Perisanidis v Transport Accident Commission
[2013] VCC 1912
•6 December 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-00314
| STEVE PERISANIDIS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 and 18 November 2013 | |
DATE OF JUDGMENT: | 6 December 2013 | |
CASE MAY BE CITED AS: | Perisanidis v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1912 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Transport accident – serious impairment of the function of the lower back before the occurrence of the transport accident – aggravation of that impairment resulting from the transport accident – identification of the consequences resulting from the aggravation – whether the consequences meet the statutory test
Legislation Cited: Transport Accident Act 1986, s93(4)(b)
Cases Cited:Guppy v Victorian WorkCover Authority [2010] VSCA 164; De Agostino v Leatch & Transport Accident Commission [2011] VSCA 249; Petkovski v Galletti [1994] 1 VR 436
Judgment: The plaintiff’ Originating Motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Jewell SC with Mr M Garnham | Slater & Gordon Ltd |
| For the Defendant | Mr G Lewis SC with Ms R Annesley | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed on 24 January 2013 by which the plaintiff applies for leave pursuant to s93(4)(b) of the Transport Accident Act 1986 (“the Act”) to bring a proceeding to recover damages for injuries suffered by him arising out of a transport accident which occurred on 23 April 2008.
2 Mr P Jewell, Senior Counsel, appeared with Mr M Garnham of Counsel for the plaintiff and Mr G Lewis, Senior Counsel, appeared with Ms R Annesley of Counsel for the defendant.
3 The application is brought pursuant to s93(4)(d) of the Act. Subsection (6) provides that a court must not grant leave under ss(4)(d) unless the court is satisfied that the injury is a “serious injury”.
4 The definition of “serious injury” relied upon by the plaintiff is under ss(17) – “serious long-term impairment or loss of a body function”.
5 The injury suffered by the plaintiff for which leave is sought is an injury to his lower back.
6 The following evidence was adduced at the hearing of the plaintiff’s proceeding:
· The plaintiff gave evidence and was cross-examined;
· Dr C Papachristos, general practitioner, gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”), pages 6-60; 66-110 and 115-125: Exhibit A;
· The report of Mr Dohrmann, neurosurgeon, dated 22 January 2004: Exhibit B;
· The reports of Mr Han, neurosurgeon, dated to 10 February 2004 and 13 April 2004: E exhibit C;
· Physiotherapy notes: Exhibit D;
· The report of Mr Wilde, orthopaedic surgeon, dated 14 November 2012: Exhibit 1;
· The medical report of Mr Brownbill, neurosurgeon, dated 30 May 2013: Exhibit 2;
· The defendant tendered its Court Book (“DCB”) pages 31-39 and 52-59: Exhibit 3;
· The defendant tendered a folder of medical records: Exhibit 4.[1]
[1]I have changed the numbering of the exhibits tendered by the defendant. I have marked the reports of Mr Wilde and Mr Brownbill as separate exhibits. The folder of medical records comprises a folder divided into 77 tabs. I will refer to relevant documents out of that folder by their tab number and page number in that tab where the document under that tab has been paginated; for example “Tab 77/51” representing the tab and the pagination.
The Issues
7 The plaintiff was involved in a transport accident on 22 November 2006. He claims that he suffered an aggravation of a pre-existing lower back injury. He further claims that the aggravation is of such magnitude as to satisfy the test of seriousness.
8 The plaintiff’s evidence and the medical evidence demonstrate that, prior to the transport accident, he was suffering from a serious lower back complaint. Part of that is demonstrated by the evidence adduced by the plaintiff. Most of that is demonstrated in the evidence adduced by the defendant, and in particular, in the medical records,[2] and in medical reports to which I was referred by Mr Jewell and Mr Lewis.
[2]Exhibit 4
9 The scope of the enquiry, whether the plaintiff suffered an aggravation of his pre-existing lower back injury, and whether the aggravation of itself meets the statutory test, was narrowed substantially. Mr Jewell submitted that because of the plaintiff’s pre-existing lower back injury, he was in an already impoverished state, and therefore, the further loss to him resulting from the further impairment of function of his lower back is an impairment consequence of significance.
10 There is support for Mr Jewell’s submission in the authorities.
11 In Guppy v Victorian WorkCover Authority,[3] Emerton AJA, with whom Maxwell P and Nettle JA agreed, observed:
“… The respondent’s main argument was that Mr Guppy was starting from a low base. Because of the first injury, so it was said, he already had a heavily reduced working capacity. That meant that a relatively small further reduction in hours might well satisfy the 40% test. … .
… I am satisfied that in Mr Guppy’s case, the 40% loss of earning capacity satisfies the ‘very considerable’ test. For an already impoverished person to lose 40% of his already reduced work capacity is a consequence that must on any measure be viewed as “very considerable’.”[4]
[3][2010] VSCA 164
[4]paragraphs 50-51
12 In De Agostino v Leatch & Transport Accident Commission,[5] in which Tate JA referred to Guppy and observed:
“… While it could be accepted that the experience of successive injuries meant that residual capacity was precious, and injuries caused to someone with an existing impairment had to be treated accordingly …"[6]
[5][2011] VSCA 249
[6]paragraph 49
13 In his final address, Mr Jewell summarised the basis of the plaintiff’s claim that the further impairment of function of his lower back is “serious”:
“So we submit that here's a man who clearly was very significantly compromised before the subject accident but he did have tolerances, he did have capacities, and they’ve been impinged upon to a degree, in our submission, and on our case to the extent that they would objectively and subjectively be regarded as serious because the pain aspect of it is very much increased to the point where he’s having these medications.
The plaintiff told Your Honour that with the morphine-based drugs he suffers side effects of drowsiness and tiredness and things of that nature. But he’s in a heightened state of pain and it’s continuing and we submit that on a proper analysis, looking at it as a man who has had his residual tolerances impinged upon so considerably, it is a very considerable consequence.”[7]
[7]Transcript 106
14 I asked Mr Jewell to breakdown the impairment consequences which he submitted are “serious”. He said:
“He’s a man who was treated conservatively for many, many years, who has been transferred into the surgical category. The dot point associated with that is that this was no light decision because he had a second opinion about it and the warnings he was given by both neurosurgeons - that is, Mr Rogers and also Mr Smith - was that, ‘This is not plain sailing. You might even get worse,’ and Mr Rogers, ‘It’s a very big risk’. So it just points to the level of the pain he probably had following his accident.
Really, in a man who doesn’t have a great life, who has such an increase in pain, requiring this medication, and he’s converted to surgery and he’s still in a clinical situation where fusion is something that should be contemplated, that should be enough. But in this case he’s also got the side effects of the medication. We say these things we’ve just spoken about, Your Honour, are clear results of the accident. They’re not merged, as a matter of degree, with other consequences such as the sleep and the walking capacity. They have been affected but it’s very hard – we acknowledge it’s very hard to say to what degree and in what way and to what extent.
We submit they have been affected but in terms of what can be clearly established from this accident, we submit that it is serious when looked at in terms of how it affects or how it’s impinged upon his residual capacities.”[8]
[8]Transcript 107
15 Mr Jewell’s submissions were essentially directed to establishing that there had been an aggravation of the plaintiff’s pre-existing lower back condition; that the aggravation contributed to the treatment which the plaintiff had subsequently, and his tolerances and residual capacities which he retained before the transport accident occurred had been lost.
16 Mr Lewis submitted, firstly, that even if there had been an aggravation that it had subsided, what impairment consequences the plaintiff suffered after the transport accident were consistent with the natural deterioration in the plaintiff’s lower back condition. Secondly, if I found that there was an aggravation, I could not be satisfied that the impairment consequences of the aggravation were “serious”.
The transport accident
17 On 22 November 2006, the plaintiff was driving his car on High Street, Preston. He brought his car to a stationary position, intending to execute a right-hand turn. While he was waiting to execute the turn, a car collided into the rear of his car.
18 The plaintiff experienced lower back pain which he attributed to the occurrence of the transport accident. He sought medical treatment from Dr Papachristos, general practitioner. I will return to the medical treatment which the plaintiff obtained following the occurrence of the transport accident later in these reasons.
The prior lower back condition
19 The medical evidence of the plaintiff’s prior lower back condition is very extensive. It is for that reason that I propose to commence my summary of his lower back condition and the treatment he obtained for it at a time when the impairment consequences resulting from it were serious.
20 Dr Papachristos referred the plaintiff to see Dr Clemens, rheumatologist. The plaintiff first saw him on 17 March 2003.[9] He referred the plaintiff to have a CT scan.[10] He reviewed the CT scan and considered that it demonstrated significant disc disease at L4-5 and L5-S1. He considered that the plaintiff would benefit from an epidural injection to the L4-5 level.[11] The plaintiff had the epidural injection. He was reviewed by Dr Clemens on 9 May 2003. He told Dr Clemens that it did not reduce the pain he was experiencing in his lower back and legs. He prescribed the plaintiff medication and suggested that the plaintiff should consider having facet joint steroid injections.[12]
[9]Tab 11
[10]Tab 12
[11]Tab 13
[12]Tab 14
21 The plaintiff saw Dr Clemens on 7 November 2003. Dr Clemens considered that the plaintiff’s lower back and leg pain was due to severe lumbar spondylosis with canal stenosis. He noted that the plaintiff was keen to consider a surgical option.[13]
[13]Tab 15
22 Dr Clemens referred the plaintiff to have an MRI scan on 25 November 2003. The radiologist reported that it demonstrated spondylotic disc disease; central and slightly leftward disc protrusion at L4-5 with moderate canal stenosis; bilateral impingement of the L5 nerve roots; and right paracentral disc protrusion at L5-S1 impinging on the right S1 nerve root.[14] Dr Clements referred the plaintiff to the Neurosurgery Clinic at the St Vincent’s Hospital. In a letter of referral, he described what he considered to be the pathology causing the plaintiff’s lower back and leg pain. He added that the plaintiff had told him that his symptoms had deteriorated to the point where he was unable to walk for more than 20 minutes at a time, and If he did so, he developed increasing discomfort in his lower back and buttocks; that he was troubled by persistent lower back pain at night; and that the plaintiff had seen Mr Turner, orthopaedic surgeon, by that stage.[15]
[14]Tab 16
[15]Tab 17
23 The plaintiff was referred to Mr Dohrmann, neurosurgeon. The plaintiff saw him in October 2000. Mr Dohrmann noted that the plaintiff had been troubled by lower back pain for many years. The distribution of the pain involved the plaintiff’s lower limbs and increasingly so. He considered that the features of the plaintiff’s presentation may have been typical of lumbar canal stenosis. He referred the plaintiff to have an MRI scan.
24 Dr Papachristos referred the plaintiff back to Mr Dohrmann in 2004. He saw Mr Dohrmann on 22 January 2004. Mr Dohrmann reviewed an MRI scan. He considered that it demonstrated a central disc herniation at L4-5 and a broad-based disc herniation on the right at L5-S1. He advised the plaintiff against having surgery because he considered the likelihood of a poor result was too high.[16]
[16]Tab 19
25 The plaintiff saw Mr Han, neurosurgeon, at St Vincent’s hospital. He reviewed the plaintiff on 13 April 2004. He reviewed a number of MRI scans. He considered that they showed evidence of canal stenosis and disc degeneration. He also advised the plaintiff against having surgery.[17]
[17]Tab 22
26 The plaintiff was reviewed by Dr Clemens on 8 July 2005[18] and 18 August 2005.[19] He referred him to have another MRI scan on 10 September 2005. The radiologist reported that it demonstrated degenerative changes in the discs at the lower two lumbar levels with central canal and foraminal stenosis at L4-5, greatest on the right at L5-S1.[20] Dr Clemens reviewed the plaintiff on 21 September 2005. He viewed the MRI scan. He considered that it demonstrated significant facet joint degenerative disease of L4-5 and L5-S1 with minor canal stenosis at L4-5. He arranged for the plaintiff to undergo an image-guided injection into the facet joint of L4-5.[21] He referred the plaintiff to Dr Vivian, physician.[22]
[18]Tab 27
[19]Tab 28
[20]Tab 29
[21]Tab 30
[22]Tab 32
27 The plaintiff saw Dr Vivian on 1 March 2006. He noted that the plaintiff had tolerable lower back pain until 1999, when he sustained a severe acute attack of lower back pain and leg pain. At the time the plaintiff saw Dr Vivian he was taking 150 milligrams of Tramal in the morning and 200 milligrams at night.[23] Dr Vivian referred the plaintiff to Dr Verrills, who provided the plaintiff with lumbar medial branch blocks and sacroiliac joint blocks which proved negative. That led Dr Verrills to provide a provisional diagnosis that the plaintiff’s lower back pain was disc related.[24]
[23]Tab 33
[24]Tab 34
28 Dr Clemens reviewed the plaintiff on 15 August 2006.[25] The plaintiff was next treated at the Austin Hospital by physiotherapy.[26]
[25]Tab 35
[26]Tab 36 and 39
29 I propose to now turn to Dr Papachristos’s clinical notes from September 2006 up to the date of the occurrence of the transport accident. The clinical notes commence on 8 October 2001.[27] They contain references to the treatment the plaintiff obtained from each of the medical practitioners to whom I have made reference in the preceding paragraphs.
[27]Tab 77/122
30 Mr Jewell provided me with a chronology of the medical treatment provided by Dr Papachristos. Mr Lewis provided me with a similar chronology, but also a chronology of the radiology which the plaintiff had both before and after the occurrence the transport accident, and a letter of the defendant dated 3 October 2013 addressed to Mr Dooley, orthopaedic surgeon. The letter, likewise, sets out a chronology, but in a narrative form. I used the foregoing to assist me in interpreting Dr Papachristos’s clinical notes.
31 There can be no doubt that the plaintiff had a longstanding lower back condition going back to 1999. Mr Jewell did not contest the nature and extent of the plaintiff’s prior lower back condition to any extent, but was content to invite me to accept what the medical records demonstrated.
32 I think the logical starting point is to review some of the clinical notes of Dr Papachristos commencing in 2006, which I think are sufficient to demonstrate the problems the plaintiff was having with his lower back immediately prior to the occurrence of the transport accident.
33 On 15 September 2006, the notes reveal that the plaintiff complained of severe lower back pain. He was using 150 milligrams of Tramal in the morning and 300 milligrams at night. He was due to see a neurosurgeon in the Outpatient Clinic at the Austin Hospital.[28]
[28]Tab 77/77. The plaintiff referred to the Neurosurgical Outpatient Clinic on 4 July 2006 – Tab 77/78
34 On 6 October 2006, the notes reveal that the plaintiff complained that his lower back problem was a “big problem”.[29]
[29]Tab 77/77
35 On 20 October 2006, the notes reveal that the plaintiff was using dosages of Tramal of “150/150/300” totalling 600 milligrams per day, and that the plaintiff was “quite worried because [he] feels he may need surgery”.[30]
[30]Tab 77/76
36 On 3 November 2006, the notes reveal that the plaintiff complained that his lower back pain continued to be his main problem. The dosage of Tramal he was using had risen to 700 milligrams per day.[31]
[31]Tab 77/76
37 On 14 November 2006, the notes reveal that the plaintiff complained that his lower back pain was worse and that he was “awaiting neurosurgery”.[32]
[32]Tab 77/76
38 Although I have commenced a summary of the nature and extent of the plaintiff’s prior lower back condition as at September 2006, it is obvious that the clinical notes demonstrate that the plaintiff suffered a lower back condition in 1999 which progressively worsened to the point where he required referral to a number of specialists for treatment. Despite that treatment, he was, as it was put to me by Mr Lewis, on an upward trajectory in terms of increasing severity of his lower back condition, which required referral to the Neurosurgical Outpatient Clinic at the Austin Hospital where he was assessed as a candidate for surgery.
The Plaintiff’s evidence
39 The plaintiff swore two affidavits on 22 November 2012[33] and 22 October 2013.[34] In his first affidavit, the plaintiff said very little about his prior lower back condition. He said that he had been on painkilling medication for many years because of general back and neck pain as well as some leg pain; that the effect of the transport accident was that he had “more” back pain and neck pain than he had previously experienced, and as a consequence of suffering increased back pain after the occurrence of the transport accident, his medication increased significantly.[35] His second affidavit was devoted to updating his evidence regarding the nature and extent of the impairment of the function of his lower back.
[33]PCB 6-11
[34]PCB 12-15
[35]PCB 8-9
40 Mr Lewis cross-examined the plaintiff at some length from Dr Papachristos’s clinical notes and from the histories recorded by a number of medical practitioners. Some of the topics on which Mr Lewis cross-examined are of critical importance in assessing the plaintiff’s creditworthiness and reliability, and are outlined below.
41 The plaintiff was treated by Mr Gioskos, physiotherapist. The first session of physiotherapy occurred on 28 March 2009. In a report of the physiotherapy clinic dated 6 October 2010, a history recorded by the treating physiotherapist was that the plaintiff was “apparently fit and healthy” before the occurrence of the transport accident.[36] Clearly that was never the case. The plaintiff accepted that he probably did give that history. He agreed that the history was nonsense.[37]
[36]PCB 44
[37]Transcript 32
42 Although Mr Lewis did not take me to the reports of Mr Thien, neurosurgeon, it is plain that the history the plaintiff gave him is wrong. Mr Thien examined the plaintiff on 11 March 2008. The plaintiff was referred to him by Dr Clements. Mr Thien recorded that the plaintiff told him that the transport accident was significant and that since that time he had complained of lower back pain radiating down into both legs, which was worse on the left side. He left Mr Thien with the impression that the pain just described arose immediately after the transport accident.[38]
[38]PCB 31-32
43 The plaintiff gave a similar history to Mr Brownbill, neurosurgeon, who examined him on 28 May 2013. Mr Brownbill recorded that the plaintiff told him that before the transport accident occurred he had pain in his lower back all the time but it was “not really that great”. He said he could have continued working if his lower back condition had been his only problem.[39] The plaintiff said that what he told Mr Brownbill was true.[40] Earlier, under cross-examination, he described the pain he was experiencing as a “bothersome little pain”.[41]
[39]Transcript 139
[40]Transcript 31
[41]Transcript 22
44 The plaintiff was treated by Dr Congiu, psychiatrist. Dr Congiu recorded that the plaintiff told him that he was able to walk three-and-a-half to four hours daily before the occurrence of the transport accident, but can now only walk for about 19 minutes or so.[42] The plaintiff said that he did tell Dr Congiu that he could only walk 19 to 20 minutes, covering about 500 meters in that time.[43]
[42]PCB 58
[43]Transcript 20
45 Mr Wilde, orthopaedic surgeon, examined the plaintiff on 14 November 2012. He recorded that the plaintiff told him that before the surgery, which was undertaken on 28 July 2010, he could walk 250 metres, but he can now walk 4 kilometres.[44] The plaintiff said that he could walk 4 kilometres before the transport accident, but not after it occurred.[45] He also said that there were times he could walk up to 4 kilometres before the occurrence of the transport accident, but on other occasions he might be limited to walking 20 minutes.[46]
[44]PCB 128
[45]Transcript 20-21
[46]Transcript 21
46 Mr Brownbill recorded that the plaintiff told him that he had been using a walking stick intermittently “for many years”. It was put to the plaintiff on the basis that “many years” included years before the occurrence of the transport accident. It would appear that he understood that the questions were put that way. He admitted that he used a walking stick before the occurrence of the transport accident. He said he used a walking stick when he went for a walk to fend off dogs.[47]
[47]Transcript 22-23
47 Dr Papachristos said that the plaintiff had difficulty walking before the occurrence the transport accident. He had observed him to use a walking stick before it occurred.[48]
[48]Transcript 64-66
48 The plaintiff was examined by Mr Moran, orthopaedic surgeon, on 22 July 2009. Mr Moran recorded that the plaintiff told him that he had suffered significant and persistent sleep disturbance since the occurrence of the transport accident. However, if he did have sleep problems before the occurrence of the transport accident, they were minor.[49]
[49]Transcript 24
49 In the medical records there are histories which point to the plaintiff having interference with sleep disturbance before the occurrence of the transport accident. In a report dated 15 June 2004, Dr Papachristos referred to the plaintiff’s pain causing him “severe nocturnal symptoms affecting his sleep”.[50] In another report dated July 2004, Dr Papachristos referred to the plaintiff’s biggest concern being his lower back which was “affecting his sleep”.[51] In Dr Papachristos’s clinical note dated 14 June 2002, he noted that the plaintiff was having difficulty with his sleep, which was mainly due to pain.[52] It would appear that when the plaintiff was cross-examined regarding whether his lower back condition was interfering with his sleep, that he agreed that it did on and off.[53]
[50]Tab 24
[51]Tab 26
[52]Tab 77/118
[53]Transcript 39
50 I have some moderate to serious doubts about the creditworthiness and reliability of the plaintiff. Those doubts are based upon the fact that he was suffering from a disabling lower back condition before the occurrence of the transport accident. That is so patently evident from my review of the evidence thus far. For the plaintiff to describe the condition of his lower back and the pain it produced as “not really that great”, “bothersome little pain”, and that he was “apparently fit and healthy” before the occurrence of the transport accident is simply not true. That is borne out by the fact that by early November 2006, the plaintiff was awaiting neurosurgery and was taking 700 milligrams of Tramal per day. That is not the picture of someone who was experiencing tolerable pain, and who would have been working with that pain if it were not for other medical conditions.
51 The evidence of the treatment the plaintiff had before the occurrence of the transport accident demonstrates that he had a very disabling lower back condition, which interfered with most aspects of his daily living, and in particular, his mobility and his sleep. I think the foregoing resonates loudly in the clinical notes of Dr Papachristos. Under cross-examination, Dr Papachristos agreed that his clinical notes demonstrated an ascending use or ascending reliance on Tramal.[54] He was then asked what I consider to be a critically important question in determining the magnitude of the plaintiff’s lower back condition:
[54]Transcript 70
Q:Sure. My proposition is this, doctor: had the accident not occurred you can’t be sure that that usage of Tramadol would not have continued to increase beyond November 06?
A: Yes, that’s right.”[55]
[55]Transcript 71
52 It is difficult to conclude otherwise from the evidence I have reviewed, that by 2006, the plaintiff’s lower back condition was worsening significantly. I think it is a reasonable conclusion to draw that, had the transport accident not occurred, there was a real likelihood that he would have used increasing dosages of Tramal, and would have had surgery to his lower back.
The Plaintiff’s case
53 The plaintiff described the impairment consequences which he says have arisen as a result of the aggravation of his lower back injury in the transport accident as follows:
· Increased lower back pain;
· Poor sleep;
· Use of Tramadol (Tramal), Endone, OxyContin, Panamax and Celebrex;
· Medical treatment, which I will come to later in these reasons, including surgery to his lower back;
· Increased depression and anxiety;
· Loss of motivation, confidence and self-esteem;
· Inability to carry out household chores;
· Inability to mow his lawns;
· Inability to do gardening;
· Interference with his ability to play and interact with his grandchildren;
· Interference with his ability to engage in community activities with a Greek Orthodox Community Club to which he belongs.
54 However, under cross examination, it was my impression that the plaintiff did not engage in social, recreational and domestic activities to the extent which his affidavits would suggest he did before the occurrence of the transport accident. Under cross-examination, he said:
· His wife did most of the shopping. He did some additional shopping. He goes to the shops now to buy a newspaper, milk and smoked salmon.[56]
[56]Transcript 17
· His wife and daughter would help him dress if he is in pain.[57]
[57]Transcript 17-18
· He continues to attend the Greek Orthodox Community Club about three times per week. He used to attend it seven days a week. He continues to do bookwork for that Club, but he now takes it home with him. That occupies him about 31 hours a month.[58]
· He planted trees in his garden. He did not mow his lawns. He paid someone to do that.[59]
[58]Transcript 18
[59]Transcript 19
55 It is difficult to determine what social, recreational and domestic pursuits the plaintiff engaged in before the occurrence of the transport accident which he is now unable to engage in. It appears to me that Mr Jewell made a forensic decision to limit the scope of the plaintiff’s impairment consequences to the impingement upon his tolerances and residual capacities, because a comparison between what the plaintiff was like in 2006 before the occurrence the transport accident and subsequently is not a very profitable comparison for the plaintiff.
Mr Jewell's submissions
56 Mr Jewell submitted that there was a complexion that could be put on the evidence which demonstrated the plaintiff’s case at its highest point. I propose to summarise his submissions and to analyse the ultimate propositions he put.
57 Mr Jewell submitted that the history of the plaintiff’s lower back condition before the transport accident occurred was of a long-standing condition, but that it fluctuated.
58 Mr Jewell submitted that an examination of Dr Papachristos’s clinical notes in 2003, 2004 and in the beginning of 2005, demonstrate that the plaintiff was “better” at the end of 2004 and going into 2005. He submitted, therefore, that the deterioration in 2006 should be considered as evidence of fluctuation rather than significant deterioration with the plaintiff on the trajectory submitted by Mr Lewis.
59 Mr Jewell relied upon the opinions of Mr Dohrmann and Mr Han, who were of the opinion that there was no claudication or cauda equina symptoms indicating that surgery was required. The transport accident created a pathological dimension which had previously not been present.
60 In making good his submissions, Mr Jewell submitted that the entries in the clinical notes of Dr Papachristos demonstrate the increased use of Tramal to treat increased pain. The entry of 2 January 2007 is to the effect that the plaintiff was using too much Tramal.[60] The entry on 20 February 2007, not quite three months after the occurrence of the transport accident, discloses that the plaintiff was using 1,000 milligrams of Tramal per day,[61] an increase of 300 milligrams per day when compared with his use of it in November 2006. At the time when the plaintiff was examined by Dr Lim, consultant in rehabilitation in pain medicine on 1 July 2008, his use of Tramal had risen to 1,400 milligrams per day. He was weaned off that amount. It was reduced to 900 milligrams a day.[62]
[60]Tab 77/74
[61]Tab 77/74
[62]PCB 75
61 Mr Jewell then referred me to the entry in the clinical notes of Dr Papachristos of 13 March 2007 which demonstrates that the plaintiff was experiencing increasing pain. He increased his use of Tramal to 1,100 mg per day.[63] He submitted that an examination of the clinical notes through 2007 and 2008, and perhaps going into 2009, demonstrate that by about August 2007, the plaintiff's use of Tramal increased to 1,200 milligrams at one point.
[63]Tab 77/73
62 The plaintiff came under the care of the Neurosurgical Clinic at St Vincent’s hospital in mid 2008. The report of St Vincent’s hospital dated 4 June 2012 reveals that the plaintiff was referred to have an MRI scan which demonstrated that he had an L4-5 stenosis and L5/S1 disc prolapse with compression of the S1 nerve root in the right lateral recess. Mr Smith, a neurosurgeon at the St Vincent’s Hospital, considered that the plaintiff would benefit from decompressive surgery. He was placed on a waiting list.[64]
[64]PCB 53 and 49
63 The plaintiff saw Dr Papachristos regarding the advice that he had been given at St Vincent’s Hospital that he would benefit from surgery. Dr Papachristos referred the plaintiff to Mr Rogers, neurosurgeon, for a second opinion. The plaintiff saw Mr Rogers on 31 August 2009. Mr Rogers was provided with an MRI scan which he considered demonstrated degenerative changes at L4-5, and L5-S1 causing cauda equina and nerve root compression. He was aware that surgical intervention in the form of a laminectomy at L4-5 and L5-S1 had been recommended by Mr Smith. He advised the plaintiff that it was a reasonable option for him to pursue.[65]
[65]PCB 45
64 Mr Smith provided a report dated 17 August 2012. He recalled examining the plaintiff in April 2008 at St Vincent’s Hospital. He recorded a history taken from the plaintiff of the transport accident, and that the plaintiff had been troubled by ongoing lower back pain since that time. Mr Smith considered that the symptoms described by the plaintiff were suggestive of neurogenic claudication and referral of pain into an S1 distribution in both legs, moreso on the right than the left. He was of the opinion that the MRI scan he viewed at St Vincent’s hospital revealed that he had an L4-5 stenosis and L5-S1 disc prolapse with compression of the S1 nerve root in the right lateral recess.
65 Mr Smith described the surgery which the plaintiff had on 28 July 2010. The plaintiff was operated on by Dr Papacostas, training neurosurgical registrar. The supervising surgeon was Mr Thien. The operation performed was an L4-5 laminectomy and right-sided L5-S1 discectomy. The nerve at the L5-S1 level was found to be adherent to the disc and was dissected. Soft disc was removed. The right S1 nerve root was visualised and decompressed. The left S1 nerve root was visualised and decompressed, and it would appear that the L5 nerve root was also decompressed.[66]
[66]PCB 50
66 Mr Smith reviewed the plaintiff on 15 November 2011 and 3 January 2012. It would appear that he considered that the plaintiff had continuing left leg pain which he considered was likely to have been contributed to by L4-5 and L5-S1 pathology, but also by peripheral neuropathy to some degree. He advised the plaintiff that he could undergo further surgery, which the plaintiff has declined.
67 Mr Smith was asked to express an opinion regarding the contribution of the transport accident to the pathological processes which were treated surgically. He said:
“ When I first met Mr Perisanidis it was my feeling that he had a picture of neurogenic claudication contributed to by a lateral recess narrowing and disc protrusion at L4-5, L5-S1 and I felt that the history that he gave suggested that the second motor vehicle accident that he had been involved in had been a clear contributor to this problem for him. It was quite likely that he had degenerative change prior to this but the motor vehicle accident itself may well have led to a deterioration in this degenerative change and also perhaps the superimposed disc prolapse at L5-S1. It is hard to be sure of this but the pattern of symptoms that he provided me when I first met him did suggest a time course supportive of this hypothesis.”[67]
[67]PCB 52
68 Mr Jewell submitted that the neurogenic claudication was first diagnosed after the occurrence the transport accident. He pointed to the opinions of Mr Dohrmann and Mr Han, neither of whom made that diagnosis. He submitted that it was a diagnosis made by Mr Thien, who was the first neurosurgeon to examine the plaintiff after the occurrence of the transport accident. Mr Jewell submitted that when a comparison is made of the neurosurgical opinions before the occurrence of the transport accident and subsequently, then there is a clear distinction in the diagnoses. He submitted that I should accept that it was more likely than not that the neurogenic claudication occurred as a result of the transport accident.
69 Mr Jewell referred me to the opinion of Mr Chan, neurosurgeon, who examined the plaintiff on 29 May 2008. The plaintiff was referred to him by Dr Papachristos. Mr Chan recorded that the plaintiff’s main complaint was pain totally over his lower back. Mr Chan was of the opinion that the plaintiff’s lower back pain was mainly nocturnal, which he considered was not claudication. So, to that extent, his opinion differs from Mr Smith, and is inconsistent with the submission made by Mr Jewell that the neurogenic claudication is more likely than not to have occurred as a result of the transport accident.[68] However, Mr Jewell’s main purpose in referring to Mr Chan was the history he obtained regarding the extent of the disabling nature of the plaintiff’s lower back condition, which the plaintiff attributed to the transport accident.
[68]PCB 66-67
70 Mr Jewell then referred me to Dr Lim’s treatment of the plaintiff. The plaintiff was referred to Dr Lim by Dr Papachristos. Dr Lim provided a report dated 22 September 2013. The plaintiff saw him on 24 April 2007 and 1 July 2008. Dr Lim recommended that the plaintiff undergo a rehabilitation program. It would appear that because the plaintiff pursued a surgical option, that the rehabilitation program was not pursued. Dr Lim was of the opinion that the plaintiff was suffering from a Chronic Pain Syndrome which predated the transport accident. Part of the basis for that opinion was the history recorded by Dr Lim that the plaintiff had been on a disability support pension since 1990. Otherwise, the contents of his report refers to the disabling effect of the lower back condition on the plaintiff, but do not assist me much in determining the contribution of the transport accident to the plaintiff’s present impairment consequences.
71 I am not persuaded by Mr Jewell’s submissions that an analysis of these medical opinions do much more than establish that the plaintiff was involved in the transport accident, and that it was likely that he suffered an aggravation of his pre-existing lower back condition.
72 One of the serious flaws in Mr Jewell’s analysis is that the plaintiff had a very serious lower back condition in 2006 leading up to the occurrence of the transport accident. I think it is a fair conclusion that he was on an upward trajectory in terms of the need for medication and the need for surgery.
73 A second flaw in that analysis is that the plaintiff painted a picture that was untrue. Many of his treating medical practitioners were not provided with an accurate account of the medical treatment he had been provided before the occurrence the transport accident; the clinical notes of Dr Papachristos demonstrating the seriousness of the plaintiff’s lower back condition in 2006; the evidence he gave that it was likely that the plaintiff’s use of Tramal would have increased had the transport accident not occurred, and the fact that the plaintiff was being assessed for surgery to his lower back during 2006. I think that paints a picture of a very serious lower back condition. Furthermore, the plaintiff’s own admissions of the extent to which he was unable to engage in social, recreational and domestic pursuits before the occurrence of the transport accident add weight to the conclusion that he was suffering from a very serious lower back condition.
74 I am not persuaded by the thesis developed by Mr Jewell, which was largely based upon the opinion of Mr Smith. Mr Smith’s opinion is favourable to the plaintiff, that he did suffer an aggravation of the pre-existing lower back condition as a result of the transport accident. However, his quantification of that is based upon what he described as a hypothesis. The hypothesis is flawed because he was unaware of how serious the plaintiff’s lower back condition was in 2006 and prior to the occurrence of the transport accident. It appears to me, for the reasons outlined above, that he has worked on the premise that the plaintiff was faring reasonably before the occurrence of the transport accident.
The Medico-legal assessments
75 Mr Wilde examined the plaintiff on 14 November 2012 and 3 September 2013. He provided two reports dated 14 November 2012[69] and 3 September 2013.[70] He was provided with a portion of the medical records which were tendered in this proceeding. He was provided with the reports of Mr Smith and the clinical notes of Dr Papachristos.
[69]PCB 126-133
[70]PCB 134-137
76 Mr Wilde considered that the occurrence of the transport accident was significant. It aggravated significant degenerative changes in the plaintiff’s lower back, which he considered went on to develop into lumbar canal stenosis. He diagnosed that the plaintiff was suffering from a lumbar dysfunction secondary to lumbar spondylosis, L4-5 stenosis and a right lumbosacral disc prolapse which had been treated by laminectomy and nerve root decompression. On the second occasion he examined the plaintiff, he considered that the consequences to the plaintiff of the aggravation resulting from the transport accident had largely resolved, and that the pain syndrome which he considered the plaintiff was suffering from at that time was driven heavily by non-organic factors.[71]
[71]PCB 136
77 Mr Brownbill examined the plaintiff on 28 May 2013. He provided a report dated 30 May 2013.[72] He was provided with a portion of the medical records which were tendered in this proceeding. Mr Brownbill commenced his opinion on causation by saying that it was not possible to be dogmatic about the basis of the plaintiff’s ongoing lower back pain and leg pain. He considered that it was multifactorial, and that two of the contributors were diabetic neuropathy and central sensitisation. He considered that it was likely that the plaintiff had suffered an aggravation of pre-existing lumbar spinal degenerative changes as a result of the transport accident.
[72]PCB 138-145
78 Mr Dooley, orthopaedic surgeon, examined the plaintiff on 24 October 2013. He provided a report dated 4 November 2013. The solicitor for the defendant provided Mr Dooley with all of the medical records which were tendered in this proceeding.[73] It would appear that Mr Dooley was the only medical practitioner who was provided with the whole picture of the plaintiff’s lower back condition prior to the occurrence of the transport accident.
[73]Exhibit 4
79 After reviewing the medical records and examining the plaintiff, Mr Dooley was of the opinion that the plaintiff had suffered a soft-tissue injury to his lower back. He arrived at that conclusion not only on the basis of what he described as the plaintiff’s long-standing asymptomatic degenerative disc disease, but on his understanding that the collision impact was low, resulting in minor damage to both cars, and his analysis of the radiology which he considered did not demonstrate any structural damage to the plaintiff’s lower back.
Summary of conclusions
80 I have carefully considered the evidence of the plaintiff, Dr Papachristos, the reports and other documents tendered into evidence, and the addresses of Mr Jewell and Mr Lewis. My analysis of that evidence leads me to the following conclusions:
· The plaintiff suffered from a lower back condition of long standing. Its seriousness is to be judged by the course of events in 2006. These events demonstrate that the plaintiff was suffering from a serious level of lower back pain and leg pain, not only requiring significant dosages of Tramal, but referral to the Neurosurgical Outpatient Clinic at the Austin Hospital, waiting consideration for surgery to his lower back.
· The plaintiff was treated by Dr Papachristos, Mr Dohrmann, Mr Han, Dr Clemens, Dr Vivian and Dr Verrills. The many radiological investigations appeared to me to be consistent with Dr Clemens’ review of the plaintiff on 21 September 2005 when he had an MRI scan available for his inspection. He considered that it demonstrated significant facet joint degenerative disease of L4-5 and L5-S1, with minor canal stenosis at L4‑5.
· By November 2006, and only days before the occurrence of the transport accident, the plaintiff was in a parlous state as far as his lower back condition was concerned. I think the description that he was on an upward trajectory in relation to his use of painkilling medication, and also in relation to the disabling symptoms he was experiencing in his lower back and legs is very apt.
· I repeat that I have moderate to serious doubts about the plaintiff’s creditworthiness and reliability. He must have known that by November 2006 he was suffering from a seriously disabling lower back condition, yet too many of the clinicians who examined him after the occurrence of the transport accident, he either did not disclose the nature and extent of that seriously disabling lower back condition, or he understated it. Whichever be the case, their opinions on causation are inevitably less reliable.
· Furthermore, I accept the evidence of Dr Smith, that the transport accident is likely to have aggravated the plaintiff’s pre-existing lower back condition, but I am not satisfied that there is any persuasive evidence of the nature and extent of that aggravation. Some of the medical practitioners who treated the plaintiff, like Mr Smith, have attempted to determine whether an aggravation occurred and its nature and extent, but in the absence of knowing the true picture of the plaintiff’s pre-existing lower back condition, their opinions are of little weight.
· The only medical practitioner who appears to me to have the full understanding of the plaintiff’s lower back condition, both before and after the transport accident, is Dr Papachristos. I am not satisfied that he was of much assistance to the plaintiff’s case. He candidly expressed the opinion that the plaintiff’s use of medication and usage of Tramal would have continued to increase beyond November 2006.
· Mr Wilde and Mr Brownbill appeared to have been given a portion of the medical records. They appear to have been given sufficient evidence of the plaintiff’s pre-existing lower back condition to be able to offer an opinion on causation. Mr Wilde was satisfied that there was an aggravation, but that the symptoms of it had resolved. Mr Brownbill was satisfied that there was an aggravation, but did not quantify the nature and extent of it.
· Mr Dooley was probably in the next best position to Dr Papachristos to understand the plaintiff’s lower back condition, both before and after the occurrence of the transport accident. His opinion is not that much different from the opinion of Mr Brownbill.
· Under cross-examination, the plaintiff conceded that much of his social, recreational and domestic pursuits had been reduced significantly before the transport accident occurred. What that has left is impairment consequences amounting to increased pain; increased need for medication; increased interference with mobility, and increased impact upon his psychological state. However, Mr Jewell did not strenuously press that each of those matters were sufficient to find serious injury. His primary submission was based upon the matters I quoted from his final address.
· I prefer the opinions of Mr Wilde, Mr Brownbill and Mr Dooley, that the plaintiff did suffer an aggravation. However, giving the plaintiff the benefit of the opinions of Mr Brownbill and Mr Dooley, the aggravation was modest and perhaps at best moderate, but there is very little evidence to support the conclusion that the nature and extent of the aggravation has resulted in serious impairment consequences.
81 The summary of conclusions now leads me to the primary submission made by Mr Jewell. I have no hesitation in accepting that the plaintiff was in an impoverished state before the occurrence of the transport accident. I have no hesitation in accepting that whatever remaining tolerances or residual capacity he had were modest. However, the loss of the remaining tolerances or residual capacities are insufficient to satisfy me that those losses themselves amount to serious impairment consequences.
82 My reasoning is that an injured person may suffer such a level of disablement that he only needs a breath of wind to tip him over the edge. I ask the question rhetorically – if the transport accident was no more than that breath of wind, is that sufficient for the plaintiff to succeed?
83 In Petkovski v Galletti,[74] Southwell and Teague JJ made the following relevant observation:
“The accident did not cause the pre existing condition; at this stage of the process the applicant must establish what injury was caused by the accident; where there is a pre-existing condition, it necessarily follows that an analysis must be made of the extent of impairment of a body function before and after the relevant injury.”[75]
[74][1994] 1 VR 436
[75]at 444
84 And later, when dealing with the quality of the aggravation necessary to demonstrate that the impairment consequences are serious, they said:
“The matter may be tested in this way: let it be assumed that the claimant was at the time of the relevant accident already suffering from a ‘serious injury’; and that the accident aggravated his condition to a minor extent. If the reasoning of the learned trial judge were to be applied, the claimant must be given leave to pursue the claim for that minor aggravation. We cannot accept that as correct. The clear intention of the Parliament in passing the Act was to prevent such minor claims.”[76]
[76]at 444
85 Accepting, as I do, that the plaintiff did suffer an aggravation, it appears to me from the evidence that the plaintiff had already suffered serious impairment consequences at the time when the transport accident occurred. It appears that he was on an upward trajectory in terms of treatment which was likely to have led him to surgery in any event. I prefer the opinions of Mr Wilde, Mr Brownbill and Mr Dooley that there was an aggravation. I consider that it probably still contributes to the impairment of his lower back, but the degree is impossible to measure. However, the evidence points to it as being minor. Therefore, I reject the primary submission made by Mr Jewell.
Orders
86 On the basis of the foregoing reasons, findings and conclusions, I order that the plaintiff’s Originating Motion be dismissed.
87 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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