Rexhepaj v Transport Accident Commission
[2010] VCC 1982
•14 December 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY
Case No. CI-10-00282
| ARLIND REXHEPAJ | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | His Honour Judge Misso |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 October, 1 and 3 November and 6 December 2010 |
| DATE OF JUDGMENT: | 14 December 2010 |
| CASE MAY BE CITED AS: | Rexhepaj v Transport Accident Commission |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1982 |
REASONS FOR JUDGMENT
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Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986 – whether the plaintiff suffered an injury to his neck in the transport accident – causation – if he suffered an injury to his neck in a transport accident, whether the consequences meet the statutory test: section 93.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Jewell SC | Zaparas Lawyers |
| with Ms K Galpin | ||
| For the Defendant | Mr P Jens | Solicitor to the Transport Accident Commission |
| HIS HONOUR: |
Introduction
1 Before the Court is an Originating Motion filed by the plaintiff on 27 January 2010 by which the plaintiff seeks the leave of the Court to bring a proceeding at common law pursuant to section 93 of the Transport Accident Act 1986 (“the Act”).
2 Mr Jewell SC appeared with Ms Galpin of Counsel for the plaintiff, and Mr Jens of Counsel appeared for the defendant.
3 The plaintiff’s application was based upon the premise that he had suffered a serious long-term impairment of the function of his neck.
4 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined; •
The plaintiff tendered his Court Book (“PCB”) pages 7-16; 25-50; 54-81; 92-95; 130-131; 153; 234; 275; 296-297; and 331-348: Exhibit A;
•
Letter of instruction to Mr Griffin, orthopaedic surgeon, dated 23 June 2006: Exhibit B;
• Summary of the plaintiff’s wage position with ADECCO: Exhibit C; •
Medical records of Dr Rawson, general practitioner, regarding prescription of medication: Exhibit D;
• The defendant tendered its Court Book (“DCB”) pages 8-111: Exhibit 1; • A report of Ms Angela Martin dated 30 November 2007: Exhibit 2.
Background
5 The plaintiff was born on 7 May 1974 in Albania. He is now thirty-six years of age. He has a child by a former relationship. His child lives in Italy. He is married. There are no children of the marriage.
6 The plaintiff claims that he was involved in a transport accident on 9 October 2005 which resulted in him suffering an injury to his neck. It is that transport accident, the injury to his neck and its consequences which are the basis for the application for serious injury before me.
7 The application was complicated because of the number of other injuries the plaintiff had suffered in the past, and in particular, prior and subsequent transport accidents.
The Transport Accident of 22 February 2002
8 On 22 February 2002, the plaintiff was involved in a transport accident. He was driving his car on the Princes Highway. It was struck from behind by another car.
9 The plaintiff attended Dandenong Hospital for treatment. He was subsequently discharged, after which he was treated by medical practitioners at the Chandler Road Clinic.
10 The plaintiff lodged a claim with the defendant dated 14 March 2002, claiming he had suffered an injury to his neck.[1]
[1] DCB 23-32
11 At the time of the transport accident, the plaintiff was registered with a labour hire firm known as Adecco. He firstly worked with Nubrick, and then with ACI, where he was working when the transport accident occurred.
12 The plaintiff was certified as unfit for work for about two weeks and then returned to work with ACI, the injuries he suffered in the transport accident having resolved completely.
The Industrial Accident of 15 May 2003
13 On 15 May 2003, the plaintiff injured his back in the course of his employment with ACI. The injury occurred when he was engaged in an episode of lifting. He was referred by ACI to see a medical practitioner. He later saw Dr Rawson at the Chandler Road Clinic.
14 The plaintiff made a claim for compensation. It was accepted. He subsequently received weekly payment of compensation. He did not return to work with ACI.
15 The plaintiff maintained his registration with Adecco. In about the middle of 2004, he commenced a degree course in computers which ended when he failed an exam. He returned to Adecco, which found him work in August 2004. He maintained that employment until 10 May 2005 when he was involved in another transport accident.
The Transport Accident of 10 May 2005
16 On 10 May 2005, the plaintiff was riding a motorcycle on Cheltenham Road. Dandenong South, when the motorcycle entered onto loose gravel on the edge of the road and he lost control of the motorcycle, was rendered unconscious and taken by ambulance to Dandenong Hospital.
17 According to the report of Dr Rawson, the plaintiff was admitted to the Dandenong Hospital. He was diagnosed as suffering from a closed head injury, a fracture of his right clavicle and other minor injuries.[2]
[2] PCB 29
18 The plaintiff was referred to Mr Richardson, orthopaedic surgeon, for treatment for the fracture of his right clavicle. The plaintiff first saw Mr Richardson on 23 May 2005. Mr Richardson advised the plaintiff to undergo surgery.
19 On 31 May 2005, Mr Richardson performed an open reduction and internal fixation of the plaintiff’s right mid shaft clavicular fracture. A subsequent x-ray demonstrated that the fracture had united. Mr Richardson subsequently reviewed the plaintiff on 16 June 2005 and 22 September 2005.
20 The next review by Mr Richardson was on 5 December 2005. On that occasion the plaintiff gave a history of being involved in a subsequent transport accident on 9 October 2005, that is, the transport accident upon which this application is based.
21 Mr Richardson was concerned that the transport accident of 9 October 2005 might have caused some damage to the plaintiff’s right clavicle. As a precaution, he referred the plaintiff to have an x-ray and subsequently, an MRI scan. The plain x-ray demonstrated very good healing of the fracture of the clavicle with no sign of further injury.
22 However, what motivated Mr Richardson to undertake an MRI scan was the plaintiff’s complaints that his right shoulder was quite stiff and painful. It would appear that the MRI scan not only involved scanning of the plaintiff’s right shoulder but also of his neck. That is evident from the observation made by Mr Richardson that the MRI scan showed no significant ligamentous or disc problems in the plaintiff’s neck.
23 The balance of the treatment provided by Mr Richardson was a further review on 22 May 2006. He subsequently removed the clavicular pin from the plaintiff’s clavicle on 21 July 2006. A post-operative x-ray demonstrated that the fracture had united perfectly.
24 Mr Richardson last reviewed the plaintiff on 31 July 2006. On a clinical basis he could see no problems with the plaintiff’s right shoulder. He observed that the plaintiff had a good range of movement in his right shoulder. He encouraged him to have further sessions of physiotherapy and to undertake gym work to mobilise his right shoulder.[3]
[3] PCB 25-26
25 The plaintiff lodged a claim with the defendant dated 3 May 2005.[4] He stated that he suffered injuries to his right clavicle, bruising and skin scraped off his right hand, requiring plastic surgery.
[4] DCB 35-48
The Transport Accident of 9 October 2005
26 On 9 October 2005, the plaintiff was driving his car along Springvale Road at about 9:30 pm. A four-wheel-drive vehicle turned through a median strip across the path of the plaintiff’s vehicle. The plaintiff was in the centre lane of three through lanes. He applied the brakes of his vehicle and swerved to his left. He struck a light pole.
27 The plaintiff did not lose consciousness. He said that he struck his head against the windscreen despite the fact that he was wearing a seatbelt. He claimed that he suffered an injury to his neck which now has consequences in terms of pain and suffering and economic disadvantage which, he says, meet the statutory test.
28 However, what emerged was that the plaintiff was in receipt of no-fault payments from the defendant as a result of the injuries which he suffered in a transport accident on 5 May 2005. He did not disclose the neck injury until a considerable time after the occurrence of the transport accident of 9 October 2005. His reasons for not doing so were that he did not want to complicate his earlier claim and receipt of benefits for the transport accident of 5 May 2005.
The Events Following 9 October 2005
29 Dr Rawson was the plaintiff’s principle treating medical practitioner in 2005, and indeed, is to the present time.
30 The first occasion on which the plaintiff disclosed to Dr Rawson that he claimed he had suffered a major neck injury in the transport accident of 9 October 2005 was when he saw her on 30 April 2007, which is approximately eighteen months after the occurrence of the transport accident.
31 In Dr Rawson’s report dated 17 June 2008, she described the consultation on 30 April 2007 as follows:
“On 30/4/07 Arlind saw me complaining of increasing pain in his neck in addition to the right shoulder girdle pain. He also had paraesthesia in both hands medially and little fingers which is in the distribution of the ulnar nerve or T1 dermatome. I ordered an MRI of his cervical spine which showed mild degenerative changes and a minor right C5-6 para central disc bulge that was causing minimal indentation to the ventral aspect of the cervical cord … .”[5]
[5] PCB 30. This corresponds with Dr Rawson’s clinical notes at PCB 86
32 The plaintiff maintained that he had suffered from neck pain from the time of the occurrence of the transport accident of 9 October 2005. He said that what prompted him to finally consult Dr Rawson and disclose the occurrence of the neck injury was the fact that the initial neck pain increased to the point where he needed to obtain medical treatment because of its increasing severity.
33 However, Mr Jens submitted what is inexplicable is that the plaintiff was examined contemporaneously by a number of medical practitioners yet he failed to disclose the transport accident when there was no basis for him to reasonably hold the opinion that disclosing the occurrence of the neck injury would in some way complicate his receipt of no-fault benefits arising from the transport accident of 5 May 2005.
34 Firstly, Mr Jens referred to the fact that the plaintiff attended the Chandler Road Medical Clinic three days after the transport accident, and on 12 October 2005. He could have, but did not, disclose the occurrence of the transport accident nor any neck injury which he claimed he had suffered as a result of it.
35 The plaintiff saw Dr Parathira, general practitioner, on 12 October 2005.[6] In Dr Rawson’s report dated 17 June 2008, she described the consultation as follows:
“… He complained of an aggravation of his right shoulder pain from the previous accident. He was prescribed panadeine forte for pain and given a TAC certificate to be off work until 3/12/05. He received physiotherapy and commenced voltaren but made very little improvement. Over the next few months Arlind continued to present with pain in the region of the right scapula and shoulder … .”[7]
[6] Dr Rawson mistakenly described the date of consultation as “11/11 2005” in her report dated 17 June 2008 at PCB 29
[7] PCB 29. This corresponds with Dr Parathira’s clinical notes at PCB 93
36 It is odd that the plaintiff complained of an aggravation of right shoulder pain, but for some reason thought that not disclosing his neck injury was some way of protecting his receipt of no-fault benefits, and it is especially odd that he failed to disclose the same to a medical practitioner from whom he was seeking medical treatment.
37 It was not long after the consultation with Dr Parathira that he was reviewed by Mr Richardson, who took the precautionary step of investigating the site of the surgery by referring the plaintiff to have radiological investigations.[8]
[8] See paragraphs 21-22 above
38 Mr Jens also submitted that it was not as if the plaintiff did not have ample opportunity to disclose the occurrence of the neck injury to his own treating medical practitioners, but also to Mr Griffin, orthopaedic surgeon, who examined the plaintiff on 17 August 2006 for the defendant.
39 Mr Griffin examined the plaintiff relevant to the injuries he suffered in the transport accident of 5 May 2005. He examined him after the transport accident of 9 October 2005 had occurred.
40 On examination, Mr Griffin noted some slight restriction of movement in the plaintiff’s neck and right shoulder. He recorded that the plaintiff denied receiving any treatment for any other injuries or accidents. His diagnosis included a possible soft tissue neck injury.[9]
[9] DCB74-78
41 The plaintiff was examined by Dr Hocking, occupational physician, who examined him on 21 August 2006 for the defendant. Again, this was an examination relevant to the transport accident of 5 May 2005.
42 Dr Hocking took a history from the plaintiff that in October 2005 he was driving a car which hit a pole. He also recorded that the transport accident:
“… worsened his shoulder and neck problems.”
43 The history taken by Dr Hocking logically means that the plaintiff was telling him that he had neck problems before the transport accident of 9 October 2005.
44 Dr Hocking found tenderness bilaterally in the plaintiff’s neck and limitation of all neck movements due to pain.[10] He diagnosed a soft tissue strain causing neck pain and headaches.[11] He considered that the plaintiff’s prognosis was reasonably good and observed that the plaintiff’s perception of pain was worsened by what he considered to be an anxiety/depressive state.[12]
[10] Especially at DCB 82
[11] DCB 83
[12] DCB 84
45 Dr Hocking examined the plaintiff again on 3 July 2007. On that occasion, he found nearly full movements of the plaintiff’s neck on examination which he considered to be an improvement when compared with the result of his previous examination.[13]
[13] DCB 87
46 The plaintiff was referred to Mr Melamed, physiotherapist. In his report dated 6 June 2008, he referred to the transport accident of 9 October 2005. He took a history from the plaintiff that he was suffering increased neck pain, travelling down the right shoulder blade, right shoulder and down into the right arm with pins and needles and numbness in his right hand and fingers.
47 The history taken by Mr Melamed is just like the history taken by Dr Hocking. It logically means that the plaintiff was telling him that he had suffered from neck problems before the transport accident on 9 October 2005. The plaintiff also gave a similar history to Ms Angela Martin, psychologist, who recorded in her report dated 30 June 2008 that as a result of the transport accident of 9 October 2005, the plaintiff had:
“… further aggravated his neck injury.”[14]
[14] PCB 41
48 Dr Rawson was doubtless asked for her opinion regarding the cause of the plaintiff’s neck injury. In considering the question, she was of the following opinion:
“… The neck problems seem to have started after the second accident and he certainly presented with symptoms of depression soon after the second accident.”[15]
[15] PCB 31
49 Dr Rawson use the word “seem” which I conclude she used in exercising care in expressing her opinion. She considered the question of the cause of the neck injury again in her report dated 23 March 2009. By that time she was exposed to a CT scan taken at the Dandenong Hospital on the day of the transport accident of 10 May 2005. She was of the opinion that it disclosed the possibility of a rotary subluxation of C1 on C2, however, when contrasted with a follow-up plain x-ray, there was no evidence of any subluxation.[16]
[16] PCB 33-34
50 Dr Rawson appears to have obtained a more extensive history of the onset of the plaintiff’s neck injury when she composed the report dated 23 March 2009. At that stage, the plaintiff told her that his neck pain was worse after the transport accident of 9 October 2005.[17]
[17] PCB 34
51 From Dr Rawson’s point of view, attempting to ascribe contribution to the transport accidents of 10 May 2005 and 9 October 2005 was made all the more difficult when the plaintiff presented and told her that he had been involved in a third transport accident on 13 February 2009. She ultimately concluded that the plaintiff’s neck injury was consistent with the three transport accidents.[18]
[18] PCB 36-37
52 Dr Rawson referred the plaintiff to Mr Xenos, neurosurgeon. The plaintiff saw him on one occasion on 9 August 2007. Mr Xenos obtained a history of the transport accidents of 10 May 2005 and 9 October 2005.
53 Mr Xenos appears to have been totally perplexed by the plaintiff’s presentation. He said as much by describing the plaintiff’s presentation as somewhat odd. He was unable to elicit any specific focal tenderness in the plaintiff’s neck or trapezius shoulder muscle areas on examination. He told the plaintiff that he had difficulty pulling the clinical situation together.
54 He expressed the following opinion:
“The patient’s history, examination findings and investigation results have been dealt with in the body of the report. The patient’s diagnosis can be summarised as cervical spondylosis with a small para central right C5-6 disc bulge. The patient’s clinical symptoms were difficult to correlate with the radiology. In particular, he had non-specific neck and shoulder pain which did sound muscular in nature, and probably relates to the cervical spondylosis and no doubt the motor vehicle accidents did aggravate this situation. However, the only neurological concerns that I had, was the paraesthesia in the medial two digits of both hands. A C5- 6 disc prolapse causing some nerve inflammation would not be causing that problem. Thus, it was either an atypical presentation, or indeed the patient possibly had ulnar nerve dysfunction at the elbows. I’m unclear if that’s been investigated any further.”[19]
[19] PCB 44 and 45
55 Mr Xenos was asked to determine which of the two transport accidents were responsible for the complaints made by the plaintiff. All he said in answer was to state what the plaintiff had told him, which was that his neck complaint and chronic pain problem was worse after the transport accident of 9 October 2005. This is hardly a clinical diagnosis.[20]
[20] PCB 45
56 Dr Rawson referred the plaintiff to Dr Palit, rehabilitation physician. The plaintiff saw him on one occasion on 26 March 2009. The plaintiff told him that the transport accident of 9 October 2005 resulted in a whiplash injury to his neck which was causing him the greatest disability. The plaintiff also told him that the transport accident of 13 February 2009 had exacerbated his neck pain.
57 Dr Palit found restriction of all of the plaintiff’s neck movements on examination. He obtained a history of the neurological problems similar to those recorded by Mr Xenos. He was not convinced that they were of any significance.
58 Dr Palit offered the plaintiff treatment at his rehabilitation clinic. The plaintiff declined the offer. Dr Palit’s opinion is rather general in nature. He described the injury as a whiplash injury resulting in the plaintiff suffering chronic pain. He referred to the plaintiff having suffered chronic neck pain since 2005, in other words, he did not differentiate between the two transport accidents which occurred in that year, although he did obtain a history that it was the transport accident of 9 October 2005 which the plaintiff told him was a major cause of his neck injury.
59 Dr Palit did not believe that the plaintiff’s chronic neck pain would resolve in the foreseeable future. He considered that the plaintiff was unlikely to be able to sustain employment.[21]
[21] PCB 49
Medico-Legal Assessments
60 Mr Flanc, vascular surgeon, examined the plaintiff on 18 August 2008. He obtained a history of the occurrence of the transport accidents on 5 May 2005 and 9 October 2005. He was of the opinion that the plaintiff’s neck injury was mainly related to the second of those transport accidents. He described it as an aggravation of pre-existing degenerative changes in the plaintiff’s neck which were made symptomatic by that transport accident.[22]
[22] PCB 65
61 However, Mr Flanc did not say very much about the gravity of the symptoms of injury due to the transport accident of 9 October 2005 which is of any real assistance to me.
62 Mr Grossbard, orthopaedic surgeon, examined the plaintiff on 16 September 2008. He was of the opinion that the plaintiff suffered a neck injury in the transport accident which occurred on 10 May 2005 which was then aggravated by the transport accident of 9 October 2005. Otherwise he did not say much about the gravity of the symptoms of the injury which is of any real assistance to me.
63 Both Mr Flanc and Mr Grossbard were under the impression that the transport accident of 9 October 2005 was a major incident in which the plaintiff struck his head on the windscreen of his car and was aware of immediate pain in his neck, following which he attended a medical practitioner soon thereafter, no doubt assuming that the plaintiff obtained treatment for an injury to his neck. It seems to me that the opinions were significantly influenced by that history.
64 Mr O’Brien, orthopaedic surgeon, examined the plaintiff on 10 November 2009. Mr O’Brien obtained a history from the plaintiff of all three transport accidents. However, the plaintiff did not tell Mr O’Brien that he had suffered a neck injury in the transport accident of 10 May 2005. He told him that following the transport accident of 9 October 2005, he was aware of quite severe neck pain, and he added that it had not been present following the transport accident of 10 May 2005, in other words, that he had suffered no neck injury in that transport accident. He told him that following the transport accident of 13 February 2009, he was aware of increased neck pain.[23]
[23] DCB 104-105
65 Following his examination of the plaintiff, Mr O’Brien formed the opinion that there was a possibility of minor organic pathology in the plaintiff’s neck and shoulder, but the pain complained of by the plaintiff and the variability of the signs observed by Mr O’Brien led him to conclude that there was a substantial non-organic component to the plaintiff’s presentation which he considered deserved the description “Chronic Pain Syndrome”.
66 Mr O’Brien concluded by saying that he considered the plaintiff’s prognosis was poor. Furthermore, it was his opinion that the plaintiff had a well- established Chronic Pain Syndrome which was likely be the source of major ongoing symptoms for the plaintiff.[24]
[24] DCB 108-109
The Plaintiff’s Evidence
67 The plaintiff swore an affidavit on 7 December 2009 which he adopted as a true and correct account of his evidence-in-chief.[25]
[25] PCB 7-16
68 The plaintiff described each incident which had occurred which led to him suffering an injury, including the two critically important transport accidents which occurred on 10 May 2005 and 9 October 2005.
69 Following the occurrence of the transport accident of 10 May 2005, the plaintiff concentrated on describing the injury to his right shoulder. He said nothing about suffering a neck injury; however, when he described the aftermath of the transport accident of 9 October 2005, he said the following:
“The pain in my right shoulder and click particularly my neck was
worse.”[26]
[26] DCB 9
70 From that evidence I infer that the plaintiff’s case is that he did suffer an injury to his neck in the transport accident of 10 May 2005. The plaintiff then referred to seeing Dr Parathira on 11 November 2005, at which time he alleges he informed Dr Parathira about the transport accident of 9 October 2005, and of particular importance, that he informed her of a worsening pain. However, the clinical notes of Dr Parathira refer to the transport accident, but refer to an aggravation of right shoulder pain and nothing more.
71 The plaintiff then referred to becoming increasingly anxious and depressed because of his ongoing neck and right shoulder pain in 2006, and then the onset of numbness in his hands in 2007, after which he was referred to Mr Xenos.
72 The plaintiff then referred to pain in his neck spreading into his head, shoulders and shoulder blades, having a tight tense feeling in his neck all the time and experiencing daily headaches. His attempts to obtain comfort from the pain in the way he adopts various postures. He referred to an increase in pain when he moved his head too quickly; having to turn his whole body from side to side because he is liable to turn his neck and suffering increased pain on bumpy roads when he suffers vibrational jarring in his body. He referred to walking more slowly, being conscious of tripping or stumbling should he jar his neck. He referred to difficulty sleeping. He referred to having morning neck stiffness and pain initially.
73 The plaintiff referred to his enjoyment of motorcycle riding and his interest in purchasing and renovating motorcycles. His interest in soccer, and his inability to play even social club soccer. His increase in weight from 80 to 100 kilograms. His loss of interest in socialising. His loss of interest in having a sexual relationship with his wife, and having lost self-esteem and being more upset and anxious since he suffered a neck injury.
74 Mr Jens cross-examined the plaintiff for some hours. Much of the cross- examination concentrated on the plaintiff’s purchase and attempts at renovating motorcycles; whether he had in fact registered with two soccer clubs and had in fact played soccer at a competitive level with those clubs since 2005, and that his claim that he has suffered a neck injury in the transport accident of 9 October 2005 of significant magnitude is a concoction designed to revive a money claim following the cessation of his benefits which he was entitled to following the occurrence of the transport accident of 5 May 2005.
My Findings
75 The evidence in support of the plaintiff’s claim that he suffered a neck injury in the transport accident of 9 October 2005 and that it meets the statutory test for serious injury is reasonably clear when I have regard only to his affidavit.
76 However, when all the evidence is considered, the picture is one of inconsistency, and raises doubt in my mind about the plaintiff’s credit, and whether he suffered a neck injury in the transport accident of 9 October 2005, and if he did, whether it is of any great significance.
77 I think it is more likely than not that the plaintiff suffered some degree of neck injury in the transport accident of 5 May 2005; however, the plaintiff’s evidence, and the medical evidence, do not permit me to reach a satisfactory conclusion of the magnitude of his neck injury.
78 Reference to the plaintiff’s neck injury received very little airplay until after the transport accident of 9 October 2005. There is evidence from the plaintiff that his neck pain increased after that transport accident, and that he did inform some medical practitioners that it caused an increase in his neck pain.
79 It is odd that if the plaintiff hit his head against the windscreen of his car, that he did not say anything to Dr Parathira about that when he saw her three days later. It is odd that for some reason he had in mind that if he disclosed the transport accident of 9 October 2005 and made a claim, that it would complicate his receipt of benefits arising out of the transport accident of 5 May 2005. Despite saying that, there was no explanation given by him as to what that complication might have been, and in my opinion, there would have been none.
80 I think it is unlikely that the plaintiff struck his head on the windscreen of his car. If he was wearing a seatbelt then that would be an unlikely event. The real reason why I think it is unlikely is that if he struck his head which caused him the quite severe neck pain he described to Mr O’Brien, then his a lack of medical treatment following the event suggests that it was not as bad as he described to Mr O’Brien.
81 The plaintiff certainly had physiotherapy treatment, but the report of Mr Melamed puts the magnitude of the plaintiff’s neck pain as increased neck pain with apparent neurological problems. However, Mr Xenos discounted the apparent neurological problems as being related to his neck injury, and Dr Palit considered them to be of little significance.
82 I think there is something in the submission made by Mr Jens that on other occasions when the plaintiff had suffered injury he made a claim and received benefits. He was not someone ignorant of processes by which claims could be made where there was a justifiable basis for such a claim, and the opportunity to receive benefits. Mr Jens submitted that the reason why the plaintiff did not make a claim was because there was no justification for it relevant to any neck injury, and when the claim was made it was limited to seatbelt bruising and shoulder pain.[27]
[27] DCB 12
83 The medical evidence which is relatively contemporaneous with the transport accident of 9 October 2005 is unconvincing that the plaintiff suffered an injury to his neck of any great significance. When the plaintiff saw Mr Richardson, Mr Griffin and Dr Hocking, the neck injury was not something which the plaintiff was complaining about in any significant way.
84 However, I think it is likely that the plaintiff did suffer some increased pain in his neck following the occurrence of the transport accident of 9 October 2005; however, the evidence suggests that it was negligible at best given the plaintiff’s lack of complaints and lack of medical treatment save for physiotherapy by Mr Melamed, whose report does not convince me that while he was treating the plaintiff, it was for much more than negligible neck pain.
85 The real problem that I see which has driven me to conclude that the plaintiff’s proceeding must be dismissed is the fact that the medical practitioners who became aware of the complaints made by the plaintiff of a neck injury, after it was revealed to Dr Rawson in early 2007, have been given unreliable histories by the plaintiff, but even if I forgive that, there is insufficient persuasive evidence to demonstrate how I am to distinguish the contribution of the transport accidents to the plaintiff’s neck injury.
86 The way in which that issue was dealt with by Mr Flanc and Mr Grossbard is a case in point. Each obtained a history of the transport accidents, but when it came to distinguishing one from the other, they did not undertake the task satisfactorily.
87 Furthermore, neither did the plaintiff. He certainly did not do so in his affidavits, because after referring to the three transport accidents he then referred to the consequences to him of the neck injury. It must be remembered that in his affidavit, the plaintiff essentially said that he suffered neck pain in the transport accident of 5 May 2005 which was increased as a result of the transport accident of 9 October 2005, and then worsened over time. He did say that the transport accident of 13 February 2009 caused a temporary aggravation, but not all the medical practitioners were given that history when they were faced with three transport accidents which had potentially contributed to the neck injury.
Conclusion
88 Whilst I have had some doubts about the plaintiff’s credit, I have preferred to ignore those issues and to look solely at the question of causation given that this is a gateway application where my obligation is to look at all of the evidence and ask whether the plaintiff suffered an injury as a result of a particular transport accident and whether that injury has consequences which meet the statutory test.
89 I think the plaintiff’s application must be dismissed. I am not satisfied that he suffered a neck injury of any particular significance in the transport accident of 9 October 2005.
90 I am not able to distinguish with any clarity the contribution to the neck injury of the transport accidents of 5 May 2005 and 9 October 2005.
91 The contemporaneous evidence of Dr Parathira, Mr Richardson, Mr Griffin and Dr Hocking point to the plaintiff having a negligible problem with his neck, and I again repeat, I am not satisfied that Mr Melamed’s report really advances the plaintiff’s case very far.
92 Subsequently, the plaintiff became affected by a psychological disorder which was very evident when Mr Xenos examined him, and has been commented upon by Mr O’Brien very recently.
93 Whilst it is true that the psychological disorder arising out of a physical injury can be taken into account as one of the consequences of the physical injury, that cannot be so where a psychological disorder is producing the physical symptoms. The latter seems to be the case here, given the observations of Mr Xenos and Mr O’Brien.
94 Mr Jewell and Ms Galpin provided me with an outline of submissions in which they have canvassed all of the issues which arise for my consideration. I have considered all of those submissions, but in the end, despite the fact that there is evidence supportive of the plaintiff’s case, it is what the transport accident of 9 October 2005 caused which must be the starting point, not the latter opinions of examining medical practitioners who were then given a history by the plaintiff more favourably implicating that transport accident as the real cause of his neck injury. As I have said, I am not convinced that is the case.
95 On the basis of the foregoing reasons, findings and conclusions, I dismiss the plaintiff’s Originating Motion.
96 After discussion with Counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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