Priftis v TAC
[2019] VCC 2107
•19 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-02527
| JIM PRIFTIS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18-19 November 2019 and 12 December 2019 | |
DATE OF JUDGMENT: | 19 December 2019 | |
CASE MAY BE CITED AS: | Priftis v TAC | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2107 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – transport accident - lumbar spine - psychiatric injury - history of drug use
Legislation Cited: Transport Accident Act 1986 (Vic)
Cases Cited:Humphries v Poljak (1992) 2 VR 129; Davies v Nilsen & Transport Accident Commission [2014] VSCA 278
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram QC Ms M Pilipasidis | Slater & Gordon |
| For the Defendant | Mr P Elliot QC Ms J Clark | Solicitor to Transport Accident Commission |
HER HONOUR:
1 The plaintiff, Mr Priftis, is 48 years old. He seeks leave under s 93(4)(d) of the Transport Accident Act1986 (Vic) (‘the Act’) to issue proceedings for the recovery of damages for lumbar spine and psychiatric injuries sustained as a result of a transport accident on 30 March 2015. He applies under sub-paragraphs (a) and (c) of the definition of ‘serious injury’ in s 93(17) of the Act.
The issues
2 The defendant says that the plaintiff is not a credible witness because he has given different accounts of the accident to various treating and examining doctors; he was evasive and non-responsive when cross-examined; and because his evidence does not accord with the notes of his treating general practitioner (Dr Duncan Syme). In addition, his treating general practitioner from September 2017, Dr Peter Wright, and a recent medico-legal examining orthopaedic surgeon (Mr Gary Speck) have diagnosed soft tissue injury in the lumbar spine which has resolved. There is therefore no nexus between the transport accident and the complaints of lower back pain which emerged, on some of the medical evidence, some years after the transport accident. In particular, there is no medical evidence to the effect that the frequent complaints to Dr Syme of left sided thigh to shoulder pain can be linked with the radiological findings in the lumbar spine made in November 2017. The defendant says that there is therefore no substantial organic explanation for his ongoing lower back complaints which are referable to the transport accident. It follows, says the defendant, that the plaintiff cannot rely on any psychological sequelae of the injury to the lumbar spine.
3 In relation to the application under sub-paragraph (c) of the definition of ‘serious injury’, the defendant says that the plaintiff cannot discharge the onus he bears because the weight of psychiatric opinion is to the effect that, at worst, he suffers from an Adjustment Disorder. In addition, there are other causes of his current psychiatric presentation unrelated to the transport accident. In particular, he has a pre-existing history of cannabis and alcohol abuse, as well as of generalised anxiety and paranoia since 2013. There is also evidence that he may be exaggerating his symptoms. In any event, however, the defendant relies on the fact that he has not received any treatment for his condition, and refuses to take anti-depressant medication.
The hearing
4 The plaintiff swore two affidavits in support of his application. At the hearing he adopted the contents of those affidavits and was cross-examined. No other witnesses were called. Each party tendered a court book. I have considered all of the evidence as well as the submissions made by counsel.
The plaintiff
5 The plaintiff’s background may be briefly summarised. He is 48 years old, separated, with no children. He attended school in Melbourne to Year 11. He commenced, but did not complete, a motor mechanic apprenticeship. He then worked in a number of different jobs on and off, including as a construction labourer, forklift driver, truck driver, and in security. He had two months off work in 1996 in relation to a stress condition at work. He received medical treatment and took medication. He made a good recovery.
6 In his first affidavit,[1] the plaintiff described the accident in the following terms:
8. I suffered injuries in a transport accident on 30 March 2015 (“the incident”). On that day, I had parked my car in Victoria Street, Abbotsford. When I returned to my car, a man driving another vehicle was beeping his horn, telling me to move my car. I was legally parked so I told him to go around. When he pulled out to go around my car, his vehicle scraped along the right hand side of my car, scratching and denting my car.
9. I followed the other vehicle in my car. I located the car a few minutes later in Gardiner Street, Richmond. I parked beside the other vehicle and got out to speak to the driver. Without warning, the other driver drove into me, crushing me between my car and his. I fell on to the road in pain.
10.My ex-wife, Robyn, was in the car with me. She called an ambulance. I was treated at the scene. I decided I did not want to go to hospital. My ex-wife drove me home.
[1]Sworn 18 April 2018 at Plaintiff’s Court Book (‘PCB’), p 5.
7 He stated that as a result of the transport accident he suffered ongoing “almost constant fluctuating lower back pain”[2] which was worsened by activity, including prolonged walking and driving. He also suffered restriction of movement in his lower back, as well as pain radiating into his legs and hips, worse on the left side. At the time the pain was severe. He had flashbacks of the incident, and had panic attacks. He felt anxious and depressed most of the time and was depressed about the pain and restrictions flowing from his back injury. He was woken by back pain at night. He stated that prior to the transport accident he had been able to work unrestricted and had worked on a casual basis doing labouring, taxi driving and security work. After the transport accident, he had to limit the kind of work he did, and the hours he worked. At the time of swearing his first affidavit, he was working in customer service and also working between four and eight hours per week in casual security work, but suffered from back and leg pain while working. He took some time off when the pain was bad. He did not feel capable of working full-time.
[2]Ibid, [16].
8 In terms of his recreational activities, he stated that since the transport accident he had been unable to run, do martial arts, or go to the gym, which he did regularly before the transport accident. He also used to snow ski and water ski regularly and cycle occasionally, but has not been able to do so since the accident. He would get back pain if he walked for prolonged periods. His mood has deteriorated since the accident and he is more short tempered than before. He avoided socialising. He was anxious when driving.
9 In his further affidavit,[3] the plaintiff confirmed his ongoing pain and restrictions. His back pain prevented him from carrying even light weights. He limps when suffering intense sciatic pain into the legs. He has leg weakness which affects his balance and on occasion causes him to fall over. His back pain keeps him awake and disturbs his sleep. He takes Panadol, Panadeine Forte and Diazepam. A physiotherapist suggested that he do some exercises at home but he has not found them helpful.
[3]Sworn 2 October 2019 at PCB, p 15.
10 He struggles with basic domestic activities and is limited when shopping to carrying a maximum of three kilograms in weight. He walks each day but finds he has to sit and rest after a few minutes. He continues to experience “severe anxiety and depression and symptoms of PTSD”.[4] He has panic attacks with associated headaches. He feels that his psychiatric state has deteriorated significantly over the past few years. He continues to feel anxious when driving. His relationship with his partner deteriorated after the accident in the context of his pain, stress, anger, anxiety, and financial pressures. He no longer socialises nor does the recreational activities he once did. He has been unable to do security work for the past nine months and the customer service work he was doing a few hours per week is no longer available. He is currently on the Newstart allowance and gets some financial help from his relatives.
[4]Ibid, [14].
11 In cross-examination, the plaintiff agreed that at the time he was seen at the scene of the transport accident by paramedics he was agitated and upset,[5] but he denied failing to cooperate with their assessment.[6]
[5]T33.9.
[6]T32.15 and T33.2.
12 The plaintiff insisted that he told Dr Syme about his back pain in the first consultation after the transport accident and at every consultation.[7] He denied being told by Dr Syme that he would recover in time.[8] He denied telling Dr Syme on 7 April 2015, 24 April 2015, 19 May 2015 or 29 May 2015 that he was feeling better or that his symptoms were improving,[9] but insisted that he was getting worse,[10] and that he had pain “right through [his] spine”.[11] He disagreed with Dr Syme’s assessment in his report of 1 October 2015[12] that he rarely mentioned the soft tissue injuries in consultations and had no long term major physical issues, but seemed upset.[13] He insisted that his back pain was present from the date of the accident and that he complained about it to “every doctor he went to”.[14]
[7]T62.5 and T85.1.
[8]T20.14.
[9]T21.15, T22.9, T23.30 and T24.13 respectively.
[10]T21.18.
[11]T22.22.
[12]PCB, p 17.
[13]T26.5.
[14]T62.6.
13 He denied that the first mention of his back injury to Dr Syme was on 29 March 2016.[15]
[15]T39.1.
14 The plaintiff agreed that the first MRI of the lumbar spine was performed on 15 November 2017,[16] at the suggestion of his solicitor, but insisted that the “hips and back [are] all associated”,[17] and that “doctors misdiagnose things”.[18] He agreed that he has received no specialist treatment for his back.[19]
[16]T37.4.
[17]T37.31.
[18]T38.3.
[19]T13.9.
15 In relation to the work performed after the transport accident, the plaintiff agreed that he was off work for several weeks[20] then did some work as a taxi driver, and some limited (seated) security work a few hours at a time.[21] He said that between 1990 and 1999 he worked 12 hour shifts, five days per week, for Mayne Nicklaus (earning $1500 per week)[22] but that since that time he was performing heavy work at different times doing painting, cleaning, framing, fixing rooves, furniture removal jobs.[23] He agreed that in the 2009 taxation year he earned a gross income of $27,000 but could not recall what he was doing at that time.[24] He said that he “deteriorated and worsened over the last few years”, with severe pain.[25]
[20]T61.23.
[21]T62.17.
[22]T64.9.
[23]T62.10, T62.31, T64.3, T85.23.
[24]T64.22.
[25]T65.5.
16 The plaintiff agreed that after the transport accident he had done some taxi driving work “maybe once, twice a week for a couple of hours”.[26] He conceded that the Taxi Services Commission suspended his taxi licence[27] on an interim basis on 14 April 2016 following six complaints about his rudeness and verbal abusiveness to his passengers, hotel staff, and to those who interviewed him at Silver Top Taxi Service about a complaint. The interim decision was affirmed on review, and the plaintiff was not permitted to apply for driver accreditation until 30 May 2019. The plaintiff’s current general practitioner has refused to support an application for accreditation.[28]
[26]T52.22.
[27]T57.6.
[28]T58.26.
17 As to his history of drug use, the plaintiff said that he had used opiates “25 years ago”;[29] that he had experimented with heroin and smoked it about twice per week after his engagement broke down in 2010,[30] but denied injecting it or ever being a “full-time user”.[31] He agreed that the First Step clinic is a medical practice specialising in the treatment of drug problems; that Suboxone is a treatment for people addicted to opiates; and that he had been using Suboxone since 2013,[32] mainly as a painkiller prior to the transport accident[33] but also partially for his alcohol and opioid use issues. He said that he takes Suboxone a couple of times per week.[34] He said that he last used illicit drugs nine months ago.[35]
[29]T41.28.
[30]T47.19 - T48.20.
[31]T47.23.
[32]T42.23.
[33]T43.28.
[34]T51.21.
[35]T50.26 and T51.11.
18 The plaintiff agreed that as at 24 May 2019 he had a large number[36] of unpaid parking fines, and that his doctor had arranged for him to take part in a Work and Development Permit Scheme.[37] A Work and Development Permit Scheme report, which is Exhibit 4, notes that the plaintiff was eligible for the scheme because he was a person with “an addiction to drugs, alcohol or volatile substances”.[38] The plaintiff insisted that he was eligible for the scheme because of his condition, living arrangements, life and health.[39] He was reluctant to agree that he had treatment and counselling for drug addiction and said that he received treatment and counselling for “lots of reasons”.[40]
[36]Exhibit 4 appears to refer to between 57 and 63 unpaid fines.
[37]T67.31, T68.27, and T68.30.
[38]Exhibit 4, p 1.
[39]T67.31.
[40]T69.5.
19 The plaintiff said he stopped doing martial arts in late 2013 or early 2014[41] because training “takes up a lot of your body”;[42] then said he “probably went several times after 2014”,[43] then said he “was regular up until the incident”.[44] He said that he last went running in late 2014.[45] He agreed that before the transport accident he had financial difficulties and was homeless and probably had not been skiing since 2013.[46]
[41]T70.18.
[42]T70.32.
[43]T71.9.
[44]T71.12.
[45]T71.15.
[46]T72.30 - T73.10.
20 The plaintiff denied that in May 2016, his doctor had instructed his pharmacy to withhold Suboxone because the plaintiff had sought three prescriptions within a week. He agreed that he might have had an argument with the pharmacist at that time.[47]
[47]T76.29 - 77.7.
21 In re-examination, the plaintiff said that he currently takes Suboxone a few times per week for his back pain;[48] Panadeine Forte in the evening, and Valium and Unisom through the night.[49] He said that he can no longer work at all because any type of work involves standing and he cannot stand for more than a few minutes without pain.[50] Also, his psychological condition prevents him from working. He did not think that, absent his physical injuries, he would have been able to work as a taxi driver, because of his transport accident psychological injuries.[51] However, he felt that if it were not for all of his transport accident related injuries he could have continued to do work roofing, painting, framing, moving furniture and driving as a courier.[52]
[48]T80.17 and T81.26.
[49]T80.18.
[50]T85.21 - T86.11.
[51]T86.27.
[52]T87.4 - T87.20.
Lay evidence
22 Christopher Gillam met the plaintiff about six years ago while working as a carpenter in the plaintiff’s brother’s construction business. The plaintiff also worked as a labourer in that business. Mr Gillam swore an affidavit on 8 May 2019[53] in which he stated that prior to the transport accident the plaintiff did manual work on worksites and performed errands and appeared “very fit and healthy“.[54] Mr Gillam also socialised with him outside work. After the transport accident, Mr Gillam noted that “[o]n the odd occasion when he would visit the work site he would say he could not help because of back pain” and that “[h]e has also complained to me about his limited mobility and difficulty with driving in traffic”.[55] Mr Gillam stated that the plaintiff’s mood has changed “significantly”;[56] that he has seen him on a few occasions; and that on those occasions he seemed anxious. Mr Gillam had witnessed the plaintiff suffer a panic attack, and had also seen him lose his temper. When the plaintiff lost his temper, Mr Gillam stated that it “scares [Mr Gillam] to be around [the plaintiff]”.[57] Mr Gillam stated that he no longer socialises with the plaintiff.
[53]PCB, p 11.
[54]Ibid, [3].
[55]Gillam, above n 53, [4].
[56]Gillam, above n 53, [5].
[57]Ibid.
Medical evidence
Ambulance notes
23 Paramedics attended the scene of the accident and recorded the following:
…the other car went to drive off and clipped the [patient’s] leg. [Patient] able to walk and weight bear on leg. Appears to be bruised. [Patient] declined assessment from [Ambulance Victoria] and declined [transfer] to hospital.[58]
[58]Defendant’s Court Book (‘DCB’), p 4.
24 In their notes, the paramedics recorded:
Pt aggressive wanting revenge on driver who caused the accident. Pt non-compliant with any assessment offered by AV. Pt showed his left leg which appeared bruised, but with no significant injury.
Radiology
25An x-ray of the plaintiff’s chest, pelvis, left hip and left femur was performed on 21 December 2016.[59] There was no abnormality observed in the chest; no bony abnormality, erosions or arthropathy in the left hip; no bony abnormality in the femur; and the knee joint was normal.
[59]PCB, p 67.
26An x-ray of the lumbar spine on 4 November 2017 was reported[60] as showing “good alignment”, “vertebral bodies are preserved”, and “mild anterior spondylolisthesis of L5 on SI”.
[60]PCB, p 68.
27A MRI scan of the lumbar spine on 15 November 2017 showed[61] L5-S1 disc dessication and mild height loss with suspected chronic bilateral L5 pars defect resulting in a 4mm anteriorlisthesis at that level as well as the following:
Disc osteophyte complex causes minimal foraminal narrowing, just contacting but not compressing roots. The subarticular recesses remain patent. Mild subchondral marrow hyperintensity in relation to the sacroiliac joints is presumably degenerative in aetiology. No effusion or convincing erosive change.
Treating practitioners
[61]PCB, pp 69-70.
28 Dr Duncan Syme was the plaintiff’s treating general practitioner at the time of the transport accident and continued to treat the plaintiff at the First Step clinic until November 2016.[62] The plaintiff tendered two reports and two letters prepared by him. Extracts of the First Step clinic’s notes were tendered by the defendant.
[62]See the First Step clinical records at DCB, pp 33-86.
29 On 31 March 2015, the day after the transport accident, Dr Syme saw the plaintiff and made the following entry in the clinical record:[63]
[63]DCB, p 75.
History:
Involved in a car accident yesterday
States his car was side swiped yesterday ended up confronting other driver who then drove off an hit him and knocked Jimmy over states he was thrown about 2 metres and landed on his left side and is bruised on his left thigh and side of abdomen and lower chest wall
Some discomfort with breathing when taking a deep breath
No LOC, though hit head sore left upper arm
No headache
Slight lateral left neck pain
Uncomfortable to get up move twist and turn difficulty with lifting left hip
Examination
Looks very uncomfortable getting up and down
No midline tenderness…
Full range of neck movement
Reasons for contact
Soft tissue injury
Management
X-ray exclude other injuries but unlikely
30 On 7 April 2015, Dr Syme saw the plaintiff and recorded[64] that he reported feeling a bit better, but was “still pretty uncomfortable when he moves, particularly the left side of his chest”, with ongoing discomfort in the left thigh.
[64]DCB, p 75.
31 Dr Syme’s first letter, dated 24 April 2015,[65] is a brief note to the effect that the plaintiff had presented recently “after stating he was knocked over by another vehicle and thrown up in the air and landed on the road on 30 March 2015, as a result of this he sustained a number of what appeared to be soft tissue injuries to his chest and abdomen and left hip and limbs. He was in significant pain discomfort with breathing and movement”. He was unable to fulfil his normal employment for a number of weeks following the transport accident but had since gradually returned to work. He noted the plaintiff continued to experience significant discomfort.
[65]PCB, p 22.
32 On 1 May 2015, the plaintiff saw Dr Syme, who noted,[66] among other things:
3. Still sore uncomfortable on the left side of the body from the left knee to the left thigh to left shoulder and neck are uncomfortable on occasions
Mild tenderness along left side of body
Mild restriction of neck rotation to the right
[66]DCB, p 74.
33 On 1 September 2015, the plaintiff saw Dr Syme, who noted:[67]
[67]DCB, p 70.
History:
Upset 1st cousin committed suicide hung himself
Hadn’t seen him for a year
States still getting twinges of pain down left side and left neck and side of leg
Driving taxi at night on 2-3 nights
States gets a few panic attack when he thinks about the event
Does a couple of hours a day doing courier work
Remains feeling victimised
34 In a report dated 1 October 2015,[68] Dr Syme reviewed the attendances referred to above. He noted that since the attendance on 23 June 2015, the plaintiff had seen him on numerous occasions but had “rarely mentioned the soft tissue injuries”. Dr Syme stated that he initially diagnosed the plaintiff as having soft tissue injuries and psychological distress, recommended x-rays[69] and conservative treatment, and prescribed analgesia. He opined the plaintiff would be unable to work in the short-term but that his injuries would recover in time.
[68]PCB, p 17.
[69]Which had not been performed at the time of writing the report.
35 Dr Syme confirmed his diagnosis of soft tissue injuries affecting the left side of the body with a degree of psychological frustration and lowered mood, and stated the plaintiff had made “an excellent recovery in a physical sense”. Although the plaintiff could have occasional discomfort in his left side, it was not sustained and was not stopping him from doing any activity. Dr Syme expected no long term physical issues and that the plaintiff’s psychological upset would resolve with time. He stated the plaintiff was capable of working and would not be prevented from doing so by his injuries.
36 On 1 March 2016, Dr Syme’s clinical note recorded[70] that when the plaintiff attended on that day, among other things, he:
…States remains agitated periodic left rib pain and left hip pain but not all the time not ppte factor doesn’t last ages
States not sleeping well not working much twice a week not eating well a little exercise
[70]DCB, p 66.
37 On 15 March 2016, the plaintiff attended Dr Syme again, with a complaint which was recorded by Dr Syme as follows:[71]
[71]DCB, p 65.
History:
C/o pain on the left side over the last couple of weeks, same position as pains after the injuries sustained when run over. Has been happening a couple of times a day triggered by movement, pain quite intense lasts for a couple of minutes states the pain has woken him up at night, also not sleeping well due to stress relating to incident.
38 There is an entry in Dr Syme’s clinical notes dated 29 March 2016 which included the following sentence:
History:
Continues to get his pains down his left side seems to be happening consistently on the hip and left side of his back.
39 In a brief letter dated 10 May 2016,[72] Dr Syme noted that the plaintiff continued to complain of considerable physical and mental health issues following the transport accident, which included left chest wall, neck and thigh pain; as well as mood swings, very poor concentration, irritability, feelings of anxiety and depression, and worse sleep requiring sleep medication. Dr Syme reported that plaintiff managed only limited work since the transport accident and had not worked for the three months prior to the report.
[72]PCB, p 23.
40 On 11 October 2016, Dr Syme recorded that the plaintiff told him that his “symptoms remain from the vehicle assault with intermittent pain on the left side”.[73]
[73]DCB, p 60.
41 The plaintiff continued to see other doctors at the same practice in early 2017, largely in relation to prescriptions for Suboxone.
42 On 9 March 2017, Dr Ernesto Andrada, at the same practice, recorded a consultation in which the plaintiff gave the following history:
History:
Says has had chronic lower back
2nd to MVA march 2015
Difficult to ambulate
Requires centrelink med cert
…
43 Dr Peter Wright became the plaintiff’s treating general practitioner at the same clinic in about September 2017.[74] He provided three brief reports.
[74]DCB, p 51.
44 In his report dated 3 September 2018,[75] Dr Wright stated that the plaintiff presented with Post Traumatic Stress Disorder and musculoskeletal dysfunction of the lumbar spine, both of which limited his work capacity to eight hours per week.
[75]PCB, p 24.
45 In a second report dated 1 May 2019[76], Dr Wright reported that the plaintiff continued to have daily lumbar spine symptoms, with limitations to his movement and ability to work. He also had low mood and “intrusive and frequent symptoms [of] post traumatic stress disorder including anxiety, flash backs, night terrors and poor sleep”. These symptoms were having an adverse effect on his relationships and on his ability to plan. He was also increasingly fearful and suspicious. Dr Wright confirmed that the plaintiff continued to have a limited work capacity of eight hours per week due to his lumbar spine and psychological conditions.
[76]PCB, p 23.
46 In his third report dated 17 June 2019,[77] the Dr Wright repeated the comments made in his second report. He added that it was clear to him that the plaintiff’s lower back pain “markedly escalated and evolved with the injury from the [transport accident]”.
[77]PCB, p 24.
47 Dr Syme’s final report, dated 2 December 2019,[78] indicated that he had reviewed his letters and his notes of consultations with the plaintiff between 31 March 2015 and 29 November 2016 in the light of the entry dated 29 March 2016 (see paragraph 38 above). He stated that he did not recall any mention by the plaintiff of back pain prior to 29 March 2016; and that if it had been mentioned, he would have separated it from the complaints of left sided pain in the left lateral thigh, left lateral chest wall, and lateral side of abdomen and neck, and recorded it by labelling it “back pain”. He stated that if the plaintiff had mentioned back pain to him prior to that date, “it was certainly not a major focus of any of [their] consultations, either before or after this date and [he is] confident of this”. He was confident that the plaintiff did mention back pain to him on 29 March 2016. Dr Syme noted that “[t]he most prominent feature of most of the consultations that related to the injury was the severe psychological distress that had resulted from the incident. He had persistent but intermittent episodes of left sided pain but again it was not as consistent as was his psychological distress”.
[78]Exhibit C.
48 Although there is a suggestion in the medico-legal material that the plaintiff received treatment from a psychologist, psychiatrist, and pain management specialist,[79] there are no medical reports before the Court from such treating practitioners.
Medico-legal opinions regarding the plaintiff’s physical injuries
[79]PCB, p 50 and p 64.
49 Dr Jonathan Burdon, consultant respiratory physician, provided a report dated 17 February 2016.[80] He noted that the plaintiff was a difficult historian and not very cooperative.
[80]PCB, p 31.
50 Mr Peter Moran, orthopaedic surgeon, provided four reports. In his first report dated 3 October 2016,[81] he took a history from the plaintiff of working prior to the transport accident as a construction labourer, security officer and truck driver, averaging 30 to 40 hours of work per week. At the time of the report, he had barely worked for the previous seven months. Mr Moran received a history of predominantly left-sided injury as a result of the transport accident. The plaintiff told him that when he saw his general practitioner the day after the transport accident, he was concerned about bruising on the left side of his trunk, left knee and leg. He told Mr Moran that the pain in those areas persisted and ultimately became more focused on the left lower back region and left leg. He described episodic severe pain provoked by unguarded activities which took several minutes to subside. He described mood swings, anxiety and depression as being associated with his persistent pain but denied any significant pre-existing mental health issues.
[81]PCB, p 59.
51 On examination, Mr Moran noted an asymmetrical para vertebral muscle spasm which caused the plaintiff to tilt laterally and significantly inhibited spinal movements. Neurological examination of the lower limbs was normal.
52 Mr Moran diagnosed low back discomfort with episodic severe pain, without a defined organic basis, associated with the transport accident. However, he noted further investigations were required.
53 After being provided with a radiology report of the x-rays performed on 21 December 2016,[82] Mr Moran provided a second report dated 23 January 2017[83] in which he stated the source of the plaintiff’s pain was difficult to define but opined it was clearly spinal rather than pelvic or lower limb in origin.
[82]See paragraph 25 above.
[83]PCB, p 62.
54 Mr Moran was provided with further radiology, including x-ray reports dated 11 April 2017 and an MRI scan dated 15 November 2017[84] and noted that the MRI scan confirmed evidence of early desiccation of the L5/S1 disc but without evidence of neural compression or radiculopathy. Mr Moran recommended the plaintiff be examined by a specialist in spinal pathology.
[84]See paragraphs 27 above.
55 On 10 October 2018, Mr Gary Speck, orthopaedic surgeon, conducted an independent impairment assessment of the plaintiff and recorded a history given by the plaintiff of mainly right sided pain to the extent that the “whole body on the right side is a problem.”[85] Mr Speck recorded that the plaintiff was employed for eight hours per week across two four-hour shifts by an agency which sent him to various locations for evening work involving security and other activities. The plaintiff reported that he had previously worked in construction and was unable to continue in that profession because of his back pain which extended down the legs and predominantly to the right 90% of the time. The plaintiff further indicated that walking, sitting and standing for more than 10 minutes creates predominantly back pain and a pins and needles-like sensation.
[85]DCB, p 24
56 Mr Speck opined that the soft tissue injuries recorded at the time of the transport accident by Dr Syme had resolved and that the plaintiff’s prognosis was good. Mr Speck considered that the plaintiff’s current symptomatology was more in the nature of pain behaviour and syndrome in the context of ongoing anxiety symptoms. Mr Speck recommended that psychiatrists assess the psychological impact of the transport accident on his mental state.
57 Professor Richard Bittar, consultant neurosurgeon, reported on 1 July 2019[86] that the plaintiff complained of pain in his lower back, both legs and neck, which was slowly deteriorating. The plaintiff’s back pain was constant with an average severity of 8/10 and aggravated by a various activities including bending, twisting, lifting, sitting, walking, and standing. The pain in the plaintiff’s legs and neck was also constant and of similar severity to his lower back pain, although his right leg pain was worse than the pain in his left leg. On examination, Professor Bittar noted severe restriction of lumbar spine flexion, moderate restriction of lumbar spine extension, lumbar paravertebral muscle tenderness, and muscle spasm involving the lumbar paravertebral musculature. Neurological examination revealed no evidence of radiculopathy or myelopathy.
[86]PCB, p 25.
58 Professor Bittar opined that the plaintiff had sustained injuries to cervical and lumbar spine[87] and had developed a significant chronic pain condition, of which the transport accident was “the dominant contributing factor”. Professor Bittar recommended the plaintiff be assessed by a pain specialist and undergo further imaging, the latter of which would dictate the nature of any further treatment.
[87]However, he was unable to make a more specific diagnosis without imaging.
59 Professor Bittar reported that prior to the transport accident, the plaintiff had “worked as a truck driver, labourer and part-time security officer 40-45 hours per week” but the plaintiff was no longer working. He opined the plaintiff was totally incapacitated for work as a result of his cervical and lumbar spine conditions.
60 Mr Moran provided a fourth report dated 8 August 2019[88]. He noted the plaintiff’s dominant concern was his central lower back pain which radiated to the back of both legs, more evident on the left than right side, and which had “stayed the same” since the last examination. He experienced severe exacerbation of pain with activity and would awake frequently during the night with pain. The plaintiff informed Mr Moran that he had consulted a pain management specialist and psychiatrist since the last examination.[89] The plaintiff was receiving Centrelink benefits, having tried to return to security work but being unable to last more than one hour before the pain became incapacitating.
[88]PCB, p 64.
[89]However, I note that the plaintiff denied receiving specialist treatment (T13.9) and no pain specialist’s report or treating psychiatrist’s report has been produced.
61 On examination, Mr Moran noted a loss of the normal lumbar lordotic posture, asymmetrical para vertebral muscle spasm more evident on the left side and limited movement. No neurological dysfunction was observed. Mr Moran diagnosed a mechanical injury to the lumbar spine, resulting in lower and mid back pain in association with neurogenic pain radiating to the lower limbs. He opined that the plaintiff’s Post Traumatic Stress Disorder impacted the plaintiff’s perception of pain and his ability to undertake rehabilitation, and that the plaintiff was not consciously or deliberately attempting to exaggerate or embellish his condition. He found the plaintiff to be incapacitated for work.
62 After reviewing radiological reports regarding the MRI and x-rays performed in November 2017,[90] Professor Bittar provided a supplementary report dated 31 October 2019.[91] He opined that the plaintiff’s lumbar spine injury was “most likely an aggravation of pre-existing lumbar spondylosis/spondylothesis”.
Medico-legal opinions regarding the plaintiff’s psychological injuries
[90]See paragraphs 26 and 27 above.
[91]PCB, p 29.
63 The plaintiff was examined on two occasions by Dr Nathan Serry, consultant psychiatrist. In his first report dated 2 February 2016,[92] Dr Serry recorded a history from the plaintiff of fluctuating pain on the left side, primarily in the left knee and left side of his torso, since the transport accident.
[92]PCB, p 41.
64 The plaintiff gave a history of panic and anxiety 10 years earlier in the context if family matters which was treated with medication.
65 The plaintiff described feeling stressed, anxious, overwhelmed, jumpy, irritable, short-tempered and angry as well as having panic attacks. He attributed his low mood to the transport accident. The plaintiff stated there was no difficulty with his concentration or memory but had ongoing sleep disturbance because of pain. He had accident-related dreams but no flashbacks. He said he was paranoid when driving, easily upset as a passenger, and hypervigilant as a pedestrian. The plaintiff was not clear on whether he had received formal mental health treatment from a psychologist or psychiatrist but was prescribed anxiolytic medication by his general practitioner.
66 The plaintiff gave a history of working part-time as a construction labourer and part-time as a taxi driver at the time of the accident. At the time of the report, he was working 10 hours per week as a courier which the plaintiff reported was significantly less than the amount he was working before the transport accident.
67 Dr Serry diagnosed the plaintiff as having an Adjustment Disorder, with anxious and depressed mood and features of panic and traumatisation, of mild severity. However, he noted it was difficult to be clear about the plaintiff’s pre-existing mental health issues and suspected there was an element of premorbid vulnerability which was compounded by the transport accident.
68 In his second report dated 8 November 2018,[93] Dr Serry obtained a history from the plaintiff that his pain levels had increased and that he experienced pain in his low and mid-back which extended into both legs, the right more than the left. He also described a deterioration in his emotional state, stating he was stressed and anxious almost all of the time and suffered frequent panic attacks. He reported fluctuations concentration and memory depending on his mood and anxiety levels. He reported poor sleep which was interrupted by pain. He also reported experiencing flashbacks. He was taking Valium, Temazepam and Panadeine.
[93]PCB, p 49.
69 The plaintiff reported he had ceased work two and a half years prior to the examination because of pain and his emotional state.
70 Dr Serry confirmed his previous diagnosis of Adjustment Disorder, with anxious and depressed mood and with features of panic and traumatisation, but noted that the condition was now of moderate severity. Dr Serry considered the plaintiff’s prognosis was guarded and he was not convinced the plaintiff would be willing to undertake mental health intervention.
71 The plaintiff was examined by Dr Matthew Tagkalidis on 19 November 2018.[94] He gave a history of ongoing lower back pain after the transport accident which started to radiate into his left leg, causing pain and frustration due to physical limitations. He described feeling tearful, irritable and stressed, with reduced energy levels and appetite. He would experience panic attacks. His medication included Panadeine, Temazepam, Diazepam and Unisom, but he refused to take antidepressant medication because of “past experience”. The plaintiff told Dr Tagkalidis that he had attended two or three sessions with a psychologist in around 2008 but did not find them helpful. Dr Tagkalidis diagnosed the plaintiff as having an Adjustment Disorder with mixed anxiety and depressed mood with features of traumatisation, relevant to the transport accident but opined that the plaintiff’s symptoms did not justify a diagnosis of Post Traumatic Stress Disorder. He stated the plaintiff’s psychological state precluded him from any form of employment.
[94]Exhibit B.
72 On 28 October 2019, Dr Gregor Schutz, psychiatrist, conducted a psychiatric impairment assessment and took a detailed history from the plaintiff who stated that he had no mental health difficulties prior to the transport accident and was otherwise perfectly fine, healthy and working (as a truck driver, taxi driver, labourer, furniture removalist, courier and in security). He was going out and associating daily, living a normal lifestyle and enjoyed water skiing and playing sport. In response to Dr Schutz’s query about his history of anxiety and depression, the plaintiff stated he was upset in 2000 following the death of his father but that “time healed and life goes on” and he had no other treatment. The plaintiff stated that he had not previously used illicit drugs before the transport accident other than opiates 25 years previously. He denied a previous back injury and stated he was not on medication prior to the transport accident.
73 The plaintiff stated that he was in shock from the moment of the transport accident, that it had affected him more severely in the last three years and particularly in the last 18 months. The plaintiff also reported that he was isolated from his family and stated his seclusion was getting worse.
74 Dr Schutz opined that the plaintiff’s current Adjustment Disorder or exacerbation of pre-existing mood and anxiety disorder was multifactorial. It was contributed to by a number of factors in addition to the transport accident including: “personality, vulnerability, financial difficulties, conflict with family (which predated the accident), relationship breakdown and the death of a first cousin in September 2015.”[95] Dr Schutz considered that the plaintiff may also have exhibited abnormal illness behaviour and noted the inconsistencies in his account of the transport accident and the possibility of symptom exaggeration for secondary gain. He found the plaintiff to be “cagey and evasive in various areas including in relation to his past history and additional stressors” and noted there was no evidence of manic or psychotic signs or symptoms.
[95]DCB, p 19.
75 In any event, however, in relation to the transport accident’s effect on the plaintiff’s vocational capacity, Dr Schutz concluded:
I would state that there would be a minor incapacity as a result of the accident itself. However any incapacity for employment would be more significantly accounted for by physical symptoms and long-standing interpersonal difficulties and non-accident related mood and anxiety symptoms. I note that he reported to me that 97% of the barriers to employment were physical and non-psychiatric in nature.[96]
[96]DCB, p 21.
Findings and reasons
76 I note that the plaintiff’s counsel stated in his final submissions that the plaintiff’s primary claim was brought under sub-paragraph (a) of the definition of ‘serious injury’ and that the claim under sub-paragraph (c) was a “reserve position”. In the circumstances of this case, for the reasons outlined below, I have not found it necessary to address the claim under sub-paragraph (c) of the definition of ‘serious injury’. However, I have outlined the various psychiatric reports for the purpose of assessing the psychological sequelae of the plaintiff’s organic injury to the lumbar spine.
77 In order to succeed in his application, the plaintiff must prove that the pain and suffering and/or pecuniary disadvantage consequences of the injury to the lumbar spine are serious.[97] In determining this question, the court must have regard to the whole of the evidence.[98]
[97]Humphries v Poljak (1992) 2 VR 129, 140.
[98]Davies v Nilsen & Transport Accident Commission [2014] VSCA 278, [95] & [97].
78 The plaintiff presented in court in a fashion similar to the way he presented to many examining specialists: he was defensive; irritable; at times argumentative and exasperated; at times evasive; at times dogged; at times secretive and uncooperative. It may be that due to his past difficulties with drug and alcohol abuse, and with his current medication regime, his memory was affected. However, I accept his evidence, which is consistent with what he told his doctor (Dr Syme) the next day, that in the transport accident, he was struck by a car, fell onto the road on his left side, and hit his head. He insisted that he told his doctor of back pain prior to March 2016, and insisted that he had suffered from back pain from the time of the transport accident.
79 Dr Syme’s latest report indicates that he would have recorded earlier complaints of back pain if they had been made to him. However, there is clear and consistent reporting to him, as set out in the clinical notes, of ongoing left side pain, from the left thigh to the left shoulder. The plaintiff was adamant that he told Dr Syme repeatedly of his back pain. Even if he did not regularly mention the word “back” to Dr Syme when listing his symptoms, this does not mean that he was not in fact experiencing such pain.
80 Apart from the plaintiff’s evidence, I have also looked carefully at the rest of the evidence before me, including: the circumstances of the transport accident; the evidence of lay witness Christopher Gillam to the effect that after the transport accident the plaintiff complained to him of back pain; the entry by Dr Syme in his clinical record that on 29 March 2016 the plaintiff reported that he was continuing back pain; the plaintiff’s history to Mr Moran in October 2016 that the pain in his left trunk, left knee and left leg persisted and ultimately became more focused on the left lower back region and left leg; and the recent neurosurgical opinion of Mr Bittar, a specialist in spinal diseases, to the effect that as a result of the transport accident the plaintiff suffered an aggravation of pre-existing but asymptomatic lumbar spondylosis and an ensuing significant chronic pain condition.
81 I acknowledge that both Dr Syme and Mr Speck diagnosed the plaintiff’s injuries as being soft tissue in nature. Dr Syme felt that they should resolve over time. Mr Speck opined that they had in fact resolved and that the plaintiff’s presentation had been overtaken by psychological factors
82 However, I note that Mr Moran found no non-organic signs nor any evidence of conscious embellishment or exaggeration on examination. He also found asymmetrical paravertebral muscle spasm more on the left side, as well as limited movement. There was central low back pain which radiated to the back of both legs. Mr Moran found that the plaintiff was incapacitated for all work due to the impairment of the function of the lumbar spine, although in reaching this conclusion he appeared to take into account that the plaintiff was suffering from a Post Traumatic Stress Disorder which might impact on his perception of pain.
83 Dr Wright, the plaintiff’s present treating general practitioner, considered that as a result of both his lumbar spine dysfunction and his Post Traumatic Stress Disorder the plaintiff is limited to working eight hours per week. Professor Bittar did not record any non-organic examination findings, and opined that the plaintiff was totally incapacitated for all employed due to his cervical and lumbar spine conditions.
84 In the light of the persistence of the plaintiff’s lumbar spine symptoms and the opinions of Dr Wright, Mr Moran and Professor Bittar that they are organic in nature, I attach less weight to the opinion of Mr Speck.
85 I am satisfied on the whole of the evidence that as a result of the transport accident the plaintiff suffered an injury to the lumbar spine in the form of an aggravation of spinal spondylosis, and that he has suffered a permanent impairment of the function of the lumbar spine.
86 The weight of the expert evidence is to the effect, and I therefore find, that as a result of the permanent impairment of the lumbar spine the plaintiff’s work capacity has been radically reduced, if not extinguished.
87 I am also satisfied, having regard to the opinions of Dr Serry, Dr Schutz and Dr Tagkalidis, that as a result of the transport accident the plaintiff suffered an Adjustment Disorder with mixed anxiety and depressed mood secondary to the lower back pain and pain radiating into the left leg. Only Dr Tagkalidis, considered that the plaintiff was incapacitated from a psychiatric point of view from any form of employment, whereas Dr Schutz felt that any incapacity for employment would be more significantly accounted for by his physical symptoms and non-accident related personality difficulties and anxiety symptoms.
88 I consider that the pain and suffering consequences and pecuniary disadvantage consequences of the permanent impairment of the lumbar spine together with the psychological sequelae of his pain and restrictions (in the form of an Adjustment Disorder with mixed anxiety and depressed mood), are more than considerable when compared with other cases in the range of impairment to the lumbar spine.
89 In light of the above findings, it is unnecessary for me to consider the application under sub-paragraph (c) of the definition of ‘serious injury’ in the Act.
Conclusion
90 It follows that leave is granted to the plaintiff to issue proceedings for the recovery of damages in respect of injuries sustained in the transport accident on 30 March 2015.
91 I reserve the question of costs.
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