Porcha v Transport Accident Commission
[2017] VCC 407
•12 April 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-10-06004
| NURUDIN PORCHA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 & 24 March 2017 | |
DATE OF JUDGMENT: | 12 April 2017 | |
CASE MAY BE CITED AS: | Porcha v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 407 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Pre-existing lower back condition – pre-existing right shoulder condition – multiple car accidents – whether consequences “very considerable”
Legislation Cited: Transport Accident Act 1986
Cases Cited:Philippiadis v Transport Accident Commission [2016] VSCA 1; Humphries v Poljak [1002] 2 VR 129; Petkovski v Galletti [1994] 1 VR 436; RJ Gilbertson v Skorsis [2000] VSCA 51
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC with Ms K Gladman | Nowicki Carbone |
| For the Defendant | Mr D Myers | Solicitor to the Transport Accident Commission |
HER HONOUR:
Preliminary
1 This is an application to bring proceedings pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”).
2The plaintiff alleges he suffered injury in a transport accident on 4 November 2005. The plaintiff was driving along Ballarat Road in Deer Park, when a vehicle failed to give way, colliding with the plaintiff’s vehicle and causing a collision (“the 2005 transport accident”).
3The plaintiff made the following claims under sub-section (a) of the definition of “serious injury” contained in s93(17) of the Act:
(i)aggravation to his pre-existing lower back injury, and the body function said to be impaired is the functioning of his lumbar spine.
(ii)aggravation of his pre-existing right shoulder injury, and the body function said to be impaired is the functioning of his right arm.
4Only the plaintiff was called to give evidence and he was cross-examined. Also in evidence were medical reports and other documents. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in this judgment.
5The plaintiff had previously suffered a right shoulder injury whilst at work in 1979, and was involved in two transport accidents, in April 1991 and June 2001. As a consequence of these accidents, the plaintiff suffered pre-existing conditions in both his lower back and right shoulder.
6In determining this case, I must consider the following legal principles:
(i)The plaintiff has the burden of proving, on the balance of probabilities, that the impairment to his lumbar spine and/or right arm is serious and long-term, and was caused by the 2005 transport accident.
(ii)The test for serious injury is subjective, in that it is the effect on the individual plaintiff that must be considered. However, that determination must be made by me objectively, in considering the seriousness of the impairment.[1]
(iii)In assessing if a physical injury is “serious” under paragraph (a), the consequences of the injury must, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as “very considerable” and certainly more than “significant” or “marked”.[2]
(iv)It is impermissible to aggregate the injuries arising in the 2005 transport accident, as each must be considered separately.[3]
(v)I must not take into account the cumulative effect of the plaintiff’s pre-existing lower back and right shoulder injuries and the aggravation.[4]
(vi)When there has been more than one accident or incident which is said to aggravate an existing injury, the aggravation resulting from each accident or injury must be considered separately to determine whether it satisfies the definition of “serious injury”.[5]
[1]Philippiadis v Transport Accident Commission [2016] VSCA 1 at [24]
[2]Humphries v Poljak [1992] 2 VR 129 at [140]
[3]Philippiadis v Transport Accident Commission [2016] VSCA at [26]
[4]Philippiadis v Transport Accident Commission [2016] VSCA at [27]
[5]Philippiadis v Transport Accident Commission [2016] VSCA at [27]
7The plaintiff has suffered greatly, both physically and psychologically, as a consequence of the three transport accidents. The plaintiff said he had been significantly affected by the 2001 transport accident, but that the “second one kill it”.[6] As dramatic as that claim may be, however, I am not satisfied the consequences to the plaintiff can be described as at least very considerable. For the reasons I will explain below, I consider his application must be dismissed.
[6]Transcript (“T”) 78, Line(s) (“L”) 21
The plaintiff’s life before the 2005 transport accident
8 To assess the impact of the injuries upon the plaintiff, it is important to first understand how he functioned and enjoyed his life prior to the transport accident.
9 The plaintiff is 60 years of age and currently lives with his wife, from whom he separated in 2003. He has two adult sons.
10 The plaintiff was born in Bosnia where, at a young age, he was a professional handball player.[7]
[7]Defendant’s Court Book (“DCB”) 17
11 In about 1979, the plaintiff moved to Australia.
12 In 1979, the plaintiff injured his right shoulder whilst working at Olympic Tyres. He was treated with injections and exercises, and ultimately returned to full-time work and his normal activities of daily living.[8]
[8]Plaintiff’s Court Book (“PCB”) 6
13 On or about 2 April 1991, the plaintiff was involved in a transport accident in which he suffered injury to his lower back with referred pain into his leg (“the 1991 transport accident”).[9]
[9]PCB 6
14 In about September 1995, the plaintiff injured his right knee whilst working as a painter. At about this time, he also experienced lower back pain such that his general practitioner, Dr A K Asthana, referred him to orthopaedic surgeon, Mr Ian Jones.
15 Mr Jones noted the plaintiff’s “major problem”[10] was his lumbar spine, and considered sciatica to be the cause of at least some of his right leg symptoms.[11]
[10]DCB 1
[11]PCB 1
16 In January 1996, Mr Jones reviewed the plaintiff, noting that he had not worked for the previous two weeks, as “he was unable to cope because of back pain, particularly at night”.[12]
[12]DCB 4
17 In February 1996, Dr Asthana arranged for the plaintiff to be reviewed by rheumatologist, Dr Daniel Lewis. In a report dated 21 February 1996, Dr Lewis noted the plaintiff had experienced some back pain following the 1991 transport accident, and that he has had “a lot of stiffness in the mornings and persisting numbness in the left thigh” since that time. Dr Lewis noted the plaintiff had experienced numbness in the toe, and suspected it was related to the plaintiff’s lumbar spine.[13] Dr Lewis concluded there was evidence of an L5 nerve root injury.
[13]DCB 5
18 Dr Lewis reviewed the plaintiff on numerous occasions in the following two years. In November 1997, he noted the plaintiff presented with “continuing problems of back pain and left leg pain and persistent paraesthesia on the left thigh”.[14]
[14]DCB 8
19 On 10 December 1997, Dr Lewis noted that a recent MRI scan demonstrated the plaintiff was suffering multilevel disc degeneration of the lumbar spine, with no focal disc protrusion. Dr Lewis recommended the plaintiff trial oral Prednisolone,[15] however, the plaintiff said he did not take such medication at that time.[16]
[15]DCB 9
[16]T25, L1-2
20 In August 1999, Dr Asthana referred the plaintiff to rheumatologist, Dr Leslie Koadlow, to obtain a second opinion in relation to his lumbar pain. Dr Koadlow noted this pain extended into the left lower limb, with some numbness in both lower limbs.[17] Dr Koadlow considered the plaintiff was suffering a disc protrusion at L5-S1.[18]
[17]DCB 10
[18]DCB 10
21 Dr Koadlow reported the plaintiff as having first suffered lower back pain following the 1991 transport accident, before noting that his pain, and the disturbed sensation, had “gradually become worse since the accident and seemed to be fairly significant from two years ago”.[19] The plaintiff initially accepted this history in cross-examination,[20] before later denying its accuracy.[21]
[19]DCB 10
[20]T27, L20
[21]T92, L20-22
22 On or about 28 June 2001, the plaintiff was involved in a transport accident and suffered further injury to his lower back (“the 2001 transport accident”).
23 In September 2001, the plaintiff underwent an epidural injection into his lower back.[22] Although he noted some initial improvement, the plaintiff continued to have ongoing lower back pain with “episodes of more severe pain”.[23]
[22]DCB 13
[23]DCB 14
24 In December 2001, Dr Koadlow reviewed the plaintiff, noting that his pain was significant. He also noted the plaintiff experienced numbness in both lower limbs, particularly the left, together with pain and disturbed feelings in the groin.[24]
[24]DCB 14
25 In February 2002, the defendant arranged for the plaintiff to be examined by neurologist, Dr Richard Stark, for the purpose of his 2001 transport accident claim. Upon examination, Dr Stark noted the plaintiff experienced pins and needles in both legs and remarked that whilst such symptoms had pre-dated the 2001 transport accident, they had since been much worse.[25] Dr Stark noted the plaintiff had previously played soccer and been involved with the Croxton Soccer Club, but that he had “only been to the club a couple of times since”[26] the 2001 transport accident.
[25]DCB 16
[26]DCB 17
26 In June 2002, the defendant also arranged for the plaintiff to be examined by rheumatologist, Dr Tony Kostos, for the purpose of his 2001 transport accident claim. Dr Kostos obtained a history from the plaintiff that he experienced constant pain across his lower back, extending to the buttocks with paraesthesia and numbness over the anterior aspect of both thighs.[27] He noted the plaintiff’s lower back pain was worse in the mornings, and that it could wake him at night. The plaintiff accepted that he was taking sleeping tablets at that time.[28] Dr Kostos also noted the plaintiff had resigned from various administrative positions at his local soccer club since the 2001 transport accident.[29]
[27]DCB 26
[28]T49, L5-8
[29]DCB 26
27 In June 2002, the plaintiff was referred for treatment to neurosurgeon, Mr John McMahon. Mr McMahon noted the plaintiff suffered paraesthesia and numbness over the distribution of the lateral cutaneous nerves, and recommended that he undergo decompression surgery to those nerves.[30] This surgery was performed in mid-2002.
[30]PCB 66
28 In November 2002, Mr McMahon examined the plaintiff, and noted a marked improvement in his left-sided symptoms and a minimal improvement in his right-sided symptoms.
29 In January 2003, Dr Kostos re-examined the plaintiff. He noted the plaintiff’s back pain was getting worse, and that he complained of “constant pain across his lower back, with bilateral buttock and posterior thigh pain”.[31] Dr Kostos noted the plaintiff was taking Panadol, Digesic and Celebrex, together with Cipramil, Amitriptyline and Tegretol. In addition, he noted the plaintiff had not worked since his last review.[32]
[31]DCB 33
[32]DCB 34
30 In January 2003, the plaintiff was also referred by Dr Koadlow to psychiatrist, Dr Brendan Holwill, as he had become tense, anxious and had difficulty sleeping.[33]
[33]DCB 37
31 In February 2003, the defendant arranged for the plaintiff to be examined by specialist in occupational medicine, Dr Chris Baker, for the purpose of his 2001 transport accident claim. Dr Baker noted the plaintiff suffered constant lower back pain[34] and that his sleep was poor.[35] Dr Baker also noted the plaintiff still went fishing, but that he found the movement of the boat affected his back. Upon examination, Dr Baker only obtained slight reflexes from both ankle joints, and noted a strip of diminished sensation over the lateral aspect of the left thigh, the anterior and lateral aspects of the right thigh and the big toe of both feet.[36]
[34]DCB 42
[35]DCB 43
[36]DCB 44
32 On 5 March 2003, Mr McMahon performed further surgery on the plaintiff’s right side, from which he obtained some improvement in his symptoms.[37]
[37]PCB 68a
33 In March 2003, the plaintiff was referred by Dr Holwill to pain management specialist, Dr Leonard Rose. Dr Rose noted the plaintiff had been taking Seroquel and Xanax and that he had not worked since the 2001 transport accident.[38]
[38]DCB 62
34 Dr Rose obtained a history from the plaintiff that he was drinking five to six stubbies of full-strength beer each night.[39] Dr Rose noted the plaintiff appeared to suffer some significant problems in his lower back, but did not consider there to be much point in offering him any treatment whilst he was drinking to excess.[40]
[39]DCB 62
[40]DCB 62
35 In approximately April 2003, the plaintiff was put on a disability pension as a consequence of his “chronic back injury”[41]
[41]DCB 52-57
36 In July 2003, Dr Koadlow noted the plaintiff still suffered lower back pain and that he would experience “burning pain and numbness in the left buttock and down the back of the left thigh” after walking for ten minutes.[42] Dr Koadlow also noted the plaintiff now suffered from painful shoulders; the left being worse than the right.[43]
[42]DCB 65
[43]DCB 65
37 In September 2003, the defendant arranged for the plaintiff to be examined by psychiatrist, Dr Lester Walton, for the purpose of his 2001 transport accident claim. Dr Walton reported the plaintiff was in receipt of a disability pension and that he had undertaken “no further work as a painter” since the 2001 transport accident. Dr Walton noted the plaintiff’s involvement in fishing was “much reduced”[44] and that he avoided social activities. At that time, the plaintiff was taking both Cipramil and Xanax medication, together with Panadeine Forte. Dr Walton noted the plaintiff’s sleep was disrupted by pain and that he could not sleep “continuously for more than four hours at a time”.[45]
[44]DCB 68
[45]DCB 69
38 Dr Walton also obtained a history from the plaintiff that he was still living in the same house as his wife, but that they were “living, like, separate”[46] and that arguments were quite common.[47]
[46]DCB 70
[47]DCB 70
39 In September 2003, the plaintiff’s solicitors arranged for the plaintiff to be examined by neurologist, Dr Leslie Sedal, for the purpose of his 2001 transport accident claim. Dr Sedal obtained a history from the plaintiff that he could only walk for about 10 minutes before needing to rest; that his driving was limited and that he could only do light duties around the home in terms of cleaning and gardening. It was further noted the plaintiff was no longer able to enjoy sport or participate in community activities.[48]
[48]DCB 78
40 In October 2003, the plaintiff’s solicitors arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Stephen Doig, for the purpose of his 2001 transport accident claim. Mr Doig was of the opinion the plaintiff’s lifestyle had been markedly affected. It was noted the plaintiff had attempted to go fishing, but had then been very sore in the few days after; that he had a lot of problems at home and that “his marriage has broken up as a result of this”.[49] In addition, Mr Doig noted the plaintiff found it hard to drive long distances and to sit and walk for long periods of time.[50]
[49]DCB 85
[50]DCB 85
41 In January 2004, the plaintiff was reviewed by neurologist, Dr Bernard Gilligan, who noted the plaintiff had not returned to work since the 2001 transport accident. Dr Gilligan noted the plaintiff complained of lower back pain “which is constant,”[51] and that he experienced pain in his left buttock, extending down through the thigh to the sole of his left foot. It was noted the plaintiff would experience a numbing feeling in his left buttock if he walked. Dr Gilligan conceded there was left S1 nerve irritation and arranged for an MRI scan to be taken.
[51]DCB 87
42 On 2 February 2004, an MRI scan was taken of the plaintiff’s lumbar spine. It was reported as demonstrating minimal posterior broad based disc bulges at L4-5 and L5-S1 without neural compression, and mild degenerative change in the left L4-5 facet joint and in the L5-S1 facet joints bilaterally.[52]
[52]DCB 110
43 On 23 February 2004, the plaintiff signed a statement in relation to proceedings against the defendant at the Victorian Civil and Administrative Tribunal (“VCAT”) in respect of entitlements relating to the 2001 transport accident. The plaintiff said he had suffered injuries to his back, legs, right arm, including shoulder and elbow, together with Post-Traumatic Stress Disorder, depression and anxiety in the transport accident.[53] As at that time, the plaintiff stated that he suffered pain, discomfort and restriction of movement in his back, thighs, right arm, shoulder and elbow.[54]
[53]DCB 88
[54]DCB 89
44 The plaintiff also stated that he had not returned to work with his former employer since the 2001 transport accident, as he was unfit for his normal work duties. He kept his own painting and decorating business on paper for many years, but has not earned any income since sometime before the 2001 transport accident. Following the accident, the plaintiff remained unfit to work as a painter and decorator.[55] However, the plaintiff stated that he would sometimes assist with small tasks, such as filling a skip, whilst building works were being performed on his home and the neighbouring property, after which time it took him several days to recover from the pain. The plaintiff said he had previously enjoyed playing social soccer, but that he had not been able to do so since the 2001 transport accident.
[55]DCB 90
45 In addition, the plaintiff stated he had “begun to develop pain and restriction of movement with my right arm and shoulder”.[56] When this was put to the plaintiff in cross-examination, however, he said it was not true.[57]
[56]DCB 90
[57]T80, L28-31, T81, L1
46 On 1 April 2004, the plaintiff’s treating psychiatrist, Dr Holwill, provided a medical report to the plaintiff’s solicitors in relation to the 2001 transport accident. Dr Holwill noted the plaintiff had been unable to return to work “due to the severity of his pain”,[58] and that such pain had progressively increased in the lumbosacral spine. He further noted the plaintiff still suffered numbness in both legs following the nerve decompression surgery. The plaintiff’s activities were restricted at this time, and he avoided all bending and lifting and was only able to walk about 500 metres.
[58]DCB 94
47 Dr Holwill reported on the plaintiff’s sleep, noting that it was disturbed with initial and late insomnia, largely related to pain.[59] The plaintiff accepted the accuracy of this history, and that he was taking medication for his sleep at this time.
[59]DCB 94
48 Dr Holwill noted the plaintiff was drinking on a regular basis and consuming a minimum of five to six stubbies of full-strength beer per night.[60]
[60]DCB 95
49 Dr Holwill also reported that the plaintiff had complained to Dr Rose in relation to pain in his right shoulder and elbow, and noted that there had been discussion with Dr Gilligan regarding a possible lumbar spine decompression procedure.[61]
[61]DCB 95
50 On 20 April 2004, Dr Gilligan provided a report to the plaintiff’s solicitors in relation to the 2001 transport accident. He noted the plaintiff complained of lower back pain; numbness and burning on the front of both thighs; some tingling sensation around the lower abdomen and a burning sensation in the front of his thigh.[62]
[62]DCB 99
51 Dr Gilligan stated that Dr Koadlow had performed two epidural injections but that neither had helped. He also noted the plaintiff drank three to four beers daily.
52 Dr Gilligan reported the plaintiff complained of “low back pain which was constant, pain in the left buttock which went down through the thigh to the sole of the foot but not into the toes”.[63] He also noted the plaintiff developed a numb feeling in his left buttock when he walked, and that he could walk about one kilometre, before having to stop. Dr Gilligan noted some numbness in the plaintiff’s toe and occasionally some pain under the left foot.[64]
[63]DCB 100
[64]DCB 101
53 Dr Gilligan arranged for an MRI scan to be performed, following which he did not recommend any decompression surgery. He instead prescribed a course of Prednisolone in an attempt to help settle the plaintiff’s sciatica. Dr Gilligan recorded some improvement following this course of medication, noting in particular, that the sharp pain in the left buttock was not as bad as it had been and that there was less pain in the left leg. However, there was still numbness in the big toe and occasionally some pain under the left foot.[65]
[65]DCB 101
54 In June 2004, the plaintiff’s solicitors arranged for the plaintiff to be examined by pain specialist, Dr Clayton Thomas, for the purpose of his 2001 transport accident claim. At that time, Dr Thomas noted the plaintiff complained primarily of lower back pain, with some symptoms into his left leg.[66] He noted the plaintiff took Panadeine Forte infrequently, as well as Cipramil and Xanax for his depression. Dr Thomas reported that the plaintiff had not returned to work since the accident and that he does not do much at home, as his back prevents him from bending.[67] Dr Thomas concluded that the plaintiff was “at a medical endpoint”.[68]
[66]DCB102
[67]DCB 103
[68]DCB 104
55 On 19 August 2004, the plaintiff was reviewed by Dr Gilligan, who noted the plaintiff was still having “quite a lot of difficulty with his back, left buttock pain and left sciatica”.[69] Dr Gilligan recorded the plaintiff had flexion of 30 degrees and straight leg raising to 30 degrees on each side. He provided the plaintiff with a further course of Prednisolone.
[69]DCB 108
56 The clinical records of Dr Asthana indicate that the plaintiff consulted him on multiple occasions, up until 11 May 2005, in relation to his ongoing lower back pain and sciatica, as well as problems with insomnia.[70]
[70]DCB 159-166
57 The plaintiff signed a statement in support of his serious injury certificate for the 2005 transport accident, in which he stated that he was not gainfully employed prior to this accident,[71] and that his pre-existing lower back and thigh pain had improved.[72] The plaintiff stated that whilst he still experienced some pain, it was not substantial when compared to the pain and incapacity he subsequently experienced. The plaintiff said he had been able to return to some gardening and maintenance duties, and to perform some activities that involved bending, squatting, kneeling and carrying of heavy items. By late 2004, the plaintiff said he required minimal paramedical and specialist treatment.[73]
[71]PCB 9D
[72]PCB 9C
[73]PCB 9C
2005 transport accident and its consequences
58 On 4 November 2005, the plaintiff was driving along Ballarat Road in Deer Park, when a vehicle travelling along a side street failed to give way, colliding with the driver’s side of the plaintiff’s vehicle.[74]
[74]PCB 9B & 25
59 The plaintiff was subsequently taken by ambulance to the Western Hospital in Sunshine, where he reported right shoulder pain, together with lower back pain radiating down the side of his right leg.[75] After being observed for a few hours, the plaintiff was discharged with analgesia.[76]
[75]PCB 78
[76]PCB 72
60 On 24 March 2006, the plaintiff was reviewed by Dr Gilligan, who obtained a history regarding the 2005 transport accident. He noted the plaintiff had continued to experience pain in his back since the accident, together with right sacroiliac shooting pain.[77]
[77]PCB 71V
61 On 28 August 2006, an MRI scan was taken of the plaintiff’s lumbar spine. It demonstrated a broad based disc bulge at L4-5 indenting the anterior aspect of the thecal sac but with no nerve root compression or impingement.[78]
[78]PCB 82F-G
62 In September 2006, the plaintiff was referred by Dr Karl Gassert to neurologist, Dr David Freilich. In his report dated 12 September 2006, Dr Freilich noted the plaintiff had been involved in three transport accidents, and that he had not returned to work after the 2001 transport accident due to back pain. He noted that following the 2005 transport accident, the plaintiff’s lumbar pain had worsened and that he had also developed numbness in his right leg, as well as right shoulder pain.[79]
[79]PCB 82D
63 On examination, Dr Freilich noted there was no muscle wasting in the plaintiff’s lower limbs, that his right knee jerk was absent, that his left knee jerk was sluggish, and that both his ankle jerks were absent. He also noted diminished pinprick sensation over both big toes.[80] Dr Freilich concluded the plaintiff suffered chronic lumbar back pain following “several injuries”,[81] and noted that whilst he found reflex abnormalities in the plaintiff’s lower limbs, the MRI scan did not show any nerve root compression.[82]
[80]PCB 82D
[81]PCB 82E
[82]PCB 82E
64 Between 2005 and 2008, the plaintiff stated that whilst Dr Asthana was his treating general practitioner, he would, on occasions, consult general practitioners at the Guardian Medical Clinic at Highpoint Shopping Centre. [83]No medical report was tendered from this clinic, but the clinical records and two letters of referral from Dr Hang Pham were tendered.
[83]T99, L5-8
65 In his first letter of referral to Mr McMahon dated 4 August 2007,[84] Dr Pham noted the plaintiff suffered back problems and referred to a motor vehicle accident in 2003. In his subsequent letter of referral dated 10 April 2008,[85] Dr Pham noted that pain had returned to the plaintiff’s thighs, and that he was suffering leg numbness, of which his left leg was affected to a greater extent. Dr Pham again referred to a transport accident in 2003.
[84]PCB 82B
[85]PCB 82C
66 The clinical records of the Guardian Medical Clinic indicate that the plaintiff first attended on 23 August 2005. His next attendance was not until 4 August 2007, at which time he consulted Dr Pham and sought a further referral to Mr McMahon in relation to his back pain. [86] The clinical records do not refer to the 2005 transport accident, and the letters of referral mistakenly refer to a transport accident occurring in 2003.[87] The plaintiff subsequently attended the clinic until 8 July 2008. Save for one attendance on 10 April 2008, in which the plaintiff sought a further referral to Mr McMahon, there is no mention of lower back, leg or right shoulder pain.
[86]DCB 134
[87]PCB 82B
67 On 5 October 2007, Dr Asthana examined the plaintiff for the first time following the 2005 transport accident.[88] Dr Asthana noted the plaintiff was suffering back pain and pain in both shoulders, for which the plaintiff had seen other doctors.[89]
[88]DCB 142
[89]DCB 142
68 In August 2007, the plaintiff saw Dr Asthana in relation to a deep vein thrombosis that he had developed when travelling to Europe. In August 2008, the plaintiff sought a referral in relation to hemochromatosis. In December 2008, Dr Asthana advised the plaintiff he would not “take up his case” in respect of the injuries he had suffered in the 2005 transport accident. Dr Asthana did not think it possible for him to adequately treat the plaintiff, including the medico-legal aspects of such treatment, given he had not treated the plaintiff throughout that period, and given the difficulties associated with having to then trace back through the plaintiff’s treating history. [90] The plaintiff said that he could not recall Dr Asthana having said that, and stated instead that Dr Asthana had retired from the clinic at which time he commenced treatment with general practitioner, Dr Ahmed Al-Ani.
[90]DCB 142
69 The plaintiff said he first saw Dr Al-Ani at Dr Asthana’s clinic, before then moving to the clinic in Caroline Springs, following Dr Al-Ani’s transfer. However, in a letter dated 4 June 2013, Dr Al-Ani stated that he only commenced seeing the plaintiff in late 2012, following Dr Asthana’s retirement in October 2012.[91] At that time, Dr Al-Ani said that he had not seen the plaintiff for the last five months and that any questions regarding his injuries should be directed to consultant physicians, namely, Dr Kenneth Brearley, Dr Peter Blombery, Dr Clive Kenna and Dr Albert Kaplan. This is the only medical report from Dr Al-Ani, whom the plaintiff continues to consult and who continues to prescribe medication.[92]
[91]PCB 109
[92]T89, L14
70 On 18 June 2008, Mr McMahon examined the plaintiff for the first time following the 2005 transport accident. He noted the plaintiff had sustained a right shoulder injury in that accident and that he had experienced “left sided back, buttock and lower limb pain” since that time, whilst denying any foot pain.[93] Mr McMahon noted the plaintiff’s right lower limb was asymptomatic and recommended a repeat MRI scan be performed.
[93]PCB 69B
71 On 1 August 2008, an MRI scan was taken of the plaintiff’s lumbar spine. It demonstrated a disc bulge at L4-5 which contacted both L5 nerve roots in the lateral recess, but neither displaced nor compressed the nerve root.[94]
[94]PCB 51
72 In April 2009, the plaintiff was referred to pain medicine specialist, Dr Paul Verrills. He noted the plaintiff’s main complaint was lower back pain with referred pain into his left buttock and posterior thigh. Dr Verrills noted the plaintiff had been involved in the 2001 transport accident, after which he had developed pain in the back and numbness in both legs. He then noted, however, that the plaintiff had hurt his shoulder and “developed a lot more back pain” following the 2005 transport accident.[95] Dr Verrills noted the plaintiff had not worked since 2003.[96] He recommended a bilateral sacroiliac joint injection, which was performed on 18 August 2009.
[95]PCB 83
[96]PCB 83
73 On 19 July 2012, the plaintiff was reviewed by orthopaedic surgeon, Associate Professor Martin Richardson. Associate Professor Richardson obtained a history from the plaintiff that he stopped work completely in 2003, due to lower back pain.[97] On examination, he noted the plaintiff had a painful right shoulder. He thought that an MRI suggested the plaintiff was suffering some bursitis and impingement with mild degenerative changes in the AC joint, for which he was then treated with an injection of local anaesthetic and Depo Medrol.[98]
[97]PCB 105
[98]DCB 105
74 The plaintiff obtained some initial relief from the injection but, as the benefits wore off, Associate Professor Richardson recommended a right shoulder arthroscopic acromioplasty, with a possible mini open rotator cuff repair.[99] The TAC did not approve this surgery and the plaintiff elected not to go on the public waiting list, as he understood it would take years.[100]
[99]PCB 106
[100]PCB 19G
75 On 27 September 2012, Dr Verrills performed two further bilateral sacroiliac joint injections on the plaintiff.[101] The plaintiff reported a negative response such that Dr Verrills made a diagnosis of discogenic pain.[102]
[101]PCB 86B
[102]PCB 86C
76 In July 2013, Mr McMahon reviewed the plaintiff and noted lumbar back pain radiating into the left buttock and posterior left thigh, together with some numbness in the left thigh and calf. Mr McMahon was of the opinion the plaintiff’s current symptoms were not due to any lumbar nerve root compression, and thought that investigations did not reveal the cause of his mid-right iliac crest pain.[103]
[103]PCB 71E
77 In July 2014, Mr McMahon reviewed the plaintiff, at which time he complained of ongoing back pain, which he considered was worse on the left side and which radiated into his left thigh. Mr McMahon noted sensory disturbance in both feet, including numbness in the plaintiff’s left great toe.[104]
[104]PCB 71F
78 On 9 September 2014, Dr Verrills performed a CT scan guided caudal epidural on the plaintiff’s lumbar spine.[105] The plaintiff said this provided him with some pain relief for a couple of months.[106]
[105]PCB 86E
[106]PCB 12
79 In October 2015, the plaintiff was reviewed by Mr McMahon. He noted the plaintiff’s bilateral foot symptoms, including those associated with his toenails and heel pain, had progressed over the last few months and were significantly affecting his day-to-day living.[107] Upon neurological examination, Mr McMahon noted the plaintiff’s lower limbs were normal, apart from numbness in his left greater toe and middle toe. Mr McMahon was uncertain as to the cause of the plaintiff’s ongoing symptoms, and thought that his bilateral feet symptoms may relate to a peripheral neuropathy.
[107]PCB 71I
80 In April 2016, the plaintiff was again reviewed by Mr McMahon. He noted the plaintiff continued to complain of ongoing lumbar back pain with bilateral buttock and posterior thigh pain, the symptoms of which were worse on his left side.[108] Mr McMahon noted that recent nerve conduction tests had excluded the plaintiff suffering peripheral neuropathy.
[108]PCB 71J
81 On 21 April 2016, an MRI scan was taken of the plaintiff’s lumbar spine. It revealed intervertebral disc degeneration involving the L2-3, L3-4, L4-5 and L5-S1 intervertebral discs with some disc bulges, particularly at the L4-5 level. It also demonstrated some ongoing lateral recess stenosis at L4-5 secondary to the broad based disc bulge and facet joint hypertrophy. At L5-S1 there was a left far lateral disc bulge, which mildly compressed the left L5 nerve root. There was also evidence of L4-5 and L5-S1 facet joint degeneration.[109] A bone scan was taken on the same day, but it did not reveal any significant uptake involving the lumbar spine or the left hip joint.[110]
[109]PCB 71L
[110]PCB 71L
82 In June 2016, Mr McMahon reviewed the plaintiff for the final time and noted that he had developed some pain involving his right lateral thigh and some right lateral calf numbness. Mr McMahon recommended an epidural injection at L4-5, as well as a Cortisone and local anaesthetic injection to the left L5 nerve root.[111]
[111]PCB 71L
83 On 29 August 2016, Mr McMahon wrote a report in which he detailed his treatment of the plaintiff since 2002. He ultimately diagnosed the plaintiff as suffering chronic lumbar and lower limb pain and paraesthesia secondary to lumbar spine spondylosis, including intervertebral disc degeneration and facet joint degeneration, together with chronic musculoskeletal pain syndrome and a right shoulder injury.[112] Mr McMahon considered the plaintiff’s prognosis to be very poor, and felt that he was totally and permanently incapacitated from returning to the workforce.
[112]PCB 71M
84 Mr McMahon had earlier performed surgery on the plaintiff to treat his neuralgia paraesthetica. He noted that, at that time, the plaintiff also reported “mild episodes of lumbar back pain and bilateral buttock pain”.[113] Mr McMahon then obtained a history from the plaintiff that, following the 2005 transport accident, he had “developed left sided paraspinal lumbar back pain which radiated to his buttock and left limbs. These were also associated with buttock and thigh numbness.”[114]
[113]PCB 71M
[114]PCB 71N
85 Prior to the 2005 transport accident, Mr McMahon said the plaintiff “only had mild symptoms that were not significantly reported”[115] to him throughout 2001 and 2002. Following the 2005 transport accident, he then accepted the plaintiff had “developed quite severe chronic lumbar back pain and left lower limb pain which progressively worsened and became more chronic bilaterally”.[116]
[115]PCB 71N
[116]PCB 71N
86 The plaintiff claims he suffers constant back pain, which troubles him every day and continues to disturb his sleep. He complains of pain and numbness in his left buttock, going down his left leg, and feels his lower back pain is not getting any better.[117]
[117]PCB 19F
87 In re-examination, the plaintiff said that his lower back pain was eight out of ten.[118]
[118]T102, L19
88 The plaintiff said he still has right shoulder pain that varies.[119]
[119]PCB 19G
89 The plaintiff said he takes Panadeine Forte when his pain is really bad, but that he avoids taking it as it may upset his stomach.[120]
[120]PCB 19G
90 The plaintiff said he was keen to have the injections recommended by Mr McMahon, but that the TAC has refused to pay for them.[121]
[121]PCB 19G
91 The plaintiff said his sleep is disturbed by his lower back and right shoulder pain.[122]
[122]PCB 19H
92 In his first affidavit sworn 27 May 2015, the plaintiff stated that:
“My injuries have impacted on my family life. Since this accident, I have divorced my wife and now live with my eldest son. My wife and I divorced mainly due to my increased drinking since the accident and mentally I had become very depressed. My libido has become almost non-existent since the accident due to the pain I have and my reduced confidence. I have tried Cialis but my libido is low. Before the accident, I felt we made time for each other and had a healthy intimate life together. Before the accident, I felt that I was a bubbly person with a lot of energy for my marriage.”[123]
[123]PCB 15
93 In his further affidavit sworn 18 February 2017, the plaintiff stated as follows:
“I am separated from my wife, but in fact I am not divorced from my wife and we officially remain married. I married my wife in 1977. I should say that following the accident of 28 June 2001 and as a result of the injuries I sustained in that accident, my wife and I began to develop problems in our marriage. We continued living together, although at times from 2003 onwards we were living separated under the same roof. In or about 2003 we began to sleep in separate bedrooms. We still on occasions had sexual relations. We were trying to continue in our marriage as best we could.”[124]
[124]PCB 19H
94 The plaintiff went on to say that as a consequence of the 2005 transport accident:
“…There was further decline in our relationship. I was drinking a lot more, which caused problems.”[125]
[125]PCB 19I
95 The plaintiff said approximately two years after the 2005 transport accident, he and his wife sold the property in which they were living. The plaintiff then lived with his son until March 2016, at which time he resumed living under the same roof as his wife so that she could assist him; they are still legally separated. [126]
[126]PCB 19I
96 When the plaintiff first sought a serious injury certificate in respect of the 2005 transport accident, he stated that he was not “gainfully employed” prior to the 2005 transport accident,[127] and that he had not returned to any gainful employment since. However, in his first affidavit, the plaintiff stated that he had been on a disability support pension since March 2003, but that he had performed some part-time duties for his nephew’s business, as well as some painting for a friend.[128] The plaintiff said he earned less than $6,000 a year in such work, as was permitted by Centrelink.[129]
[127]PCB 19D
[128]PCB 12
[129]T46, L4-5
97 Following the 2005 transport accident, the plaintiff said he only worked three to five hours per week for his nephew, and that he still earned under the $6,000 limit as permitted by Centrelink.[130]
[130]T46, L26-27
98 The plaintiff said he was able to do some gardening both prior to and after the 2005 transport accident, but that he does not have a garden at his current residence.[131]
[131]T64, L30-31
99 The plaintiff accepted that prior to the 2005 transport accident, he was limited in the household tasks he could perform, and that he “could only do light things in terms of cleaning”.[132] I note that his current situation remains similar and that his son’s wife provides assistance with the laundry, vacuuming and mopping.[133] The plaintiff cooked fish prior to the 2005 transport accident and is still able to do so now.[134]
[132]D78 and T68, L31 and T70, L1-3
[133]PCB 14
[134]T67, L22-24
100 Prior to the 2005 transport accident, the plaintiff claimed he was an active participant at his local soccer club. At the time of swearing his first affidavit, however, the plaintiff stated that he no longer had the energy to participate as he once did at the local soccer club, and that he relied upon his nephew to take him to games. He also relied upon his nephew to motivate him to get out and socialise, and said that he otherwise would not bother going along.[135] I note that he also relied upon his nephew to take him fishing and that, as at 2015, he had gone on three to four trips a year.[136] In cross-examination, however, the plaintiff said he had only gone on a couple of trips in the last year.[137]
[135]PCB 14
[136]PCB 15
[137]T71 L26-29
101 The plaintiff sought to rely upon an affidavit from his nephew, Mr Sinanagic. He claimed that prior to the 2005 transport accident, the plaintiff volunteered at the local soccer club and that together, they would remark the pitch boundaries and set up soccer goals. He also said they regularly went fishing together, including on the bay, and that the plaintiff completed all the gardening and home maintenance duties in his home. Mr Sinanagic made no mention, however, of the plaintiff’s pre-existing lower back injury, or the restrictions it has caused him. In such circumstances, Mr Sinanagic’s description of the plaintiff’s level of activity prior to the 2005 transport accident, is so inconsistent with the contemporaneous medical material, that I can give no weight to his evidence regarding the consequences of the 2005 transport accident.
Plaintiff’s medico-legal evidence
102 The plaintiff’s solicitors arranged for the plaintiff to be examined by general surgeon, Mr Kenneth Myers, in March 2012 and February 2015. In his first report dated 13 March 2012, Mr Myers referred to the plaintiff making a “complete recovery after the 1991 transport accident.”[138] In addition, he noted that a laminectomy was performed on the plaintiff after the 2001 transport accident, which “helped a lot”.[139] Mr Myers then concluded that “virtually all of his current disability results from the motor vehicle accident in 2005”.[140] Mr Myers did not obtain any history of right shoulder problems following the 2001 transport accident. He diagnosed the plaintiff as suffering aggravation of pre-existing degenerative intervertebral disc disease in the lumbar spine, together with degenerative changes in his right shoulder.
[138]PCB 111
[139]PCB 111
[140]PCB 114
103 In his subsequent report dated 5 February 2015, Mr Myers again concluded that most of the plaintiff’s present disability resulted from the 2005 transport accident.[141]
[141]PCB 122
104 In circumstances in which Mr Myers obtained an incomplete history in relation to the 1991 and 2001 transport accidents, and in which he understood the plaintiff to have undergone a laminectomy, I gained no assistance from his conclusion that the 2005 transport accident was the main cause of the plaintiff’s current injury and impairment.
105 The plaintiff’s solicitors also arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Chris Haw, in February 2015 and November 2015. Mr Haw obtained a history from the plaintiff that after the 1991 transport accident, he made “a virtually full recovery, apart from some mild stiffness in the back first thing in the morning which rapidly settled as he mobilised”.[142] He then obtained a history that the plaintiff had remained off work for some two years following the 2001 transport accident, and that he never returned to work as a painter.[143] Mr Haw referred to Mr McMahon having performed surgery on the plaintiff, and the subsequent relief it provided him from the symptoms of numbness and pain in the thighs. He noted, however, that the plaintiff’s lower back pain “tended to persist”.[144] Following the 2005 transport accident, Mr Haw then noted the plaintiff reported that he became immediately aware of an exacerbation of lower back pain and increasing left leg pain, together with right shoulder pain.[145]
[142]PCB 163
[143]PCB 164
[144]PCB 164
[145]PCB 164
106 Mr Haw obtained a history from the plaintiff that, prior to the 2005 transport accident, his lower back problems would give rise to pain, once to twice per week, at a level of five and six subjectively.[146] However, after the 2005 transport accident, his lower back pain had been severely exacerbated and was then:
“Occurring every morning and then tend to diminish throughout the day but never disappeared fully, and had resulted in marked disturbance of his sleep, the maximum five hours sleep occurring, and with tending to awake two to three times at night”.[147]
[146]PCB 164
[147]PCB 164
107 In his subsequent report dated 20 November 2015, Mr Haw clarified the extent of the plaintiff’s symptoms before and after the 2005 transport accident. Mr Haw was of the opinion the majority of the plaintiff’s symptoms relating to the 2001 accident “had completely resolved,”[148] such that he considered 70 per cent of the plaintiff’s lower back pain and 90 per cent of the radicular symptoms in the plaintiff’s left leg to be attributable to the 2005 transport accident.[149] Mr Haw also considered the plaintiff’s right shoulder rotator cuff injury was attributable to the 2005 transport accident.
[148]PCB 168A
[149]PCB 168C
108 I am satisfied Mr Haw understood the nature of the surgery performed by Mr McMahon. Similarly to Mr Myers, however, I consider his findings that the plaintiff had only occasional lower back pain prior to the 2005 transport accident, and no prior shoulder pain, to indicate that Mr Haw had an incorrect history. I consider both those matters to be inconsistent with the tendered medical material and, therefore, I obtain little assistance from Mr Haw as to whether or not the 2005 transport is a cause of the plaintiff’s current injury and impairment.
109 The plaintiff’s solicitors also arranged for the plaintiff to be examined by neurosurgeon, Professor Richard Bittar, in July 2006. Professor Bittar was provided with a considerable amount of medical material detailing the nature and extent of the plaintiff’s medical condition prior to the 2005 transport accident. Professor Bittar then obtained a history from the plaintiff in relation to the right shoulder injury he sustained at work in 1979, as well as the 1991 and 2001 transport accidents. Professor Bittar noted the plaintiff had experienced ongoing lower back pain with bilateral leg pain following the 2001 transport accident.[150]
[150]PCB 168G
110 Professor Bittar then noted that following the 2005 transport accident, the plaintiff had suffered significant back pain, together with right shoulder pain and numbness over his thighs. He stated the plaintiff had reported “his back pain and leg pain is twice as severe as it was prior”[151] to the 2005 transport accident. The plaintiff complained of constant lower back pain, with a severity ranging from 4-7 out of 10. He noted this pain was worse first thing in the morning and was exacerbated by bending, twisting, lifting more than 10 kilograms, sitting for more than 30 minutes and standing for more than 10 minutes.[152] Professor Bittar noted the plaintiff took Panadeine Forte once or twice per week and was reviewed by Mr McMahon and Dr Verrills as required.
[151]PCB 168H
[152]PCB 168H
111 On examination, Professor Bittar noted the plaintiff’s lumbar flexion was moderately restricted and that his straight leg raising was marginally restricted. He recorded no evidence of radiculopathy.[153] Professor Bittar concluded that the plaintiff suffered from aggravation of lumbar spondylosis and that the 2005 transport accident had caused substantial aggravation of his pre-existing lumbar spondylosis such that it remained the most significant contributing factor to his ongoing pain and disability.[154]
[153]PCB 168I
[154]PCB 168J
112 Prior to the 2005 transport accident, Professor Bittar noted the plaintiff had socialised frequently and had been active within the Bosnian community and at the local soccer club. However, Professor Bittar obtained a history from the plaintiff that he had been unable to engage in such activities and had progressively deteriorated following the 2005 accident.[155]
[155]PCB 168K
113 Professor Bittar obtained a history from the plaintiff that he had been on a disability pension since 2003, that he had been unable to work for several years following the 2005 transport accident and that he was presently working 6 to 10 hours per fortnight as a handyman for his nephew’s business.
114 As a neurosurgeon, I note that Professor Bittar did not comment in relation to the plaintiff’s right shoulder injury.
115 In closing submissions, Mr Richards withdrew the plaintiff’s claim that he suffered a severe psychiatric condition under sub-paragraph (c). However, the defendant still sought to tender a report of psychiatrist, Dr Kaplan, who examined the plaintiff in May 2012 in support of that claim. In his report dated 15 May 2012, Dr Kaplan detailed the plaintiff’s history, noting that his marriage was “happy and stable” prior to the 2005 transport accident and that he only began to experience difficulties in his relationship after the accident in 2005.”[156]
[156]PCB 136
116 Dr Kaplan also reported the plaintiff as having said that, prior to the 2005 transport accident, he would only drink alcohol on special occasions, whereas following the 2005 transport accident, he began drinking regularly and consumed two to three stubbies of beer every day.[157]
[157]PCB 139
117 Mr Myers then sought to rely upon this history as demonstrating the plaintiff’s unreliability and his desire to overstate the consequences of the 2005 transport accident. I accept these examples are demonstrative of the plaintiff providing an inaccurate history that does not realistically depict or reflect his state prior to the 2005 transport accident.
Defendant’s medico-legal evidence
118 The defendant arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Paul Kierce, in May 2012 and April 2015. In his first report dated 15 May 2012, Mr Kierce obtained a history from the plaintiff that he suffered from recurrent lower back pain, with left leg pain and right shoulder pain. Mr Kierce was of the opinion that the exacerbation of lumbar spondylosis in the 2005 transport accident had since resolved. He stated that, in his opinion, the symptoms would have lasted for “perhaps two or three years”, but would have resolved by 2012, such that the plaintiff’s incapacity related to his constitutional lumbar spondylosis.[158]
[158]DCB 180
119 Mr Kierce considered the plaintiff’s right shoulder injury was temporarily worsened in the 2005 transport accident, but noted that at the time of the examination in 2012, the plaintiff said his right shoulder was “not much trouble”.[159]
[159]PCB 176
120 In his report dated 28 April 2015, Mr Kierce also confirmed his previous opinion in relation to the cause of the plaintiff’s ongoing incapacity. In relation to the plaintiff’s lower back injury, he noted evidence of radiculopathy in 2004, at which time Dr Gilligan had noted an absent left ankle reflex and numbness on the dorsal aspect of his left foot.[160] Mr Kierce relied upon this finding to confirm his opinion that the plaintiff’s current condition was no longer related to the 2005 transport accident.
[160]DCB 188
121 In relation to the plaintiff’s right shoulder injury, Mr Kierce again stated that he considered any soft tissue injury to have resolved, and noted that he would have expected the plaintiff to have sought treatment if his right shoulder problems had continued to trouble him.[161]
[161]DCB 188
122 The defendant also arranged for the plaintiff to be examined by musculoskeletal pain management specialist, Dr Clive Kenna, in July 2009 and April 2014. In his first report dated 10 July 2009, Dr Kenna accepted that the plaintiff had suffered an aggravation of his pre-existing lower back condition in the 2005 transport accident, and that his current pain was still related to that accident.[162]
[162]DCB 192f
123 In his subsequent report dated 4 April 2014, Dr Kenna stated that sufficient time had elapsed, such that he considered the effects of the 2005 transport accident had dissipated and resolved to the pre-accident state.[163]
[163]DCB 192q
Plaintiff’s credibility
124 The plaintiff was cross-examined for an extensive period of time, in relation to matters occurring over the space of 30 years. In such circumstances, I recognise that it would be difficult for any person to accurately recall the nature and extent of each complaint of pain at various points in time.
125 Having reviewed the extensive medical material pre-dating the 2005 transport accident, I have concluded that the plaintiff was in a relatively poor state of health in respect of his lower back condition at this time.
126 In seeking a serious injury certificate in respect of the 2005 transport accident, the plaintiff has sought to downplay the extent of his pain and the impact it had upon his life prior to the accident. His memory does not accord with the extensive medical records. Whether or not his poor recall was intentional or not, I do not accept the plaintiff’s evidence as to his actual state prior to the 2005 transport accident.
127 Despite the plaintiff stating in a relatively dramatic fashion that the 2005 transport accident had “killed” his life, I consider this to substantially overstate the significance of the 2005 transport accident.
128 Whilst not intending to provide an exhaustive list, the following examples are indicative of my concern as to the plaintiff’s reliability and his desire to overstate the impact of the 2005 transport accident:
(i) In his first affidavit, the plaintiff stated that his lower back pain was intermittent prior to the 2005 transport accident, and never constant as it is now. I consider this statement to be inconsistent with the significant body of medical reports and records, which pre-date the 2005 transport accident and which refer to the plaintiff complaining of constant lower back pain on multiple occasions.
(ii) In his first affidavit, the plaintiff incorrectly stated that he “didn’t suffer from numbness in my toe” prior to the 2005 transport accident,[164] in circumstances in which Dr Gilligan had referred to numbness in the plaintiff’s toe in 2004.
[164]PCB 17
(iii) The plaintiff claimed that his marriage had broken up as a consequence of the 2005 transport accident, whereas I am satisfied that he had been separated from his wife since 2003.
(v) The plaintiff claimed that he had become a heavy drinker as a consequence of the 2005 transport accident, whereas the medical reports make multiple references to him drinking excessively prior to that accident.
(vi) The plaintiff told doctors on multiple occasions that he had not worked after the 2001 transport accident. This was also stated in the plaintiff’s serious injury application. However, the plaintiff subsequently said that he had been working part-time and earning up to $6,000 a year prior to the 2005 transport accident. The plaintiff sought to explain this inconsistency on the basis he understood the doctors to have been asking him about full-time employment. I do not accept the plaintiff’s explanation as plausible, and consider it to be further demonstrative of the plaintiff’s somewhat selective memory when questioned about his circumstances.
129 If each of these matters were considered separately, they would not, in my opinion, be sufficient to tarnish the plaintiff’s credibility. However, when considered collectively, they cause me to have significant reservations as to the plaintiff’s reliability as a witness. In such circumstances, I have only accepted the plaintiff’s evidence where he gave concessions against his interest or where his evidence was corroborated by objective evidence or contemporaneous documents.
Causation
130 To succeed in his claim, the plaintiff must establish that the 2005 transport accident was and remains a cause of his lower back injury and/or right shoulder injury.
(i) Lower back injury
131 For the reasons detailed above, I gained no real assistance from the medical reports of Mr Myers or Mr Haw. I was, however, assisted by Professor Bittar’s report. Whilst his report contains some inaccuracies, such as the plaintiff’s level of activity prior to the 2005 accident, I consider he had a more complete history regarding the extent of the plaintiff’s condition in the period between the 2001 and 2005 transport accidents. In particular, he was aware the plaintiff still experienced ongoing lower back pain with bilateral leg pain. I note Professor Bittar was of the opinion the 2005 transport accident remained a cause of the aggravation of the plaintiff’s pre-existing lumbar spondylosis.
132 I also note that Mr McMahon supported the causal relationship between the 2005 transport accident and the plaintiff’s current symptoms. However, in circumstances in which I do not believe Mr McMahon was given an accurate history from the plaintiff as to the onset of his symptoms after the 2005 transport accident, I have some reservations regarding his opinion.
133 Both Mr Kierce and Dr Kenna initially accepted the plaintiff had suffered an exacerbation of lumbar spondylosis in the 2005 transport accident, yet both considered the symptoms to have lasted only a few years. At the time of their final examination of the plaintiff, both doctors considered the plaintiff’s condition was due to his pre-existing lumbar spine condition, and not due to the 2005 transport accident. In circumstances in which it is probable that the plaintiff’s symptoms have persisted, at least to some degree, since the 2005 transport accident, it is difficult for me to understand the basis upon which Mr Kierce and Dr Kenna formed their opinion that after a number of years, any contribution from the 2005 transport accident had simply ceased.
134 For these reasons, I am prepared to accept that, on balance, the plaintiff suffered aggravation of pre-existing degenerative changes to his lumbar spine in the 2005 transport accident, and that the accident is still a cause of the plaintiff’s current spinal injury.
(ii) Right shoulder injury
135 There was very little by way of medical material regarding the plaintiff’s right shoulder injury. Associate Professor Richardson diagnosed the plaintiff as suffering bursitis and mild degenerative change in his right shoulder, and related the plaintiff’s need for surgery to the 2005 transport accident.
136 Mr Kierce accepted the plaintiff had suffered a soft tissue injury to his right shoulder in the 2005 transport accident, but thought the injury had since resolved.
137 Notwithstanding the evidence is relatively scant, the material before me is such that, on balance, I am prepared to accept that the 2005 transport accident has caused the plaintiff to suffer an aggravation of pre-existing degeneration in his right shoulder injury.
Aggravation injuries
138 Having accepted the 2005 transport accident caused an aggravation of the plaintiff’s pre-existing degenerative condition in his spine as well as the degenerative condition in his right shoulder, it is necessary for me to now compare the plaintiff’s pre-existing condition prior to the accident, with the aggravated state. I must consider only the consequences arising from the aggravation, in accordance with the principles enunciated in Petkovski v Galletti.[165]
[165]Petkovski v Galletti [1994] 1 VR 436
139 Chernov JA, in R J Gilbertson v Skorsis, summarised the task before me:
“In determining whether an injury which is an aggravation of a pre-existing injury is a ‘serious injury’, it is necessary first to make a comparison between the applicant’s condition before the accident that gave rise to the second injury and to his or her condition after that incident and thereby ascertain the degree of additional impairment that has been brought about by the second injury. It is then necessary to make an assessment of whether the additional impairment is serious and long term.” [166]
[166]R J Gilbertson v Skorsis [2000] VSCA 51 at [40]
140 In order to make this comparison, it is first necessary to assess the nature and extent of the plaintiff’s condition prior to the 2005 transport accident.
141 Having considered the contemporaneous medical records and reports, I am satisfied that the following is an accurate description of plaintiff’s pre-existing state:
(a) the plaintiff had suffered long-standing problems with his lower back, with referred pain into his legs. Dr Gilligan and other doctors reported the plaintiff complained that his lower back pain was constant.
(b) the plaintiff had sought extensive medical treatment for his lower back pain over many years. In the year prior to the 2005 transport accident, Dr Koadlow provided two epidural injections and Dr Gilligan prescribed Prednisolone. The plaintiff also used analgesia medication on a regular basis.
(c) the plaintiff had stopped full-time work as a painter and was on a disability pension.
(d) the plaintiff was restricted in activities of daily living, including walking and driving.
(e) the plaintiff was restricted in domestic activities, including gardening.
(f) the plaintiff was restricted in his recreational activities, including fishing and soccer. He had also resigned from various administrative positions at the local soccer club.
(g) the plaintiff suffered disturbed sleep, largely due to his pain.
142 I understood the above consequences related predominantly to the plaintiff’s pre-existing lower back injury.
Pain and suffering consequences arising from the 2005 transport accident relating to the plaintiff’s lower back injury
143 I will now consider the pain and suffering consequences for the plaintiff’s lower back injury.
144 As I previously explained, I have significant reservations regarding the plaintiff’s reliability in describing his condition immediately prior to the 2005 transport accident. Given my findings outlined in paragraph 140, I consider the consequences to the plaintiff in relation to the 2005 transport accident to have only modestly increased.
145 I accept the plaintiff still has ongoing pain in his lower back. Given I was satisfied that such pain was constant prior to the 2005 transport accident, however, I do not consider there to have been any change in frequency from his pre-injury state.
146 Further, when considering the contemporaneous medical material, I am not satisfied the intensity of the plaintiff’s lower back pain is significantly worse than it was prior to the 2005 transport accident.
147 I consider it significant that the plaintiff obtained very little medical treatment following the 2005 transport accident. Beyond his initial attendance at the Western Hospital, it appears the plaintiff did not receive any further medical treatment until he consulted Dr Gilligan on 24 March 2006. At that time, Dr Gilligan’s clinical record did not suggest a significant increase in the plaintiff’s lower back pain. Further, there was no demonstrable change on the MRI scan taken on 28 August 2006.
148 Following the 2005 transport accident, the plaintiff said that he attended doctors at the Highpoint Shopping Centre. However, records from the Guardian Medical Clinic did not refer to the 2005 transport accident, nor did the referral letters of Dr Pham to Mr McMahon. Instead, there was a mistaken reference to a transport accident occurring in 2003. Accepting this may have been a typographical error that should in fact read 2005, the records and letters do not refer to or indicate any significant increase in the plaintiff’s symptoms following that accident.
149 Given the lack of recorded complaints at the Guardian Medical Clinic, there is no satisfactory explanation as to why the plaintiff did not consult Dr Asthana in relation to the injuries he suffered in the 2005 transport accident. I note that in December 2008, Dr Asthana refused to treat the plaintiff in respect of such injuries, given the three year delay.
150 The evidentiary value of clinical notes was recognised by the Court of Appeal in Philippiadis v TAC.[167] Such records are independent and contemporaneous, and ordinarily record the health issues of concern to the patient. The Court observed that it would be unusual for a patient not to have mentioned serious adverse health consequences to a doctor over a lengthy period of time. In the context of a patient who, prior to the 2005 transport accident, had regularly attended his general practitioners, I consider the absence of recorded complaints regarding increased lower back pain, to the doctors at either the Guardian Medical Clinic, or at Dr Asthana’s clinic, for several years after the 2005 transport accident, to be significant.
[167][2016] VSCA 1 at [105]-[106]
151 There is no current report from Dr Al-Ani, nor from his clinic. As such, I am uncertain as to the extent of the treatment he provided the plaintiff in relation to his transport accident-related injuries.
152 Mr McMahon is the plaintiff’s long-standing treating specialist, and ostensibly, provides support for the plaintiff’s claim. However, I am not satisfied the plaintiff provided Mr McMahon with an accurate history regarding the onset of symptoms following the 2005 transport accident. In particular, I do not accept the plaintiff’s symptoms worsened after the accident, such that he developed quite severe chronic lumbar back pain and left lower limb pain, which progressively worsened and became more chronic bilaterally. Such a history finds no support in the contemporaneous clinical records of Dr Gilligan, Dr Pham and Dr Asthana. In any event, Mr McMahon noted there is still no evidence of nerve root compression on the MRI imaging.
153 I am not satisfied that Mr Myers, Mr Haw or Professor Bittar had an accurate history as to the extent of the plaintiff’s capacity before the 2005 transport accident. I therefore gain little assistance from their comments regarding the restrictions and consequences arising from the 2005 transport accident.
154 In relation to the plaintiff’s capacity for work, I accept that in addition to his disability pension, the plaintiff does some casual, part-time work and earns up to $6,000 per year. However, I do not accept this situation to vary significantly from that of his pre-accident state, as, from 2003 to the 2005 transport accident, the plaintiff said that he was working similar hours and earning similar money. In such circumstances, there is no long-term pecuniary disadvantage attributable to the 2005 transport accident.
155 I accept the plaintiff continues to be restricted in his domestic and recreational activities. However, the plaintiff has failed to satisfy me that any significant change in such restrictions occurred after the 2005 transport accident. I am satisfied he had already given up his involvement with the soccer club. He was and remains restricted in his ability to go fishing, although he can still fish in a boat on flat water. He was and remains restricted in his gardening and cleaning ability. Further, the plaintiff continues to suffer disturbed sleep.
156 Having considered the extent of the plaintiff’s incapacity prior to the 2005 transport accident, and given the contents of the medical material, I do not accept the plaintiff’s current lower back condition and its consequences to be significantly greater than those he experienced prior to November 2005. When looking only at the consequences to have arisen following the 2005 transport accident, and when comparing them to other cases in the range of possible impairments or losses, I am not satisfied that the consequences to the plaintiff can be described as at least, very considerable.
Pain and suffering consequences arising from the 2005 transport accident relating to the plaintiff’s right shoulder injury
157 As the right shoulder is an aggravation injury, I can only consider the consequences that arise following the 2005 transport accident. Prior to the 2005 transport accident, the plaintiff complained of some right shoulder pain in both his statement to the TAC as well as to Dr Rose. However, there is little medical material to assess the nature and extent of any such injury.
158 There is also very little evidence as to the extent of the plaintiff’s right shoulder injury after the 2005 transport accident. Other than his attendances upon Associate Professor Richardson in 2012, the plaintiff has not sought any active treatment for this injury.
159 In his affidavits, the plaintiff referred to both his lower back injury and his right shoulder injury as restricting him in his domestic and recreational activities. However, it is impermissible for him to aggregate the consequences arising from these two impairments.
160 The plaintiff’s right shoulder barely features in the medico-legal reports. Mr Myers stated that the plaintiff had pain and some limitation of movements in his right shoulder. Mr Brearley noted that the plaintiff suffered some pain in the right shoulder when he did heavy or repetitive work, whilst reporting that he could not lift the arm above shoulder height. On examination, Mr Brearley noted a moderate restriction of movement in the right shoulder.
161 Mr Kierce obtained a history from the plaintiff that his right shoulder was “not much trouble”[168] and that he was not having any treatment for it.
[168]DCB 176
162 Given the paucity of evidence in relation to the plaintiff’s right shoulder injury, I am not satisfied the plaintiff suffers anything beyond modest restrictions and modest pain in his right shoulder. When I compare the plaintiff’s right shoulder impairment and consequences to other cases in the range of possible impairments or losses, I consider the consequences fall well-short of the statutory test.
Conclusion
163 The plaintiff has failed to satisfy me that he suffers a serious injury to either his lower back or right shoulder as a consequence of the 2005 transport accident. I therefore dismiss his application and shall make the consequent orders.
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