Rezaee v Transport Accident Commission
[2021] VCC 1128
•17 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-02652
| RAHMATULLAH REZAEE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 and 2 March 2021 | |
DATE OF JUDGMENT: | 17 August 2021 | |
CASE MAY BE CITED AS: | Rezaee v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1128 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Transport Accident Commission v Katanas [2017] HCA 32; Humphries & Anor v Poljak [1992] 2 VR 129; Richards v Wylie (2000) 1 VR 79; Randhawa v Transport Accident Commission [2021] VSCA 135; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Church v Echuca Regional Health [2008] VSCA 153; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Jones v Dunkel [1959] HCA 8
Judgment: Leave granted under paragraph (c).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T S Monti QC with Mr S J Carson | Maurice Blackburn Lawyers |
| For the Defendant | Mr J Valiotis with Mr A J Macaskill | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1Rahmatullah Rezaee seeks leave to start a proceeding for the recovery of damages under s93 of the Transport Accident Act 1986. He says he has suffered a “serious injury” as a result of a transport accident. The transport accident occurred as long ago as 16 September 2014. The alleged injury is to his spine.
2Mr Rezaee relies upon paragraphs (a) and (c) of the definition of “serious injury”. For paragraph (a), “serious injury” means serious long-term impairment or loss of a body function, and for paragraph (c), it means severe long-term mental or severe long-term behavioural disturbance or disorder.
Circumstances
3Mr Rezaee is now thirty-four. He was born and raised in East Afghanistan. He is the third of four children of a Hazara family.
4Until he was fourteen or fifteen, his time in Afghanistan was very happy. However, his life fell apart when his father and older brother were taken by the Taliban. His father was never seen again and is thought to be dead. His brother survived and made his way to Australia.
5In 1999, his mother and the three remaining children fled from Afghanistan, went to Teheran and lived in a camp. From there, the family went to Pakistan.
6Despite these upheavals, Mr Rezaee is reasonably well educated, having completed two years of an engineering degree in Pakistan. His course was stopped because of his status as an illegal immigrant.[1]
[1]Report of Mr Gary Speck dated 8 February 2021 at p 5
7In 2008, he found out his older brother was living in Australia. In the same year, he managed to come to this country. His mother and older sister remained in Pakistan. His mother died in about 2014. His sister married and lives in Quetta.
8After arriving in Australia, he worked in abattoirs in New South Wales and an abattoir in Tatura, where he was a Grade 3, and sometimes a Grade 4, boner.[2]
[2]Grade 4 is superior to Grade 3
9He describes the transport accident as follows:[3]
“... I was driving across the intersection of Ferguson and Craven Roads, East Tatura. ... It was about 3.45 in the afternoon. The driver of a truck ... failed to obey a give way sign and entered the intersection, colliding with my vehicle.
I believe that the truck was travelling at high speed. The accident happened very quickly. I tried to brake but didn’t have time to stop. I was thrown around quite violently in the car and was certainly very badly shaken as a result. My car was extensively damaged and I was taken by ambulance to the Goulburn Valley Hospital.”
[3]Affidavit sworn 22 August 2017 at paragraphs [7] and [8]
10To a psychiatrist, his description of the accident and its immediate aftermath is more graphic:[4]
“He said that he was driving at around 100km/hr when a truck was stationary entering from the right. He said that the truck driver saw a vehicle pass coming from the opposite side to the claimant but did not see him coming and started to pull out and gave the claimant very little time to brake.”
[4]Report of Matthew Tagkalidis dated 5 November 2020 at p 2
11He said that his car went underneath the truck and that as it did so, the truck’s back wheels went over his bonnet and that his car stopped abruptly. He said that in the moment this occurred, “I had accepted the fate” and that he first saw his mother’s face and then his wife’s face, and that it was “very quick” and that he lost consciousness.
12As an immediate result of the accident, he felt pain in his ribs, right forearm and lower back. There was bruising to his head. He remained in hospital overnight. Of the painful areas only the lower back continued. It was constant with flare-ups.
13His car, a 2001 Toyota Camry, was so damaged as to be uneconomic to repair.
Medical treatment
Dr Sonia Romano
14In about November 2014, Mr Rezaee sought treatment from a Shepparton osteopath, Dr Sonia Romano. Among other things, she had found he had an antalgic gait, very painful and restricted range of active movement of the lumbar spine, and muscular spasming of certain muscle groups. Her provisional diagnosis was an acute posterior or posterolateral lumbar disc bulge and restricted range of active movement of the lumbar spine, compressing the L3-S1 nerve roots and localised muscle spasm.
Dr Mazen Albatat
15On 15 December 2014, Ms Romano referred him to another general practitioner, Dr Mazen Albatat, seeking pharmaceutical intervention and further investigation. She attached CT scans, saying they did not indicate the severity or location of the disc injury or trauma.
16On 9 January 2015, Dr Albatat arranged CT scans of the lumbar spine. The overall conclusion of the radiologist was the state of the lumbar spine was within normal limits.
Dr Talib Tahir
17Dr Albatat referred Mr Rezaee to a rheumatologist, Dr Talib Tahir. Dr Tahir examined Mr Rezaee on 10 and 15 March and 28 April 2015. Between those visits, on 31 March 2015, MRI scans of the lumbar spine were performed. The radiologist’s conclusion was there was no evidence of significant past lumbar spine injury, early disc bulges at L4‑5 and L5‑S1, and no central canal or exiting neural foraminal stenosis at any lumbar disc level.
18To Dr Tahir, the scans revealed degenerative disc disease at L4‑5 and L5‑S1. He had a long discussion with Mr Rezaee about the treatment of degenerative disc disease, with non-weight-bearing exercise being the cornerstone of such treatment. He also spoke of other options including a local cortisone injection. Mr Rezaee exercised a few times but stopped when it did not help his pain.
Mr Yagnesh Vellore
19Another general practitioner at the same clinic, Dr Bassam Jallo, then referred Mr Rezaee to a neurosurgeon, Mr Yagnesh Vellore, whom he saw on 24 February 2016. Mr Vellore did not find any focal neurological deficit in the lower limbs but noted Mr Rezaee was severely restricted due to his significant levels of pain. He also noted the March 2015 MRI scans did not show any neural impingement. Mr Vellore recommended Mr Rezaee see a pain physician, Dr Tim Hucker, saying:[5]
“I have referred him on to a pain specialist to exclude any psychological or psychosocial factors and to diagnose the presence of a chronic pain syndrome.”
[5]Report to the defendant dated 15 March 2016
20Living in Shepparton, Mr Rezaee needed to travel to Melbourne to see Dr Hucker, which increased his pain significantly.
Dr Tim Hucker
21Dr Hucker, a pain specialist and anaesthetist, examined Mr Rezaee on 8 June 2016. He recommended to Mr Rezaee’s general practitioner a trial of Norflex, starting at 50 milligrams per day and rising to 100 milligrams up to three times per day, commenting:[6]
“This potent antispasmodic will hopefully be helpful in reducing his muscle spasm. As soon as he starts reducing the muscle spasm and starts exercising then hopefully he will start a chain of improvement.”
[6]Report dated 8 June 2015
22Since Dr Hucker did not have a pain-management program attached to his practice, he suggested the general practitioner arrange for Mr Rezaee to attend a local pain-management program.
23On 11 July 2016, Dr Albatat referred Mr Rezaee to Goulburn Valley Health Chronic Management in Shepparton.[7] Despite the referral, Mr Rezaee did not undertake any pain-management program.
[7]Letter of referral dated 11 July 2016
24In January 2017, Dr Jallo referred Mr Rezaee to another neurosurgeon, Mr Nicholas Maartens. Although Mr Rezaee attended upon Mr Maartens, he does not remember what he was told. There is no report from Mr Maartens in the court books.
25In September 2017, Dr Bassam Jallo referred Mr Rezaee to Roger Barnes, a psychologist in Shepparton. Mr Rezaee saw him once or twice. Mr Barnes’ treatment involved using the imagination, which Mr Rezaee considered unhelpful and did not try:[8]
A:“Like to go – think that you didn’t have an accident, think that you don’t – imagine you don’t have pain in your back, imagination doesn’t help.
Q:So positive thinking sort of thing?---
A:Yes, imagination doesn’t help.”
[8]Transcript at p 37
Dr Tejraj Tawde
26On 27 November 2018, Mr Rezaee was interviewed by a Shepparton psychiatrist, Dr Tejraj Tawde.[9] After taking a detailed history and his mental state examination, Dr Tawde diagnosed Mr Rezaee as suffering from Post-Traumatic Stress Disorder. He made a series of recommendations for treatment including medicines and psychotherapy.
[9]Report dated 27 November 2018
27In a subsequent report to Mr Rezaee’s solicitors, Dr Tawde advised he had seen Mr Rezaee only once.[10] In answer to a question from the mental health perspective, he considered him capable of working “in the fields matching his skill set”. In fact, working would benefit him therapeutically. As to prognosis, he gave none but pointed out those factors which would improve his mental health.
[10]Report dated 6 March 2019
28Mr Rezaee said he did not see Dr Tawde again because he could not afford the fee for each attendance. When queried about the availability of Medicare to help, he said he did not know about that source of help.
29In 2019, Mr Rezaee attempted suicide when he took a large amount of medicine. He was flown from Shepparton to the Sunshine Hospital. He was in a coma for several days. In cross-examination, it was suggested he had not attempted suicide but rather suffered from the effects of taking illicit drugs (amphetamine, methylamphetamine and cannabis), to which he said he could not remember taking any of those drugs on the night of the attempt.
Zainab Rezaee
30Zainab Rezaee is Mr Rezaee’s wife. She swore an affidavit in this proceeding.[11] She was not examined orally. She is now a full-time student.
[11]Affidavit sworn on 16 February 2021
31They grew up in the same village in Afghanistan. They were engaged in 2012 but lived apart after their marriage until she arrived in Australia in about March 2016.
32Her affidavit contrasts his presentation before and after the accident. It must be seen within the limits of separation. Her observations after the accident must largely relate to those made since her arrival in Australia.
33She noted:
(a) her husband is impatient, easily upset, frequently angry and always stressed and worried. He worries about his inability to work and provide an income for them;
(b) he has difficulty in going to sleep;
(c) she sees him in pain regularly and she regularly gives him massages;
(d) before the accident, they had an active social life. It has reduced since the accident and they have lost contact with friends;
(e) although apparently a non-drinker before the accident, he now drinks alcohol in considerable quantities. He does so to reduce his stress and pain. Her husband has worked hard to reduce his drinking and recently stopped;
(f) she is aware of him taking pain-relieving medicine.
Current position
34Mr Rezaee lives in Shepparton with his wife. They have no children. Both receive Centrelink benefits. Their combined benefit is $500 per week. They live in a flat, pay $220 per week in rent, leaving $280 per week for other expenses.
35Mr Rezaee can speak and read English well. Apart from English, he can speak five languages.
36Once he drank heavily but has now stopped. For a few months, he substituted alcohol for Tramadol.
37Before the accident, he smoked occasionally. Now he smokes five or six cigarettes each day.
Employment
38After the accident, Mr Rezaee returned to work on light duties. But he coped with the work for only a few hours.
39He registered with an employment agent, Personnel Group. It referred him to a business called Specsavers to work in customer service. However, this job lasted only a few hours. He left because he could not cope with the standing, and the Tramadol made him dizzy.
40Mr Rezaee then obtained work as a packer. Unlike the job at Specsavers, this job involved sitting and lifting. It lasted six weeks when he was sacked for being unable to do the work.
41His next job was working for a friend who is a tiler. He worked about twenty hours over a few days and was paid $200. The job involved measuring with a tape measure and boxing and unboxing tiles. He stopped in late 2020.
42Mr Rezaee is still looking for employment. In 2020, he obtained a licence to drive a forklift but could not find work as a forklift driver because of the medication he takes. There was an interesting line of cross-examination about interpreting arising from the interpreting help he gave an acquaintance with a personal loan from a bank. However, there are no full-time positions for interpreters in Shepparton in his main language. The interpreting services are in Melbourne.
Pain
43In August 2017, Mr Rezaee described the condition of his lower back:[12]
“Despite the passage of some time now, I have struggled with back pain ever since the accident. The pain is concentrated in my lower back and is flared up by most activity. Simple bending or twisting type motions involving my lower back are very painful.”
[12]Affidavit sworn 22 August 2017 at paragraph [15]
44In January 2021, he suffered from chronic low back pain. From time to time, he felt “as though I have weakness in my legs”. Also, from time to time, he will wake with a stiff and painful neck. His pain has remained the same since the accident, neither improving nor worsening.
45On a scale to 10, the level of pain is a constant 7 or 8 but worsens with activity sometimes. Tramadol ensures the level of his pain is 7 or 8 and not higher. He takes Tramadol every day:[13]
Q:“But you’re also taking Tramadol every day which means every day you get to nine or ten?---
A:Yes, when I wake up in the morning it is really bad, my whole body is jammed, my neck is jammed. So I have to take Tramadol to release the jam of my neck and the back.”
[13]Transcript at p 39
46His level of pain is worsened with bending, even bending to put on his socks and shoes. It is worsened by heavy lifting. The last instance of such lifting was at Tatura Abattoir when he lifted a box weighing 10 kilograms. This was in 2014. Now he can lift objects weighing 2 kilograms. Lifting, say 4 kilograms, would cause him difficulty after 10 or 20 minutes.
Medicines
47After being prescribed various pain-relieving medicines, he is now taking slow-release Tramadol, 200 mg tablets two or three times a day. He takes Tramadol for pain relief despite it making him dizzy. He also takes pregabalin or Lyrica twice a day and diazepam at night, if necessary.
48He has been taking Tramadol for a long time. He stopped taking Tramadol for about three months and substituted alcohol. It affected his digestion. He has tried to replace Tramadol with other medicines, Lyrica and Endone. He was allergic to Lyrica, and Tramadol proved more effective than Endone.
Physical restrictions
49His pain restricts his bending and he cannot lift more than ten kilograms. He cannot stand for more than an hour.
50Before his wife came to Australia, Mr Rezaee shared a flat with two other persons. When his wife arrived, the other two left. Mr Rezaee did little of the domestic duties in the flat before his wife arrived and this did not change after she arrived.
Activities
51Before the accident, Mr Rezaee was extremely fit. He worked out with friends regularly, using a punching bag and weights. He practised martial arts. These activities stopped after the accident.
52Again, before the accident, he enjoyed socialising. Now he does not mix. He does not like having to explain why he is not working.
53He has been treated by one physiotherapist. She gave him exercises to do in the water. He tried her exercises, found them painful and stopped. He does not now exercise in the way recommended by this physiotherapist.
54He is able to dress himself. His wife helps him dress when he is wearing traditional Afghani clothing. This occurs very infrequently now.
Motor vehicle
55Mr Rezaee does not now own a motor vehicle. He sold his vehicle after the accident. He has not wanted to drive since the accident. However, he has driven and committed offences of driving while his blood contained more than the prescribed concentration of alcohol. After one such offence, a condition for him being relicensed was the installation of an interlock device to his vehicle. He failed to do that properly, was detected, charged, found guilty and his licence was cancelled again. For another offence of exceeding the prescribed concentration while driving, in September 2019, Mr Rezaee’s licence was cancelled and he was disqualified from obtaining another licence for 22 months. At present, he cannot lawfully drive a motor vehicle.
56He remains fearful of driving at 100 kph because he may lose control of the vehicle. This appears to be the only aspect of driving which makes him afraid. Nevertheless, his wife owns a car and she drives him.
Psychological
57Mr Rezaee suffers from depression. He has stopped psychological counselling for it did him no good. He feels flat much of the time. He wants to be left alone. He feels guilty about his inability to provide for his wife and being a burden on her. He is frequently anxious and has occasional panic episodes. His motivation is lessened. Much of the time he is tired and lethargic. He suffers from reduced libido. He has nightmares about the accident. His memory and concentration are impaired. He is unsure of the cause, whether due to the taking of Tramadol or the effects of his depression.
58As I said earlier, his wife, Zainab, swore an affidavit. She described her husband before and after the accident. Before the accident:[14]
“... my husband was a very generous, kind and patient person. ... he was happy and active, and he enjoyed going to work to provide income for us. He also used to participate in domestic duties with me. He was fit, healthy and worked on his fitness and he was active and motivated. He worked out and did exercises regularly and we enjoyed a close and intimate relationship.”
[14]Affidavit sworn 16 February 2021 at paragraph [4]
59And after the accident:[15]
“... I have noticed large changes in my husband’s temperament. He has become impatient, is upset very easily and is frequently angry, is constantly stressed and worried and has difficulty sleeping. His distress often keeps him awake at night and often, I find him at all hours of the night watching TV as he is unable to sleep. I know he is extremely worried about not being able to work and to provide income for us.
Further, I see him in regular pain and the pain also contributes to his inability to sleep at night. To try and assist him overcome pain, I regularly provide massages for him and I encourage him with warmth and support to try and sleep.”
[15]At paragraphs [5] and [6]
Attempted suicide
60It appears this incident occurred on 9 December 2017, not 2019, relying on the notes of the Goulbourn Valley Emergency Department. It states the Glasgow Coma Scale at the scene was 3, which is a very low reading. It is unclear, because of illegibility, what his reading was when examined in the hospital. The diagnosis was altered level of consciousness and possibly a drug overdose. At least in that document, there is no mention of any particular drug.
61The level of the scale at the scene may have affected Mr Rezaee’s memory of the events leading up to the attendance, for the reading is very low.
62He told Mr Speck:[16]
“... during this period had an episode of overdosing on drugs for which he was transferred to hospital at Sunshine with what he believes was a dangerous party drug as well as alcohol.”
[16]Report dated 8 February 2021 at p 3
63In the context of speaking about medication, his wife made the ambiguous comment:
“I am also aware of him being rushed to hospital in Shepparton a couple of years ago and then being flown to Melbourne for in-patient treatment.”
64In cross-examination, he could not remember what medicines he took but denied it was amphetamines and cannabis. He was drunk. His reason was that he was “tired of living in this situation”.
65In re-examination, Mr Rezaee explained what he meant by “tired of living in this situation”:[17]
“I used to have a very active life before this accident. I was very active, I was very energetic kind of person. After this accident I don’t feel anymore energised, I don’t feel any more interest in the life, that’s why I said I was sick and tired of this situation because I’m not the same person that I used to be.”
[17]Transcript at p 81
66I accept this episode represented an attempt at suicide and not an accidental drug overdose. There is no evidence of Mr Rezaee taking illicit drugs. I would not consider the hospital’s speculation as evidence. In fact, there is his denial of the allegation. His mood was sufficiently low to set the scene for an attempt.
Medical evidence
Dr Mazen Albatat
67Dr Mazen Albatat has been Mr Rezaee’s general practitioner for many years. On 24 February 2021, he wrote a brief report to his solicitors. In response to questions asked by the solicitor, his diagnosis was back pain following the accident. He was uncertain as to Mr Rezaee’s capacity now and in the future for work. As to prognosis and his estimate of future medical treatment, he seems to have answered the second part of the question by saying Mr Rezaee needs further assessment with specialists. He noted Mr Rezaee takes analgesics and needs further physiotherapy and rheumatological assessments and “pain clinic” referral.
Mr Peter Gard
68Mr Peter Gard is an orthopaedic surgeon, who examined Mr Rezaee on behalf of the defendant on 8 December 2016. He undertook an impairment assessment.[18]
[18]Report dated 8 December 2016
69Mr Gard concluded:
“Rahmatullah suffers from back pain which resulted from a high speed motor vehicle accident. He reports significant unrelenting back pain with associated incapacity for work, many activities of daily living, and throughout the day and night. His physical exam was unhelpful in providing a definitive diagnosis in that, whilst limitations were observed, these were of a questionable and uncertain significance. His examinations thus far, particularly the MRI scan of the lumbosacral spine appeared to be completely normal, which would eliminate most causes of low back pain that we are familiar with. Overall Rahmatullah has persisting low back with no clear organic diagnosis in my view.”
70His comment about an unhelpful physical examination stemmed from, on the one hand, obvious signs of discomfort including complaints and a very poor range of movement of the lumbar spine and, on the other hand, no neurologic deficit in the lower limbs, good straight leg raising, no muscle wasting, no objective sensory loss and the lower limb joints moving freely.
71Mr Gard viewed the MRI scan of the lumbar spine taken in April 2015 which showed normal lumbosacral discs apart from some very minor bulging. There was no compression on the central canal or exiting neural foramen.
72Not unexpectedly in light of the above, Mr Gard assessed no whole person impairment, assigning Mr Rezaee to the DRE Category 1.
Dr Tony Kostos
73Dr Tony Kostos is a rheumatologist who examined Mr Rezaee on 14 March 2018 at the defendant’s request.
74The physical examination revealed:
“The entire examination was accompanied by facial grimacing and exclamations of pain.
His neck movements are markedly reduced with pain in all directions. He has diffuse midline cervical and bilateral paravertebral tenderness to light touch.
Shoulder elevation is possible to 90 degrees with neck pain but further examination of his shoulders wasn’t possible due to his pain response. …
Thoracic spine rotation while seated is non-existent with pain in both directions.
Thoracolumbar spine movements while standing are non-existent with pain in all directions. He had pain with axial compression and attempted stimulated rotation.
He had diffuse tenderness along the entire thoracolumbar spine and sacrum and the adjacent paravertebral areas and buttocks.”
75Dr Kostos concluded Mr Rezaee did not have any specific musculoskeletal injuries due to the accident “but clearly has a superimposed pain syndrome which relates to non-physical factors”. Physically, Dr Kostos significantly doubted he is totally incapacitated for domestic living activities or work.
Mr Greg Etherington
76Mr Greg Etherington is a spinal surgeon. At the request of his solicitors, he examined Mr Rezaee on 22 October 2020.
77He saw the CT and MRI scans taken at the Shepparton Hospital in 2014 and noted normal spinal imaging.
78Mr Rezaee complained of persistent lumbar pain but Mr Etherington did not know the source. There was no pathology on the imaging. He suspected the involvement of the sacroiliac joints because of the location of the pain. He could not find an injury. There was no fracture, no evidence of soft tissue trauma or evidence of degenerative change. The only link is that his symptoms started about the time of the accident.
79Due to the persistent pain, his capacity for work was limited.
80Mr Etherington did not expect the pain to improve.
Dr Richard Sullivan
81Dr Richard Sullivan is an interventional pain specialist and specialist anaesthetist. On 22 December 2020, he examined Mr Rezaee at the request of his solicitors.
82He noted the impact of the accident was severe enough to render Mr Rezaee’s vehicle unsalvageable.
83Dr Sullivan saw four reports of CT and MRI scans of the lumbar spine, the lumbosacral spine or the thoracolumbar spine dated 17 September 2014, 2 December 2014, 9 January 2015 and 13 April 2015.
84His examination of Mr Rezaee revealed, among other things:
(a) no abnormal illness behaviour;
(b) sitting comfortably for 15 to 20 minutes before standing up and moving around;
(c) significant reductions in the range of comfortable movement of the cervical spine;
(d) with the posterior cervical musculature, there was tightness and tenderness on palpation. This extended from the occiput and through the entirety of the trapezius muscle;
(e) the same finding applied to the paravertebral musculature from the rib margins to the iliac crest and over the bilateral sacroiliac joints;
(f) there was brief heel and toe standing; and
(g) straight leg raising was restricted to 20 degrees bilaterally.
85From an organic perspective, Dr Sullivan diagnosed aggravation of lumbar spondylosis and the likely aggravation of cervical spondylosis. This latter required radiological confirmation.
86As with the other organic specialists, Dr Sullivan offered: “…he suffers significant psychological sequelae following his road traffic accident and this impacts on his quality of life and capacity for re-employment and re-education and retraining”.
87He considered Mr Rezaee’s condition as stable and permanent with the accident “the most relevant and significant contributing factor” to his clinical presentation.
88As to capacity for work, Dr Sullivan said:[19]
“... believe that Mr Rezaee is completely and permanently impaired from returning to any form of meaningful employment now and into the foreseeable future.
I believe that his injuries have substantially reduced or destroyed his capacity to obtain and maintain employment in the competitive job market.”
[19]Report dated 22 December 2020 at p 5
89Dr Sullivan recommended an appropriate pain-management program. He was very concerned about Mr Rezaee’s psychological state.
Mr Gary Speck
90Mr Gary Speck is an orthopaedic surgeon. On 23 December 2020, he examined Mr Rezaee at the request of the defendant[20].
[20]Report dated 8 February 2021
91Judging from his report, Mr Speck carried out a careful examination of Mr Rezaee accompanied by detailed explanations of his examination to him.
92Mr Speck made a detailed examination of Mr Rezaee after obtaining detailed complaints of pain and other symptoms. He read the reports of imaging conducted between 16 September 2014 and 9 December 2017 and also various medical and other reports and clinical notes. He concluded[21]:
“He has had soft tissue injuries at the time of the transport accident without evidence of structural damage to the skeleton or disco-ligamentous structures. No evidence of neurologic deficit or irritation has been identified. His current condition is one of chronic pain syndrome.”
[21]At p 14
93Mr Speck believed the soft tissue injury had resolved and would have done so within six to twelve months of the accident, and that Mr Rezaee’s present restrictions were not due to the physical injury he suffered in the accident.
94In answer to a question about any inconsistency between complaints and findings, Mr Speck noted an inconsistency between Mr Rezaee’s ability to rotate his neck when examined and the greater ability to do so “when observed incidentally”. This inconsistency suggested avoidance behaviour which was consistent with Mr Rezaee’s Chronic Pain Syndrome.
95For the purposes of a supplementary report, Mr Speck watched four surveillance videos of Mr Rezaee. He was also given six medico-legal reports, a surveillance report and report of CT scans of the lumbosacral spine taken on 18 January 2021.
96In answer to a question whether all of this material altered his earlier opinion, Mr Speck said:[22]
“This new information does not alter my opinion as given in the report of 8/2/21 and reinforces the comment under question 10 about the diagnosis of a somatic symptom disorder and the veracity of his complaints and restrictions.”
[22]Report dated 12 February 2021 at p 5
Dr David Elder
97Dr David Elder is an occupational physician. At the defendant’s request, he examined Mr Rezaee on 22 December 2020.[23]
[23]Report dated 22 December 2020
98Dr Elder’s examination of Mr Rezaee was, as he put it, expressive of abnormal illness. Mr Rezaee’s gait was normal yet under formal examination his gait became “a shuffling type” with him holding onto parts of the furniture and his back. He was able to straight leg raise from a seated position without any discomfort which was inconsistent with his claim that he had almost no movement in any region of his spine. He showed a “collapsing give way pattern” of power which was inconsistent with his ability to walk or stand.
99As to diagnosis, Dr Elder said:[24]
“I absolutely accept that he would have suffered soft tissue injuries to his axial skeleton and possibly shoulders in this type of motor vehicle accident but it appears to have transitioned into a pain presentation with abnormal illness behaviour. The psychiatrist will have to comment on his opioid usage and whether this constitutes an opioid abuse problem.”
[24]At p 5
100Mr Rezaee has no physical abnormality affecting his spine and which would prevent physical activity. His physical state should not affect his activities of daily living or capacity for work.
101At the defendant’s request, Dr Elder provided a supplementary report.[25] The defendant gave him various reports and surveillance footage. Commenting on the surveillance footage, he said:
“This presentation is completely at odds with how he presents when in the video in which there is no restriction to be seen in his movements, ability to walk normally, look around normally, get in and out of cars with no apparent restriction and carry large items and manoeuvre himself generally including his spine and extremities.”
[25]Report dated 1 February 2021
Dr Matthew Tagkalidis
102Dr Matthew Tagkalidis is a consultant psychiatrist. At the request of Mr Rezaee’s solicitors he interviewed him on 5 November 2020.
103He diagnosed Mr Rezaee as suffering from a chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. He also suffers from features of traumatisation which are continuing. Despite the existence of traumatisation features, he did not diagnose a Post-Traumatic Stress Disorder “because of the lack of intensity and severity in symptom clusters relating to re-experiencing, avoidance and arousal”.
104Although it was likely Mr Rezaee was suffering from a Chronic Pain Disorder, Dr Tagkalidis would not diagnose it given the diversity of medical opinions about Mr Rezaee’s organic injury.
105Again, despite the presence of depressive and anxiety symptoms, he was not prepared to diagnose either a Major Depressive Disorder or Anxiety Disorder because of the lack of severity of the depressive or anxiety symptoms.
106Underlying the diagnosis of an Adjustment Disorder is Mr Rezaee’s emotional distress. This has two causes: the physical injury to the lower back and neck and the consequent financial and functional decline; and the traumatic nature of the accident. Dr Tagkalidis apportioned these as to 75% for the former and 25% for the latter.
107Psychologically, Mr Rezaee is fit for employment. After examining the definitions of suitable employment, current work capacity and no current work capacity, Dr Tagkalidis considered he did not have a capacity for suitable employment.
108He did not foresee a substantial alteration in Mr Rezaee’s mental state even though he recommended treatment: psychological counselling for at least 12 months; a trial of an antidepressant medicine with a pain-relieving quality; and any alteration to psychotropic medicine in the hands of his general practitioner.
109So long as his physical difficulties persist so will his emotional difficulties.
110Dr Tagkalidis gave a supplementary report after Mr Rezaee’s solicitors gave him two reports including the report of Dr Firestone, dated 15 December 2020. Dr Tagkalidis felt the conclusions of Dr Firestone were essentially the same as his. He also adhered to his earlier conclusion of Mr Rezaee’s capacity for work.
Dr Andrew Firestone
111Andrew Firestone is a consultant psychiatrist. On 15 December 2020, he interviewed Mr Rezaee at the request of the defendant. There had been an earlier interview on 9 April 2018.[26]
[26]Report dated 15 December 2020
112There was a difference between the diagnoses made after the first interview and after the second. On the first occasion, Dr Firestone made three concurrent diagnoses: a Somatic Symptom Disorder with predominant pain of moderate intensity and persistent; persisting trauma symptoms (preoccupation with the accident), and an Adjustment Disorder with moderately severe depressive symptoms and with concomitant alcohol and marijuana abuse. The first two diagnoses were not related to physical injury while the third was.
113This distinction arose out of the purpose of the first interview, namely, a psychiatric impairment assessment. The second interview was not so concerned. Dr Firestone was asked for his diagnosis of any psychiatric injuries attributable to the transport accident of 16 September 2014 and offered a principal diagnosis of a Somatic Symptom Disorder with predominant persistent pain of moderate intensity. There were additional diagnoses of persistent trauma symptoms, moderately severe depressive symptoms and concomitant moderate marijuana abuse and mild alcohol abuse. He no longer diagnosed an Adjustment Disorder although an important aspect of it remained – depressive symptoms.
114After the first interview, Dr Firestone diagnosed a Somatic Symptom Disorder because the neurosurgeon, Mr Vellore, had ruled out a physical basis for the severe pain suffered by Mr Rezaee since the accident.
115Dr Firestone is one of those practitioners who explains his diagnoses in his report. This is most helpful where practitioners do not give oral evidence. Despite experiencing a frightening accident, the symptoms of the Post-Traumatic Disorder do not figure largely with Mr Rezaee with the only relevant symptom being a preoccupation with the accident. Importantly, Dr Firestone said:[27]
“I therefore consider that his pain disorder should be regarded as a direct consequence of the accident itself. My thinking is that the pain expresses the emotional distress that a Western acculturated patient might express through the usual PTSD symptoms.”
[27]Report dated 17 April 2018 at p 6
116While Dr Tagkalidis drew back from diagnosing a chronic pain disorder, Dr Firestone did not, either in 2018 or 2020. He used the term, Somatic Symptom Disorder with predominant persistent pain of moderate intensity. Concurrently, he diagnosed persistent trauma symptoms, moderately severe depressive symptoms and concomitant moderate marijuana abuse and mild alcohol abuse.
117For the present, his prognosis was for no change because appropriate management was unavailable in Shepparton.
118Before Mr Rezaee could undergo vocational training and entry into the workforce, he would need pain management and detoxification from opiates.
119Dr Firestone summarised Mr Rezaee’s view:
“He isn’t physically incapacitated, yet he lives in shame, anger and self-loathing due to his reliance on his wife for transport, and his incapacity for paid employment. Old friends have not rejected him.”
120In a supplementary report, Dr Firestone commented upon videos of Mr Rezaee and concluded:[28]
“The video excerpts do not rule out the demoralisation, despair and opiate intoxication that he described and demonstrated to me; however, neither do they support it. The video excerpts do not show the opiate intoxication which I observed at interview.
In other words, while they do not rule out the possible truth of his statements at interview, they do raise the possibility that he was exaggerating for effect.
On the other hand, in fairness to the Plaintiff, it may be that these video-taped occasions, when he is out of the house, are infrequent and are his best times – and possibly his description at interview, of most of his life at home, was an honest one.”
[28]Report dated 8 February 2021
Imaging
121Imaging over the years has given little help in diagnosing Mr Rezaee’s organic problems. In the most recent CT scan, taken on 18 January 2021, the radiologist observed:
“At the level of L1-2, L2-3 and L3-4, no disc bulge or disc herniation.
At the level of L4-5, mild circumferential disc bulge, Central canal and exiting neural foramina preserved. Mild bilateral facet hypertrophy is present.
At the level of L5-S1, mild disc bulge. Central canal and exiting neural foramina preserved.”
Legal considerations
122As the Court said in Transport Accident Commission v Katanas,[29] whether an injury is “serious” for the purpose of s93(17) of the Act is answered by the test in Humphries & Anor v Poljak:[30]
“To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury 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’?”
[29][2017] HCA 32 at paragraph [4]
[30][1992] 2 VR 129 at 140
123In relation to paragraph (c) of the definition of “serious injury”, the Court noted that “severe” is of stronger force than “serious”.
124The Court in Katanas noted the two-staged test required in Humphries & Anor v Poljak; the consequences must be serious (or severe) to the plaintiff in relation to pecuniary disadvantage or pain and suffering or both; and whether the injury is objectively serious (or severe) when compared with the range or spectrum of comparable cases.
125The definition of “serious injury” distinguishes between injuries with physical consequences and injuries with mental consequences. However:[31]
“Thus, the ‘serious injury’ defined by sub-paragraph (a) of sub-s (17) can, I think, have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can itself constitute or be the producer of the impairment of a body function.”
[31]Richards v Wylie [2000] VSCA 50 at paragraph [17]
126Recently, in Randhawa v Transport Accident Commission, the Court said:[32]
“Moreover, we would arrive at the same conclusion even if one attributed all of the applicant’s psychiatric consequences to her spinal injury as secondary consequences of that injury – rather than primary consequences which fall to be taken into account only under paragraph (c) of the definition of ‘serious injury’.”
[32][2021] VSCA 135 at [78]
127In the next paragraph, the Court said:
“Contrary to the applicant’s submissions, the judge did not err in her consideration or application of Richards v Wylie. The nightmares which the applicant gave evidence of suffering following cycling were not relevant to her claim under paragraph (a) of the definition of ‘serious injury’. Based on the applicant’s evidence, her nightmares were not a response to her lower back injury. Rather, they were a response to the traumatic circumstances of the collision.”
128The defendant referred me to a paragraph from the judgment of Maxwell P in Haden Engineering Pty Ltd v McKinnon[33] and, in particular, the concluding sentence:[34]
“As to (a), the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend on an assessment of the plaintiff’s credibility. The Court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also takes into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.”
[33](2010) 31 VR 1
[34]at paragraph [12]
129Mr Rezaee submitted a chronic pain syndrome was an “injury” for the purposes of paragraph (c), relying upon the observations of Ashley JA and Pagone AJA in Church v Echuca Regional Health.[35] It was not denied that the syndrome is not an “injury”.
[35][2008] VSCA 153 at paragraphs [128] and [141]
Discussion
Credit
130In effect, the defendant submitted Mr Rezaee is an untruthful witness. Because the medical evidence does not reveal an organic basis of Mr Rezaee’s complaints, I should conclude that deliberate deceit and secondary gain are factors in this case. It also relied upon the observations of practitioners of Mr Rezaee exhibiting pain behaviour or abnormal illness behaviour. Dr Firestone attributed minor inconsistencies in what Mr Rezaee told him to carelessness due to Tramadol intoxication.
131The defendant relies on his comment that Mr Rezaee is awaiting a settlement from the defendant to begin a new life without knowing what his new life will be as evidence of secondary gain as a factor in his application.
132Viewing Mr Rezaee’s problems as overwhelmingly psychological, I do not consider him an untruthful witness. I do not consider his evidence was deceitful or motivated by secondary gain. His exhibition of pain or abnormal illness behaviour underlies the diagnosis of Somatic Symptom Disorder, which I will discuss later.
Organic injury
133The defendant submits Mr Rezaee has not suffered a lasting organic injury from the accident. It relies upon the views of Dr Elder, Mr Speck and Mr Etherington. It submits Dr Sullivan’s view should be disregarded because it is anomalous.
134There is only slight support in the imaging for Dr Sullivan’s view. Dr Hucker thought the CT scan on 9 January 2015 lent possible support to the aggravation of the disc bulges at L4-5 and L5-S1 due to the accident despite the radiologist concluding the results were within normal limits. In January 2021, the existence of a mild L4‑5 circumferential disc bulge, mild bilateral facet hypertrophy at that level without central canal stenosis or evidence of nerve impingement seem to place his lumbar spine in the normal range identified in January 2015. They may provide some support to the continued existence of lower back pain. However, without expert opinion, I cannot say whether those findings are significant.
135It is not entirely correct to say that none of the other practitioners found a continuing organic cause for his symptoms. Mr Etherington raised the possibility that the pain came from the sacroiliac joints yet remained uncertain as to the source. Although Dr Sullivan’s view is somewhat anomalous, I would not reject it on that basis. Inferentially, his view derives support from the reports of investigations. Frankly, this is a slender basis to diagnose aggravations of lumbar and cervical spondylosis. Mr Rezaee’s clinical presentation is far better explained on psychological grounds.
136I accept Mr Rezaee suffered an organic injury in the accident. But the injury has healed with time and he is left with no symptoms due to that injury. It took longer than some anticipated to heal as Dr Hucker noted muscle spasm in June 2016.
Mental injury
137Where there is a complaint of pain, medical practitioners look for an organic cause. This is natural. Only where there is no satisfactory organic reason for the pain, its intensity or duration, do practitioners look for another cause or other causes. Despite their own medical training, as to an organic cause, psychiatrists are guided by the opinions of organic specialists. So it is in this case.
138Dr Firestone assumed an organic cause of his symptoms as persistent but minor. Predominantly, the experience of pain was explained by the Somatic Symptom Disorder. As often happens, there are complications. One of the complications was Mr Rezaee’s background. It is non-Western. Dr Firestone would not diagnose Post-Traumatic Stress Disorder because of a lack of intensity in certain distinctive features of that disorder. He thought the expression of those symptoms was transferred to the feeling of pain. It may be Dr Tagkalidis shared that view.
139I am satisfied Mr Rezaee suffers from a mental disorder due to the transport accident. The most prominent diagnosis of his psychological symptoms is a Somatic Symptom Disorder. There are other elements.
140Psychologically, Mr Rezaee experiences pain at a high level. He has taken strong pain-relieving medicines for years and still does. He has received very little psychological treatment. Although he might benefit from a pain-management program, none has been undertaken. To an extent, this is a function of where he lives. However, there is his reluctance to undergo psychological treatment.
141The defendant submitted the often-quoted passage about the experience of pain in the judgment of Dodds-Streeton JA in Dwyer v Calco Timbers Pty Ltd (No 2)[36] does not apply here because of Mr Rezaee’s ingestion of Tramadol interspersed with his use of alcohol and illicit drugs. It then submitted “somewhere along the way he has formed the belief that if he takes Tramadol every day he is going to win his case”. I do not agree. His use of other substances was an attempt to avoid using Tramadol. There is no basis to infer he takes Tramadol daily due to a belief about winning this case.
[36][2008] VSCA 260
142He has attempted to re-enter the workforce. These attempts have failed. I would treat his attempts as genuine, for it is a source of shame for him that he is not employed and cannot provide for his wife. His psychological condition is a barrier to his resuming employment, and his inability to do so reinforces his psychological state.
143The prognosis is guarded.
144His attempt at suicide is an extremely serious consequence of a psychological disorder. Obviously, it is second only to a successful act of suicide. It speaks of such a state of mind that ending one’s life is the only solution despite the existence of a loved one.
Surveillance
145I was shown 14 minutes of surveillance footage arising out of 61 hours of surveillance.
146The defendant submits the footage shows Mr Rezaee to be nimble and fairly unrestricted in his movements. To Dr Elder, the footage shows an ability to walk normally, look around normally, and get into and out of motor vehicles. He concluded Mr Rezaee misled him. Dr Firestone said the footage does not show the Tramadol intoxication he saw when he interviewed Mr Rezaee.
147Such a selection supports Dr Firestone’s suspicion that the viewed footage shows Mr Rezaee at his best and the rest does not harm his case. In somewhat similar circumstances, Ashley JA described the fact of a small quantity of films produced despite many hours of surveillance as a factor in favour of that plaintiff[37]. Later, his Honour said it gave marginal support to the defendant’s case. Here, I would say the film does not support either case. It is too little in the face of so much. Psychologically, Dr Firestone was equivocal about its value.
Jones v Dunkel[38]
[37]Church v Echuca Regional Health (op cit) at paragraph [98]
[38][1959] HCA 8
148Dr Tagkalidis referred to a report of another psychiatrist, Dr Ingram, who apparently diagnosed a Chronic Adjustment Disorder, secondary to the accident. Mr Rezaee’s senior counsel submitted this report had not been supplied to his solicitors and I should draw an adverse inference. However, the defendant’s counsel disputed that the report had not been supplied. There was no evidence on the point from which I could make any finding. I will draw no inference.
Conclusion
149I am not satisfied Mr Rezaee succeeds under paragraph (a) of the definition of “serious injury”. However, he does succeed under paragraph (c). There was an injury to his lumbar spine but it no longer affects him. Its consequences do not satisfy the test required under paragraph (a).
150As to the claim under paragraph (c), Mr Rezaee suffers from a psychological pain disorder. He experiences persistent pain which renders him largely incapacitated for work. He has a strong perception of pain. He has taken strong pain-relieving medicines for years. His perception of pain has reduced or eliminated daily activities.
151I will hear the parties on the form of the orders and on the question of costs.
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