Tetoros v TAC
[2012] VCC 1337
•25 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-01458
| Dimitri Tetoros | Plaintiff |
| v | |
| Transport Accident Commission | Defendant |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 & 7 September 2012 | |
DATE OF JUDGMENT: | 25 September 2012 | |
CASE MAY BE CITED AS: | Tetoros v TAC | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1337 | |
REASONS FOR JUDGMENT
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Catchwords: Serious injury application – Transport Accident Act 1986 (Vic) – s 93(17) –long-term impairment or loss of a body function – soft tissue injury of the cervical spine – cognitive impairment – scarring – long-term mental disturbance or disorder.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendant | Mr S. Smith | Transport Accident Commission |
HER HONOUR:
1 The plaintiff, Mr Dimitri Tetoros, applies under s 93(17) of the Transport Accident Act 1986 (Vic) (the Act) for leave to issue proceedings for the recovery of damages in respect to the injuries he suffered in a transport accident on 28 January 2005. The plaintiff represented himself at the hearing. He gave evidence at the hearing and was cross-examined. His treating general practitioner, Dr George Zaharias, and treating psychiatrist, Dr Michael Piperoglou, also gave evidence and were cross-examined. A joint court book was tendered. The plaintiff also tendered some photographs of his facial injuries and a short television film made about him in 1994 when he was participating in his first fight as a professional boxer.
2 I have considered all the material relied upon by the parties.
3 The plaintiff’s case appears to be that as a result of the transport accident he has suffered serious injury in one or more of four ways. Firstly, he alleges a serious long-term impairment of the function of the cervical spine. Secondly, he alleges a serious long-term impairment of the function of the brain. Thirdly, he alleges permanent serious disfigurement by way of scarring to the forehead and beneath the eyebrows. Finally, he alleges a severe long-term mental disturbance or disorder.
4 For the reasons set out below, I dismiss his application.
The transport accident
5 There are limited details available concerning the accident. The plaintiff was driving a car that was struck by another car which went through an intersection. According to the report of ambulance officers who attended at the scene,[1] the plaintiff’s head had struck the windscreen. The plaintiff denied any loss of consciousness,[2] and this was supported by a witness at the scene. He had a good memory of the incident and preceding events and immediately after the collision he extricated himself from his car and walked 30-40 metres. The ambulance officers found him sitting about 30 metres from the scene, with a bystander. He was conscious and alert. He reported no neck pain He had lacerations from the bridge of the nose across the left eye with some blurred vision in that eye, as well as soreness in the right forearm and upper arm. He was taken to the Alfred Hospital.
[1]Joint Court Book (JCB) p183.
[2]The plaintiff denied losing consciousness to the ambulance officers and in cross-examination at the hearing.
6 According to the report from the Alfred Hospital where the plaintiff was an in-patient for five days,[3] the injuries sustained in the accident included lacerations to the bridge of nose, forehead, left ear and forearm. The lacerations were repaired by a plastic surgeon. He also suffered paraesthesia of the second and third fingers of the right hand. There was concern that this may represent a radiculopathy, but an MRI showed no abnormalities.
[3]JCB p34.
Legal principles
7 In determining an application under s 93(17)(a) of the Act, the Court must be satisfied that, in terms of pecuniary disadvantage and/or pain and suffering, the consequences of the physical injury, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described at least as “very considerable” and certainly more than “significant” or “marked”.[4]
[4]Humphries v Poljak [1992] 2 VR 129; Mobilio v Balliotis & Ors [1998] 3 VR 833.
8 In cases involving aggravation of a pre-existing injury or condition, the plaintiff must establish what injury was caused in the relevant accident and there must be an analysis of the extent of the impairment of the relevant body function before and after the injury caused in the relevant accident.[5] In an aggravation case, the aggravation of the pre-existing injury must itself amount to a “serious long-term impairment or loss of a body function”.[6]
[5]Petkovski v Galletti [1994] 1 VR 436, 444.
[6]Ibid.
9 The endurance of permanent daily pain requiring frequent medication “must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence”.[7]
[7]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267, [199].
10 Apart from the capacity for work, assessing the extent to which pain interferes with the ordinary activities of life will generally involve consideration of its effect on the plaintiff's sleep, mobility, capacity for self-care, performance of household and family duties, recreational activities, social activities, sexual activities and enjoyment of life.[8]
[8]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, [16]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52.
11 Some weight must be given, in considering that the pain and suffering consequences of the plaintiff's impairment are at least very considerable, to the adverb “very”.[9] Each case has to be determined in the light of its own facts.[10]
[9]TAC v Dennis [1998] 1 VR 702, 703.
[10]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
12 In an application under s 93(17)(a) of the Act, where a plaintiff who has suffered a significant physical injury has also developed a psychiatric response to that physical injury, 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 meet the narrative test.[11]
[11]Richards v Wylie (2000) 1 VR 79, 87; Rodda v TAC [2008] VSCA 276.
13 However, in cases where mental disturbances or disorders have supervened, care must be taken to prevent the consequences of a mental disturbance from governing, or even intruding into, a finding of “impairment or loss of a body function”.[12] That is, it would be impermissible to find that a mental response to the transport accident was, in combination with a soft tissue injury, producing or at least playing a large part in producing the impairment of the relevant bodily function. Where in fact an impairment of body function is the product or largely the product of the mental disturbance or disorder which is found to exist, then that disturbance or disorder falls to be considered under paragraph (c) and not under paragraph (a) of the definition contained in subs (17).[13]
[12]Richards v Wylie (2000) 1 VR 79, [16], Winneke P.
[13]Ibid, [19].
14 In the context of paragraph (c) of the definition of serious injury in s 93(17) of the Act, “severe” means something more than “serious”.[14]
[14]Mobilio v Balliotis [1998] 3 VR 833 at 834-835 and 846.
15 In determining the application the whole of the evidence is to be considered. Overall the court must consider what the plaintiff has lost by virtue of the injury and what has been retained. The significance of what he or she has lost, which bears upon the seriousness of consequences, may be informed to an extent by what is retained.[15]
[15]Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260, [27]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [95].
16 The Court is entitled to consider the plaintiff’s age.[16]
[16]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [44].
Permanent serious disfigurement
17 The plaintiff has a well-healed scar across the bridge of his nose and extending beneath his eyebrows. There was no evidence from him concerning any effects of the scarring on his enjoyment of life or on his level of occupational, domestic or recreational functioning. In the circumstances, I dismiss this part of his application.
Serious long-term impairment of the function of the brain
18 I understand that the plaintiff believes he suffered a closed head injury in the transport accident which has left him with a permanent cognitive impairment.
19 In paragraph 9 of his second affidavit[17] the plaintiff stated:
My recollection of the accident is patchy. I recall the impact of the collision. I also recall being in the car immediately following the collision. My next memory is lying on the road, and I do not recall getting out of the car. I remember bleeding, being confused and scared, fearful that I had been severely hurt.
[17]JCB p15.
20 I have already referred to the ambulance report and to the report from the Alfred Hospital. Neither of those reports refers to any closed head injury. The plaintiff saw Dr Zaharias on 3 February 2005 who noted[18] “remembers [sic] the accident. No LOC”. Dr Zaharias also noted that the plaintiff had severe right shoulder and right arm pain after the accident but x-rays revealed no fractures.
[18]JCB p159.
21 Dr Zaharias treated the plaintiff in 2005 and noted in his report dated 27 February 2006 that the injuries were “multiple skin lacerations and grazes to the face as well as muscular strain to the neck, shoulders and spine”.[19] He felt that the injuries were not serious and would improve over time. He noted that the plaintiff suffered ongoing headaches. In a letter dated 21 February 2007, Dr Zaharias described the plaintiff’s head injury as “significant lacerations to the forehead”.[20] In his two later reports dated 28 April 2009[21] and 16 October 2010[22] he describes the injury in similar terms.
[19]JCB p23.
[20]JCB p25.
[21]JCB p27.
[22]JCB p31.
22 I note that one early medico-legal examiner, Mr Jonathan Rush, received a report of a momentary loss of consciousness and diagnosed a mild closed head injury but did not provide an impairment assessment of it.[23]
[23]JCB p49.
23 However Professor Edward Byrne, neurologist, reported on 3 June 2006[24] that while the plaintiff had no recollection of the actual moment of impact and did not remember getting out of the car, he did remember being at the side of the car and being helped up from the ground by a bystander. He complained of a reduced memory, difficulty concentrating and being forgetful of recent events. Professor Byrne perused the ambulance report and the report of the Alfred Hospital. He concluded:
There is no evidence therefore that he sustained a significant closed head injury. He has had symptoms of depression and poor concentration however, since the accident, and I believe these relate to psychiatric sequelae of this accident and should be covered in a separate psychiatric disability assessment.
[24]JCB p60.
24 Professor Byrne did not find any brain injury.
25 I note that another neurologist, Dr Olga Skibina, reported on 23 December 2010[25] that in the accident the plaintiff “was thrown from the car through the windscreen and sustained frontal head injury with multiple lacerations and bruises to the face and head”. Dr Skibina had referred the plaintiff for neuropsychological assessment and the neuropsychologist, Ms Helen Clausen, had provided an assessment report dated 3 July 2009.[26] Her report does not indicate that she was provided with any other material apart from the letter of referral. She notes an account of the accident “where the plaintiff was thrown against the windscreen, sustaining lacerations and bruising to the head/face and C4-C6 disc prolapses”. Ms Clausen found that he had a “moderate degree of verbal memory deficit, slowing, attentional disturbance and disturbance of executive functions in the verbal domain”. She believed that he “has suffered a significant closed head injury”.
[25]JCB p101.
[26]JCB p 86
26 Dr Skibina did not report asking the plaintiff about any loss of consciousness in the accident. She did not report any examination findings. She merely adopted the findings of Ms Clausen and concluded that the substantial cognitive deficits were “consistent with a significant closed head injury” and were “most likely permanent”. She did not refer to having received the report of Professor Byrne nor any other material which would alert her to the plaintiff’s pre-existing psychiatric history. For these reasons, her report is of less assistance than it otherwise might have been.
27 A neuropsychology report dated 15 September 2011[27] by Dr David Weintrob, senior neuropsychologist at the Austin Hospital, and Mr Harvey Jones, provisional psychologist, included a description of what the plaintiff recalled about the accident. The report noted that the plaintiff’s main cognitive complaint was of poor memory, but the authors found it difficult to establish precisely what the problem was. The plaintiff gave vague examples of forgetting phone calls 30 minutes later, needing to be reminded what day it is, and relying heavily on his parents to manage his upcoming appointments, medication and daily activities. However, he told them he was more concerned by his chronic pain and feelings of isolation.[28] He appeared depressed at the time of the assessment and the testing showed that he “could not invest the requisite motivation and effort needed to elicit a meaningful cognitive profile”. His test performances made it “difficult, if not impossible, to assess if genuine cognitive deficits actually exist”.[29] The authors concluded:
As matters stand, Dimitri behaves and performs as though he were densely amnesic and it seems that he regards himself as severely disabled by his apparent memory impairment. This appears to exceed what he might realistically be entitled to. For instance, the fact that he is plagued by distressing memories of the accident scene itself is somewhat incongruous. We also derived the impression that Dimitr’s memory in unguarded moments was perhaps rather better than his test performances would indicate. Of note, too, is that even a severe ABI would not entitle him to a digit span of only 2- that is, his apparent disability seems to exceed what might reasonably be expected from his injury. In short, therefore, while his accident might well entitle him to some residual cognitive deficits, significant psychogenic overlay in respect of his current cognitive status is suspected.
[27]JCB p185.
[28]JCB p185.
[29]JCB p186.
28 At the hearing, Dr Piperoglou said that, on the history taken by the ambulance officers, the plaintiff could have sustained a mild concussive injury with long-term sequelae. He said that the plaintiff was now less clinically depressed than when he was assessed by neuropsychologists in 2009 and he would have expected some improvement in his cognitive state as a result of the improvement in his depression but noted that his cognitive deficits were still out of the normal range.
29 I prefer the opinions of Professor Byrne and Dr Weintrob as they are based on a fuller assessment of the plaintiff’s mental state at the time of the accident and acknowledge the impact of his psychological state on his presentation and performance.
30 On the material before me, I am unable to be satisfied that as a result of the transport accident the plaintiff suffered any brain injury leading to permanent cognitive impairment. Even if there has been some residual cognitive deficit suffered as a result of the transport accident, it is clear on the medical evidence that assessment of the extent of any such deficit is significantly clouded by his psychiatric presentation.
31 I am therefore unable to be satisfied on the material before me that the consequences of any such impairment meet the test for serious injury. I therefore dismiss this part of the plaintiff’s application.
Serious long-term impairment of the function of the spine
32 The plaintiff says that he has suffered ongoing neck pain, back pain and restriction of movement since the transport accident. In his second affidavit the plaintiff said that he is never free of pain and that he finds it very difficult to perform tasks which involve frequent turning, bending or twisting the neck or back or carrying moderate weights. He cannot stay in one position too long because of pain. His sleep is disturbed by pain. He has recently tried to do without medication because he dislikes taking it. He also suffers headaches almost daily.
33 At the hearing, some surveillance footage taken on 25 January 2011 was shown. The plaintiff was seen at one point seated in the passenger seat of a car wearing a cervical collar. At another point he was seen walking carrying his cervical collar in his right arm. He was walking briskly. At another point he exited a building wearing the collar. The plaintiff agreed that he put the collar on for his consultation with Mr Michael Dooley, but did not recall why he did not need it after the consultation. He said that he was sometimes able to sit for hours at a time without wearing it. He said that he was in pain when he walked and was not walking freely. He said that he was not walking more freely on the footage taken on 21 January 2011 when he was going to see Dr John King than he presented to Dr King during the examination.
34 At the hearing, Dr Zaharias agreed that the plaintiff did not suffer serious physical injuries in the accident. He agreed with the assessment of Mr Rush, Mr Dooley, Mr Kenneth Brearley and Dr Tony Kostos that the plaintiff had suffered a strain of the cervical spine in the transport accident but that there was an important psychological aspect to his presentation.
35 Dr Zaharias reported[30] that when he examined the plaintiff on 3 February 2006 there was a “full range of head and neck and shoulder movements but with some lightness in the right neck muscles, posteriorly”. There was normal power in all the muscles and some tenderness over right lumbar muscles. He felt that the plaintiff had sustained “muscular strain to the neck, shoulders and spine” which was not serious and which would improve over time. A few weeks later, the plaintiff was still complaining of headaches and neck pains, and was prescribed medication including Temaze. He was reviewed monthly and was referred to Mr Greg Varigos for physiotherapy to assist with pain relief and to improve head and neck stiffness. He was also prescribed Tramal for his headaches.
[30]JCB p22.
36 Dr Zaharias noted that when he saw the plaintiff on 21 February 2006 he found him to be very depressed. The plaintiff was upset by the ongoing pain and stiffness in his neck, which Dr Zaharias described as “muscular strain primarily to the shoulders and neck”.[31] Dr Zaharias prescribed Tramal for his pain, and later changed this to Lyrica. Taking Lyrica apparently enabled the plaintiff to cut back on the amount of Tramal he was taking. The Tramal did not appear to help alleviate his pain.[32] Dr Zaharas noted that the plaintiff “feels that his life is over because he believes that he will never actualise the plans that he had for himself.”[33] These plans included training other kick boxers once he stopped competing himself. In March 2006, Dr Zaharias referred the plaintiff to a psychologist, Ms Joanna Pandelidis, for counselling.
[31]JCB p23.
[32]JCB p33.
[33]JCB p23.
37 In March 2007 Dr Zaharias referred the plaintiff to Ms Catherine Arlove, for physiotherapy in relation to the “whiplash type injuries to the neck”.[34] In 2009 he referred the plaintiff to a neurologist, Dr Skibina, who ordered electrophysiological tests which proved to be normal. Dr Skibina also referred him to Dr Robert Gassin, at the Metro Spinal Clinic, who recommenced him on Tramal, but the plaintiff reported that the Tramal did not control his symptoms.
[34]JCB p25.
38 Dr Zaharas reported on 28 April 2009 that the plaintiff needed to be on anti-depressants. He was taking Lyrica for his pain. In relation to his physical injuries, Dr Zaharias reported that the plaintiff “has made gradual but small improvements and continues to suffer significantly from headaches”. He was depressed as a result of his injuries and their impact on his life, but Dr Zaharas did not think his condition had stabilised, as he still required regular analgesia, counselling and was still unable to work.
39 Dr Zaharias concluded in his report on 16 October 2010:[35]
In summary, Mr Tetoros sustained a head injury, facial lacerations and muscular strain primarily to the shoulders and neck. He has made gradual but small improvement and continues to suffer significantly from headaches. He is depressed as a direct result of his injuries and the limitations that they have placed on his life generally. I think that his condition has stabilised but he clearly requires treatment (pain management and counselling) and is still unable to work. Mr Tetoros doesn’t consult me very often however I have probably seen him often enough from the time of his accident to form the opinion that his condition will not improve at all and will probably remain as it is now.
[35]JCB p33.
40 At the hearing Dr Zaharias said he had not seen the plaintiff since April 2011 apart from a few weeks ago when the plaintiff went to see him to tell him about the hearing.
41 Dr Skibina reported a diagnosis of radiculopathy and chronic post-traumatic muscular-skeletal neck pain with cervicogenic headaches.[36] She concluded that the plaintiff was permanently incapacitated “from his previous employment as a personal instructor in boxing and martial arts”.[37]
[36]JCB p102.
[37]JCB p102.
42 Mr Brearley, orthopaedic surgeon, provided a report to the plaintiff’s then solicitors on 22 May 2009. He noted the complaint of constant neck pain and some low back pain. The plaintiff told him he was still seriously depressed, crying nearly every day, and seeing a psychologist weekly. He was staying at home all the time and had barely left the house in the previous four years except to go to medical appointments. On examination Mr Brearley found moderate restriction of neck movements and slight limitation of back movements. He diagnosed soft tissue injury of the cervical spine. He concluded:
The most important development here has been the total overwhelming of the physical injuries by his psychological reaction which has been quite extreme. He has most severe post-traumatic stress syndrome and accompanying severe depression…..The prognosis depends on his mental state. There seems no reason why he should not recover from the organic injuries he suffered.
43 Mr Brearley noted that even though there was damage to the C5/6 intervertebral disc, “ongoing disability of the grade he describes would not be the expectation at all”.
44 Mr Rush, orthopaedic surgeon, conducted an impairment assessment of the plaintiff’s cervical and lumbar spine on 3 May 2006 and reported[38] a diagnosis of a “non-specific soft tissue injury of the cervical spine.[39] On examination he found significant loss of motion of the neck, some muscle spasm and dysmetria. He found reasonably good range of motion in the lumbar spine. He assessed 0% whole person impairment of the lumbar spine and a 5% whole person impairment of the cervical spine. He did not feel that the plaintiff would need increasing help with pain control.
[38]JCB p49.
[39]JCB p54.
45 Mr Rush provided a supplementary report[40] in which he noted the findings by Professor Byrne, Dr Zaharias and Mr Varigos of mild limitation of thoraco-lumbar movement but indicated that these findings did not warrant any variation to the 0% whole person impairment he had assessed in relation to the lumbar spine.
[40]JCB p56.
46 Mr Dooley, orthopaedic surgeon, assessed the plaintiff on 17 June 2008 and reported[41] that in the transport accident the plaintiff suffered a soft tissue injury to the cervical and lumbar spine region. He felt that there may have been some damage done at the time of the accident as well as some aggravation of pre-existing underlying degenerative disease. He noted that overall the plaintiff had a good range of spinal motion and there was no radiological evidence of significant spinal injury. He noted:
The injury however would not account for the constancy and severity of Mr Tetoros’ ongoing spinal pain. He has developed a significant psychological reaction to his injury. The need to remain in bed for six months following the accident cannot be explained on the basis of organic injury. Similarly, hardly leaving the home since that time again does not relate to his spinal injury. He has developed anxiety and depression and I believe that it is these conditions that dominate his clinical picture.
[41]JCB 119.
47 Mr Dooley felt the appropriate treatment was for the plaintiff to increase his activity and improve his fitness and stamina through walking, cycling and low impact gymnasium work. He felt that regular exercise and a return to work in light physical or clerical duties would help improve his mental state. He expected that the plaintiff would continue to experience “some intermittent cervical and lumbar spine pain”, but would be able to work and to carry out a wide range of domestic chores. He would not be able to resume elite level sport but could carry out a wide range of leisure pursuits.
48 On 31 January 2011, Mr Dooley reported[42] that he had reassessed the plaintiff on 20 January and that, some six years after the accident, there was no organic basis for the ongoing constancy and severity of the plaintiff’s pain. He felt that the plaintiff had developed a chronic pain syndrome, that depression had been a significant feature of his ongoing symptoms, and that his psychological condition “accounts for the very large majority of his presentation”, particularly his inactivity and difficulty walking any distances because of pain.[43] He concluded that only a small component of his ongoing symptoms relate to the organic soft tissue spinal injury sustained. His diagnosis was of a chronic pain syndrome secondary to a soft tissue musculoskeletal injury.
[42]JCB p125.
[43]JCB p128.
49 Mr Dooley viewed video surveillance of the plaintiff taken on 25 January 2011 and reported on 8 March 2011[44] that while the DVD showed the plaintiff moving at a faster pace, without a neck brace, and able to move his neck through a greater range of motion than when examined by him, it merely confirmed his opinion that much of his ongoing symptoms relate to his psychological condition and not to physical injury.
[44]JCB p132.
50 Dr Kostos, rheumatologist, assessed the plaintiff on 1 October 2010 and reported[45] a complaint of pain in the whole of his neck, extending up into the head and down into the lower back. The plaintiff said that the pain was gradually getting worse. The pain was aggravated by any movement of his head and neck and his neck movements were restricted. He told Dr Kostos he spent his time “locked in the house trying not to move”.[46] He was taking anti-depressants and Lyrica. He was continuing to wear his hard collar from the hospital at times. On examination, all neck movements were restricted with discomfort in all directions. Dr Kostos concluded that based on the whole presentation, he would have doubts as to whether his symptoms had an organic basis.[47] He felt that “there are clearly significant psycho social factors impinging upon this man’s presentation”. Dr Kostos felt that medial branch blocks were not an appropriate treatment in this case. He confirmed this opinion on 16 November 2010,[48] explaining that the plaintiff was not a suitable candidate for the procedures because he had bilateral pain and significant psychosocial factors.
[45]JCB p133.
[46]JCB p134.
[47]PCB p136.
[48]JCB p137.
51 Dr Kostos also viewed the surveillance footage from 20 January 2011 and reported on 8 March 2011 that it showed the plaintiff carrying the neck brace, driving without the brace, being a passenger without the brace, and turning his head to the left. Dr Kostos felt that the DVD confirmed his opinion that the plaintiff’s presentation “largely relates to non-physical factors and there were obviously a number of continuing psychiatric issues” which were clearly present prior to the transport accident.[49]
Findings and reasons
[49]JCB p140.
52 I accept the evidence (largely from Dr Kostos, Mr Brearley and Mr Dooley) that, as at the date of the hearing, the plaintiff has suffered at least a soft tissue injury of the cervical and/or lumbar spine in the transport accident which has led to some ongoing symptoms. I make no findings adverse to the plaintiff from the limited surveillance footage shown in court, which represents a mere snapshot of nearly 40 hours of surveillance conducted. I accept that he wears a cervical collar from time to time. Although I noted that he moved his neck reasonably well and walked freely on the footage, I accept his evidence that he experienced pain while doing so.
53 However, I accept the evidence of Dr Kostos, Mr Brearley and Mr Dooley that the plaintiff’s organic soft tissue injury to the cervical and/or lumbar spine is not a significant physical injury and has been overtaken by psychological factors and the presence of a mental or behavioural disorder. In the light of the medical consensus that it is his psychological condition which accounts for much of his presentation, I am unable to be satisfied that he has suffered a serious injury under paragraph (a) of s 94 (17) of the Act.
54 I therefore turn to consider his application under sub-paragraph (c) of the definition of serious injury.
Severe mental or behavioural disorder
55 The relevant reports from treating practitioners are those from Dr Zaharias, from psychologist Ms Joanna Pandelidis, and from psychiatrist Dr Michael Piperoglou. The relevant medico-legal reports are from psychiatrists Dr Nathan Serry, Dr King and Dr Brendan Hayman and from clinical psychologist, Mr Jeffrey Cummins.
56 There is complete consensus in the medical and psychological reports to the effect that the plaintiff currently suffers from a mental or behavioural disorder. Dr King, Dr Hayman, and Dr Serry and Mr Cummins describe his condition as a severe and chronic adjustment disorder with depressed and anxious mood. In February 2011, Dr Piperoglou, diagnosed a chronic mixed anxiety and depressive disorder which was caused or aggravated by the transport accident, along with symptoms of post traumatic stress disorder which were caused by the transport accident. Nothing turns on the slight differences in the diagnoses or the way they are expressed.
57 I am required to compare the plaintiff’s pre-accident psychological state with his psychological state as at the date of the hearing. I acknowledge that the plaintiff believes that his psychological condition after the transport accident has been worse than it was before the accident. To the extent that there was a pre-existing psychological condition, however, I must determine whether the worsening of that condition as a result of the transport accident meets the test for serious injury.
58 My task is made more difficult because the plaintiff did not disclose any prior psychiatric history to Dr Serry, Mr Cummins or Dr Kings, and gave a limited account of his prior psychiatric history to Dr Hayman. Dr Piperoglou commenced treating the plaintiff in December 2009 but received no details of any prior psychological problems although he noted having seen the letter of Dr Zaharias dated 8 December 2003 in which Dr Zaharias expressed the opinion that the plaintiff had been depressed for the previous five years.
The plaintiff’s psychological state before the transport accident
59 According to his affidavits and viva voce evidence, the plaintiff was born in Greece on 1 June 1968 and migrated to Australia with his family as an infant. He is unmarried and lives with his parents. He left school after completing Year 10 and worked in a number of jobs including as a petrol station attendant, waiter, barman and shoe salesman. He completed a hospitality course and obtained a heavy truck licence.
60 At the age of 20 he became involved in kickboxing and was a State and National champion in 1991 and 1992. He did not officially retire but, after about 1998 or so he ceased fighting competitively and concentrated on helping his brother, Mr Nicholas Tetoros, who was a successful professional boxer, with training and fitness. He also taught boxing, kick boxing and martial arts on a voluntary basis at the Aboriginal Youth Centre in Fitzroy from 1990 to 1999 and at the St Kilda Youth Centre between 1998 and 2000.
61 As to his history in relation to paid employment, it appears that the plaintiff was largely supported by his parents during the 1990s. The plaintiff said he also did some work teaching on and off. At the hearing, he said that he did not lodge taxation returns for the years from 1 July 2001 to January 2005 because he was not working in paid employment, although he said that he was receiving unemployment benefits and working for those benefits in the two years prior to the accident. He said that prior to the accident he was looking for work and could not recall when he last worked in paid employment.
62 In his first affidavit, the plaintiff stated that prior to the transport accident he “was in good health, able to undertake an unrestricted range of social, domestic, recreational, work and sporting activities”.[50] This statement is at odds with paragraphs 13 and 14 of his second affidavit,[51] where the plaintiff stated that he found it difficult to adjust to life without competition, and suffered from episodes of depression. He and his brother had planned to open a boxing and martial arts gymnasium after retiring from boxing.
[50]JCB p11.
[51]JCB p16.
63 At the hearing, the plaintiff said that his partner had leukaemia for ten years and died in around 2001. He agreed that his emotional and psychological response to her death made him unable to work. He agreed that his memory now of events from 2002 was not very good and that in 2005 he could remember those events better. He agreed that he did suffer from depression before the transport accident.
64 A number of entries from the clinical notes of Dr Zaharias, who had been his doctor since 1982, were read to the plaintiff. He denied telling Dr Zaharias on 8 December 2003 that he had been depressed for the previous five years, even though the doctor recorded that he was “very depressed – probably for the last 5 years but more so in the last 2”, due to the death of his mentor and father figure two years previously and due to the death of his girlfriend from leukaemia. However, he acknowledged that he had been badly affected by the deaths of his girlfriend and of his kickboxing mentor. He denied that his depression was the reason that he did not work from July 2001 onwards. He agreed that did not fight from September 1998 to March 2000. He agreed that in December 2003 he could not pay his parking fines and was still upset. He agreed that he received a medical certificate in respect of depression some four days prior to the accident. However, he insisted that the history recorded by Ms Pandelidis was correct insofar as he told her that prior to the transport accident he loved life, was active in the community, in sport, and in his family.
65 Only Dr Zaharias, who was the plaintiff’s treating general practitioner between 1982 and October 2010, was in a position to report authoritatively on the plaintiff’s condition before and after the transport accident.
66 My attention was drawn to a number of relevant entries in his clinical notes prior to January 2005. At the hearing, Dr Zaharias read out the entries and commented upon them.
67 On 3 March 2000, Dr Zaharias noted:
Since returning from Thailand in Sep ’98 has been constantly “tired” – as result hasn’t been training or doing kick boxing at all. Weight stable.
68 On 8 March 2000, Dr Zaharias noted that the blood tests results ordered in relation to the complaint of fatigue were all normal apart from lipids. Dr Zaharias noted:
Cause for lethargy prob stress based – he accepted this but wouldn’t divulge details.
69 On 8 April 2002, Dr Zaharias noted:
Run down tired for 6/12 . no energy just wants to sleep all the time. Minor transient headaches sweats. Smokes 1-2 joints each night for the past 12/12. sweating but afebrile.
70 In cross-examination, Dr Zaharias said he thought that the plaintiff was using marijuana because he was stressed and wanted help to sleep.
71 On 1 November 2002, Dr Zaharias recorded:
Out of work again – feeling stressed/ tired.
72 Dr Zaharias certified the plaintiff unfit for work for two months. On 28 February 2003, Dr Zaharias noted ongoing “stress” and certified the plaintiff unfit for work for three months until 23 May 2003.
73 In November 2003, Dr Zaharias noted:
Stresses ++ over the last couple of years
Still unemployed
Has court case this week cost of traffic fines that have been unpaid
74 In cross-examination, Dr Zaharias said he was unable to say whether the stress complained of in November 2003 was the same as that complained of in November 2002. Dr Zaharias said that he wrote a letter for the plaintiff’s court case in relation to the traffic fines. He said that the letter reflected his understanding that the plaintiff had been depressed and unemployed for the previous five years and that he had been affected by the recent deaths of his trainer and of his girlfriend. He said he felt that in 2003 the plaintiff was significantly impaired and needed counselling and/or medication for his depression. He felt that the unresolved grief over the deaths which lasted more than 12 months needed treatment. He said that Mr Tetoros had not told him of the significant events in his life. Even without the car accident, his psychological condition required treatment.
75 On 8 December 2003, Dr Zaharias noted:
Admits to being depressed – probably for the last 5 yrs but more so in the last 2
Death of trainer ( 2 yrs ago) “father figure” led to loss of direction
Partner/girlfriend last year (of leukaemia) – bitter/angry.
76 In cross-examination, Dr Zaharias said he thought that the plaintiff’s unemployment was caused by his stress condition. He felt that depression may have affected his ability to work from 1998. He said that the plaintiff had not told him prior to 2003 of the significant events such as the death of his trainer and of his girlfriend.
77 On 25 November 2004, Dr Zaharias noted that the plaintiff was “[s]till unemployed but is very guarded about what he says. Divulges nothing.”
78 On 7 December 2004, Dr Zaharias noted:
2. Requested medical certificate for Centrelink. They are pressuring him to do a “course”. He doesn’t want to. Feels fatigued, has no motivation and has been in a rut where he sits at home (living with his parents) with his dog. Feels there is no point to life or to anything.
Plan: request refused. Advised that he should go and do it. It will at least be keeping him occupied differently. At the same time he is to make an appointment to come here to “talk” and to try and find a way out of his rut.
79 At the hearing, Dr Zaharias said he felt that the plaintiff’s reluctance to do the course was due to motivation problems. I note, however, that the plaintiff said he did in fact do the course. On 14 December 2004, Dr Zaharias noted:
Feeling good. Has gone to the course (basically doing art work). Runs until March approx.
80 On 24 January 2005, Dr Zaharias noted that he completed a sickness certificate for depression. His consultation notes on that day stated:
Not feeling well today
Unable to attend court hearing for the traffic fines on 31/12/04. Says that he is gradually whittling down the amount that he owes. Says that he is enjoying the art course that he is doing however he is planning to get a job and get some money so that he can eventually open a business of his own (training or food).
81 Dr Zaharias said that in January 2005 the plaintiff probably still had problems with depression, but agreed that he was not prescribing any medication for this condition.
The plaintiff’s psychological state after the transport accident
82 In his second affidavit the plaintiff stated that his emotional and psychological health had been badly affected by his injuries.[52] His loss of physical fitness due to his injuries had severely affected his self esteem and his self-confidence. He has become lethargic, withdrawn, lacking motivation and interest. He continues to suffer from “significant depression”.[53] He is often anxious, easily upset, at times irritable and emotional. He has received no ongoing benefit from the treatment provided by his psychologist Ms Pandelidis and by his current treating psychiatrist, Dr Piperoglou. He has lost interest in family and personal relationships and spends most of his days at home with his retired parents.
[52]JCB p15.
[53]JCB p17.
83 The plaintiff said at the hearing that as a result of the transport accident he had trouble sleeping, had nightmares of the accident and was not coping well. He was upset that he had been refused funding for the diagnostic blocks recommended by Dr Gassin in December 2010.[54] He said he would like to work.
[54]JCB p99.
84 Dr Zaharias reported on 27 February 2006, inter alia, as follows:[55]
I last saw on the 21st February 2006 when I found him to be very depressed and feeling quite lonely even though he is living at home with his parents and they do provide some support. The ongoing pain and stiffness in the neck muscles is getting to him. He feels that his life is over because he believes that he will never actualise the plans that he had for himself. Before the motor vehicle accident, Mr Tetoros was a competitive kick boxer. As part of his career plan he was intending to compete in various tournaments and then go into the business of training those interested in taking up the sport. He believes that this cannot happen now and he doesn’t know what to do with his life. Even though he has tried to keep busy and active by going for physiotherapy, doing exercises and swimming, he does not actually go out much socially. More and more he tends to stay at home and cry. He certainly needs to be on an anti-depressant and requires referral to a counsellor. I will be reviewing him shortly and will definitely be addressing these issues.
[55]JCB p23.
85 On 28 April 2009 Dr Zaharias reported[56] that the plaintiff had a girlfriend, and that he needed to be on an anti-depressant but resisted this as he did not like taking medication. The plaintiff had been referred to a psychologist, Ms Pandelidis, in 2006 and had been seeing her regularly and finding the sessions “somewhat beneficial”. Dr Zaharias did not think his depressive condition had stabilised. In November 2009 the plaintiff reported that he had stopped seeing the counsellor and he asked Dr Zaharias for a referral to a psychiatrist. Dr Zaharias referred him to Dr Piperoglou in November 2009.
[56]JCB p28.
86 On 16 October 2010[57] Dr Zaharias noted that when he saw the plaintiff in July 2010 he said that he was forgetful about taking his antidepressants. He also reported that the plaintiff was depressed as a result of his injuries and their impact on his life, and that his condition was unlikely to improve.
[57]JCB p33.
87 Dr Piperoglou reported on 25 February 2011 that the plaintiff “denied any formal psychiatric history”[58] when he first saw him in February 2009. Dr Piperoglou diagnosed a chronic mixed anxiety/depressive disorder and post-traumatic symptoms resulting from the transport accident. He deferred to Dr Zaharias for an indication as to whether the plaintiff was suffering from depression at the time of the transport accident. He noted that since February 2011 he had been prescribing Pristiq, an anti depressant but that the plaintiff had major problems with compliance. His failure to take the medication daily was causing him to suffer from a number of symptoms which he wrongly blamed on the medication itself. Dr Piperoglou felt that his depression would only improve if he complied with his medication, but that this was unlikely, and so his condition was likely to remain the same. He concluded that the psychiatric reaction had “severely compromised” the plaintiff’s personal and recreational pursuits “to a significant extent”.[59]
[58]JCB p113.
[59]JCB p117.
88 At the hearing, Dr Piperoglou said that the plaintiff’s depression was 20-30% better since he had been complying with medication over the past six to nine months. He felt that there may be no further improvement. He continues to see the plaintiff at four to six week intervals. Dr Piperoglou was taken to the entries from Dr Zaharaias’ clinical notes prior to the transport accident and felt that the appropriate diagnosis was of unresolved grief. He also felt there was a pre-existing low grade depression or adjustment disorder with anxious and depressed mood. Dr Piperoglou said that the post-traumatic symptoms included a fear of driving, a dislike of TAC advertisements, and waking fearful and screaming. He agreed that the most significant component of his psychological presentation was depression and anxiety. He felt that while the plaintiff had some depressive symptoms before the transport accident, he did not require antidepressants, but might have warranted referral for cognitive counselling. However, he felt that his symptoms were clearly worse after the accident.
Findings and reasons
89 I am satisfied on the evidence before me that the plaintiff had significant psychological problems before the transport accident, dating back at least to 1998, but reaching a low point in December 2004 when Dr Zaharias described him as suffering a significant depressive condition, with a loss of direction, with no motivation, little self-esteem and very little activity outside the home. Although he was not being prescribed medication for depression at that time, I accept the evidence from Dr Piperoglou and Dr Zaharias that he required treatment for his condition before the transport accident.
90 On all the material before me, it appears that the plaintiff was significantly disabled prior to the transport accident by his psychological disorder. He had not worked in paid employment for nearly five years. He had been depressed and withdrawn, living at home with his parents. He had ceased his voluntary training work in 2000. I acknowledge his assertion at the hearing that he was helping train his brother, a champion boxer, after the death of their mutual trainer in 2000 until his brother retired in 2004, but note that there was no evidence from his brother or his parents that this was the case immediately prior to the transport accident. In any event, the plaintiff agreed he was not in paid employment between 2001 and 2005. I accept that he was in good physical shape prior to the transport accident.
91 I accept his evidence that his psychological condition worsened after the transport accident. He suffered post-traumatic symptoms such as driving phobia which he had not suffered prior to the accident. His pain and loss of physical fitness occasioned by his physical injuries led to a worsening of the psychological condition he was suffering prior to the transport accident. He has required extensive psychiatric treatment including treatment with anti-depressants. I note the evidence from his treating psychiatrist, Dr Piperoglou, that his condition has improved 20-30% in the past six to nine months.
92 However, having regard to the extent of his depressive symptoms, restricted lifestyle, and failure to engage in paid employment in the five years prior to the transport accident, I am unable on the evidence before me to be satisfied that the extent to which his psychological condition worsened after the transport accident, in terms of its pain and suffering and pecuniary disadvantage consequences, satisfies the test of being “severe”.
93 It follows that the plaintiff has failed to make out this part of his application.
Conclusion
94 The plaintiff’s application is dismissed.
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