoulder pain still very bad”. In 2014, a diagnosis of capsulitis was suggested, and a corticosteroid injection recommended. It was not until mid 2015 that complaints of pain in both shoulders and both knees, as well as the lower back, were made.
156 Many of the entries up until that time had been in relation to alcohol and drug issues.
157 Mr Grossbard noted the lumbar CT scan of December 2011 confirmed there was disc protrusion at the L5‑6 level, indenting the central canal and subarticular recesses, more on the right than the left.
158 Mr Grossbard concluded the plaintiff presented a complex picture, somewhat distorted by recollection of events between 2010 and 2017, probably in relation to alcohol and drug issues and their sequelae. Nevertheless, the notes did suggest the plaintiff had an issue with his right shoulder and pelvis, which were x‑rayed at the time of the accident, but it was not for a couple of years that he started to complain of left shoulder pain.
159 Mr Grossbard thought the plaintiff had bilateral knee pain which he suspected was of patellofemoral origin, based on the tenderness in that area and the painful crepitus of that joint.
160 Mr Grossbard thought there was evidence of a disc injury at the L5‑6 level, and that was in a position to be consistent with the feeling of numbness affecting the sole of the foot on the right side. While there was reduced spinal motion, there was no evidence of radiculopathy.
161 Having considered the plaintiff’s injuries, Mr Grossbard would suggest it was reasonable for the defendant to take liability for his back injury and right shoulder injury, based on the history and investigations undertaken within days of the incident. He rejected the symptoms in relation to the left shoulder and considered them unrelated to the accident.
162 The plaintiff had told him his knees were an issue for him from the time of the accident, but Mr Grossbard noted the plaintiff clearly had pre-existing patellofemoral degenerative change which had now been made symptomatic. He therefore suggested liability for the knee injuries was reasonable.
163 The difficulty in diagnosis based on history had been noted, not only by Mr Grossbard but also within the clinical notes.
164 Much of the plaintiff’s recollections may be affected by issues relating not only to his alcohol intake but possibly also to a previous head injury.
165 Mr Grossbard carried out impairment assessments and allowed a rating in relation to the right shoulder, low back and both knees.
166 Mr Grossbard suggested most of the MRI findings relate to degeneration rather than trauma, other than those relating to the patellofemoral joint.
167 In general, he commented that, unfortunately, the entries had been swamped by concerns relating to the plaintiff’s drug and alcohol issues and detoxification attempts, and the situation was far from clear, and a value judgment was required.
168 The plaintiff was examined by Mr Peter Wilde, orthopaedic surgeon, in March 2020.
169 The plaintiff told him that on the said date, when a pedestrian, he was hit by a car. He was walking to the shop to buy some liquor and had an argument with a man in the park. As he was crossing the road, he noticed a car heading straight for him, driving on the median strip. He managed to jump out of the way, but the car did a U‑turn and came back and “got him”. The accident was viewed by his mates.
170 The police attended and took details, and the plaintiff was advised to follow up with his local doctor, which he did. A CT scan of his low back was organised, and he was subsequently referred to specialists.
171 The pain continued to deteriorate, and on 28 July 2010, the plaintiff presented at the Hospital Emergency Department complaining of lumbar pain and bruising to the right knee and right shoulder. X‑rays were taken, and he was given painkillers and sent home. He was told to follow up with his local doctor.
172 The plaintiff returned to the care of his local doctor, Dr Elshenawy, and physiotherapy was commenced. The lumbar pain did not get any better, and subsequently the plaintiff developed pain in his left shoulder (not related to the accident) and required further investigations and corticosteroid injections.
173 Subsequently, the plaintiff was referred to Mr Nizam, orthopaedic surgeon, who undertook right knee arthroscopy, helping the pain slightly.
174 Mr Wilde also noted the referral to Mr Lugg, orthopaedic surgeon, who diagnosed right rotator-cuff tendinitis, possible rotator cuff tears, and also a referral to Mr Ash Moaveni, orthopaedic surgeon, for further right shoulder investigations.
175 More recently, Professor Teddy, neurosurgeon, had recommended the right L4‑5 nerve root block. The plaintiff was referred to Dr Weekes, pain specialist, and the block was performed on 15 February 2018, affording temporary relief only. The plaintiff was then considering neuromodulation at the suggestion of Professor Teddy.
176 Right shoulder surgery was undertaken on 9 April 2018.
177 The plaintiff had seen a psychologist in June 2018 as part of pain management.
178 Mr Wilde also noted the 2018 motor vehicle accident.
179 On examination, the plaintiff described pain across the low back, with good and bad days, shooting into his right buttock and down his right leg to his toes, with slight numbness of the toes. Those symptoms come and go. Most of the pain was in the low back. He rated the pain at 6 to 9 out of 10.
180 The plaintiff reported constant pain in both shoulders, the right much worse. Physical exertion made the pain worse. His right shoulder was related to the accident and was worse than the left (not injured in the initial motor vehicle accident, but rather constitutional in origin).
181 There was constant pain in the knees which varied in intensity, made worse by standing, walking, and other activities.
182 Mr Wilde examined the plaintiff and had available to him the pelvis and right shoulder x‑ray of March 2010, lumbar spine CT of December 2011, and an MRI scan of the lumbar spine of June 2019.
183 Mr Wilde concluded that the plaintiff was a sixty‑year-old man who presented with multiple musculoskeletal complaints including low back pain, neck pain, bilateral shoulder rotator cuff bursitis, rotator cuff tears. In the accident, he injured his low back, both knees and right shoulder.
184 Mr Wilde noted the plaintiff was not a good historian, and his memory for specific events was poor. To clarify the sequence of events leading up to the accident and after, Mr Wilde relied heavily on the documentation provided, and was not able to state whether the plaintiff had significant neck or back pain or shoulder or knee symptoms prior to the accident.
185 Mr Wilde considered the plaintiff sustained an aggravation of lumbar spondylosis without radiculopathy, aggravation of pre-existing mild asymptomatic osteoarthritis of both knees, and right rotator cuff tear in the accident. The left shoulder was not injured and was not claimed.
186 Mr Wilde thought it reasonable to accept the accident aggravated pre-existing pathology in the right shoulder, low back and knees. The plaintiff clearly stated that following the accident, the symptoms in these locations became constant and more severe, despite various treatments. He denied pre-existing musculoskeletal symptoms, although his memory for events leading up to 2010 was unreliable, having admitted significant alcohol abuse at the time.
187 There was no documentation from the plaintiff’s general practitioners or clinics which Mr Wilde could rely on to exclude pre-existing back, right shoulder or knee complaints. Hence, as far as he could tell, the accident was a contributing factor to these pathologies.
188 Mr Wilde thought there was a need for pain management in relation to the low back, and it was reasonable to consider the procedure.
189 Mr Wilde noted the plaintiff had had successful right shoulder surgery, although the pain and function had not completely recovered. He thought the plaintiff would need similar surgery on the left shoulder.
190 Regarding both knees, there was early osteoarthritis, and Mr Wilde thought eventually the plaintiff would require knee replacements, maybe in five to ten years.
191 In Mr Wilde’s view, the plaintiff’s low back injury prevented heavy domestic tasks but did not impact greatly on recreational and social activities, as pre accident, he was not a particularly active man and did not play sport, with social activities consisting of meeting friends, sharing food and alcohol.
192 The effect of bilateral knee injuries on domestic life was minimal, although mobility would be slowly affected, and in the medium to longer term, the plaintiff would need knee replacements. His domestic, recreational, and social activities were not particularly curtailed by his right shoulder injury, having undergone successful surgery with substantial improvement of symptoms.
193 On re‑examination in November 2020, Mr Wilde noted that the plaintiff made light of a past history of a right shoulder injury, perhaps a dislocation, in 1997, although he could not remember how it happened. He said he did not suffer with ongoing right shoulder problems. He gave a similar description of a left knee injury sometime around 2005. In a nutshell, the plaintiff denied any persisting chronic musculoskeletal symptoms prior to the accident.
194 The plaintiff advised Mr Wilde of the failure of the stimulator.
195 The plaintiff’s symptoms and the physical examination were similar to when examined in March 2020. He was then taking Targin, Endone and medication for diabetes.
196 Mr Wilde noted the plaintiff stated repeatedly and emphatically that at the time of the accident he was not suffering with musculoskeletal symptoms affecting the claimed areas, although Mr Wilde noted there was a documented past history of pathology affecting the right shoulder and right knee.
197 With the plaintiff’s history of not having symptoms in those areas pre accident, and that he had experienced constant symptoms in those anatomical locations ever since, Mr Wilde said he must conclude the accident was, and continues to be, a material contributing factor to the injuries. He noted the documentation in the local doctor’s letters concurred with this conclusion.
198 Mr Wilde believed the right shoulder pathology, bilateral knee pathology and pathology in the low back do relate in part to the accident.
199 Mr Wilde considered the plaintiff’s low back injury impacts his ability to complete domestic tasks such as gardening, housework, garbage removal and washing the car. The plaintiff said he could not run or swim now and never went out because of his back.
200 The main effect of the bilateral knee pathology was the ability to walk and run. In terms of the right shoulder, it was the plaintiff’s limited use of the right shoulder in relation to overhead activities.
201 Mr Wilde thought the plaintiff would report symptoms in those areas in the foreseeable future. It was possible with his advancing age he would require bilateral knee replacement and may need surgery to remove the broken catheter.
202 Dr Albert Kaplan, psychiatrist, examined the plaintiff in March 2016 on behalf of both parties. The plaintiff’s description of the accident was similar to the account repeatedly given by him.
203 Dr Kaplan diagnosed Post-Traumatic Stress Disorder and noted there was substance abuse, alcohol, currently in remission.
The Defendant’s medico-legal evidence
204 Dr Anthony Menz, consultant orthopaedic surgeon, examined the plaintiff in September 2019. He was provided with Eastern Health excerpts, clinical notes from Alsalam Medical Centre, the report of the lumbar CT scan of September 2017, Dr Weekes’ July 2019 report, the plaintiff’s general practitioner’s June 2019 report and reports from Mr Nizam of November 2017 and July 2019.
205 Dr Menz noted the plaintiff was a pedestrian crossing a road when he was hit by a car. He hit the bonnet of the car and was knocked to the ground. An ambulance arrived, examined him, and allowed him to go home. By the next day, he said he had pain in his hips, back, and right shoulder.
206 Dr Menz noted that the plaintiff’s knee treatment and surgery by Dr Nizam and review by Mr Lugg in July 2015 with regard to his shoulders. He also noted the procedures undertaken by Dr Weekes that had been of no benefit.
207 The plaintiff stated that prior to the accident, he had never had any back, knee or shoulder problems.
208 The plaintiff rated his back pain as 8 out of 10, right knee pain at a similar level, and left knee 4 out of 10.
209 Dr Menz summarised a range of investigations that had been undertaken in relation to the right shoulder and left knee.
210 Dr Menz also noted the lumbar CT of 9 December 2011. He suspected there were six lumbar vertebral bodies. At the L5‑6 level, there was intervertebral disc extrusion contacting and indenting the central canal and producing bilateral subarticular lateral recess stenosis more prominent on the right with likely contact with the traversing nerve roots.
211 Dr Menz noted that as a result of being hit by a car in 2010, the plaintiff had chronic low back pain which had not responded to all forms of conservative management to date. He was complaining of bilateral knee pain and had had arthroscopies in each knee which had not helped his symptoms either. His shoulders remained painful. He maintained a good range of movement which did not appear to be particularly painful.
212 Dr Menz diagnosed severe lumbar spondylosis, osteoarthritis in both knees, and meniscal tears in both knees. There were rotator cuff tears in both shoulders.
213 Dr Menz believed that the spondylosis, the osteoarthritis in the knees, and the tendinitis and rotator cuff tears were present prior to the accident. He thought there were no significant inconsistencies between the radiology and his clinical findings.
214 In his view, the plaintiff had a poor prognosis with regard to a good outcome with his back, his knees and his shoulders.
215 Dr Menz noted the plaintiff appeared significantly disabled prior to the accident.
216 In a further report of 4 March 2020, Dr Menz was asked to advise whether the plaintiff was a good candidate for spinal stimulator as requested by Dr Weekes.
217 Dr Menz noted the plaintiff had not worked in the last forty years, and when hit by a car, it appeared as though he was not severely injured at all. He was reviewed by the ambulance officers and allowed to go straight home after the accident. He started complaining of pain in his hips, his back and shoulders since.
218 Dr Menz noted the plaintiff had had three arthroscopies on his knees, none of which had been of any benefit, and the degree of degeneration in his knees was of mild to moderate severity at worst.
219 The plaintiff rated his back and knee pain as 8 out of 10.
220 Dr Menz noted the plaintiff did have significant problems prior to the accident in question. As such, he believed the plaintiff would be a poor candidate to have any positive benefit from the spinal cord stimulator procedure.
221 Dr Menz provided a further supplementary report in July 2020. When asked to comment on further material and provide further explanation as to his conclusion, he confirmed the various conditions diagnosed were present prior to the accident based on the medical material.
222 None of the extra material [47]caused him to alter his opinion, which was that the lumbar spondylosis, the osteoarthritis of the knees, and the shoulder rotator cuff tears and tendinitis pre‑dated the accident.
[47]2019 medico-legal reports and other documentation provided by the TAC
223 The evidence with regard to the spondylosis of the lumbar spine was the CT of late 2011 which showed an L5‑6 disc protrusion of significant dimensions, and there was facet joint degeneration at nearly all the levels extending from L1‑2 down to L5‑6. This degree of degeneration found on radiology about eighteen months after the accident left no doubt in his mind that it would have been present prior to the injury. As such, he believed that confirmed his statement that the plaintiff’s lumbar spondylosis was present prior to the accident.
224 With regard to the knees, he noted that in an Emergency Department visit by the plaintiff on 25 April 2006 when the plaintiff had dislocated his left patella, the comment was made that that had happened at least three earlier times. As such, there was absolutely no doubt the plaintiff would have had severe patellofemoral degeneration in 2006 which would have just got worse over the next few years. That is, he had had significant osteoarthritis in his left knee at the time of the accident.
225 The MRI scans done in June 2015, particularly of the right knee, showed wear down to bare bone of the patellofemoral joint. The MRI was taken some five years after the accident, and, as such, with that degree of arthritis, Dr Menz had no doubt that it was present prior to the accident as well.
226 With regard to the right shoulder, an x‑ray taken in March 2010 showed the plaintiff had degenerative changes present on that date, and, as such, Dr Menz had no doubt these degenerative changes were present prior to the accident.
227 Mr Wilde’s report did not change anything Dr Menz had written in his IME and two supplementary reports.
228 The only comment Dr Menz made, however, was that he recommended against the plaintiff having a spinal cord stimulator and gave his reasons for it. He noted in Mr Wilde’s report and Dr Weekes’ subsequent letters, that the plaintiff did have that procedure against his advice, and, not surprisingly, he did not have a positive benefit from it at all. All he had was the major complication with the first catheter inserted, which fractured off and remained inside his epidural space.
Findings
229 I am satisfied the plaintiff suffered injury to his lower back in the transport accident when he was hit deliberately by another driver. His claim for statutory benefits was accepted and payments made for the various accident injuries suffered by him, including the lumbar spine, with funding for a number of medical procedures in recent times.
230 There was no suggestion that the accident did not take place. It was not a trivial event, as both the ambulance service and police attended. The other driver was charged in relation thereto. Further, there is no suggestion in the police material that there was no contact with the plaintiff by the other driver or any concern with the plaintiff’s account of the accident and that of his friend who witnessed the accident.
231 While counsel for the defendant submitted it was a low impact accident, this was not put squarely to the plaintiff in cross-examination, and in re-examination, the plaintiff confirmed there was a significant impact which I accept well explains the injuries that the plaintiff sustained.[48]
[48]T117
232 The main issue is what role, if any, the accident plays in the plaintiff’s current presentation.
233 As the back is the main impairment and counsel for the defendant has indicated the issue in relation thereto is causation, not seriousness, I will consider that application first, focussing solely on the causation question.
234 In general terms, counsel for the defendant submitted the accident appeared to be low impact. Despite the opportunity to do so in the following three months, the plaintiff did not report any back complaint. He cannot vouch for what happened in that three-month period given his alcohol and memory issues.[49]
[49]T51
235 The plaintiff was described as a poor historian, explicable by reason of his very heavy and prolonged alcohol use and head injury. While there was criticism of the reliability of his evidence, that was not to be understood as suggesting he was consciously fabricating.[50] While the plaintiff may be honest in his mind, he is reconstructing and conflating everything. He blames the car accident for everything.[51]
[50]T88
[51]T93
236 Counsel for the plaintiff submitted although the plaintiff was not a perfect historian, his memory was not too bad; it was pretty impressive about a lot of things. He very candidly acknowledged various issues and it was submitted he, in every sense, was a witness of truth and one who could be believed. It was not right to say that anything he said before 21 September 2010 when he gave up drinking was not accurate.[52]
[52]T117
237 I found the plaintiff to be a truthful, credible witness who was candid about his issues in the past with alcohol and the police. I do not accept that he was blaming the car accident for everything or that his evidence of back pain since the accident was a reconstruction.
238 The question of causation is a matter of commonsense.[53] In this case, there are a number of relevant issues in this regard.
[53]Zlateska v Consolidated Cleaning Services Pty Ltd & NRMA Workers Compensation (Vic) Ltd [2006] VSCA 141 at paragraphs [9] and [82]
The accident circumstances
239 I accept the accident was a very traumatic experience for the plaintiff, as he described, in which he thought he was going to be killed by the other driver who was driving towards him. This account remains unchallenged and was apparently corroborated by the account of the witnesses who was also interviewed by the police.
240 As a result of the deliberate driving of the other vehicle, the plaintiff was hit on his right side – he was pushed onto the bonnet and windscreen of that vehicle and then landed on his feet.
241 The plaintiff consistently gave this account of the accident circumstances in cross-examination and in his earlier statements. Nothing in that account leads to the conclusion that it was a low impact collision, as counsel for the defendant suggested, and there is no evidence to this effect.
242 In forming this view, I have not relied on the one history that the other car was travelling at 30 to 35-kilometres an hour as noted by Mr Grossbard.
243 Save for Dr Menz, all examiners have accepted the plaintiff’s current lumbar issues relate the accident. Further, as Mr Grossbard noted, there was indeed a recording in the Emergency Department notes the day after the accident confirming the history of accident injury. The doctors who support the plaintiff’s claim accept, as I do, that he has had continuous back pain since the accident.
244 Further, there is no suggestion whatsoever, including by Dr Menz, that the level of lumbar disability presently complained of could not relate to the accident as described. Significantly, Dr Menz also noted that as a result of the plaintiff being hit by a car, he had chronic back pain that had not responded to treatment.
245 I also accept that the plaintiff rejected offers of help from the police and ambulance service at the accident scene – not because he was not hurt and did not require help – but because he was totally focussed on getting the cheap alcohol – the three long necks for $13 – he had come to buy before he was injured.
Progress of the Plaintiff’s lumbar pain
246 Consistent with having suffered injury in the accident, the plaintiff woke the next morning in pain, such that he needed to be taken by a friend to the Hospital. Significantly, the Hospital notes then record “PT tender on R hip, lower back and R shoulder” and “lower back sore on all movements” and a pelvis x- ray was ordered.
247 While the plaintiff’s general practitioner on 10 April and 23/25 July 2010 did not record a complaint of back pain, I accept the plaintiff’s evidence that back pain has been continuous since the accident and that during that time, he was more focussed on the issues he had with alcohol, as those notes confirm.
248 I accept that in the three months post accident, the plaintiff had right-sided back pain, consistent with right-sided impact. His pain just fluctuated, as he described, and became much worse, leading to the Hospital attendance on 28 July 2010.
249 It is entirely credible the plaintiff was dealing with his back pain with the products of CUB before he went to Hospital.[54]
[54]T120
250 As long-time treater, Dr Elshenawy, wrote to Monash Neurosurgery in December 2011, referring the plaintiff for treatment of severe back pain radiating to the right leg associated – “He was run over by a car in 2010 and since then he was experiencing this pain on and off but it is getting much worse.” [55]
[55]similar description in the 2017 referral to Professor Bittar
251 While the diagnosis on the 28 July 2010 Hospital attendance was “lower back pain for one week” and the note mentioned “constant dull pain, 5/10 worst on the left lower back”, I accept the plaintiff’s evidence that his complaint has always been right sided, as his treaters confirm.
252 Further, this note was inaccurate as it read “patient was drunk and hit by a car” when there was no evidence at all that the plaintiff was affected by alcohol when interviewed by the police at the scene. It was also incorrect that the patient “had no pain around that area post accident” because the plaintiff had complained of back pain the day after the accident at the same hospital.[56]
[56]T119
Pre-accident back condition
253 I am not satisfied that the plaintiff had any lumbar problems before the accident. There were two very brief, isolated mentions of back pain in voluminous medical material that was available relating to the plaintiff’s pre accident health. The first incident was forty-three years ago and the other in 1998. The plaintiff could not recall a hospital attendance in relation to either incident.
254 As counsel for the plaintiff submitted, the evidence of pre-accident back problems is very minor, so there is no evidence of pre-existing back problems which the plaintiff could self-medicate in any event.[57]
[57]T115
255 The plaintiff was a man who was regularly attending the same medical clinic and there was no mention of back problems in that clinic’s notes, which commence in 2006, which at times are detailed and mention the plaintiff’s alcohol issues.[58]
[58]T90
256 I reject the suggestion that whatever problems the plaintiff was having pre accident would not necessarily reflect in medical attendance because he was self-medicating.[59]
[59]T90
257 I accept the plaintiff’s back was asymptomatic before the accident.[60] He is not required to disprove there was any earlier fight or incident responsible for his back condition. There is simply no evidence that there was.[61]
[60]T91
[61]T115
Any incident in three months post-accident?
258 Counsel for the defendant submitted there was something that prompted an acute event in July 2010, following which the plaintiff attended the Hospital on 28 July – “It was a different matter to the transport accident but what it is we do not know.”[62]
[62]T93
259 It was submitted there was no reason to believe that the pattern of poor memory and getting into fights came to an end until the plaintiff stopped drinking. Again, it was submitted, “the absence of medical attendance in the context of a person in that terrible state does not mean there was nothing going on”.[63]
[63]T99
260 I reject this submission. I do not accept the plaintiff suffered another insult to his back in the three months before he attended the Hospital.
261 No other incident, besides the transport accident, was reported by the plaintiff to his general practitioner in this period, when his focus was largely on his alcohol problem.
262 In answer to a series of questions in cross-examination, the plaintiff answered “Yeah” to something happening during that time – against a background of questioning as to his involvement in fights due to his drinking at various times and his lack of memory in relation thereto.
263 This answer was not explored in any detail. Later in cross examination, totally inconsistent with this answer, the plaintiff denied having been involved in any fights after the accident. Further, he stated he was in too much pain after the accident to have been involved in a fight.
264 In addition to this denial, there is no evidence of the plaintiff being involved in any event in that three-month period in which he could have suffered a further insult to his back such that he has required the level of treatment undertaken subsequently.
The degeneration argument
265 I reject Dr Menz’s analysis of the medical evidence relied upon by the defendant.
266 Dr Menz denies an ongoing accident contribution to the plaintiff’s various injuries, the subject of these applications, simply on the basis the plaintiff had pathology pre-accident. He provided no explanation for this conclusion or analysis thereof, while also stating that as a result of being hit by a car, the plaintiff had had chronic back pain.[64]
[64]T89
267 While other examiners such as Mr Grossbard agreed the MRI findings related to degeneration rather than trauma, they had no difficulty attributing the plaintiff’s significant ongoing lumbar pain to the accident.
268 Taking into account the lack of any pre-accident back problem, the traumatic circumstances of the accident, the complaint of back pain the day after at the Hospital and accepting the plaintiff’s evidence of fluctuating right-sided back pain thereafter, I am satisfied the transport accident continues to contribute to his need for significant back treatment and the serious consequences which it is conceded he presently suffers.
269 Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to his lumbar injury.
270 Having made this finding, it is not necessary to consider the applications in relation to his shoulders and right knee.
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