Talebi v Transport Accident Commission
[2017] VCC 1499
•19 October 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-04212
| HAMED TALEBI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14, 15 and 18 September 2017 | |
DATE OF JUDGMENT: | 19 October 2017 | |
CASE MAY BE CITED AS: | Talebi v Transport Accident Commission | |
| MEDIUM NEUTRAL CITATION: [First revision 17 November 2017] | [2017] VCC 1499 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – impairment to the cervicothoracic spine
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Whisprun Pty Ltd v Dixon [2003] HCA 48; Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Richards v Wylie (2000) 1 VR 79; Abbas v Transport Accident Commission [2015] VSCA 217; Victoria v Glover [1998] VSCA 93
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A MacTiernan | Patrick Robinson & Co |
| For the Defendant | Ms M Britbart QC with Mr M Clarke | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 This is an application by the plaintiff for leave under s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to commence proceedings seeking damages at common law for injuries suffered as a result of a transport accident which took place on 12 July 2014. On that occasion, the plaintiff alleges he was a passenger in a motor vehicle driven by his friend, Ali Farshid Nia, when another vehicle driven by one Angela Gallea allegedly made a right-hand turn in front of his vehicle, having indicated its intention to turn left.
2 The serious injury relied on in this application is essentially an impairment to the cervicothoracic spine. The pathology giving rise to the impairment is alleged to be a fracture of the C5 vertebral body with a subsequent loss of less than 10 per cent vertebral height at C5.[1]
[1]Consultant radiologist, Dr Anthony Kam, 29 February 2016, Exhibit N
The issues
3 Senior Counsel for the defendant identified two main points at the commencement of the case; viz:
(i)The plaintiff is not a witness of credit and ought not to be believed;
(ii)Secondly, the injury and its consequences does not meet the threshold of serious injury as defined.
4 As to the first point, Senior Counsel relies on the admitted fact that immediately following accident, the plaintiff stated to the police and ambulance drivers, and indeed all relevant persons for the following six months, that he was the driver of the vehicle. It was only after he saw his present solicitor in early 2015 that he has maintained that, in fact, he was a passenger in the back seat. The explanation given by the plaintiff was that the driver of the vehicle, Mr Farshid Nia, had prevailed upon him to say he was the driver in the immediate aftermath of the accident because Mr Farshid Nia had not been displaying L plates on the vehicle as he was required to do by law. This explanation was corroborated by Mr Farshid Nia in his affidavit sworn 8 September 2017[2] and by the other passenger in the vehicle, Mr Hadi Gharakhani, in his affidavit sworn 4 August 2017.[3]
[2]Exhibit G
[3]Exhibit E
5 All three occupants of the vehicle were cross-examined and suffice to say that all three maintained that in fact Mr Farshid Nia was the driver of the vehicle and the plaintiff was a back seat passenger. Senior Counsel for the defendant does not urge a finding that the plaintiff was not the driver of the vehicle but relies on the fact that he was prepared to maintain a false position for so long, and to so many people, impugns his credit and reliability with respect to his reporting of symptoms and disabilities.
6 Further, the evidence disclosed that following the accident, the plaintiff was involved with his friend, Mr Gharakhani, in the retail marketing of clothes procured from Iran. Facebook entries tendered in evidence disclosed that the clothing business was advertised on the plaintiff’s personal Facebook account and advertised the website and mobile telephone number with reference to him personally. The explanation given by both the plaintiff and Mr Gharakhani is that it was Mr Gharakhani’s business and that Mr Talebi had assisted him with the technology in terms of setting up the advertising material on Facebook. Senior Counsel submits that the plaintiff’s assertion that he merely copied the advertisement from his friend’s Facebook entry in the first person is not borne out by Mr Gharakhani’s evidence that he did not have such an advertisement on his own personal Facebook account.
7 Whatever the exact nature of the commercial relationship between the two men was, it seems to have not been a profitable enterprise in any event. After a searching cross-examination of both parties, it appears that the only monies received by the plaintiff with respect to “clothes” was $500 as shown by his bank statement. Mr Gharakhani is presently a truck driver full time and has been so for some time. Before that, he was a forklift driver. The plaintiff, himself, was a meat worker prior to the accident and it appears that both men were content to be engaged in labouring-type duties with a view to seeing if they could develop an alternative business. The evidence would suggest that the business never amounted to a profitable enterprise.
8 Senior Counsel also submits that the plaintiff was less than frank about the extent of a back injury that he suffered in the course of performing strengthening exercises for his neck. Counsel points to the discrepancy contained in the plaintiff’s first affidavit sworn 26 May 2017 to the effect:
“42.I also suffer from constant back pain, which spreads down my left leg at times. The experience of pain down my left leg sometimes lasts for weeks at a time”[4]
with the plaintiff’s evidence in cross-examination that the back pain was essentially a self-limiting condition.
[4]Exhibit D, Plaintiff’s Court Book (“PCB”) 12
9 Counsel submits that the plaintiff was inconsistent in describing the nature and extent of his pain and “how it sort of jumped backwards and forwards in terms of him describing, do I have back pain, I don’t know, I don’t have back pain, I've had no back pain since then, oh yes, it’s sometimes”.[5]
[5]Transcript (“T”) 242, L10-14
10 I accept that there was a shifting of positions with respect to the back pain from time to time and certainly there was inconsistency as submitted. However, there had been no disguise by the plaintiff in the medical material that he had suffered a back injury in the course of doing his exercises for his neck injury and it seems to me, therefore, there was no forensic advantage one way or the other in being evasive about the back. In any event, it is not relied upon as an element in the impairment of the spine, but the evidence would suggest that it was a temporary sequelae to the injury in that it was brought upon by a treatment regime for the neck injury. Although counsel submits that the plaintiff was evasive with respect to this and other matters in his evidence, it should be pointed out that his mastery of English is quite limited and I am far from satisfied that the use of an interpreter in this matter significantly improved the situation. My view is that the interaction with the interpreter was at times difficult and may have exaggerated a perception of evasiveness.
11 Nonetheless, the fact that the plaintiff, by his own admission, had been dishonest with respect to who was driving the vehicle, and maintained this position for a period of at least six months, does make me look more carefully at objective evidence in this matter.
12 That being said, I am also mindful of the comments of Kirby J in Whisprun Pty Ltd v Dixon,[6] where his Honour stated:
“Lies and civil proceedings: Some judges in the past regarded untruthful evidence – even about peripheral or irrelevant matters - as fatal to a litigant. Most judges today understand that the evaluation of evidence involves a more complex function, requiring a more sophisticated analysis. Courts, after all, are not venues for the trial of the parties' morality or credibility, as such. As judges often explain to juries in criminal trials, people sometimes tell lies in court and elsewhere for extraneous and irrelevant reasons, having nothing to do with the legal issues in the trial. If this is true in criminal trials, it is equally true in civil trials. What is important is not the proof of untruthfulness, as such, but the significance (if any) of any demonstrated falsehoods for the issues at trial. That significance can only be judged when measured against the entirety of the relevant testimony. By its logical force, that testimony may well require that falsehoods be ignored as irrelevant or immaterial to the decision-maker’s ultimate conclusion. In particular cases, it may require the decision-maker, within the pleadings, to consider and decide a case different from - or even contrary to - that advanced by the party, because such is the legal entitlement of the person concerned.
Obligations of this kind recognise the ultimate duty of the decision-maker in an Australian court to decide a case according to law and the substantial justice of the matter proved in the evidence, not as some kind of sport or contest wholly reliant on the way the case was presented by a party. Litigants are represented in our courts by advocates of differing skills. Litigants are sometimes people of limited knowledge and perception. Occasionally, they mistakenly attach excessive importance to considerations of no real importance. In consequence, they may sometimes tell lies, or withhold the entire truth, out of a feeling that they need to do so or that the matter is unimportant or of no business to the court. This is not to condone such conduct. It is simply to insist that, where it is found to have occurred, it should not deflect the decision-maker from the substance of the function assigned to a court by law.”
[6][2003] HCA 48 at paragraphs [119] – [120]
Legal principles
13 The test for determining whether an applicant has suffered a “serious injury” within the meaning of s93(17)(a) of the Act was prescribed in Humphries & Anor v Poljak,[7] which was subsequently approved by the Court of Appeal in Mobilio v Balliotis.[8]
[7][1992] 2 VR 129
[8][1998] 3 VR 833
14 In Humphries & Anor v Poljak,[9] Crockett and Southwell JJ, stated as follows:
“… the task of a judge confronted with the requirement to determine an application made pursuant to subs(4)(d) when reliance is placed upon subs(17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’? Beyond such guidance it is, we think, not possible to go. … .”
[9](Supra) at 140
15 A plaintiff who has suffered a physical injury may develop a mental or psychiatric response to the pain associated with the physical injury. In a case where a plaintiff claims that she has suffered a “serious injury” within subparagraph (a) of the definition, in assessing the seriousness of the impairment of the relevant body function, it is permissible and appropriate for the Court to take into account the development of any psychiatric condition in response to the physical injury when deciding whether the consequences of the impairment of the relevant body function, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as “serious”.[10]
[10]Richards v Wylie (2000) 1 VR 79
16 In this case, both counsel referred me to the dicta in Humphries & Anor v Poljak, cited above, as interpreted by the Court of Appeal in Abbas v Transport Accident Commission.[11] The focus of the submission was the sentence:
“Those consequences will relate to pecuniary disadvantage and/or pain and suffering”
cited by the majority in Humphries.[12]
[11][2015] VSCA 217
[12]Ibid
17 In the latter matter, the plaintiff had, at the time of his hand injury, been working as a part-time labourer and had commenced a full-time course in hospitality and commercial cookery. Further, at the time of hearing, he had managed to earn income in excess of that which he was earning at the time of the injury and, accordingly, had suffered “no pecuniary disadvantage as a result of his injury”. The Court of Appeal stated:
“While it is true (as the judge said) that the applicant is well-educated, and that ultimately he may obtain employment in the field of accountancy, there is force in the applicant’s submission that his injuries have caused a loss of flexibility in the workforce, which loss of flexibility relevantly satisfies the description ‘pecuniary disadvantage’. Indeed, when considering the applicant’s pain and suffering consequences, the judge accepted that the applicant’s injuries have resulted in him having to give up hands-on occupations such as his preferred occupation of being a chef. In the circumstances, it was not entirely to the point for the judge to note that the applicant’s income has increased each year between 2010 and 2012. As was said by this court in Victoria v Glover: [1998] VSCA 93 at paragraph [30]:
‘Likewise, the argument appears to overlook the lack of flexibility so far as the respondent was concerned in relation to any future employment. Although he is guaranteed a job, as it were, he cannot change that job, and if he were to seek other employment, then his capacity for doing so and obtaining that employment would be greatly restricted, not only because of the nature of the work he has done in the past but, more importantly, because his injury has impaired his capacity to do different work in the future. In these unusual circumstances his present loss of income, however, is of relatively minor consequence in determining whether there has been impairment of the relevant kind. The impairment may be ‘serious’ although it does not at present result in any substantial loss of income.’”[13]
[13]Abbas v Transport Accident Commission (ibid) at paragraph [36]
18 In summary, the Court stated:
“… a pecuniary disadvantage is not to be overlooked, in applications of this kind, merely because what would be assessable as the loss of earning capacity over an applicant’s life, is not presently productive of actual loss of income at the time of the application. The fact that there may be no actual pecuniary loss to the time of the application does not mean that a loss that may occur in the future, by reason of the relevant injury limiting an applicant’s capacity for certain jobs, should not be properly considered as a relevant pecuniary disadvantage.”[14]
[14]Abbas v Transport Accident Commission (ibid) at paragraph [37]
19 Accordingly, the Court of Appeal considered that the test was as follows:
“… The point was whether the consequences of the injury that ‘relate to pecuniary disadvantage and/or pain and suffering’ satisfied the ‘very considerable’ test. In this case, the applicant was entitled to have his application considered by reference to the consequences that related to both pecuniary disadvantage and pain and suffering. If the consequences of the applicant’s injury that relate to pecuniary disadvantage and pain and suffering are such that, when his injury is judged by comparison to other cases in the range of possible impairments or losses, it can be fairly described as at least ‘very considerable’, then the applicant is entitled to succeed.”[15]
[15]Abbas v Transport Accident Commission (ibid) at paragraph [39]
20 The plaintiff’s case before me is that he suffered a crush fracture of the C5 vertebra which has left him with chronic pain in the neck, such that the physical job of a meatworker is permanently unavailable for him. It is said that the combination of the pain and the loss of employment flexibility would meet the Humphries v Poljak criteria.
The medical evidence
21 The treating general practitioner, Dr Roya Gorji, provided three reports dated 14 October 2014, 14 December 2015 and 22 February 2017.[16] She also attended for cross-examination. In her first report, Dr Gorji stated that a CT scan of the spine done on 12 July 2014 had disclosed a “closed fracture of C4-C5 and C6”.[17] She related how the plaintiff had been referred to an occupational therapist and chiropractor and had been advised to use a collar to support his spine. She also stated that based on an occupational therapist’s opinion, the plaintiff should avoid any heavy lifting (not more than 2 kilograms) and heavy duties. At that time, he was on Celebrex and Panadeine Forte to help with his pain. She considered that as a result of the fracture, he should avoid any kind of heavy lifting but could do modified duties after having appropriate physiotherapy and occupational therapy sessions.[18] Importantly, in my view, on examinations, she noted although there was tenderness on the cervical spine, “active cervical movements are not limited but painful”.[19]
[16]Exhibit H
[17](ibid) PCB 31
[18](ibid) PCB 32
[19](ibid) PCB 31
22 In her second report dated 14 December 2015, Dr Gorji related the plaintiff had suffered from chronic neck pain which was aggravated by prolonged standing and sitting. He also reported that he could not lift the grocery shopping and could not push the trolley. However, on examination, she noted:
“He has a full range of movements in his cervical spine and no cervical spine tenderness. Examination of his upper limbs and lower limbs did not reveal any neurological deficits, however, there is mild tenderness on T1.”[20]
[20](ibid) PCB 34
23 In my view, the fact that the plaintiff is prepared to exhibit a full range of movements of his cervical spine on a consistent basis militates against a suggestion that he is exaggerating his condition. At that stage, Dr Gorji stated:
“Currently he is on Naprosyn tablets and Fentalyn [scil Fentanyl] patch. I am planning to wean him off Fentalyn [scil Fentanyl] patch by the end of January 2016.”[21]
[21](ibid) PCB 35
24 She also noted:
“The prognosis with regard to employment is fair. Mr Talebi has some capacity for alternative modified duties but his limited English is likely to be a problem if alternative employment is needed.”[22]
[22](ibid) PCB 36
25 The next report chronologically is one from orthopaedic surgeon, Mr Robert Dickens, retained by the defendant, dated 15 December 2015.[23] Once again, there does not appear to be an over-reaction by the plaintiff on examination.
“He indicated that his neck movements were not too bad but that whenever he moved his neck he was conscious of a clicking sensation.”[24]
[23]Exhibit 8
[24](ibid) Defendant’s Court Book (“DCB”) 65
26 Further, he stated:
“Initially the pain did go down the left arm but this is no longer the case.”[25]
[25](ibid) DCB 65
27 Interestingly, Mr Dickens made the following comment:
“He was rather vague in supplying the history of his injuries, possibly due to difficulties in comprehension.”[26]
[26](ibid) DCB 66
28 Having observed the plaintiff in the witness box over an extended time during cross-examination, I consider that many of his responses could be put down to vagueness rather than deliberate fabrication. Mr Dickens’ diagnosis at the time appeared to rely on the discharge summary from the Royal Melbourne Hospital where they classified the injury as a closed cervical spine fracture involving C4, C5 and C6. Mr Dickens considered that if he did sustain compression fractures at the three levels, this could be regarded as “quite a significant injury to the cervical spine”. However, despite the development ostensibly of chronic pain, Mr Dickens considered that the “MRIs don’t really suggest any major residual problems to explain the situation”. Mr Dickens considered that he had a capacity for suitable employment such as “a car park attendant or crossing supervisor or even doing warehousing are the sorts of jobs he could cope with”.[27] However, he did not believe he was currently able to return to his original employment.[28] His prognosis was as follows:
“I believe his orthopaedic accident related injuries to the cervical spine have the potential to improve with time. They may even improve to the level where he can return to his original employment.”[29]
[27](ibid) DCB 69
[28](ibid) DCB 71
[29](ibid) DCB 72
29 The defendant had the plaintiff examined by Associate Professor Richard Stark, neurologist, who reported on 12 January 2016.[30] He indicated that “no interpreter was used but his English was not perfect but was sufficient for the interview”.[31]
[30]Exhibit 8
[31](ibid) DCB 75
30 The plaintiff gave a history that he had been working in a meat factory as a slicer full time and had been performing this job for about eighteen months prior to his injury and had not been able to return to work since the accident. On clinical examination, he noted, inter alia:
“He was alert and cooperative. His imperfect English made it difficult to perform formal tests of cognitive functioning but he appeared to have well preserved memory and concentration during the routine history taking. … There was only minimal diffuse restriction of range of cervical movement and no palpable spasm in the cervical par spinal muscles.”[32]
[32](ibid) DCB 78
31 On viewing the MRI disc of the cervical spine dated 29 April 2015, Dr Stark noted:
“This did show some irregularity and loss of height of the C5 vertebral body. The loss of height was less than 25 per cent of the vertebral body. There was also some subtle and less clear cut reduction on height in the C4 and C6 vertebral bodies.”[33]
[33](ibid) DCB 78
32 As to his diagnosis, he stated:
“It would appear that this young man was involved in a substantial collision. The description suggests that the vehicle hit a concrete barrier at 70 kilometres per hour. An injury of this type could certainly cause flexion/extension of the cervical spine and could cause compression fractures of cervical vertebrae.
My reading of the Royal Melbourne Hospital x‑ray reports and my own review of the MRI scan of cervical spine would suggest that there probably has been a fracture of the C5 vertebra with less than 25 per cent loss of height. There is also the possibility of some subtle loss of height from compression fractures in the C4 and C6 vertebrae. The changes in these vertebrae could however, be developmental or old.”[34]
[34](ibid) DCB 78
33 As to his prognosis, he stated:
“This young man does report ongoing pain from the cervical spine. This is somewhat greater than one might expect from the injuries that have demonstrated and of course, pain is a subjective complaint and difficult to quantify. However, it appears that the pain is the major factor that is interfering with his ability to return to work. I would accept that an injury of this type may cause pain which would prevent heavy duties such as involved in work such as a meat slicer.”[35]
[35](ibid) DCB 78
34 Finally, he stated:
“I think there would be an argument for him obtaining a further training in English language skills as this would increase his chance of employment in a form of work that is not too demanding with regard to physical activities.”[36]
[36](ibid) DCB 81
35 Because of some doubt with respect to the extent of the pathology, the defendant sought the opinion of consultant radiologist, Dr Anthony Kam, who reported on 29 February 2016. It appears Dr Kam was provided with all the relevant radiological information. His ultimate opinion was:
“Based on the information available, it seems most probable that Mr Talebi suffered a fracture of the C5 vertebral body as a result of the 12 July 2014 accident. There is less than 10 per cent vertebral height loss at C5. There is no resultant spinal instability. No other spinal fracture is shown. No pre-existing degenerative, congenital or traumatic spinal condition is identified.”[37]
[37]Exhibit N, DCB 84
36 Subsequently, Associate Professor Richard Stark was asked to review the reports of Mr Dickens and Dr Kam referred to above, and he did so on 28 April 2016.[38] He stated:
“I have now reviewed the report of Dr Anthony Kam and his careful review of the imaging indicates that in his view there is no fracture of C4 or C6 vertebrae and there is probable fracture of the C5 vertebra resulting in less than 10 per cent vertebral height loss.”[39]
[38]Exhibit M, DCB 85
[39](ibid) DCB 85
37 Importantly, he stated:
“An injury of this type may be associated with ongoing pain and I find no reason to disbelieve the symptoms reported.”[40]
[40](ibid) DCB 86
38 Thereafter, Mr Dickens in turn was asked to review the reports of Associate Professor Stark and Dr Anthony Kam referred to immediately above.[41] Having reviewed the other two professionals, Mr Dickens reported:
“I think it is reasonable to conclude that the injury was at worst a minor compression fracture of C5 with less than 25 per cent compression.”[42]
[41]Exhibit 8, DCB 87
[42](ibid) DCB 88
39 Further, he considered that:
“The apparent ongoing difficulties that this gentleman is now experiencing are not consistent with what I would have expected.”[43]
[43](ibid) DCB 88
40 Further, he stated:
“I would have expected significant improvement if not complete resolution of symptoms in a man of this age over a period of three to six months.”[44]
[44](ibid) DCB 89
41 I note that Mr Dickens did not further comment on the plaintiff’s fitness for returning to the type of work he had been performing pre-accident.
42 The defendant finally had the plaintiff assessed by occupational physician, Dr David Elder, who reported on 6 June 2017.[45] As to current treatment, he noted that the plaintiff was seeing his general practitioner monthly and had been prescribed Endep, 50 milligrams. He also reported having physiotherapy every two weeks and had previously been having chiropractic treatment. He was seeing a psychologist once a month. He stated that the most recent physiotherapist was helping a lot.[46]
[45]Exhibit 9
[46](ibid) DCB 92
43 In what appears to me to be a consistent presentation by the plaintiff, Dr Elder found, on physical examination, that:
“Cervical movements during the consultation were normal with him demonstrating normal cervical flexion when I showed him some of the documentation and he would nod and shake his head in answers to questions. This was all consistent with the formal range of motion, which was only limited in cervical extension. There was normal spinal contour with no spasm.”[47]
[47](ibid) DCB 93
44 Confirming a diagnosis of cervical spine C5 endplate fracture with no spinal cord involvement, he considered the prognosis was “relatively good”. He also thought the situation would be improved when he gains employment “in the type of employment he is applying for”. He considered that general practitioner review on a monthly basis and provision of Endep was reasonable. He considered that the injuries do not interfere with his ability to work in “that type of employment” which I infer refers back to “the type of employment he is applying for” and not his pre-injury employment.[48]
[48](ibid) DCB 93
45 The treating general practitioner, Dr Gorji, reported finally on 22 February 2017.[49] Overall, I infer from her third report that the plaintiff was slowly improving. She stated he:
“… complains of some residual neck pain in his neck mainly when sitting still. However, he feels that this is improving in time with physiotherapy. He is able to drive his car without any limitation of turning his head to reverse or to see properly on a freeway. His last x‑ray in April 2015 shows union of the fracture. There is also maintenance of cervical alignment.”[50]
[49]Exhibit H, PCB 37
[50](ibid) PCB 38
46 In line with this improvement, she stated that he was currently on no medication. On clinical examination, she noted that:
“He has no mid line bony tenderness. He has a preserved range of motion. He has no sensory or motor deficit. He has a normal gait and normal tendon reflexes.”[51]
[51](ibid) PCB 38
47 In confirming the diagnosis of injury to the C5 vertebral body with a fracture of the superior endplate, she considered that the prognosis with regard to the injuries was fair. She stated:
“I believe that Mr Talebi has some work capacity and he is able to do light duties which do not involve any heavy duties including lifting, pulling and pushing.”[52]
[52](ibid) PCB 39
48 Being the only medical practitioner required for viva voce evidence, she was asked if it was a one-off sentiment that the plaintiff was bored and wanting to go back to work. She replied:
“No, he was feeling frustrated because I could see that he’s trying to go back to work and he was in part – like an active participant in you know, job seeking. But – and we agreed on some roles for him. What can I say, he couldn’t get anything.”[53]
[53]T195, L2-11
49 Further, she confirmed that on 17 October 2016, she wrote a certificate to the following effect:
“As previously mentioned, Mr Talebi has been advised to avoid any heavy duties including heavy lifting, pulling and pushing. He was also advised to avoid prolonged standing and walking and to move between positions every 20 to 30 minutes.”[54]
[54]Exhibit B, T197, L7
50 In cross-examination, she was asked:
Q:“You would expect someone to have years of ongoing problems from that kind of a fracture, would you?---
A:I would say the patient might have some work capacity for actually modified duties but the pain is subjective actually, so I can’t really say if, you know, how severe the pain is. The pain might last, you know, for a few years because I’ve got cases of, you know, similar things and they suffer from pain.”[55]
[55]T201, L2-9
51 Further on, she was asked:
Q:“What I’m suggesting is that what you knew back in August 2014 about the nature of the injury, did not lead you to say that he shouldn’t ever work again?---
A:No.
Q:It led you to say he shouldn’t do very heavy work?---
A:Yep.
Q:But it was your expectation within a period of time he’d be able to go back to work?---
A:Exactly.”[56]
[56]T201, L21-26
52 Further, she was asked:
Q: “A period of say a couple of months after the accident, you started to notice psychological issues that Mr Talebi was having?---
A: Yes.
Q: And you referred him on to a psychologist?---
A: That’s correct.
Q: He continues to see a psychologist?---
A: Yes.”[57]
[57]T201, L27 – T202, L2
53 Thereafter, it was put to the doctor that many of the issues that the plaintiff had spoken to her about of a psychological nature had been due to issues with Immigration. In reply, she stated:
“[I initially] referred Mr Talebi to a psychologist regarding his injury. … Because he was in pain and you know, we know that chronic pain definitely brings depression and anxiety for the patient. But later down the track he faced, you know, some problems with immigration, so yeah, that was another contributing factor that made him more stressed and anxious.”[58]
[58]T202, L3-11
54 Further, it was put to the doctor that in February 2015, she took a history that the plaintiff used to sell clothes in Iran. She said he felt confident in doing that kind of job and that that was the kind of work that he wanted to do in the future, and it was retail jobs in the clothing industry that he was planning to apply for.[59]
[59]T205, L6-14
55 Further, on 22 December 2015, she took a history that the plaintiff:
“…. was trying to open up his business … a clothing shop and was happy to go back to work.”[60]
[60]T206, L1-3
56 Further, it was put to Dr Gorji that on 30 March 2015:
“He told you that day was feeling better, still had a degree of neck pain, the tenderness, physio sessions. Mentally he was better, he was still on modified duties, TAC looking for a job for him, if job not suitable will go to uni to study.”[61]
[61]T206, L16-21
57 Further, Dr Gorji stated that he wanted to study English.
58 Later, it was put that Dr Gorji had referred the plaintiff to a neurosurgeon, Mr Naheer, on or about 16 May 2015. It was put that Mr Naheer’s view was there was no need for any active treatment and it was just conservative treatment that was required, and she agreed. Further:
Q: “I suggest that Mr Naheer reported back to you that Mr Talebi had a full range of motion in his neck when he examined him?---
A: Yep.
Q: You agree with that, and that there was also no tenderness in his neck when he examined him?---
A: H’mn, h’mn.
Q: And you agree with that?---
A: Yeah, at times, you – you know, you might have a normal examination but when he does certain activities, that can aggravate the pain.
Q: But certainly your experience is that he mostly has a normal range of motion in his neck, doesn’t he?---
A: Yes.
Q: And no tenderness?---
A: No tenderness if he does not put any pressure on the neck, yep.”[62]
[62]T207, L24 – T208, L4
59 On further examination, it was put to her that the first time the plaintiff complained to her of low-back pain was 23 November 2016, and she agreed. It was also put that the back pain was far more severe than any of the neck pain he had complained about, to which she replied:
“I don’t think it was a major issue because the main consultation was about his neck injury over these years.”[63]
[63]T209, L25-26
60 Finally, it was put to her, after November 2016:
Q: “His main physical complaint to you became about low back pain?---
A: Okay, yep.
Q: You’d agree that as at now, his neck pain has greatly improved?---
A: Yes it has improved a lot.”[64]
[64]T210, L24-27
61 In re-examination, it was put to Dr Gorji:
Q: “Now, throughout 2014, 15 and 16 in particular, you have told his Honour that you have noticed that the plaintiff complained of pain in the neck and the upper back. From clinical findings, and with the knowledge of this MRI, what do you think was causing the pain?---
A: Ah, well, the closed fracture in the neck because of the reduced viscus space between the vertebrae and also osteophyte formation because it can be painful for the patient. It can cause chronic pain.”[65]
[65]T213, L19-27
62 Further, she was asked as to her ongoing prescription for Endep. She stated:
A: “Endep, initially, is a medication that we use for, you know, management of depression, however, in patients who suffer from chronic pain, that’s a very good medication that will be started with a low dose and then we can regulate it according to a patient’s pain.
Q: And what does Endep do, with respect to someone who has chronic pain?---
A: Ah, I don’t know the exact mechanism, but for a patient who suffers from depression – because the pain threshold is a bit different, and they feel the pain more Endep somehow works on the pain threshold, so the patient will be more tolerant of the pain, you know, so they can cope with the situation better.”[66]
[66]T214, L21 – T215, L2
63 The plaintiff’s solicitors also had the plaintiff assessed by orthopaedic surgeon, Mr John O’Brien, on or about 10 July 2017,[67] and by Mr Charles Flanc, surgeon, on or about 10 July 2017.[68] Mr O’Brien took a history that the plaintiff was having physiotherapy once every two weeks which gave him some relief for approximately a day. He further stated that he had, on several occasions, attempted some gym exercises but he found that this caused significant aggravation of pain. He also stated that whilst undertaking some exercises, he experienced some low-back pain which apparently resolved once he ceased the exercise program.[69]
[67]Exhibit J
[68]Exhibit 13
[69]Exhibit J, PCB 58
64 On physical examination, Mr O’Brien noted that the plaintiff appeared a little anxious but:
“… he was however observed to move freely demonstrating a normal gait.”[70]
[70](ibid) PCB 59
65 Further, Mr O’Brien stated:
“Currently the patient demonstrates rather mild restriction of cervical movement, although this is accompanied by upper thoracic pain where there is described local tenderness.”[71]
[71](ibid) PCB 60
66 Despite having the investigations referred to above, Mr O’Brien found it difficult:
“… to specifically define the precise area of pathology underlining pain generation. Signs more likely now point to chronic non-specific cervical spine pain with referral to the upper thoracic area.”[72]
[72](ibid) PCB 60
67 In any event, because of the chronic pain, Mr O’Brien considered:
“This would indicate that there is no possibility of the patient being able to return to his pre-injury occupation. Indeed the ongoing presence of chronic back pain would exclude the patient from undertaking any form of manual type employment.
Physically the patient I believe would be capable of undertaking suitable employment, but given the patient’s employment background it may indeed be difficult to find suitable employment and as a consequence it does seem likely that this patient will not return to gainful employment in the foreseeable future.”[73]
[73](ibid) PCB 60
68 I find it a little puzzling that Mr O’Brien asserted there was ongoing presence of chronic back pain when on the current history, he noted that the low-back pain had apparently resolved once he ceased the exercise program.
69 Finally Mr Flanc, vascular and general surgeon, reported on 10 July 2017.[74] With respect to low back pain, he took the following history:
“He stated there was no pain initially but he developed pain in the lower back four months ago. The pain is left-sided and radiates down the outer part of the left thigh into the calf. He has not had any investigations of the lumbosacral spine.”[75]
[74]Exhibit 13
[75](ibid) PCB 46
70 On examination, he noted:
“He walked without difficulty. He moved his head around easily during the consultation. He removed his t-shirt quite easily, the full elevations of his arms.”[76]
[76](ibid) PCB 47
71 Once again, formal examination of the cervical spine seemed to be almost normal, except for extension, which was severely restricted.[77]
[77](ibid) PCB 48
72 I note that this had been a consistent finding with other practitioners. As to prognosis, Mr Flanc stated:
“He has continued to suffer pain in the cervicothoracic region for over two years and it is quite possible that he will continue to suffer pain in the lower cervical and upper thoracic spine into the foreseeable future with the severity fluctuating and being aggravated by certain activities.”[78]
[78](ibid) PCB 51
73 Further, Mr Flanc stated:
“If it is determined that he did suffer from a cervical spine fracture, then his continuing pain could be related to degenerative disease of the adjacent intervertebral discs which may have developed as a result of these fractures, although his symptoms are also being influenced by non-organic factors, probably a Chronic Pain Syndrome.”[79]
[79](ibid) PCB 52
74 He further stated:
“It is difficult to determine how much of his symptom complex is related to a Chronic Pain Syndrome in which there is a sensitisation of pain pathways causing pain which is greater in severity and distribution than that expected from the physical injury alone. Notwithstanding this it is my view that a component of his neck and upper thoracic pain is related to the physical injury sustained in the transport accident of July 2014.”[80]
[80](ibid) PCB 52
75 Later, he stated:
“I consider he would not be able to cope with any work involving heavy physical activities such as he was performing in his work as a boner. He would also have difficulty coping with work which involves keeping his head flexed for long periods.”[81]
[81](ibid) PCB 53
76 Finally he stated:
“I consider that he would not be able to return to his previous work as a boner or any work involving heavy physical work involving the upper limbs. He would probably also have difficulty keeping his head still in the flexed position for long periods and under such circumstances, he should move his head around to gain relief.”[82]
[82](ibid) PCB 55
The Plaintiff’s background
77 The plaintiff was born in March 1987 in Teheran, Iran, and is currently thirty years of age. He completed the equivalent of Year 12 in Teheran. He had studied graphic design at university for about six months before being expelled for taking part in student demonstrations. He was then drafted into the army, where he spent two years doing mainly security work. Thereafter, he worked for his father in real estate, filling out rental contracts, getting them signed and showing properties to prospective tenants.
78 He also ran his own clothing store for about nine months. At the same time, he completed courses in welding and underwater welding. In about 2011, he obtained part-time work as an underwater welder, welding ships and underwater pipes.
79 He states he was thereafter subjected to religious persecution in Iran and decided to travel to Australia from Iran in 2012 via Indonesia.
80 After obtaining refugee status, he applied for work in underwater welding but was told he needed better English in order to understand work instructions. He states his written and spoken English is poor. Thereafter, he worked as a cleaner in a nightclub on weekends until about March 2013, when he then obtained work in a meat factory with JBS Meats.
81 It is clear enough that both pre and post accident, the plaintiff had, and has, an interest in merchandising clothing. It is also clear enough that at no time, either in Iran or in Australia, has he engaged in a successful or permanent occupation in this regard.
82 He clearly had an aptitude for physical work, such as underwater welding of ships and pipes, and was prepared to work as a labourer in the meat industry for something like fourteen months prior to his motor vehicle accident.
Analysis
83 It is clear enough that the plaintiff has admitted to lying to the police and others for a period of at least six months following the motor vehicle accident. I accept that this decision was made in a very short period after the accident itself and probably at the behest of Mr Farshid Nia for the reasons already referred to. The consistent evidence of the three occupants is that they all either panicked or agreed to go along with the panic being experienced by Mr Farshid Nia, one reason being their naïvety with respect to Australian institutions. It is clear enough they knew that such a position was dishonest but I do not consider that the dishonesty was in the context of trying to obtain compensation, at least during the first six-month period. I consider it is more likely that it was borne of the panic and naïvety referred to above.
84 As is submitted by Senior Counsel for the defendant, this does not mean that in fact the plaintiff was not the driver of the vehicle, but it would mean that the three occupants have agreed to perjure themselves for the purposes of this claim. I am not prepared to make that finding.
85 Insofar as the plaintiff has been less than frank with respect to his clothing business, his back symptoms and his travelling interstate, after some consideration of the matter, I do not find that the ultimate facts are in contradiction of what is stated in his affidavits as distinct from answers given in the witnessbox in an environment where he is somewhat disadvantaged because of language, unfamiliarity with the process and with a less than ideal interpreter process.
86 I am prepared to accept that the plaintiff suffers ongoing pain in the cervical spine as a result of the C5 fracture, and as a result thereof, he has permanently suffered a loss of flexibility in the labour market referred to above.
87 The plaintiff’s financial position has gone from one earning approximately $880 per week to a situation described in his third affidavit of 8 September 2017 to the following effect:
“6. My payments from the TAC have now stopped. I don’t have family to support me financially. It is up to me. Fortunately, I have friends who work who have been able to help with money but I can’t keep relying on them. I’m not currently receiving any income. I’ve gone to Centrelink and they are asking me to keep getting further documents and I have not received any income since July 2017. I am relying on the Salvation Army, Asylum Seeker Resource Centre and Red Cross for food at the moment.”[83]
[83]Exhibit D PCB 27
88 I also accept that he is sufficiently motivated to have applied for approximately 168 jobs online since his injury but has been unable to apply for physical work that places stress on his cervical spine.
89 Further, it seems there is a consistency generally in the examination findings of virtually all practitioners to the effect that there is minimal loss of range of motion of the cervical spine with the exception of cervical extension. This would tend to suggest that the plaintiff is not attempting to embellish his symptoms whilst being examined.
90 Further, it would appear that he has voluntarily ceased all medications except for Endep which I find is also consistent with his desire to recover and motivation generally.
91 Once I accept that he does have ongoing pain as alleged, the other aspects of his life that have been affected can also be placed on the scales in making a Humphries v Poljak assessment. I accept that the plaintiff has suffered the consequences set out in his first affidavit, in particular paragraphs 50 to 61 therein, with respect to his ability to attend the gymnasium, engage in vigorous activities such as dancing and playing paintball with his friends and playing soccer.
92 In my view, the criteria set out in Abbas v Transport Accident Commission[84] has been met in this particular case, especially with respect to the loss of flexibility of employment in the future, and leave will be granted.
[84]Supra
93 I will hear the parties as to any subsequent orders.
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