Stankovski v Transport Accident Commission
[2021] VCC 1028
•30 July 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-04755
| ANGELE STANKOVSKI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1, 2, 3 and 4 June 2021 | |
DATE OF JUDGMENT: | 30 July 2021 | |
CASE MAY BE CITED AS: | Stankovski v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1028 | |
REASONS FOR JUDGMENT
---
Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury– whether injuries caused by transport accident – credit of plaintiff – whether consequences of transport accident “serious” – relevant principles
Legislation Cited: Transport Accident Act 1986, s93(4)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Demmler v Transport Accident Commission [2018] VSCA 284; Petkovski v Galletti [1994] 1 VR 436; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1
Judgment: Application refused.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab QC with Mr T Nathanielsz | Maurice Blackburn Lawyers |
| For the Defendant | Mr S A Smith QC with Ms V Katotas | Solicitor to the Transport Accident Commission |
HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s93(4) of the Transport Accident Act 1986 (“the Act”), for injury suffered by the plaintiff in a transport accident which occurred on 8 August 2014 (“the transport accident”).
Relevant legal principles
2Section 93(6) of the Act provides that a court must not give leave under ss(4)(d) unless it is satisfied that the injury is a “serious injury”.
3The definition of “serious injury” as set out in s93(17) of the Act is, relevantly to this case, as follows:
“‘Serious injury’ means –
(a) serious long-term impairment or loss of a body function … .”
4The plaintiff’s case is that by reason of the transport accident, he suffered injury to his spine, both cervical and lumbar. In forming a judgment as to whether the consequences of an injury are “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’?”.[1] It has been held that the relevant consequences to a plaintiff will relate to pecuniary disadvantage and/or pain and suffering.[2]
[1] Humphries & Anor v Poljak [1992] 2 VR 129 at 140
[2]Humphries & Anor v Poljak (ibid); see also Demmler v Transport Accident Commission [2018] VSCA 284 at paragraphs [52] and [56]-[57]
5In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of a “serious injury”, as set out in s93(17), the relevant injury must also be long term.
6The plaintiff bears the burden of proof on the application. The standard of proof is on the balance of probabilities.
7The Court must assess whether the injury is “serious” for the purposes of the Act, as at the time the application is heard.[3] In assessing the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the transport accident.[4] It has been held that the task of assessing the pain and suffering consequences of an injury is largely a question of impression and value judgement.[5]
[3]See s93(6) of the Act, which states that leave must not be given by a court unless the court “is satisfied that the injury is a serious injury”. I take that expression to mean that the injury is “at the time at which the application is heard,” a serious injury for the purposes of the Act
[4] Petkovski v Galletti [1994] 436 at 442; Demmler v Transport Accident Commission (ibid) at paragraph [52]
[5]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
8In determining the application, the Court must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[6]
[6]See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
9It is well understood that a person who is injured is to be compensated only for such injuries as are proven to have resulted from the relevant accident.[7]
[7] PetkovskivGalletti (ibid)
10Applying the principles set out in Petkovski v Galletti,[8] in an application like this, where it is alleged that the plaintiff may have had a relevant pre-existing condition, it is the consequences of the aggravation of that injury or the consequences of the additional injury, which must be assessed. To undertake this task, the plaintiff must establish what injury was caused by the accident. I must then determine the consequences of that injury to the plaintiff, by comparing the plaintiff’s condition before and after that injury.[9] If I am satisfied that the additional impairment is “serious” and long term, then the plaintiff will have demonstrated that he is suffering from a “serious injury” under the Act.[10]
[8] Supra, at 443
[9] Supra, at 444
[10] Supra
11The plaintiff relied upon five affidavits, gave viva voce evidence and was cross-examined. The plaintiff also relied upon affidavits from his son, Mr Oliver Stankovski, sworn on 9 April 2021, and his daughter, Mrs Anita Osavkovska, sworn on 1 April March 2021.
12In addition, both parties relied upon medical reports and other materials which were contained within Court Books which were tendered in evidence.[11] Other than Dr Akil, the defendant did not require any of the plaintiff’s treating medical practitioners or medico-legal experts to attend for cross-examination.
[11]The Plaintiff’s Court Book was marked as Exhibit (“Ex”) P1; the Plaintiff’s Supplementary Court Book was marked as Ex P2 and the Defendant’s Court Book was marked as Ex D1
13I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered materials.
The Plaintiff’s background and medical history
14The plaintiff was born in November 1947 and is seventy-four years of age.[12] He was born in Macedonia and migrated to Australia in about 1970.[13] He is married and lives at home with his wife.[14]
[12]Ex P1, p7
[13]Ex P1, p7
[14]Ex P1, p7
15While he lived in Macedonia, he completed technical school and obtained a qualification as a fitter and turner. He then went into the army for two years. When he migrated to Australia, he commenced working for Repco Engineering Reconditioning for about twelve months. After that, he commenced work at the Lifesavers Confectionary Company in Richmond as a maintenance/assistant engineer in about 1974. He studied at the University of Melbourne for a year-and a-half and obtained a Certificate in Boiler Attendant and Industrial Refrigeration. He worked for Visy Board for about twelve months as a mechanical engineer and after that, he worked at La Trobe University for about five years in maintenance and as a boiler attendant.[15] In or about 1978, he commenced his own business in wrecking cars and selling parts.[16]
[15]Ex P1, p7
[16]Ex P1, p7
16The plaintiff deposed to the following pre-existing health conditions:
(a) back pain “on and off” over the years for which he had seen his doctor, had physiotherapy and taken medication. The pain would always resolve;[17]
(b) recurrent right rotator cuff pain as a result of a tear in his shoulder;[18]
(c) left hip pain in 2008, which he was subsequently told was pain coming from his back;[19]
(d) a right tibia and fibular fracture in 2012;[20]
(e) an injury to his back in mid-2008, which was caused by lifting a starter motor at work. He lodged a WorkCover claim for weekly benefits and medical expenses and had about four months off work. He experienced pain, numbness and weakness in both legs and was limited in his ability to walk at this time. He consulted Mr David de la Harpe, orthopaedic surgeon, who told him that he could consider surgery if his injury did not improve with physiotherapy. Ultimately, he was able to get back to work and he gradually recovered;[21]
(f) after about 2011, his back “settled down” compared to previous years. He had previously gone onto a Disability Support Pension and remained on that benefit, but was able to go fishing as he wanted, help out around the home and do some gardening. The condition of his back fluctuated, his back would occasionally flare up and he would see his general practitioner, Dr Giuseppe Giarrusso, and be prescribed Mobic and Tramal;[22]
(g) generally, his back condition was stable throughout 2013 and early 2014, but he would still see Dr Giarrusso from time to time.[23]
[17]EX P1, p7
[18]Ex P1, p7
[19]Ex P1, pp7-8
[20]Ex P1, p8
[21]Ex P1, pp14-15
[22]Ex P1, pp20-21
[23]Ex P1, pp20-21
The accident
17The plaintiff described the accident in the following terms:
“… On 8 August 2014 I was the driver of a vehicle that was stationary at the intersection of High Street and Keon Parade in Keon Park when all of a sudden a vehicle travelling from behind struck my vehicle at high speed. I was able to get out of the car but I was in pain … An ambulance was called and I was taken to the Northern Hospital. At the time I was not aware of being seriously injured as I was in shock … Whilst I attended the Northern Hospital I was not assessed … The following day … I was in a lot of pain and I consulted my general practitioner at Andrew Place Clinic, Dr Giuseppe Giarrusso. At that stage I was experiencing pain in my right knee and as well as in my back. He referred me for hydrotherapy and provided me with prescriptions for pain medication, namely, Panadeine Forte and Mobic … I proceeded with conservative treatment, mainly hydrotherapy as well as physiotherapy … I was taking pain medication but the pain was not improving … Due to the ongoing pain with my right leg I was referred back to Mr Andrew Oppy, my orthopaedic surgeon who I had previously seen as a result of the fracture in my right leg … In addition I was experiencing a lot of neck and lower back pain, the lower back pain being worse than the neck pain. Due to the ongoing symptoms my general practitioner arranged for me to see Dr Ales Aliashkevich, neurosurgeon, whom I consulted on 22 July 2016 … .”[24]
[24]Ex P1, pp8-9
Evidence of the Plaintiff
18As referred to above, the plaintiff swore five affidavits. He was cross-examined and also re-examined.
19The relevant evidence as to the pain and suffering consequences which the plaintiff experiences as a result of the transport accident, is as follows:
Experience of pain and treatment
(a) he experiences a lot of neck and lower back pain.[25] Since his back operation, his neck pain seems to have become worse.[26] Movement of his neck is restricted. He also suffers from pins and needles down his right arm. During the night, he suffers from numbness in his hands. He has also lost strength in his right arm.[27] He can get some relief from the neck pain and arm symptoms from the Endone, but once the Endone wears off, the pain will come back;[28]
[25]Ex P1, p9
[26] Ex P2, p22
[27]Ex P2, p22
[28]Ex P2, p22
(b) he also injured his right knee in the transport accident, leading to a recommendation that he have an arthroscopy;[29]
[29]Ex P1, p10
(c) following the transport accident, he felt as though he had little stability in his legs due to bilateral sciatica. He was very restricted in his ability to walk due to the numbness in his legs. After a short period of walking, his legs would become “wobbly” and he would have to hold himself up on a wall or some furniture to rest for a short period before he walks the next short distance.[30] His neck symptoms also got worse as time progressed. He increasingly suffered from referred symptoms into his arms and legs. His symptoms became very troubling by about mid-2016. He was subsequently referred to Mr Aliashkevich;[31]
[30]Ex P1, pp12-13
[31]Ex P2, pp21-22
(d) he underwent surgery on his lower back, being L3-4 decompression and interbody fusion surgery, with Mr Akil on 15 May 2020;[32]
[32]Ex P1, p17
(e) since the surgery, there has been an improvement in his back pain and leg pain and he is able to sit, stand and walk longer than before the surgery. However, he still lacks strength in his legs. He easily loses balance. If he was to try to kneel or bend, or if he dropped something like his keys, he is likely to fall forward. This has happened three or four times since the surgery. He continues to experience pain around where he had the operation in his back, that radiates to his right buttock;[33]
[33]Ex P1, p18
(f) he now has back and leg pain that comes and goes, which he would rate at 4 to 5 out of 10. He has pain every day, but the pain level varies during the day depending on what he does;[34]
[34]Ex P2, p22
(g) he can walk pain free for around 30‑40 metres, after which back pain will usually start. The leg pain comes on if he walks more than around 300‑400 metres. The pain will start to radiate into his right buttock and right leg. The pain continues down his leg to just before the knee. The pain will also come on if he sits for any longer than around 30 minutes, or stands for longer than 15-20 minutes. The more time he spends sitting or standing, the more pain he will experience. It is generally hard to gauge the pain levels that he experiences as he takes Palexia every day and takes Panamax when he feels the pain coming on;[35]
[35]Ex P2, pp22-23
Medication
(h) he continues to take Palexia, Panadeine Forte, Endep and Endone. He has to avoid taking Palexia when he takes Endone because those medications make him very dizzy. He takes Palexia in the morning and, depending on pain levels at night and also depending on what he has done during the day, he will take Endone, usually most days in a week. During the day, he will still try to rely on paracetamol, taking three to four a day and a couple at night. Sometimes he takes paracetamol with the Endone. On nights when he does not take Endone, he will take Endep. If he has a bad persisting pain during the day, despite taking paracetamol, he will take Panadeine Forte to take the edge off;[36]
[36]Ex P1, p23
Sleep
(i) in the years before the transport accident, he had some issues with sleep when his back and shoulder was very bad. After around 2011, when his back became less problematic, his sleep improved but he would still wake two to three times per night due to the pain in the shoulder;[37]
[37]Ex P2, p23
(j) since the surgery, his back often keeps him awake at night, moreso than his shoulders. He now wakes around every one-and-a-half to two hours in pain, around four to five times per night;[38]
[38]Ex P2, pp23-24
(k) he has a problem with his neck that causes numbness in his arms. He sometimes has spasms from the side of his neck that radiate down his arms. These symptoms cause headaches that can make it difficult for him to sleep at night;[39]
[39]Ex P1, p19
Incontinence
(l) he cannot recall having any issues with incontinence prior to the transport accident;[40]
[40]Ex P2, p25
(m) not long following the transport accident, he had issues with urinary urgency. Following the surgery, his urinary incontinence has continued to worsen such that he now has to urinate three to four times every waking hour;[41]
[41]Ex P2, p25
(n) he continues to have issues with going to the toilet to urinate, sometimes up to three to four times per waking hour. Before the transport accident, he would usually go to urinate maybe ten to fifteen times in 24 hours, perhaps on average once every waking hour. Before the operation, he had wet the bed only once or twice. Since the operation, it has happened two or three times, the last time being in February 2021;[42]
[42]Ex P1, p23
(o) before the operation, he had wet himself in public once or twice, whereas since the operation, he has wet himself more than twenty times, especially when driving when he has nowhere to stop. He has taken to wearing nappies in public, so as not to wet his trousers;[43]
[43]Ex P1, p23
(p) he feels an immense loss of dignity, given his inability to hold his urine;[44]
[44]Ex P1, p23
Activities of daily living
(q) he and his wife had intended to spend their retirement travelling through Europe. He has a small apartment overseas and they had intended that they would stay there for three to four months per year. Since the transport accident, they have had to abandon the idea of spending any retirement in Europe. He does not think he would be able to travel around Europe because of his limited walking ability. He also worries about his ability to remain seated on a plane for long flights;[45]
[45]Ex P1, p15
(r) he still tries to walk as much as he can, but tends to drag his legs and has been trying not to use his four-wheeled trolley. He can now walk around the block without the trolley, with two or three stops to rest, which takes him about 40‑45 minutes. The block he walks around is about a kilometre long. He does this around two to three times per week. He tends to trip while walking on the concrete because his feet do not lift high enough up when he walks. There is also a tile in his house where he tends to trip and fall. Recently, he fell on his right arm, which is still sore;[46]
[46]Ex P1, pp23-24
(s) sometimes he drives to a park and tries to do two to three laps of the oval. He tries to push himself a bit further, which results in him becoming sore and having to taken Endone;[47]
[47]Ex P1, p24
(t) sitting and standing no longer cause his back to seize up as much, but it is still painful for him to repeatedly sit and stand. He experiences back pain and spasms and finds it hard to get up from a bed, a couch or a soft surface;[48]
(u) tasks that required bending, lifting, twisting and stooping became incredibly difficult following the transport accident, given the severity of his back pain. He was finding it very difficult to sit, stand or walk more than he had at any time prior to the accident;[49]
(v) in the twelve months prior to the transport accident, even when he had pain in his back or when he had pain in his shoulder and right leg, he was free to do what he wanted recreationally, like going fishing. He would go as often as he could, but it would vary. Sometimes he would go twice a week, but other times once a month. He would take the boat out or fish off the pier;[50]
(w) since the transport accident, he has only been fishing around three or four times in total. Early in 2021, his son took him and one of the grandchildren on the boat as he wanted to know he could cope after his surgery. While he has some ongoing difficulties with his shoulders which would somewhat restrict his ability to fish, the problems that he has with his shoulders do not restrict him to the same extent as his back;[51]
(x) prior to the transport accident, around the home he would still be responsible for gardening. He would mow the lawn and prune back the plants and trees at home. This was the case even when he was on a Disability Support Pension;[52]
(y) following the transport accident, he gradually became more restricted, such that he was no longer able to attend to his gardening duties, particularly in the leadup to the surgery. He is presently limited to doing light work in the garden within the mobility restrictions that he experiences;[53]
Mobility
(z) prior to the transport accident when his back pain was bad, from around 2008 to 2010, his mobility was quite affected and he struggled to walk. At times, he relied upon a walking stick and would find it hard to get out of a chair. At various times, his ability to walk would be limited to a few hundred metres, but he had gotten better long before the transport accident occurred;[54]
(aa) even after November 2012, when he broke his leg and had surgery to insert a pin, he retained enough mobility to attend to the gardening and help his wife with domestic tasks around the house, and also go fishing when he felt like it. He cannot recall that his back was causing him any significant difficulties with walking at that time;[55]
(bb) following surgery, he has been able to sit and stand for longer, walk further and he is steadier on his feet, but he is still more limited than he was prior to the transport accident;[56]
[48]Ex P1, p24
[49]Ex P1, p22
[50]Ex P1, p23
[51]Ex P1, pp22-23
[52]Ex P2, p24
[53]Ex P2, p24
[54]Ex P2, p24
[55]Ex P2, p24
[56]Ex P2, p25
Cross-examination of the Plaintiff
20Under cross-examination, the plaintiff gave the following evidence:
(a) he understood that the affidavits that he swore were important documents and that it was important that his affidavits were as truthful and accurate as possible;[57]
[57]Transcript (“T”) 17, Line (“L”)15-25
(b) he agreed that someone reading his first affidavit would understand that his previous back pain had been “on and off” and had only required treatment from a general practitioner and a physiotherapist. He agreed that it would also appear to a reader that he would take medication which would make the back pain disappear and that he worked until 2012, finishing up in his job because of a desire to retire and also because he had broken his right leg;[58]
[58]TT18-19
(c) he agreed that none of these matters were accurate. He agreed that he finished working in 2010 and went onto a Disability Support Pension at that time, because of the condition of his back;[59]
[59]T19, L19-25
(d) he said that the reason that he had sworn that he was working in the business until 2012 was, “... I think when my wife is a primary [owner] of the business, it’s a family business. That’s my thinking of it ...;”[60]
[60]TT20-21
(e) he agreed that he had omitted from his first affidavit the fact that he had consulted Mr de la Harpe, an orthopaedic surgeon, in relation to his back problems, or that in 2008, it had been recommended that he have surgery to his spine. In response to questioning about why he had left this matter out of his first affidavit, he said “I didn’t think of that”. When asked whether or not he had deliberately tried to understate the severity of his back problem before the transport accident, he replied, “... not really, no ... I saw an orthopaedic surgeon only for five minutes in 2012”;[61]
[61]TT21-22
(f) he agreed that in his second affidavit, he maintained the impression that he got back to work after an incident in mid-2008 where he hurt his back, and that he kept working until he sold the business in 2012;[62]
[62]TT23-24
(g) he agreed that in his second affidavit, he had not sworn at any stage that he was on a Disability Support Pension since 2010: “Well, I’ve got nothing to say on that;”[63]
[63]T24, L22-24
(h) following the injury which he suffered in mid-2008, he was under work restrictions until 2010, when he went on the Disability Support Pension. He agreed that the restrictions were in relation to bending, sitting or standing for too long. Despite this, he maintained that the injury he was then suffering and the restrictions he was under “didn’t impact me on day-to-day life because I wasn’t that bad at the time”;[64]
[64]TT24-25
(i) in January 1993, he suffered an injury to his low back when he was trying to lift an engine. As a result of that incident, he suffered sharp low-back pain and stiffness in his left leg, which over time became worse. He agreed that eventually his pain reached a point where he could not walk and could only lie on the floor. As a result of that injury, he saw a neurosurgeon, who suggested that surgery could be performed on his back. After that injury, he was off work completely for about three months, and then went back to work only on a part‑time basis. He had ongoing problems with his back pain that caused him to take time off work in 1994, again in 1996, and also in February 1997;[65]
[65]T100, L3-28
(j) as a result of the February 1997 worsening of his back pain, his back felt “weak and fragile,” and he experienced pain and numbness down the outside of his left leg, all the way to the ankle. Prior to this incident, he had only had pain and numbness in his left leg down to the level of his knee;[66]
[66]TT100-101
(k) this back problem was something that he had continuously experienced since 1993. The problem continued after 1997;[67]
[67]T101, L5-7
(l) in July 2004 he saw his general practitioner, Dr Giarrusso, and complained about his low-back pain being worse, with left leg pain and pins and needles down the outside of his left leg. He agreed that what he was complaining about at that time was a worsening of the problem that he had experienced since 1993;[68]
[68]T101, L8-14
(m) he agreed that if Dr Giarrusso recorded that in July 2004 he prescribed the plaintiff Panadeine Forte, then that was what he had prescribed;[69]
[69]T102, L22-26
(n) he acknowledged that if Dr Giarrusso had recorded a further attendance on 9 August 2004 with a complaint of a lot of low-back pain, then that record was accurate;[70]
[70]T103, L1-10
(o) a painstaking examination of the general practitioner’s medical notes was undertaken by counsel for the defendant during cross-examination of the plaintiff. On numerous occasions, the plaintiff disputed that what was recorded in the notes was accurate. On some occasions, he replied with words to the effect, “In order for me to comment I would need to know, like, exactly the details of what happened. Something must have happened ... .” He also frequently commented words to the effect that his back problems would occur “on and off ... I don’t know how chronic the pain was. Sometimes the work I was doing was heavy, sometimes not so heavy, sometimes I’d have no pain. Again … I would need to know why I went to see Dr Giarrusso. Something must have been there.” On other occasions, he replied with words to the effect: “On that date I cannot confirm whether I had the pain or not, but in order to go and see the doctor I would have gone there for some reason;”[71]
[71]TT103-105ff
(p) on other occasions under cross-examination, the plaintiff acknowledged that while he could not recall the particular consultation, “If it’s been recorded there, then most likely”;[72]
[72]For example at T106, L3-6
(q) on 10 March 2005, he went to Dr Giarrusso complaining about low-back pain on and off. It was suggested to him that he also complained of “longstanding neck pain” on that occasion. He replied that the back pain would “come and go”. In relation to the neck pain, he replied that he had “most likely [complained] ... if it’s been recorded”;[73]
[73]T108, L4-16
(r) he was placed on restricted duties from April 2005. He agreed that from that time, it was recommended that he restrict himself to doing office work;[74]
[74]T109, L12-19
(s) he was referred to an incident on 26 July 2005, when he attended his general practitioner to complain that five days earlier he had felt a “sudden click” in his left shoulder when he was shifting a fax machine. He agreed that he was also suffering from lower back pain at this time, but denied that it was severe. He may have been prescribed Mobic at that time. He agreed that Mobic is one of the medications he takes now;[75]
[75]T110-111
(t) he could not recall having received weekly payments up until he began receiving the Disability Support Pension in 2010. He said that at this time, the pain in his back would “come and go. I was able to go to work and live a social life. It’s not as if I was sort of left in bed. I was able to work and live the social life;”[76]
[76]T112-113
(u) he was asked the cause of his restriction in work to three hours per day in 2005 and 2006. In response to this, he said it “… Could be the left shoulder, could be the back, could be the neck. I can’t say exactly what it was that was sort of restricting me to those three hours of work ...;”[77]
[77]T113, L26-31
(v) during cross-examination there was a question about what the medical certificate of restrictions in respect of the plaintiff demonstrated from time to time. A detailed analysis of the medical certificate (614 pages) led to an agreement between counsel that the plaintiff was certified for three hours of work per day between 2005 and July 2008. From that time, the plaintiff was certified unfit for all work;[78]
[78]TT117-118; see also ‘Summary of Certificate of Capacity of Mr Stankovski’, agreed by both parties to be an accurate representation of the 614 pages of medical certificates
(w) the plaintiff said that weakness in his legs commenced after the transport accident. He did not know whether it was in 2016 or 2017: “I had the weakness in the legs, it slowly came on after the accident;”[79]
[79]T120, L8-15
(x) he disagreed that when he first saw Mr Aliashkevich, he complained of stiffness and pain in his neck and a numb and painful sensation in his hands and fingers, mostly on the right side. He replied, “Definitely I went there for my back, neck and legs. If he has failed to record that then it’s his doing;”[80]
[80]T120, L20-30
(y) it was suggested to him that he had told Mr Aliashkevich in September 2016, that there had been a deterioration in his walking capacity since his previous appointment in July 2016. In response, he replied, “Don’t agree with the date. … sort of gradually it came on … since the accident with the walking, with the lower back ...;”[81]
[81]T121, L8-30
(z) he agreed that when he saw Mr Aliashkevich in September 2016, he could walk for only 500 metres. It was put to him that he saw Mr Aliashkevich again in October 2016, at which time he had told the doctor that there had been a further deterioration of his walking capacity since the previous appointment, to the point where he had to stop due to pain and numbness in his legs and lower back, when he walked for more than 100 metres. In response to this proposition, he said: “...There was a worsening, but I can’t sort of recall exactly the metres we would have discussed;”[82]
[82]TT122-124
(aa) he did agree that in September and October of 2016, he experienced a “sudden and significant decline” in his ability to walk because of the numbness and pain in his legs;[83]
[83]T124, L10-13
(bb) it was suggested to the plaintiff that following the transport accident, through 2015 and into the early to middle part of 2016, his back and leg was “pretty much the same” as it had been for the many years before the transport accident. He replied, “No, I don’t agree… [between 2012 and 2014] I believe I was quite good. I had some problems, but not major problems;”[84]
[84]TT124-125
(cc) he then said that it was after 2011 that he experienced an improvement in his back symptoms. He later said he could not be specific about the year;”[85]
[85]TT125-126
(dd) he was asked whether, given his back had improved, he ever gave any thought to getting back to work after 2011. In response, the plaintiff replied, “I was in my period of retirement,” and also added “I think in that period I was on an invalid support pension”;[86]
[86]TT125-126
(ee) he saw Mr Littlejohn, a rheumatologist, in September 2011. It was put to him that he went to see Mr Littlejohn for ongoing neck and lower back pain. To this, he replied, “I went there for the right-hand shoulder. What we discussed in detail I can’t ... confirm.” He agreed that it was “most likely” that he also told Mr Littlejohn that he had “discontinued work three years ago,” at which time he was doing light duties three hours a day, five days per week, that he could not sustain work and was then on a Disability Pension;[87]
[87]TT126-127
(ff) it was possible that he might have gone to see Mr Littlejohn for his lumbar spine pain. He acknowledged that he may have told Mr Littlejohn that he was taking Mobic on a daily basis at that time. It was suggested to him that the use of Mobic at that time was for his back pain as well as for his shoulder pain. In response to this, he said, “I can’t sort of … separate them. If it’s for the back, if it’s for the shoulder ...;”[88]
[88]T127, L13-30
(gg) he agreed that in September 2011, he told Mr Littlejohn that he lived in a house with his wife and son, and the heavier chores were done by either his wife or his son, because he “can’t do much around the house”. It was put to him that it was as much his back as his shoulders that was restricting him from doing heavier work around the house at that time, to which proposition he replied “I could not separate them”;[89]
[89]T128, L18-24
(hh) he could not confirm that in July 2011, he complained to his general practitioner of constant low-back pain, lately worse, with pins and needles into his buttocks and the back of his thighs;[90]
[90]T129, L15-21
(ii) he agreed that on 24 August 2011, he attended his general practitioner and complained that he was experiencing low-back pain with moderate walking, that the pain was very sharp pain, and that he wanted to try a course of physiotherapy. Despite this, he denied that on 10 October 2011, he had returned to his general practitioner complaining about his right shoulder, and also that he had chronic low-back pain. He claimed not to understand the word “chronic”;[91]
[91]TT130-131
(jj) It was suggested to him that on 29 November 2011, he told his general practitioner that he still had constant low-back pain and he was only walking for about one block. He said that whilst he could not remember the exact time when this occurred, that had been the case. The distance around one block at his home was about 250 metres;[92]
[92]T131, L16-22
(kk)he agreed that in February 2012, he was suffering from insomnia. This was because of his shoulders. He said that they had recovered now. When asked why he had sworn in his fifth affidavit that he still had ongoing difficulties with his shoulder to the point where this restricted his ability to fish, he replied, “You’ve got to swing to try and do your line, and if you catch a fish you’ve got to bring it in …”;[93]
[93]TT137-138
(ll)he maintained that following 2012, his back pain got better. When it was put to him that in the general practitioner’s notes in entries of February 2012, 15 March 2012 and 10 April 2012, he was recorded as still having constant low-back pain, he said “Yes, I agree, but I would say just in the beginning of 2012 that it was like that, but after that, no”. When asked what he defined as the beginning of 2012, he replied “The ... first two or three months”;[94]
[94]TT139-140
(mm)in April 2012, his general practitioner completed a Carer’s allowance form to allow the plaintiff’s wife to claim an allowance to be the plaintiff’s Carer. The plaintiff initially asserted that this was because he had just recently broken his leg. It was pointed out to him that he did not break his leg until December 2012. In response to this, the plaintiff replied “If it is like that, then it is like that”;[95]
[95]TT141-142
(nn)it was put to the plaintiff that contrary to his evidence to the Court, the medical notes demonstrated that his back had in fact been problematic for him right throughout 2012. In response, he replied, “No, can’t recall that”;[96]
[96]TT145-146
(oo)he obtained a Disabled Parking Permit through his general practitioner prior to the transport accident. He said it was because he was having “big problems” with his leg. The evidence indicated that the plaintiff had broken his leg in December 2012. He agreed that despite the fact that his leg had healed, he had continued to use the Disabled Parking Permit prior to the transport accident;[97]
[97]T147-148
(pp)despite having asserted earlier in his evidence that the Carer’s allowance form was filled in because he had broken his leg in April 2012, later in his evidence, he was able to give the exact date on which he had broken his leg: “It happened on 4 November. I stayed in hospital for 16 days. They put in pins and screws, the tibia and fibula ...;”[98]
[98]T148, L3-7
(qq)he said that in December 2013, he was “pretty good” so he did not think he would have been discussing ongoing problems with his back and right shoulder at that time;[99]
[99]T154, L3-13
(rr)he denied that on 28 May 2014, he attended his general practitioner complaining of longstanding low-back and right shoulder pain;”[100]
[100]T155, L17-25
(ss)he disagreed that the medical records demonstrated that he had continued to be significantly troubled by back pain right up until the time of the transport accident;”[101]
[101]TT156-157
(tt)he did not agree that prior to the transport accident, the problem with his back was of such severity that it was stopping him from doing things around the house, and that he was reliant upon his son and his wife to be doing a good deal of the household chores;[102]
[102]T158, L5-14
(uu)the day after the transport accident, he attended the general practitioner and told him that he had been hit from behind in a car accident, that he had pains in his neck and shoulder, that he had pain in his lower back and in the back of his right thigh, and also in his right knee in the position on the side and towards the back of the right knee. He agreed that he had struck his right knee on the dashboard in the transport accident, which caused him pain and difficulty. It was ultimately recommended by Mr Oppy, orthopaedic surgeon, in 2015 that he have surgery to his right knee;[103]
[103]T158, L15-29
(vv)on 26 August 2014, he told his general practitioner that he had low-back and neck pain since the accident but was principally complaining about a hernia on the left side, which had developed since the transport accident;[104]
[104]T159, L7-12
(ww)on 4 September 2014, he complained to the general practitioner about headaches and lower neck pains and problems with his urine;[105]
[105]T159, L13-16
(xx)on 22 October 2014, he attended the general practitioner and complained that there had been no change in his back and right shoulder pains. It was suggested to him that what he was telling the general practitioner at that time was that there had been no change to the longstanding back and right shoulder pain that he had experienced for many years. He disagreed with this proposition, and replied “My pain in the lower back had pretty much gone in 2013 to 2014. This was new pain, pain from the accident, and as a result Dr Giarrusso continued with treatment;”[106]
[106]TT159-160
(yy)he said that on 16 December 2014, he spoke to Dr Giarrusso about his hernia and also constant low-back and right shoulder pain. He said that at this time, his lower back pain “was beginning to hurt more and more”;[107]
[107]T160, L17-22
(zz)it was suggested to the plaintiff that the complaint he made to Dr Giarrusso at that time was exactly the sort of complaint he had been making to the general practitioner in 2012, 2013 and 2014, that is, constant pain in his lower back. In response to this proposition, he replied “No, I don’t agree. At that point in time, I was perfectly all right;”[108]
[108]T160, L23‑27
(aaa)on 27 January 2015, he talked to Dr Giarrusso about new symptoms since the accident: “I had new symptoms. Symptoms were the symptoms in the lower back, on the right side, the upper leg, and the neck. They were the problems that I would have been discussing;”[109]
[109]TT160-161
(bbb)he disagreed that he had told the general practitioner at this time that his lower back and right shoulder pains were “the same”;[110]
[110]T161, L7-11
(ccc)he disagreed that he told the general practitioner on 10 March 2015 that there had been “no change” to his lower back and right shoulder;[111]
[111]T161, L12-14
(ddd)he agreed that in around July 2015, his right knee had been giving way or collapsing with sharp pain: “That is correct. When I would be walking ... because of the pain in the lower back, my knee would lock whilst walking, as well as swell;”[112]
[112]T163, L15-21
(eee)it was suggested to the plaintiff that the pain he was experiencing was localised to his right knee. In reply, he said, “The walking I would be doing, I was doing for the back”. He agreed that he was referred to Mr Oppy, orthopaedic surgeon, in July 2015 in respect of his right knee;[113]
[113]T163, L25-26
(fff)he denied that on 23 July 2015, he told his general practitioner that his back and right shoulder pain were the same. He said that in relation to his back, he “would have said that it’s hurting more and more. With the shoulder I can’t recall ...;”[114]
[114]T163, L27-31
(ggg)he denied that on 8 December 2015, 5 January 2016 and 4 February 2016, he told the general practitioner words to the effect that there had been no change in his back or right shoulder pain;”[115]
[115]T164, L10-31
(hhh)it was suggested to the plaintiff that on 2 March 2016, he told his general practitioner that he had been having right arm and shoulder pain on and off for four years, with a relapse two weeks previously. In response to this, he replied, “I can’t recall. I had no need to be discussing around the right shoulder.” It was pointed out to the plaintiff that the general practitioner had organised for an x‑ray and ultrasound of his right shoulder at this time. In response to this, the plaintiff replied, “Maybe … but I cannot recall;”[116]
[116]T165, L1-13
(iii)it was “possible” that three weeks later, he saw his general practitioner, who talked to him about the results of the ultrasound on the right shoulder;[117]
[117]T165, L14-17
(jjj)it was put to the plaintiff that on that occasion, he told his general practitioner that his right shoulder pain and low-back pain were “constant”. It was also suggested to him that he had difficulty bending his back at this time. In response, he said, “Most likely. But the back was in more pain ...;”[118]
[118]T165, L18-23
(kkk)it was suggested to the plaintiff that the difficulty he had with bending his back was no different to the difficulty that he had in bending his back that he had demonstrated to Dr Giarrusso on many occasions in the years leading up to the transport accident. In response, he replied, “It’s so hard to say, like I do know that I was struggling, I was struggling to walk 2016, 17, 18 …;”[119]
[119]TT165-166
(lll)he confirmed that he was struggling to walk in 2016, 2017 and 2018: “Roughly, gradual. It was slowly going down;”[120]
[120]T166, L8-9
(mmm)it was put to the plaintiff that as at 23 March 2016, he had not made any complaint to the general practitioner about weakness in his left leg preventing his ability to walk. In response, he replied “So when I would go to Dr Giarrusso or mentioned about my legs every time and that the pain had sort of moved from the left to the right … I would be discussing my legs every time.” It was suggested to the plaintiff that the first time that he made any complaint to his general practitioner about weakness in his legs causing problems with walking, was on 17 August 2016. In response, he replied, “If that’s what he recorded, that is what he has recorded. I do know that I had problems with the legs – the walking before that during the year;”[121]
[121]T166, L18-23
(nnn)it was suggested to the plaintiff that on 4 May 2016 and 1 June 2016, he complained to the general practitioner about longstanding low-back and shoulder pain. He denied that he would have complained about his shoulders. He said he would have complained about “the new pain in the lower back”. He thought he would have complained about pain in the neck;[122]
[122]T166, L24-31
(ooo)it was suggested that in June 2016, he was prescribed Mobic for the first time since the transport accident. He said that he would have been prescribed the Mobic at this time “for everything, the back, neck, knee … he’d been prescribing it for everything”;[123]
[123]T167, L1-19
(ppp)it was put to the plaintiff that the only painkilling medication he had been prescribed prior to this and following the accident was a prescription of OxyNorm in August and September of 2014. He thought he recalled taking OxyNorm in 2016. When it was put to him that the records did not record this fact, he replied, “I have no control ... over what’s recorded. I do know that OxyNorm I was taking in 2016. I recall that these tablets were causing problems for me ...;”[124]
(qqq)he denied that he had been taking less painkilling medication after the transport accident than he had been taking in the years before it;[125]
(rrr)he denied that on 15 June 2016, he went to see his general practitioner complaining of increasing episodes of pins and needles and numbness in both hands, and pain and reduced movement in his left shoulder. To this, he replied, “I don’t agree with that at all. I would have discussed ... the pain in the neck and perhaps these things come as a result of the neck;”[126]
(sss)it was suggested that he was referred at this time to Mr Aliashkevich, neurosurgeon, for assessment of his problem. To this, he replied, “He sent me there because I was in a bad state with my back, as well as the neck;”[127]
(ttt)he initially agreed with the proposition that he told his general practitioner on 17 August 2016 that he had been experiencing “increasing severe low-back pain and more recently right leg pain and weakness”. He then qualified this answer by saying, “I mentioned that it started from the accident from the start and slowly, slowly was getting worse and worse. Whether he believed me or whether he recorded it, I don’t know.”[128]
(uuu)it was suggested to the plaintiff that he was prescribed OxyNorm in August 2016, which was at about the same time that he started to develop weakness in his legs. To this, he replied “My legs, no. My legs gave way in the beginning, slowly, slowly, slowly;”[129]
(vvv)since the back surgery, he has been able to walk for 300−400 metres. He agreed that between 2008 and 2010 when his back was bad, his mobility was affected and he had struggled to walk at that time. He also agreed that at various times prior to the transport accident, his ability to walk was limited to a few hundred metres. He qualified this answer by saying “So 2010 onwards slowly, slowly they went away, and then in 2012, when I broke my leg, you know, I couldn’t use my leg;”[130]
(www)he agreed that as at 29 November 2011, he was limited to walking around the block, which was a distance of about 250 metres;[131]
(xxx)he disagreed that he had experienced a persistent problem with walking prior to the transport accident;”[132]
(yyy)he agreed that his ability to walk now is better than it was prior to the transport accident.[133]
[124]TT167-168
[125]T168, L11-13
[126]T168, L14-20
[127]T169, L5-8
[128]TT169-170
[129]T171, L13-23
[130]TT171-172
[131]T172, L5-8
[132]T172, L9-14
[133]T172, L15-18
Re-examination of the Plaintiff
21Under re‑examination, the plaintiff gave the following evidence:
(a) in 2014, immediately prior to the transport accident, he did not have any problems with walking: “I’d be walking up to a thousand metres around Reservoir lake. Working around the house, I didn’t have those problems;”[134]
(b) in 2014 leading up to the transport accident, he did not have any trouble with leg weakness or leg pain referred from his back or numbness in his legs;[135]
(c) immediately following the transport accident, he described sharp pain in the back, and that as time went on, the pain “continued to go upwards ... worse”. He said that after the transport accident, he experienced symptoms in his legs in the form of “pins and needles all the way down ... pain in the legs, more so than it ever was before”;[136]
(d) straight after the transport accident, it felt like his legs were “not functioning properly, they were slowing me down and that’s why we went to Dr Giarrusso and I reported that to him;”[137]
(e) he explained that in September 2012 when he broke his leg, he had been climbing up a ladder to cut branches, and because some of the branches were higher up, he stood on the fence, leaned on the fence, and then climbed on the fence and started walking along it in order to be able to cut some of the high branches. He said that the last branch snapped and he had to jump, and he jumped into the garden;[138]
(f) at that time, his back symptoms were not preventing him from doing gardening;[139]
(g) prior to the transport accident, his fractured leg had healed to the point where he was able to resume his gardening activity: “Towards the end of 2013, beginning of 2014, I was able to walk normal ...;”[140]
(h) he now has difficulty sleeping because of pain in his back and in his neck;[141]
(i) prior to the transport accident in 2014, he was not having any difficulties with sleep that he can recall.[142]
[134]TT172-173
[135]T173, L3-6
[136]T173, L23-29
[137]TT173-174
[138]TT174-175
[139]T175, L5-8
[140]T175, L24-30
[141]TT176-177
[142]T177, L9-10
Evidence from the lay witnesses
22As referred to above, the plaintiff relied upon affidavits from his son and daughter. The relevant evidence from his son, Mr Oliver Stankovski, contained in his affidavit sworn on 9 April 2021, is as follows:
(a) his father had problems “on and off” with his back up until the transport accident. Prior to the transport accident, his father altered his lifestyle so that he could better cope with his back. He built swimming into his daily routine. His observation of his father was that the back problems did not bother him much once he adapted his lifestyle;[143]
(b) despite the back issues that he had, his father was a happy, social, active and engaging person. He would come over and play with his young grandchildren as much as he could prior to the transport accident. His observation is that his father struggles to connect with his grandchildren in the way that he used to. He is no longer talkative and open. He holds back and does not engage. Even when the children try to engage with him, his father is not interested;[144]
(c) since the transport accident, his father has not been the same. He has been a lot more reserved and less engaging than he used to be. He is “spaced out” and “distant”;[145]
(d) prior to the transport accident, he and his father used to go fishing two to three times per week and they would also get together two to three times per week to have a drink and a chat. They have not been fishing since the accident due to the back injury. They now rarely get together for a drink. When he tries to contact his father once or twice a week, his father only stays on the phone for a minute before handing over to his mother. Before the accident, they would spend 30 minutes or more on the phone talking together;[146]
(e) since the operation, his father is walking around more and holding himself up a bit better. He has observed that his father struggles to stand or walk for prolonged periods and after a while he will grab at his back. His father still finds it hard to get up from a seated position, particularly from a couch.[147]
[143]Ex P1, p26-27
[144]Ex P1, p27-28
[145]Ex P1, p27
[146]Ex P1, pp27-28
[147]Ex P1, p28
23In her affidavit sworn 1 April 2021, Mrs Anita Osavkovska, swore to the following matters:
(a) in the mid‑1990s, she was living with her parents. At this time, she noticed that her father had some slight back problems. They did not seem like anything “major”. Her father was still “out and about”, working, doing things with the family and playing with his grandchildren. From time to time, he would mention something about a little bit of back pain, but it did not hold him back. Over many years, her observation of her father’s back was that the condition seemed to ebb and flow. There was nothing dramatic and it did not significantly affect his everyday life;[148]
(b) she and her father used to do a lot together. They would go on holidays to the Mornington Peninsula, usually a couple of times a year, and would go fishing while they were down there. Her father always had a boat and would often go out by himself. During the year, he would usually have a Friday night dinner at his place and he would cook a barbecue or prepare seafood for his children and grandchildren. These dinners continued right up until the transport accident;[149]
(c) since the transport accident, her father has changed. He is not the same mobile, active man that he used to be, and he complains about pain regularly. She has not been on a boat or fishing with her father since the accident;[150]
(d) Friday night dinners are not what they used to be since the transport accident. After the transport accident, her mother took over dinner and she and her husband would help out where they could. Over the last few years, she has had her mother and father to their place. The dinners are much more rare because her father is not as flexible as he used to be and does not leave home all that much;[151]
(e) she has seen a change in her father since the transport accident. He used to be a stoic man who did not complain. When her father says that something is not right, she takes notice. The deterioration of her father in not being able to do things that he used to do and enjoy, like the activities that she has referred to above, or long walks or a day out having a picnic with the family, indicate to her how much worse he is now than he was before the transport accident.[152]
[148]Ex P1, p29-30
[149]Ex P1, p30
[150]Ex P1, p30
[151]Ex P1, p30
[152]Ex P1, p31
Medical evidence
24There were numerous medical reports contained in the tendered material. Both parties relied upon reports from medico-legal experts. A précis of the medical material is set out below.
Pre-accident presentation
25Numerous medical and imaging reports concerning the plaintiff’s pre-accident presentation were included in the materials tendered to the Court, primarily within the Defendant’s Court Book. The content of those reports is set out below.
26In a report of a CT scan of the plaintiff’s lumbosacral spine dated 18 March 1997, it was noted that the scan showed that the plaintiff was then suffering from a “Left L4‑5 and L5‑S1 disc herniation”.[153]
[153]Ex D1, p5
27In a report of a CT scan conducted of the plaintiff’s cervical spine dated 14 September 1999, it was noted that the plaintiff was then suffering from a “left C6/7 disc herniation. Minor generalised degenerative changes.”[154]
[154]Ex D1, p6
28In a report of an MRI scan conducted of the plaintiff’s cervical spine dated 30 November 1999, it was noted that the plaintiff was then suffering “At C6/7 a left paracentral and foraminal soft disc protrusion ... It fills the neural foramen and compresses the exiting left C7 nerve root.”[155]
[155]Ex D1, p7
29In a report of a CT scan conducted of the plaintiff’s lumbar spine dated 13 June 2008, the following comment was made about the findings of that imaging:
“1.Grade one spondylolisthesis of L3 over L4 with no evidence of spondylolysis noted.
2. Decrease in the L4/5 intervertebral space suggesting disc degeneration and in the T12/L1 disc space.
3. A diffuse disc bulge at L5/S1 compressing bilateral descending S1 nerves.
4. A posterior and left paracentral disc bulge at L4/5 compressing bilateral descending L5 nerves, more on the left side.
5. A broad based posterior disc bulge at L3/4 which along with ligamentum flavum hypertrophy is causing degenerative spinal canal stenosis with compression of bilateral descending L4 nerves.”[156]
[156]Ex D1, p8
30In a report of an MRI scan conducted of the plaintiff’s lumbar spine dated 18 September 2008, the following matters were noted:
“L3-4
Broadbased disc bulge … Bilateral subarticular canal stenosis is also present ...
L4-5
An asymmetric left sided broadbased disc bulge, ligamentum flavum bulging and mild bilateral facet joint degeneration are identified. There is mild central canal stenosis and bilateral subarticular recess canal stenosis ...
L5-S1
Broad-based disc bulge and ligamentum flavum bulging present. Mild bilateral subarticular recess canal stenosis without neural compromise ...
Conclusion
1. Multi-level disc degeneration and facet joint arthropathy.
2. At L3‑4, compromise of both traversing L4 nerve roots, of mild degree on the right and moderate degree on the left. Mild central canal stenosis.
3. At L4‑5, compromise of both traversing L5 nerve roots, mild on the right and moderate on the left. Mild central canal stenosis. Mild bilateral neural foraminal stenosis without neural compromise.
4. At L5‑S1, mild bilateral neural foraminal stenosis, without neural compromise.”[157]
[157]Ex D1, pp10-11
31In a report of a CT scan of the plaintiff’s lumbar spine dated 18 July 2011, the following matters are noted:
“Moderate L3‑4 and L4‑5 degenerative facets. Severe central canal stenosis at L3‑4 disc level. Moderate central canal stenosis at the L4‑5 disc level. Moderate stenosis of right L3‑4 exit foramen.”[158]
[158]Ex D1, p13
32Mr Cedric Naylor, orthopaedic surgeon, examined the plaintiff on 21 April 1997 for a surgical assessment of his injuries, which were alleged to have occurred in the course of his work. In a report dated 22 April 1997, Mr Naylor noted that on 7 January 1993, when the plaintiff had been fitting an engine into a compartment in a vehicle, he had developed “sharp low back pain and he noticed stiffness developing in the left leg”. The diagnosis revealed by subsequent radiological investigation was a low lumbar disc prolapse. The plaintiff recounted to Mr Naylor that the pain from the injury “progressively worsened and pain advanced to involve the buttock after about one month, and a feeling of needles was present on the lateral side of the left thigh”. In Mr Naylor’s opinion at that time, the plaintiff was “recovering but demonstrated the slow performance of movements and incomplete mobility of the spine”. Mr Naylor considered that the plaintiff was then fit for full work but “with limitations”. He thought that the “present episode represents ... a setback and now clearly demonstrates left postero-lateral disc prolapse at the lower two levels, whereas originally it definitely involved only the L4/5 level”. Mr Naylor thought that the plaintiff would be assisted by an operation to decompress these two discs.[159]
[159]Ex D1, pp15 and 17
33In a report dated 20 November 1998 from the plaintiff’s then general practitioner, Dr Neil Sist, it was noted that in January 1997, the plaintiff had sustained a “marked aggravation of his pre-existing [back] condition and since that time, he has not been able to perform his normal duties as a panel beater”. Dr Sist noted that in 1993, the plaintiff had sustained a lumbar spine disc lesion. He said that in January 1997, the lesion was aggravated “to such an extent that the patient could no longer perform his pre-injury duties”. Dr Sist considered that the disability suffered by the plaintiff as a result of this aggravation was “now ... permanent”. He also thought that there was a “distinct possibility that this patient may have to consider surgery”.[160]
[160]Ex D1, p20
34On 16 October 2008, the plaintiff was examined with a view to having surgery performed by Mr de la Harpe, orthopaedic surgeon. In a report dated 20 November 2008, Mr de la Harpe noted that the plaintiff was at that time a sixty-one‑year-old motor mechanic who first had a work-related injury in 1993 and was off work for three months. The history indicated that the plaintiff made a return to work and had an accepted WorkCover claim. It was reported that the plaintiff had “injured his back at work several times since then, with periods of time away from work”. The plaintiff told Mr de la Harpe that in June 2008, he was lifting a small starter motor off the floor which weighed only a few kilograms. The plaintiff got back pain and left hip pain and had to stop work. The plaintiff told Mr de la Harpe that he had not been back to work since then. Mr de la Harpe set out in his report that the plaintiff was presenting with “back pain and bilateral leg numbness, weakness and pain”. He said that the plaintiff found that the bilateral leg symptoms were aggravated by walking. He noted that the walking distance reported by the plaintiff was “only 100‑200 metres and he has developed increasing pain into the legs rather than resolution of his symptoms with rest”. Mr de la Harpe noted that the plaintiff lives with his wife but “cannot do any of the domestic chores”. He said that the plaintiff reported “that his walking distance is now getting quite poor because of the leg symptoms”.[161] The plaintiff was then taking Mobic medication.[162] Mr de la Harpe noted the presence of lumbar canal stenosis and diagnosed the plaintiff as suffering from “severe lumbar canal stenosis now causing severe neurogenic claudication”.[163] In Mr de la Harpe’s opinion, if the plaintiff did not improve with conservative measures, and his walking ability and leg symptoms in particular were not to improve, then the plaintiff would be a reasonable candidate for an L4 laminectomy and decompression of the canal stenosis. [164]
[161]Ex D1, p21
[162]Ex P1, p53
[163] Ex P1, p54
[164]Ex D1, p21
35In a report written by Mr Kenneth Myers, general surgeon, dated 15 June 2009,[165] it was noted that the plaintiff had previous injuries to his lumbar spine in 1993 and 1997, to his neck and left shoulder in 1999 and to his right shoulder in May 2007. He said that the plaintiff had “ceased work in June of 2008, although he is still technically employed by the firm”. Mr Myers noted that the injury to the plaintiff’s lower back in 1997 caused him to be off work for approximately one year. While the plaintiff was able to return to work after this time, his activities “subsequently were always restricted, as were his working hours”. Mr Myers also noted that the plaintiff told him that in 1997 –
“… there were times when he was confined to a wheelchair with low back pain and wasting of the muscles of the left leg which he states took some 2 years to recover.”[166]
[165]Ex D1, pp49-51
[166]Ex D1, pp50
36In relation to the plaintiff’s neck, Mr Myers was told that –
“In 1999 … he was working under the dash of a car in an awkward position and jerked his neck and left shoulder … on this occasion he went off work for approximately 3 months and was only able to return to part-time work on light duties.”[167]
[167] Ex D1, p50
37Mr Myers noted that the plaintiff described his symptoms as follows:
“He states that his worst problem is constant pain in the low back with very restricted movements. The pain extends into the left buttock and left leg on the lateral aspect of the thigh and calf to the sole of the foot when the pain in the back is severe. He has had pain in the right leg in the past but not in recent times.
He states that he can avoid pain in the neck if he is careful but that he gets pain if he twists or strains the neck.
He describes constant pain in both shoulders with restricted movements.”[168]
[168]Ex D1, p51
38Under the heading “Effects on Daily Living Activities”, Mr Myers noted that “In the past he went fishing, shooting, had BBQs and went to soccer games, all of which are now impossible”.[169] In Mr Myers’ opinion at that time, the plaintiff remained totally incapacitated for all employment and had been so since at least 4 June 2008. He also was of the opinion that the injuries which the plaintiff had recounted to him, which included injuries to the cervical spine, lumbar spine, left shoulder and right shoulder, were “long term and permanent” as at 15 June 2009.[170] Mr Myers was of the opinion that the plaintiff had no current work capacity “because of each of his injuries considered separately”.[171]
[169]Ex D1, p51
[170]Ex D1, p53
[171]Ex D1, p54
39In a report dated 16 June 2009, the plaintiff’s general practitioner, Dr Giarrusso, expressed the view that the plaintiff was then suffering from an “L3/4, L4/5 and L5/S1 disc prolapse, C6/7 disc herniation, a right supraspinatus tendon tear”.[172] Dr Giarrusso said that the plaintiff’s medication at that time included analgesics, anti-inflammatory drugs, physiotherapy and hydrotherapy. He said that the plaintiff was presently taking Mobic, 15-milligram capsule, Panadeine Forte tablets and Tramal SR tablets, 100 milligrams.[173] Dr Giarrusso was of the opinion that the plaintiff was “totally incapacitated for employment” at that time.[174] He was of the opinion that both the C6-7 disc herniation and the L4-5 disc prolapse were long term and permanent.[175]
[172]Ex D1, p58
[173]Ex D1, p58
[174]Ex D1, p58
[175] Ex D1, p59
40In a report dated 1 September 2011, Dr Geoffrey Littlejohn, rheumatologist and Associate Professor of Medicine, stated that he had interviewed and examined the plaintiff on 1 September 2011. At that time, the plaintiff complained of “persisting pain and dysfunction of the right shoulder as a key problem. In addition, he also has pain and dysfunction of the left shoulder as well as neck and ongoing low back pain.”[176] Dr Littlejohn recorded that the plaintiff had discontinued work in 2008 “at which time he was doing light duties three hours a [day, five days per] week.[177] He said he couldn’t sustain that work. He said he is now on a Disability Support Pension.”[178] He noted that when the plaintiff bends forward, he experienced tingling, numbness and pins and needles in the index and long finger of the right hand. Dr Littlejohn thought that the plaintiff’s right shoulder pain was not linked to the discomfort in the neck which the plaintiff had experienced from time to time. The plaintiff described his neck as “not too bad” at that time. The medication which the plaintiff was taking was set out follows:
· Mobic, 15 milligrams per day
· Tramadol, 100 milligrams, one or two a day as required
· Panadeine Forte, three to four a day as required
· Sometimes Nurofen, sometimes Panadol as required.[179]
[176]Ex D1, p60
[177]I note that the information in Dr Littlejohn’s report is inaccurate – the quote has been modified to reflect the agreed information between the parties as to the hours that the plaintiff was working when he ceased work
[178]Ex D1, p61
[179]Ex D1, p63
41Dr Littlejohn reported that the plaintiff –
“… lives in a house with his wife and a son. He said the heavier chores are done by his son or wife. He said he can’t do much around the house. He can drive a car. Sometimes he has trouble maintaining arm support on the steering wheel.”[180]
[180]Ex D1, p63
42The clinical records of the Andrew Place Clinic, being the general practice which the plaintiff attended, were included in the Defendant’s Court Book. These records spanned the period from September 1999 through to December 2019. In summary, those records demonstrated that the plaintiff constantly complained of low-back pain since at least 2004,[181] as well as shoulder pain[182] and occasionally neck pain[183] in the period during which he attended that clinic. It was submitted by Senior Counsel for the defendant, and it is evident from the records, that in particular, the complaints of low-back pain which were being made right up until just prior to the transport accident, were similar in nature to the complaints of low-back pain and the sequelae which were made following the transport accident and up until the plaintiff was referred in relation to radiating symptoms in his legs to Mr Aliashkevich, in September 2016.
[181] See for example entries dated 23 July 2004 and 9 August 2004 (Ex D1, pp75-76)
[182] See for example entries dated 26 Jul 2005 (Ex D1, p80) and 6 October 2005 (Ex D1, p81)
[183] See for example entries dated 9 September 2004 (Ex D1, p75) and 10 March 2005 (Ex D1, p78)
43In a letter dated 23 July 2014, Dr Giuseppe Giarrusso, general practitioner, wrote a letter to the “Claims Department” of an organisation called “X‑Change”, seeking a pool and gymnasium membership for three months, in order to manage what was described as “a work related lower back injury”.[184]
[184]Ex D1, p25
Current presentation
The Plaintiff’s medical evidence
44In a report dated 17 May 2018, Mr Michael Reeve, physiotherapist, said that the plaintiff had been referred to him on 17 October 2016 by Dr Giarrusso for a trial of physiotherapy prior to possible spinal surgery. Mr Reeve was told by the plaintiff that the transport accident “resulted in the exacerbation of his prior back condition which became progressively worse over the following two years”.[185] The plaintiff reported that he was suffering from lower back pain, spasms and bilateral posterior thigh pain. The plaintiff was then unable to walk greater than 100 metres and to sit for longer than 10 minutes. His activities of daily living were markedly compromised.[186] Mr Reeve expressed the opinion that the underlying pathology in the plaintiff’s back was present prior to the transport accident. Based on the history that had been given to him, Mr Reeve thought that it was “likely” that the plaintiff’s condition had been exacerbated by the transport accident.[187]
[185]Ex P1, p42
[186]Ex P1, p42
[187]Ex P1, p43
45In a report dated 13 January 2020, Mr Michael Mazzocato, physiotherapist, reported that the plaintiff’s management since the previous report had consisted of clinical Pilates one to two times weekly, a home exercise program, and manual therapy every one to two weeks. The plaintiff’s walking tolerance had fluctuated between 100 metres and 500 metres, before needing a rest due to pain. Mr Mazzocato agreed with Mr Reeve’s previously expressed opinion that the accident had “worsened” the plaintiff’s low-back condition. Mr Mazzocato incorrectly stated that the development of chronic pain “[coincided] with the accident.”[188]
[188]Ex P1, p46
46In a report dated 28 July 2015 authored by Mr Andrew Oppy, orthopaedic surgeon, it was noted that the plaintiff had been involved in a transport accident on 8 August 2014 “where his right knee was struck in [the] anterolateral corner. This has gone on to cause him quite significant pain and problems over the past twelve months and has even led to more recent locking and giving way of his knee. The past two months have been quite unbearable.”[189] Mr Oppy recommended that the plaintiff undergo a knee arthroscopy. No mention was made of the plaintiff’s low-back issues to Mr Oppy.
[189]Ex P1, p48
47In a report dated 30 March 2020, Mr de la Harpe recounted his consultation with the plaintiff in October 2008, and noted that the next consultation was twelve years later. Mr de la Harpe noted that there had been a transport accident in 2014 following which “I am told that his lower back pain and claudication symptoms have worsened”.[190] Mr de la Harpe expressed the opinion that the lumbar canal stenosis, diagnosed in 2008, “would with time and age have deteriorated with or without the transport accident occurring. It is therefore difficult to say how much contribution the transport accident had to his current situation of now developing severe canal stenosis and instability ... .”[191] Mr de la Harpe expressed the view that the plaintiff’s condition most likely would have deteriorated in the absence of the transport accident, but he expressed the view that “if the symptoms rapidly increased after the accident then the accident has contributed to the degenerative decline.”[192] (emphasis added) Given the information with which Mr de la Harpe had been supplied, viz, that the plaintiff had suffered from severe low-back pain and claudication since being involved in the transport accident in 2014,[193] he concluded that the degenerative condition had been “aggravated by ... the [transport] accident”.[194]
[190]Ex P1, p54
[191]Ex P1, p55
[192]Ex P1, p55
[193]Ex P1, p61
[194]Ex P1, p55
48In a report dated 24 October 2017, Dr Giarrusso said that following the transport accident on 8 August 2014, the plaintiff complained of neck, shoulder, right thigh and right knee pain. The examination showed that the plaintiff then suffered from “a moderate restriction of low back movement”. He noted that the plaintiff continued to experience neck pain “on and off”. Dr Giarrusso recorded that on 15 June 2016, the plaintiff had presented with “increasing episodes of paresthesia and anesthesia in both hands”.[195] An MRI scan of the cervical spine revealed significant foraminal stenosis with suspicion of C6 and C7 nerve root impingement. He noted that the plaintiff “continued to experience low back pain and left leg pain”.
[195]Ex P1, p65
49The plaintiff was referred to Mr Ales Aliashkevich, a neurosurgeon and spinal surgeon, in respect of the neck pain and problems with the plaintiff’s hands. On 3 August 2016, the plaintiff reported low-back pain and bilateral leg pains. An MRI scan of the lumbosacral spine at this time showed L3‑4 and L4‑5 spinal cord stenosis. Mr Aliashkevich reviewed the plaintiff and felt that surgical decompression would be the only option of obtaining relief from the plaintiff’s low-back symptoms.[196]
[196]Ex P1, p65
50Dr Giarrusso expressed the opinion that in the transport accident in August 2014, the plaintiff had suffered a left inguinal hernia, low-back and neck injury. He noted that the hernia had been repaired, the neck symptoms “are ongoing but bearable”. He said, however, that the plaintiff’s “low back problem shows no signs of improving and [the] only long term relief would be surgical decompression”.[197] I note that while Dr Giarrusso stated that following the transport accident, the plaintiff experienced neck pain “on and off,” there is no mention of such complaints being made in the medical records which were tendered into evidence.
[197]Ex P1, p66
51In a report dated 25 March 2021, Dr Tristan Barnes, general practitioner, of the Andrew Place Clinic provided an updated report in respect of the plaintiff’s treatment at that medical practice. Dr Barnes stated that it is “impossible to say absolutely whether [the plaintiff’s injury to his neck and low back] are degenerative or a result of/aggravated by … [the plaintiff’s] MVA”. Dr Barnes thought it was “reasonable to assume” that his injuries could have been exacerbated by the transport accident.[198] Dr Barnes thought that there was no mention of a neck injury prior to the transport accident. An examination of the medical records demonstrates that this observation is incorrect.
[198]Ex P1, p68
52In a report dated 17 September 2020, Dr Barnes of the Andrew Place Clinic noted that the plaintiff had an L3-4 decompression and interbody fusion surgery performed on 20 May 2020. Following the surgery, there was “some improvement in leg pain but ongoing back pain”. Dr Barnes observed that “Nerve pain can take many months to respond to surgery so recovery could be ongoing”.[199]
[199]Ex P1, p70
53The plaintiff was seen by Dr Ales Aliashkevich on 22 July 2016. At that time, his medical problems included:
“• Chronic and refractory mechanical neck pain and bilateral right more than left brachialgia since motor vehicle accident in August 2014;
• Progressive numbness in the hands and fingers …;
• Chronic low back pain … .”[200]
[200]Ex P1, p71
54The plaintiff told Dr Aliashkevich that in the transport accident, he suffered whiplash to his neck and also complained about “injuries and pain in his legs”. This appears to be a reference to the knee injury suffered in the transport accident. The plaintiff complained about progressive stiffness and pain in his neck and later on, he also developed a numb and painful sensation involving his hands and fingers, predominantly on his right-hand side, exacerbated if he turns his head to the left more than to the right side. The numbness was also present at nighttime. The plaintiff was taking regular Mobic and other painkillers for his neck pain and also for longstanding back problems. It was recorded that the plaintiff told Dr Aliashkevich that he had a past medical history of back pain since 2001, a rotator cuff tear in 2005, left-sided hip pain in 2008 and had a right “tibia and fibular fracture in 2012”. Dr Aliashkevich sent the plaintiff for imaging of the head and cervical spine, which confirmed:
“… multilevel spondylotic changes in the cervical spine with the most significant changes identified in level C5/6 and C6/7 causing disc/osteophytic formations and narrowing of the exit foramen, compromising the C6 and C7 nerve roots bilaterally.”[201]
[201]Ex P1, p72
55Dr Aliashkevich recommended a trial of diagnostic C6 and C7 nerve root blocks, and referred the plaintiff to a pain specialist, Dr Symon McCallum. Dr Aliashkevich thought that if the plaintiff’s symptoms did not settle, he may be a candidate for surgical decompression in the future. I note that nowhere in the report dated 22 July 2016 was there any mention made of the plaintiff having suffered from an aggravation of his low-back injury in the transport accident, progressive difficulties with walking, or numbness or tingling in the plaintiff’s legs down to the level of his feet.
56Dr Aliashkevich saw the plaintiff again on 16 September 2016, at which time, the plaintiff presented with an “exacerbation of his low back symptoms and deterioration of his walking capacity since his previous appointment on 22 July 2016”.[202] (emphasis added) The plaintiff mentioned that he had had problems with his back over many years, but they had significantly deteriorated since the transport accident in 2014, and that his walking capacity has been progressively deteriorating.
[202]Ex P1, p73
57In the section headed “Medical Problems”, Dr Aliashkevich noted that the plaintiff’s diagnosis included “progressive neurogenic claudication with walking distance of about 500 metres”.[203] Given the progressive mechanical back pain and bilateral sciatic leg symptoms with the development of neurogenic claudication on a background of spinal canal stenosis, Dr Aliashkevich discussed the possibility of surgical decompression of the lumbar canal as the only realistic option of achieving some improvement of the plaintiff’s quality of life.[204]
[235]Ex P1, pp 280-281
85Mr Gard was of the opinion that the plaintiff’s lumbar degeneration and canal stenosis was already at a “fairly significant level” prior to the transport accident.[236] He said that had the transport accident not occurred, the plaintiff’s –
“… lumbar canal stenosis symptoms would still have progressed but not necessarily at the rate or extent to which is evident now. I think it is plausible that the impact from 80 kph has had a deleterious effect on … [the plaintiff’s] lumbar spine, which has not resolved and has led to the worsening of his symptoms.”[237]
[236] Ex P1, p 280
[237]Ex P1, p281
86As with Associate Professor Stark and many of the other doctors upon whom the plaintiff relied, it is clear that Mr Gard’s opinion is based on an incorrect history, particularly in relation to the nature and severity of the symptoms from which the plaintiff suffered prior to the transport accident, their persistence up until the transport accident, the effect which those pre-existing symptoms had upon the plaintiff’s ability to engage in work and his activities of daily living, the diagnosis of severe neurogenic claudication made by Mr de la Harpe in 2008, and the nature and timing of the exacerbation which the plaintiff suffered in his symptoms following the transport accident.
87The plaintiff first saw Mr Hazem Akil, neurosurgeon, on 28 January 2020, following a referral from Dr Symon McCallum, pain specialist. In a report dated 27 March 2020, Mr Akil said that he had been given a history that the plaintiff was:
“… struggling with his mobility since a road traffic accident which he was involved with in the year 2014. When I saw him in the clinic, he complained of lower back pain and feeling completely numb and weak in both lower limbs, particularly after walking a distance of 100 metres. Initially when I saw him, he struggled to walk from the waiting area to my office which is a distance of a few metres only.”[238]
(emphasis added)
[238]Ex P1, p165
88Mr Akil commented that the most recent MRI scan that was performed on the plaintiff showed severe spinal canal stenosis at the level of L3-4 associated with a Grade 1 spondylolisthesis. He suggested performing a decompression at the level of L3-4, complemented by a fusion. He expressed the opinion that the plaintiff had a pre-existing condition in the form of lumbar spine spondylosis. He said that the pre-existing condition was aggravated by the transport accident. He based his opinion on the history which he took from the plaintiff, where it was recounted that:
“… his symptoms took a significant turn for the worst (sic) after the road traffic accident. This makes me conclude that the accident caused severe symptoms and much worse consequences than the original condition that he has had before the accident.”[239]
(emphasis added)
[239]Ex P1, pp166-167
89Mr Akil noted that the plaintiff’s condition interfered with most of his activities in his life. He could barely walk short distances. This had consequences for his social, leisure and domestic activities. The plaintiff recounted that he had constant back pain, even when he is doing nothing. He said that the plaintiff’s history indicated that the condition continues to progressively worsen.[240] Mr Akil confirmed the opinions set out above in numerous additional reports.
[240]Ex P1, p166
90Mr Akil was required to attend for cross-examination, and did so on 1 June 2021. Under cross-examination, he gave the following evidence:
(a) the plaintiff was referred to him for management of his leg symptoms, weakness and pain. To the extent that he made a comment that the plaintiff had no “past medical history that could be contributory to his current condition,” Mr Akil said that by this comment, he was referring to the plaintiff’s lack of previous leg pain;[241]
[241]TT32-33
(b) he did not record in his report any symptoms of back pain, leg pain, weakness or difficulties in walking before the transport accident;[242]
[242]T33
(c) it was Mr Akil’s understanding that the plaintiff had no leg pain or weakness, or difficulties in walking prior to the transport accident: “That’s my understanding. That they weren’t significant enough, yes;”[243]
[243]T34
(d) his diagnosis of the plaintiff was “severe spinal canal stenosis at the L3-4 level”. It was for this condition that he performed surgery in May of 2020;[244]
[244]TT34-35
(e) he disagreed that if it was the case that the plaintiff was suffering from L3-4 canal stenosis prior to the transport accident, that would necessarily be contributory to his current condition. He said that the presence of spinal canal stenosis does not necessarily produce symptoms and neurological deficit. He agreed that if the plaintiff had “exactly the same levels of pain” prior to the transport accident, that would be a significant matter;[245]
[245]T35
(f) he was never told that the plaintiff had suffered leg weakness prior to the transport accident.[246] He agreed that if the plaintiff had significant leg pain, weakness and problems with mobility prior to the transport accident, then those symptoms would be contributory to his presentation, provided those symptoms were significant and not mild;[247]
[246]T36
[247]T36
(g) he understood that when the plaintiff saw Mr de la Harpe in 2008, his symptoms were not significant enough to prompt treatment;[248]
[248]T38, L25-31
(h) he was not “really quite sure” about the details of the plaintiff’s back condition just prior to the transport accident in August 2014. He understood that the plaintiff did have some back pain, but not significant severe leg pain;[249]
[249]T39, L1-7
(i) Mr Akil’s understanding was that the plaintiff did not have neurogenic claudication prior to the transport accident. He said that neurogenic claudication would have presented itself in the plaintiff experiencing bilateral leg pain, and weakness and numbness, and a limitation on walking of “100 metres or more”;[250]
[250]T39, L1-14
(j) the bundle of nerves comprising the cauda equina, include nerves that can flow to the bowel and the bladder;[251]
[251]T51, L21-24
(k) Mr Akil made the point that what he was treating the plaintiff for was neurogenic claudication, manifesting itself in the plaintiff getting pain, weakness and numbness when he attempts to walk, “so he doesn’t have really severe pain all the time sitting, not doing anything. He just get[s] the pain and weakness every time he walks …”;[252]
[252]T55, L10-22
(l) he was not aware of an episode of left leg pain in 2004. He said that lower back pain associated with prolonged sitting, standing and walking is usually indicative of facet joint arthritis, which is not related to spinal canal stenosis;[253]
[253]T55-56
(m) he acknowledged that the plaintiff was also making complaints of paraesthesia in his fingers when holding his neck in full flexion in about 2004. Mr Akil was unable to say what would be causing this symptom, but acknowledged that there may be involvement of the cervical spine at that stage;[254]
[254]TT56-57
(n) he thought the paraesthesia in the plaintiff’s hand may have been caused by a vascular condition known as Raynaud’s phenomenon, in which case, that would have nothing to do with the spine. He nevertheless acknowledged that the plaintiff had a degree of restriction in his neck movements, as measured by the general practitioner examining the plaintiff’s cervical spine;[255]
[255]TT58-59
(o) he acknowledged that the plaintiff had reported some pain in his upper neck in June 2005;[256]
[256]T59, L23-25
(p) where an entry in the medical notes read “Back ISQ”, that meant that the back was “in status quo”. He acknowledged that meant that the condition of the back was identical to the previous examination;[257]
[257]T61, L22-27
(q) an MRI scan taken of the plaintiff’s lumbar spine in 2008 disclosed central canal stenosis at the L3-4 level, which is the condition for which Mr Akil was treating the plaintiff some years after the transport accident.[258] He acknowledged that as at 2008, the plaintiff had a “significantly degenerate back”;[259]
[258]TT65-66
[259]T68, L10-11
(r) Mr Akil was taken to a report by Mr de la Harpe in 2008, which described the plaintiff as presenting with canal stenosis at L3-4, which was productive of pain, weakness and numbness in the plaintiff’s legs, limiting his mobility to 100 to 200 metres. Mr Akil acknowledged each of these matters;[260]
[260]TT69-71
(s) he acknowledged that the picture being painted to Mr de la Harpe in 2008 was “the same picture that led him to having surgery from you in 2020”. He qualified this answer by noting that the plaintiff had seemingly improved for some years after seeing Mr de la Harpe;[261]
[261]T71, L4-7
(t) he acknowledged that in September 2008, the general practitioner’s notes recorded the plaintiff complaining of neck pain and occipital pain;[262]
[262]T71, L23-29
(u) Mr Akil said that his understanding was that prior to the transport accident, the plaintiff’s mobility was “reasonable”;[263]
[263]T72, L24-27
(v) he agreed that a walking tolerance of 300 metres would not be “reasonable” and commented “… that’s bad”;[264]
[264]T72, L28-31
(w) he acknowledged that if in 2009, the plaintiff could only walk 300 metres, “That’s not what I understood…”;[265]
(x) he was aware of the results of a CT scan conducted in 2011 which reported that in July 2011, the plaintiff was suffering from severe canal stenosis at the L3-4 level. He acknowledged that this was exactly the condition for which he treated the plaintiff in 2020;[266]
(y) Mr Akil doubted that the process of neurogenic claudication had “set in by July 2011” on the basis that most of the general practitioner’s notes that he was taken to indicated that the plaintiff’s main problem was “chronic back pain rather than persistent leg pain that radiates from his buttocks all the way to his feet”;[267]
(z) Mr Akil acknowledged that the process of canal stenosis is a degenerative one. He said that it was not necessarily progressive symptomatically;[268]
(aa) Mr Akil’s opinion that the transport accident caused the plaintiff’s difficulty with walking, which in turn led to the need for surgery, was based on the history he had received that the plaintiff did not have severe symptoms related to his walking before the accident;[269]
(bb) Mr Akil said that his understanding from the patient “and his clinical history is that the neurogenic claudication became … constant and a feature of his walking [immediately] after the accident”. He acknowledged that his understanding was that the difficulties with walking had come on “straight after the car accident”. He agreed that he could “only go on the history that [he gets] from [the plaintiff]”;[270]
(cc) Mr Akil said that if the plaintiff made no complaint of leg symptoms for eighteen months after the transport accident, “I would say that the accident has nothing to do with it … I mean my understanding from the patient is that the symptoms started after the motor vehicle accident and it didn’t take 18 months for it to develop”;[271]
(dd) Mr Akil acknowledged that if the factual finding was that the plaintiff made no complaint of increased symptoms attributable to the spinal canal stenosis immediately following the transport accident, then “… there’s not a link there [between the transport accident and the onset of symptoms]… No link. I agree with you … 18 months is a long time between the two. I mean, if the symptoms are going to develop, it will develop shortly after;” [272]
(ee) he was taken to a report of Dr Aliashkevich dated August 2016 which noted that the plaintiff had suffered from chronic lower back pain and “more recently, right leg pain and weakness”. Mr Akil acknowledged that the description of right leg pain and weakness was “consistent with neurogenic claudication”.He said that if the onset of those symptoms was two years after the transport accident, then he would be “reluctant to attribute the [transport] accident as a cause at that time without more information”;[273]
(ff) Mr Akil said that the presence of neurogenic claudication is manifested symptomatically where the patient feels pain that runs down the buttocks and goes all the way down the legs to the level of the feet, when they walk a certain distance. The distance can be as short as 200 to 300 metres in severe cases. He said that the symptoms should improve, not necessarily disappear, when the patient sits down or stops walking. He said that the word “claudication” means that the pain is not persistent pain. The symptoms occur particularly on walking.[274]
[265]T73, L2-9
[266]T77, L1-12
[267]T78, L20-30
[268]TT83-84
[269]T85, L12-18 and T86, L4-7
[270]T86, L16-26
[271]TT92-93
[272]TT93-94
[273]TT96-97
[274]T98, L4-17
The Defendant’s medical reports
91The defendant relied upon four reports provided by Mr Kevin Siu, neurosurgeon, the most recent of which is dated 12 May 2021. In each of the reports, Mr Siu expressed the opinion that the difficulties which the plaintiff now experiences with his walking and the need for surgical intervention were caused because of his pre-existing, age-related degenerative changes. His opinion, expressed forcefully, was that had the transport accident not occurred, the progression of symptoms in the plaintiff’s back would have been the same, viz:
“… the patient who six years after the accident has now arrived at a stage where there is significant and threatening compression of the cauda equina, with deterioration over the last six years is more likely to be age-related than from a soft tissue injury sustained in the motor vehicle accident.”[275]
[275]Ex D1, pp30-31
92Mr Siu relied upon a radiology report of an MRI scan of the lumbar spine conducted on 23 January 2020, which noted that the plaintiff was then experiencing “Gross canal stenosis at L3/4 with obliteration of the thecal sac together with elongation and tortuosity of nerve roots of the cauda equina indicating the severity and longevity of stenosis”.[276] (emphasis added.) On numerous occasions, Mr Siu also referred to and relied upon the report of Mr Peter Gard, orthopaedic surgeon, dated 10 February 2020, where Mr Gard states that the lumbar canal stenosis was at an “advanced stage” prior to the transport accident. Mr Siu said that he would “echo” Mr Gard’s statement that the plaintiff’s “… degenerative changes would … have progressed regardless of the [transport] accident ...”. Mr Siu added that “It is the natural history of canal stenosis to progress with time, as the cause of the stenosis is degenerative changes and degenerative changes get worse with time”.[277] Lastly, Mr Siu expressed the opinion that to the extent that various doctors had opined that the transport accident had aggravated the plaintiff’s pre-existing condition, they had not provided any evidence to substantiate their opinion.[278]
[276]Ex D1, p32
[277]Ex D1, p37
[278]Ex D1, p44
The issues
The Plaintiff’s credit
93The plaintiff’s credit was tested thoroughly during the hearing of this matter.
94As set out above, questions were put to the plaintiff during cross-examination that suggested that he had been less than open and honest with the Court in relation to his current presentation and the severity of the consequences of his pre-existing back injury and other injuries, especially as they related to restrictions on his activities of daily living and experience of pain.
95Further, the plaintiff was pressed about his numerous attendances upon his general practitioner in relation to back complaints and the severity of the injury from which he was suffering, prior to the transport accident. He was also cross-examined on the content of what he had told various treating doctors about the consequence and severity of his pre-existing back and neck injuries.
96For instance, the plaintiff did not depose to any pre-existing problems with his neck in any of his five affidavits. His evidence as to the consequences of the transport accident as it affected his neck was that those symptoms got worse as time progressed. He increasingly suffered from referred symptoms into his arms. Since his back surgery, his neck pain has become worse and movement of his neck is restricted. He suffers from pins and needles down his right arm and numbness in his hands during the night. He has also lost strength in his right arm. By contrast, the evidence reveals the following matters in relation to his neck symptoms:
(a) from as early as September 1999, the plaintiff was suffering from a disc herniation at the C6-7 level, with compression of the C7 nerve root;
(ii) at various places in the Andrew Place Clinic medical records, it is recorded that the plaintiff complained to his general practitioner of neck pain, prior to the transport accident, including of paraesthesia in his hands and fingers;
(iii) the plaintiff attended Dr Giarrusso on 10 March 2005, at which time it is recorded that he complained of “longstanding” neck pain;
(iii) in 2009, Mr Myers, orthopaedic surgeon, provided an expert opinion in relation to the plaintiff’s cervical spine injury, concluding that it was at that time “long term and permanent”. He considered the plaintiff to be unfit for all work at that time, because of the injury to his cervical spine;
(iv) in 2009, Dr Giarrusso thought that the disc herniation at C6-7 was an injury that was “long term and permanent”;
(v) in 2011, Dr Littlejohn, rheumatologist, reported that the plaintiff had pain and dysfunction in his neck and experienced “tingling, numbness and pins and needles in the index and long finger of the right hand when he bends forward”;
(vi) the plaintiff told Dr Serry, psychiatrist, that he had experienced neck pain “from about 1996 onwards”;
(vii) after an examination of the plaintiff in February 2020, Mr Gard concluded that the plaintiff’s cervical and upper limb symptoms had been “stable over recent years” and that the extent of worsening of the pre-existing cervical spine spondylosis “was minor” from the transport accident. He thought that the plaintiff would have ongoing neck discomfort and stiffness with “occasional pain radiating into the upper limbs”. He observed that “at times, both hands get numb at night … this can be corrected fairly readily and rapidly by changing positions … he does not get numbness during the day now …”.
97Further, the plaintiff sought to minimise the extent of his pre-existing lumbar spine problems, saying in his first affidavit that he had low-back pain “on and off” but that the pain would always resolve. He also said that he ran his business until he sold it in about 2012, as he was looking to retire and he also broke his right tibia. In his second affidavit, he revealed his interaction with Mr de la Harpe in 2008, including the fact that the possibility of surgery had been raised. He qualified this disclosure by saying, “Ultimately, I was able to get back to work, and I gradually recovered. From time to time after that incident, I experienced bouts of back pain as I had done previously, but it did not considerably impact me in my day to day life.” In his fifth affidavit, the plaintiff disclosed that he was “in a bit of trouble” with his back in 2010 and 2011. He said that after 2011 his back “settled down”. He said that while he remained on a Disability Support Pension, he was able to fish as he wanted, to help out around the home and do some gardening. He said that his back condition was “generally … stable throughout 2013 and early 2014, but I would still see Dr Giarrusso from time to time”. By contrast, the evidence reveals the following matters in relation to his lumbar spine symptoms:
(a) by September 2008, an MRI scan of the plaintiff’s lumbar spine demonstrated that the plaintiff was suffering from compromise of both traversing L4 nerve roots. He was also diagnosed as suffering from central canal stenosis. This finding was confirmed in a 2011 CT scan;
(b) in 1997 and 1998, reports from treating doctors raised the possible need for the plaintiff to undergo spinal surgery in respect of his lumbar spine issues;
(c) on 16 October 2008, when the plaintiff consulted Mr de la Harpe, he presented with “back pain and bilateral leg numbness, weakness and pain”. The plaintiff’s symptoms were aggravated by walking, with the walking distance reported to be “only 100-200 metres”. Mr de la Harpe diagnosed the plaintiff as suffering from “severe lumbar canal stenosis now causing severe neurogenic claudication”. He was unable at that time to perform any of the domestic chores;
(d) following a consultation in June 2009, Mr Myers recorded that in 1997, the plaintiff had at times been “confined to a wheelchair with low back pain”. Mr Myers noted that the plaintiff ceased work in June 2008, “although he is still technically employed by the firm”. Mr Myers also recorded that in the past, the plaintiff had been able to go fishing, shooting, had barbecues and went to soccer games. He said that all of these activities are “now impossible”. He said that the plaintiff was totally incapacitated for all employment by reason of his lumbar spine injury, which was “long term and permanent”;
(e) in June 2009, Dr Giarrusso provided an opinion that the plaintiff was totally incapacitated for employment and that the plaintiff’s lumbar spine injury was “long term and permanent”;
(f) in September 2011, Dr Littlejohn, rheumatologist, noted that the plaintiff had discontinued work in 2008, at which time he had been working three hours a day, five days per week. The plaintiff reported that he could not sustain that work and was then went onto a Disability Support Pension;
(g) under cross-examination, the plaintiff acknowledged:
(i)that in April 2012, his general practitioner completed a form to allow his wife to claim a Carers’ allowance so that she could be the plaintiff’s carer;
(ii)that he had not worked since July 2008 when he was certified unfit for all work;
(h) the records of the Andrew Place Clinic demonstrated that the plaintiff attended that practice complaining of constant low-back pain since at least July 2004. Complaints of this nature were noted in the records up until just prior to the transport accident;
(i) in July 2014, Dr Giarrusso wrote to the insurer seeking funding for a pool and gymnasium membership because of the plaintiff’s “work related lower back injury”.
98Thirdly, the plaintiff’s case was that his lumbar spine was injured in the transport accident, to the point where he later required the surgery performed by Mr Akil in March 2020. In particular, the plaintiff pointed to the symptoms in his legs, difficulties with his activities of daily living and walking in particular, which ultimately led to the need for spinal surgery. The medical experts upon whom the plaintiff relied for an opinion that the transport accident had caused an aggravation of the pre-existing degeneration in the plaintiff’s lumbar spine, leading to the need for surgery to be performed, were given a history which suggested that the onset of the symptoms in the plaintiff’s legs and his difficulties with walking, occurred at a time proximate to the transport accident. By contrast with this, the evidence reveals the following matters in relation to the onset of his lumbar spine symptoms following the transport accident:
(a) following the transport accident, up until mid-2016, there was no mention of any low-back pain that differed in its description to that which the plaintiff had described prior to the transport accident;
(b) the first mention made by the plaintiff to his general practitioner of any leg pain following the transport accident, was on 20 July 2016, again on 3 August 2016, and, importantly, in this note dated 17 August 2016:
“Has been experiencing increasingly severe low back pain and more recently R leg pain and weakness … .”
(emphasis added)
(c) the fact that the onset of the leg pain and weakness was “recent” in August 2016, is supported by the fact that the plaintiff consulted with Dr Aliashkevich in July 2016 in respect of his neck pain and numbness in his hands and fingers. No mention was made to Dr Aliashkevich at this time, of leg pain and weakness;
(d) following a further consultation with Dr Aliashkevich in September 2016, it was reported that the plaintiff complained of “exacerbation of his low back symptoms and deterioration of his walking capacity since his previous appointment on 22 July 2016”. (emphasis added) At that time, the plaintiff’s walking distance was about 500 metres;
(e) in a report dated 6 October 2016, Dr Aliashkevich noted that the plaintiff had suffered a further deterioration in his walking capacity “since the previous appointment in September 2016”. His walking capacity at that time was limited to 100 metres;
(f) under cross-examination, the plaintiff acknowledged that he had suffered a “sudden and significant decline” in his ability to walk in October 2016;
(g) under cross-examination, Mr Akil said that if the plaintiff made no complaint of leg symptoms for up to two years after the transport accident, then the transport accident “had nothing to do with” the onset of those symptoms. He said that if the symptoms were caused by the transport accident, then they would have developed “shortly after” that event;
(g) Mr de la Harpe was also of the opinion that it was only “if the symptoms rapidly increased after the [transport] accident,” that he would conclude that the accident has contributed to the degenerative decline.
99Lastly, in his third affidavit, the plaintiff deposed to suffering from urinary incontinence, which he linked to the occurrence of the transport accident. He expanded upon this in his fourth affidavit, saying that since his back operation, he had begun to wet himself. In his fifth affidavit, he said that “not long following the transport accident” he had experienced urinary urgency. He said that he could not recall having any issues with urinary incontinence prior to the transport accident. By contrast, in the plaintiff’s fourth affidavit, he swore to the fact that prior to the transport accident, he would need to urinate “10-15 times in 24 hours”. In addition, he reported to Mr Gard in February 2020 that he is continent, but experiences “some urinary urgency”. Mr Gard reported that he was told that this issue is “longstanding and related to urinary obstruction,” which information the plaintiff had received during an “urological consultation”.
100Having had the benefit of observing the plaintiff while he was giving evidence to the Court, I formed the view that he was an unreliable witness who gave unsatisfactory and inconsistent evidence, carefully designed to advance his case. It became clear during the course of the hearing that the plaintiff was only prepared to make concessions about factual matters adverse to his case, if confronted with documents which recorded what he had said previously about those matters. On some occasions, even when confronted with these documents, he was not prepared to make a concession. The authors of these documents were not required to attend for cross-examination. Where the plaintiff’s version of events differs from that recorded in the medical notes, in the reports from treating practitioners and in the medico-legal reports, I prefer the evidence contained in those documents.
101On this basis, I formed the view that I would not be prepared to accept the plaintiff’s account of events, unless a particular matter was corroborated by documentary evidence or an account of an independent third party. In addition, as set out above, the inaccurate histories given to the plaintiff’s medical practitioners, have resulted in the Court being unable to rely upon many of the conclusions expressed therein. In particular, I have reached the conclusion that each of the medical opinions relied upon by the plaintiff as to the impact of the transport accident upon the plaintiff’s low-back symptomatology, must be assessed in light of the evidence given under cross-examination by Mr Akil. In particular, I note the opinion expressed by Mr Akil, that in order to be satisfied that the transport accident caused the plaintiff’s symptoms of neural claudication, the Court would need to be satisfied that those symptoms arose shortly after the transport accident. This evidence given by Mr Akil, accords with the opinion expressed about this matter by Mr de la Harpe.
Compensable injury
102The details of the occurrence of the accident are not in dispute.
103Having considered:
(a)the content of the plaintiff’s affidavits and his viva voce evidence;
(b)the content of the affidavits from the lay witnesses;
(c)the reports from treating professional and medico-legal experts from both sides, together with the viva voce evidence given by Dr Akil; and
(d)the content of the medical notes from the Andrew Place Clinic
I find that as a result of the transport accident, the plaintiff suffered from an exacerbation of his pre-existing degenerative cervical spine condition. I accept the opinion expressed by Mr Gard characterising the extent of the worsening of this condition as “minor”. By reason of my conclusion as to the plaintiff’s credit, I do not accept the plaintiff’s description of the extent of his present cervical spine symptoms. In reaching this conclusion, I have had regard to Mr Simm’s opinion in 2019 that the plaintiff’s spontaneous movements of his neck during examination were “better that those presented on formal evaluation”. Mr Simm also observed that neurological examination of the plaintiff’s upper limbs showed “no clinical signs of radiculopathy or nerve entrapment,” and that there was some “non-anatomical reduction of pinprick sensation”. Each of these observations lead me to conclude that the plaintiff’s own account of his symptoms should not be accepted unless corroborated by independent evidence. To this end, I accept the opinions set out in Mr Gard’s report, that as a result of the exacerbation, the plaintiff presently suffers from some numbness in his hand at night “which is able to be corrected fairly readily and rapidly by changing positions”. I accept Mr Gard’s opinion that the plaintiff will continue to experience ongoing neck discomfort and stiffness with “occasional pain radiating into the upper limbs”. I note that this condition is similar to the type of neck symptoms from which the plaintiff reportedly suffered prior to the transport accident, save that I accept that the numbness and pins and needles now seem to be a more prominent feature of the plaintiff’s presentation.
104In addition and on the basis of the same sources of evidence, I find that the progression of the central canal stenosis in the plaintiff’s lumbar spine, and the onset of neural claudication affecting the plaintiff’s ability to walk and leading to the need for surgery, began in or around July 2016. I find that up until this time, the complaints of back pain made by the plaintiff to his general practitioner, almost exactly mirrored those made in the years leading up to and just before the transport accident occurred. On that basis, and especially having regard to the opinions of Mr Akil and Mr de la Harpe referred to above, I am unable to be satisfied to the requisite standard that the plaintiff’s lumbar spine symptoms were caused by the transport accident.
Are the consequences to the Plaintiff of the transport accident “serious”?
105Having had regard to all of the relevant evidence, I find that the minor exacerbation of the plaintiff’s pre-existing cervical spine condition has led to an increase in the frequency with which the plaintiff experiences numbness and tingling in his hands. I find that this issue only occurs at night and can readily and rapidly be corrected by changing positions.
106Taking into account all of the evidence, and on the basis of the findings I have made as to the restrictions from which the plaintiff presently suffers as a result of the cervical spine injury alone, I am unable to be satisfied to the requisite standard that the pain and suffering consequences of this injury alone, are “very considerable” or “more than ‘significant’ or ‘marked’”. Therefore, I am not persuaded that the plaintiff has satisfied the relevant test for “serious injury” as set out in the Act.
Conclusion
107The application is refused.
108I will hear the parties on the question of costs.
- - -
0
4
0