Tyrikos v Transport Accident Commission
[2024] VCC 1711
•7 November 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-04270
| NIKITAS (aka NICK) TYRIKOS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 and 4 April 2024 | |
DATE OF JUDGMENT: | 7 November 2024 | |
CASE MAY BE CITED AS: | Tyrikos v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1711 | |
REASONS FOR JUDGMENT
---
Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – whether injury caused by transport accident – previous transport accident – previous injuries – subsequent injuries – credit of plaintiff – whether consequences of transport accident “serious” – relevant principles
Legislation Cited: Transport Accident Act 1986, s93(4)
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Demmler v Transport Accident Commission [2018] VSCA 284; Abbas v Transport Accident Commission [2015] VSCA 217; State of Victoria v Glover [1998] VSCA 93; Petkovski v Galletti [1994] 1 VR 436; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1
Judgment: Application refused.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D McWilliams with Mr A Kleiman | Rennick Briggs |
| For the Defendant | Mr C W R Harrison KC with Ms K Burke | Russell Kennedy |
Table of Contents
Relevant legal principles
Background
The transport accident
Overview of the Plaintiff’s pre-existing injuries and their consequences
Evidence concerning consequences of the injuries suffered in the accident
The Plaintiff’s affidavits
Experience of pain
Treatment and medication
Sleep
Activities of daily living
The Plaintiff’s viva voce evidence
The lay witnesses
Medical records – injuries suffered in the transport accident and significant injuries/illness suffered after the transport accident
The Plaintiff’s medical records
The Defendant’s medical reports
The issues
The Plaintiff’s credit
The affidavit evidence of the Plaintiff’s family members
Does the Plaintiff continue to suffer any, and if so what, consequences of injuries he sustained in the accident?
The Plaintiff’s pre-transport accident medical presentation
The Plaintiff’s presentation following the transport accident
Analysis of the evidence in relation to the function of the Plaintiff’s thorax
Analysis of the evidence in relation the function of the Plaintiff’s respiratory system
Conclusion and Orders
SCHEDULE
The Plaintiff’s pre-transport accident presentation
HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s93(4) of the Transport Accident Act 1986 (“the Act”), for injury suffered by the plaintiff in a transport accident which occurred on 5 December 2020 (“the accident” or “the transport accident”).
Relevant legal principles
2Section 93(6) of the Act provides that a court must not give leave under ss(4)(d) unless it is satisfied that the injury is a “serious injury”.
3The definition of “serious injury” as set out in s93(17) of the Act is, relevantly to this application:
“‘Serious injury’ means—
(a) serious long-term impairment or loss of a body function … .”
4The plaintiff claims that by reason of the transport accident, he suffered injury to his lungs/respiratory function and/or the function of the thorax. An initial claim under paragraph (c) of the definition of “serious injury” was abandoned by the plaintiff.
5In forming a judgment as to whether the consequences of an injury are “serious”, the question to be asked is: “can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”.[1] It has been held that the relevant consequences to a plaintiff will relate to pecuniary disadvantage and/or pain and suffering.[2]
[1]Humphries and Anor v Poljak [1992] 2 VR 129 at 140
[2]Humphries and Anor v Poljak (ibid) at 140; see also Demmler v Transport Accident Commission [2018] VSCA 284 at paragraphs [52] and [56]-[57]; Abbas v Transport Accident Commission [2015] VSCA 217 at paragraphs [36]-[39]; State of Victoria v Glover [1998] VSCA 93 at paragraph [30]
6In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of “serious injury”, as set out in s93(17), the relevant injury must also be long term.
7The plaintiff bears the burden of proof on the application. The standard of proof is on the balance of probabilities.
8The Court must assess whether the injury is “serious” for the purposes of the Act, as at the time the application is heard.[3] In assessing the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the transport accident.[4] It has been held that the task of assessing the pain and suffering consequences of an injury is largely a question of impression and value judgement.[5]
[3]See s93(6) of the Act, which states that leave must not be given by a court unless the court “is satisfied that the injury is a serious injury”. I take that expression to mean that the injury is “at the time at which the application is heard,” a serious injury for the purposes of the Act.
[4]Petkovski v Galletti [1994] 1 VR 436 at 442; Demmler v Transport Accident Commission (supra) at paragraph [52]
[5]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
9In determining the application, the Court must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[6]
[6]See generally Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
10It is well understood that a person who is injured is to be compensated only for such injuries as are proven to have resulted from the relevant accident.[7] To undertake this task, the plaintiff must establish what injury was caused by the transport accident. The Court must then determine the consequences of that injury to the plaintiff, by comparing the plaintiff’s condition before and after that injury.[8] If the Court is satisfied that the additional impairment is “serious” and long term, then the plaintiff will have demonstrated that he is suffering from a “serious injury” under the Act.[9]
[7]Petkovski v Galletti (supra)
[8]Supra, at 444
[9]Supra
11It was common ground at the hearing that the plaintiff had a complex health history prior to the transport accident. In addition, the plaintiff also had experienced significant health issues which arose after the transport accident. I have set out the evidence and made findings in relation to the consequences of each of these matters in this judgment.
12The plaintiff relied upon three affidavits, gave viva voce evidence and was cross-examined. He also relied upon three affidavits from his wife, Vivien Tyrikos, three affidavits from his daughter, Denise Konstantinou, and two affidavits from his daughter, Marieka Tyrikos. None of the plaintiff’s lay witnesses were required to attend for cross-examination.
13In addition, both parties relied upon medical reports and other materials which were contained within Court Books filed before the hearing.[10]
[10]The Plaintiff’s Amended Court Book was marked as exhibit (“Ex”) P1. The Defendant’s Further Amended Court Book was marked as Ex D1
14I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered materials.
Background
15The plaintiff is presently aged seventy-three, having been born in April 1951. He is married and lives with his wife and two of his daughters.[11]
[11] Ex P1, page 14
16The plaintiff was self-employed throughout his working life, working in the clothing industry. He retired in 1990. From 1990 to 2007, he worked with his brother, making shoes at a factory in Northcote/Preston. He has been permanently retired since 2007. Since that date, he has been on Centrelink payments.[12]
[12]Ex P1, page 14
17He used to smoke, but ceased smoking in 2007.[13]
[13]Ex P1, page 14
The transport accident
18The plaintiff described the transport accident in the following way:
“1.…
2. I sustained injuries in a transport accident on 5 December 2020 at approximately 10:35am.
3. On the said date, I was driving my silver Mazda 6 … along Bulleen Road, Bulleen … I was alone in my vehicle and was wearing a seat belt. I was travelling towards the Eastern Freeway. I was in the right hand lane. The speed limit is 70 kmph. I estimate that I was travelling approximately 50 kmph. Suddenly, from my left hand side, a motor vehicle … turned left out of the Boroondara Tennis Club driveway into the middle lane of Bulleen Road. This vehicle failed to give way to my motor vehicle resulting in a collision between the two vehicles...
4. As a result of the collision, I noticed the immediate onset of pain and discomfort in my chest area, as well as pain in the middle of my back, my low back, and my neck on both sides. The impact of the collision caused significant chest pain as a result of my chest/sternum hitting the steering wheel of my vehicle and then the airbag deploying.
5. The Police, Fire and Ambulance services attended the scene of the accident and I was transported by Ambulance to the Alfred Hospital where I stayed for one night. My Mazda was towed from the scene of the accident and it has been declared a ‘writeoff’.
6. At the Alfred Hospital, I had x-rays, CT and MRI scans performed. As a result of the scans, I had two fractured ribs on the right side, as well as marked bruising and soft tissue injuries. In addition, I had significant and persistent pain in my chest as a result of hitting the steering wheel, as well as pain in my neck on both sides, middle and lower back. I had an implantable defibrillator which was loosened by the impact of the injuries sustained in the accident.
7. After I was discharged … I attended my long standing GP of 20 years, Dr. Sam Assad of Bulleen Plaza Medical Centre. I consulted Dr. Assad on 19th February 2021 complaining of ongoing chest pain and bruising and I was referred back to the Alfred Hospital multiple times for further treatment for the injuries received in the motor vehicle accident.
8.I had physiotherapy treatment from the physiotherapist from Physical Healthcare of Bulleen on a number of occasions in 2021. Unfortunately, because of my complex cardio condition, any physical therapy upon myself as a result of the injuries received in the accident has been minimal … .”[14]
[14]Ex P1, pages12-13
Overview of the Plaintiff’s pre-existing injuries and their consequences
19A comprehensive analysis of the plaintiff’s pre-accident presentation is contained in the Court Books. A detailed, footnoted overview of those matters is set out in the table attached as a Schedule to this document. The medical records demonstrate and I find, that the plaintiff’s list of pre-transport accident medical conditions and their consequences for him included:
(a)persistent mental health issues, noted since at least March 2007. Anxiety neurosis and panic attacks were diagnosed in May 2012, requiring the prescription of Xanax. In January 2020, the plaintiff’s mood was described as “low” due to his experience of pain. Depression was noted since at least September 2020, with the plaintiff being prescribed anti-depressants. At this time, Dr Teh recommended that the plaintiff’s mood be monitored closely;
(c)inflammatory arthritis was noted in March 2007;
(d)low back pain requiring medication and other treatment was noted since at least July 2007 (specifically diagnosed again in 2014, 2016, 2017, 2018 and 2019). Prescription medication has included Endep (amitriptyline);
(e)a massive heart attack was noted in 2007, followed by implantation of a defibrillator in May 2008 (requiring the prescription of anti-coagulant medication) and a heterotopic cardiac transplant in October 2008. These events left the plaintiff with a number of residual symptoms including persistent shortness of breath, and increasing chest pain (sometimes described as “pleuritic in nature” (as to this see sub-paragraph (i) below). Mid-sternum and rib pain was also noted in the Bulleen Medical Centre notes since October 2013. The plaintiff has also experienced occasional cardiac failure since the heart transplant, leading to swelling of the lower limbs;
(f)pain associated with the presence of the defibrillator was noted in September 2020. This pain was recorded as having resolved “following removal of the AICD pacemaker in October 2021”;
(g)diagnosis of Chronic Pain Syndrome in June 2014, for which Endone was prescribed;
(h)osteoarthritis, causing pain in both knees, diagnosed in May 2014. The pain from this condition resulted in limitation of movement, morning stiffness and difficulty negotiating stairs. Endone was prescribed;
(i)chest pain described as “pleuritic” in nature, since at least December 2016. Progressively worsening pleuritic chest pain was noted in May 2020. At that time, the plaintiff reported that his pain was radiating from the left side of the chest across the axilla into the left back, with pain noted to be “sharp” in nature. The pain was described as 10/10 in severity and was associated with poor sleep and the need to sleep on a few pillows. He told doctors at this time that he had no pain-free periods during the day. Right lateral back pain was reported to have developed in April 2020;
(j)Obstructive Sleep Apnoea since at least July 2018, for which the plaintiff was advised to use a CPAP machine, although he declined to do so;
(k)right diaphragm palsy, causing “basal atelectasis” (collapse of the lower lobe of the right lung), was noted since July 2017, and was thought to be related to right phrenic nerve palsy dating back to the time of the cardiac transplant in 2007. Minor atelectasis was also noted in the linga and lower lobe of the left lung in May 2020, associated with worsening pleuritic chest pain. At this time, the plaintiff was classed as having New York Heart Association Class II-III symptoms, namely, experiencing a marked limitation in his physical activity, comfortable at rest, but ordinary physical activity results in fatigue, palpitation, dyspnoea and other cardiac symptoms;
(l)in July 2017, the plaintiff was described by his GP as needing a “full time carer”;
(m)interscapular back pain since a previous car accident in July 2017. In 2020, prior to the transport accident, the plaintiff was noted to be suffering from similar pain. It was reported that he had not done any home maintenance or domestic chores for many years, in view of his cardiac condition;
(n)borderline exercise capacity for his age, limited by fatigue and shortness of breath was noted in May 2017. In December 2017, the plaintiff was noted to be “not capable of fast walking and long distance walking”;
(o)in July 2017, facet joint arthropathy was noted to be a possible cause of the plaintiff’s chest pain;
(p)squeezing chest pain radiating to the left scapula and general malaise associated with left shin swelling noted in January 2018 and again in October 2018. General malaise, with no energy and the inability to walk more than a few metres was again recorded in January 2020. At that time, the plaintiff reported a “general decline in functionality” since September 2019;
(q)exacerbation of what was described as the plaintiff’s “usual” thoracic back pain radiating around to bilateral chest in July 2018. Chronic mid-thoracic back pain was noted to have been present since the heart transplant;
(r)pain in rib-cage in July 2018. The plaintiff was also noted to be excessively short of breath at this time;
(s)the plaintiff has experienced “frequent night time awakening due to nocturia” since at least October 2018. Insomnia was also noted in September 2020;
(t)unconscious collapse causing a two-metre fall from a ladder was recorded in March 2019. Injuries included a fractured vertebra and left 5th and 6th rib fractures, necessitating numerous visits to hospital for pain management;
(u)onset of severe right flank/back pain, intermittently gripping/squeezing and coming in waves was noted in April 2019;
(v)scapular and left-sided back pain was noted in May 2019;
(w)right foot pain, diagnosed as plantar fasciitis was noted in March 2020;
(x)left-sided pleuritic chest pain, with “usual shortness of breath since transplant” was noted on 22 April 2020;
(y)the need for gardening and house cleaning assistance, due to the plaintiff’s medical conditions, was noted in May 2020;
(z)low bone density for his age, with higher than usual risk of major fracture was noted in June 2020;
(aa)presentation to hospital for urgent cardiology consult and follow up in June 2020, due to the plaintiff suffering “typical chest pain central crushing in nature with radiation to his back”, against a history of cardiac transplant;
(bb)the need for a full-time carer for his medical and domestic needs and transport, was again noted in August 2020;
(cc)persistent severe chest pain, thought to be pleuritic in nature, and sometimes associated with chest pain of a squeezing nature was noted in September 2020. The pain was noted to occur “most days now, mostly in the chest”. The plaintiff was also noted to be coughing;
(dd)the need to take six to eight paracetamol tablets per day and Endone around once per week was noted in September 2020;
(ee)other conditions noted as “pre-existing” when the plaintiff presented to The Alfred Hospital immediately after the transport accident on 5 December 2020 were:
(i)Pulmonary hypertension;
(ii)Chronic Kidney disease;
(ii)Dyslipidaemia;
(iii)Hypertension;
(iv)Hepatitis B;
(v)Gastric and small bowel angioectasia (leading to recurrent gastrointestinal bleeding);
(vi)Vocal cord lipamatour swelling; and
(vii)Temporomandibular joint disease.
Evidence concerning consequences of the injuries suffered in the accident
The Plaintiff’s affidavits
20The plaintiff swore three affidavits, the first dated 13 June 2023, the second dated 26 March 2024 and the third dated 3 April 2024. The evidence which the plaintiff gave as to the consequences of the injuries he suffered in the transport accident, is as follows:
Experience of pain
(a) despite the treatment he has received, the plaintiff continues to suffer from the following ongoing symptoms:
(i)significant pain and tenderness in his right ribcage;
(ii)pain and discomfort in his lower back;
(iii)pain and discomfort in his middle back;
(iv)pain and discomfort in his neck on both sides;
(v)significant chest pain which is ongoing;
(vi)significant shortness of breath; and
(vii)significant deterioration of his pre-existing cardiac condition;[15]
[15]Ex P1, p17
Treatment and medication
(b) since the transport accident, the plaintiff has attended his longstanding general practitioner, Dr Sam Assad, on a number of occasions. He has also had extensive physiotherapy, initially at Caulfield Rehabilitation Hospital (part of Alfred Health);[16]
(c) he initially began on Endone for pain management, but this led to unpleasant side effects;[17]
(d) he currently takes Panadol for pain management, four to six tablets per day. He also takes four vitamin D tablets and three magnesium tablets per day;[18]
(e) at the time of the transport accident, he had an in-dwelling defibrillator attached to his native heart. In the course of the accident, that defibrillator was dislodged and caused him pain. He had surgery in late 2021 to have the defibrillator removed. The wires for that defibrillator are still in his body and he has been told by doctors that these wires are a potential source of infection and may have to be surgically removed in the future;[19]
Sleep
(f) his sleep was reasonable before the transport accident;[20]
(g) his sleep has been greatly affected by the effects of the transport accident;[21]
(h) since the transport accident, he has had to sleep with five pillows in an upright position at night time;[22]
[16]Ex P1, p16
[17]Ex P1, p16
[18]Ex P1, p30
[19]Ex P1, p192
[20]Ex P1, p15
[21]Ex P1, p17
[22]Ex P1, p17
Activities of daily living
(i) since the transport accident, he has become significantly immobile and can no longer walk from the kitchen to the letterbox because of severe rib, back and neck pain, and breathlessness due to the injuries received in the transport accident;[23]
[23]Ex P1, p17
(j) since the transport accident, his wife has had to become his carer;[24]
(k) before the transport accident, he used to enjoy kicking the football with his grandchildren, mowing the lawn, walking reasonable distances and doing the shopping.[25] Since the transport accident, he is no longer able to kick a football with his grandchildren. He is no longer able to mow the lawn. He is no longer able to walk reasonable distances. He is no longer able to do the shopping at full capacity;[26]
(l) his activities have been severely restricted due to the ongoing pain and breathlessness he has experienced since the transport accident. He is able to do minor activities such as pick up medication and small amounts of shopping, for example bread and milk. After completing these tasks, he requires a “long rest and recovery period”;[27]
(m) he spends most days lying in bed and/or reclining on a couch due to the fact that he has difficulty walking as a result of the effects of the transport accident. He forgets things and has slowed down significantly, which also affects him;[28]
(n) in 2019, he was the assistant coach of the Glen Waverley Soccer Club under 9s team, in which his two grandsons played. He loved the coaching role as he enjoyed the time spent with his grandchildren and because soccer is his first love in life and still a great passion. He can no longer fulfil the coaching duties and has not done so since the transport accident, as his significant shortness of breath now means he is too immobile and tires too quickly to do so. He could not possibly stand on the sidelines and move around during a soccer game, since even the slightest exertion now causes him breathlessness and extreme fatigue. Not being able to coach is a big loss to him, and he finds it upsetting;[29]
(o) he is an avid Richmond Tigers fan. Prior to the transport accident, he used to attend most Richmond home games at the MCG with his daughter and her family. Now he would attend only approximately one in every three home games as it is such a struggle to get inside the gates. He has to stop every few metres to catch his breath and it is just too difficult for him now to attend every game. The fact that he cannot attend football games as often and the struggle he has to endure when he does attend, makes him frustrated and gets him down;[30]
(p) prior to the transport accident, he and his family used to travel interstate for holidays together. The holidays were great fun and enjoyable family bonding times. In 2018, they travelled to Queensland and he was able to partake in plenty of activities including walking around Sea World. He was also able to cope with the flight without much difficulty at all;[31]
(q) in about February 2024, he travelled to Surfers Paradise for a few days with his daughter. He found the flight very difficult, particularly with his significant shortness of breath and fatigue. At the destination, he was unable to enjoy himself or do anything due to his fatigue and shortness of breath. He experienced the same thing recently when he and his wife attempted to take a trip to Inverloch over the Easter weekend. He was unable to walk down the main shopping strip and was confined to the motel for much of the time, which he found frustrating and upsetting;[32] and
(r) more generally, the injuries which he sustained in the transport accident get him down mentally. It is very difficult to cope with life when he becomes fatigued and short of breath so easily. This has been the case and continues to get worse since the transport accident.[33]
The Plaintiff’s viva voce evidence
[24]Ex P1, p17
[25]Ex P1, p15
[26]Ex P1, p17
[27]Ex P1, p17
[28]Ex P1, p31
[29]Ex P1, p191
[30]Ex P1, p192
[31]Ex P1, p192
[32]Ex P1, p192
[33]Ex P1, p192
21Under cross-examination, the plaintiff gave the following relevant evidence:
(a) he understood the content of his affidavits when they were translated to him. He agreed that those affidavits were all true and correct, and he adopted them as his evidence in the case;[34]
[34]T23, L11-15
(b) he stopped working in 2007 because of trouble that he was having with his heart.[35] He applied for and received a Disability Support Pension after this time, based on the fact that he was unable to do any work;[36]
[35]T23, L30-31
[36]TT23-24
(c) in 2016, he was experiencing a lot of trouble with back pain on the right-hand side of his back, about the mid-thoracic level, as a result of his heart transplant. He explained that he was “scared of my heart”.[37] The pain at that time was just on the right-hand side of his back;[38]
[37]TT26-27
[38]T28, L1-4
(d) at that time, he still did a lot of things,[39] but the doctors told him not to do too much;[40]
[39]T28, L7-9
[40]T28, L14-15
(e) he stopped playing soccer when he was fifty-one years old, which was a few years before he stopped work;[41]
[41]T28, L24-26
(f) he continued smoking until he had heart problems in 2007;[42]
[42]T28, L27-31
(g) after the heart attack but before the transport accident, “I was okay. I did things … I was not able to run.” He also said he did not walk very far: “No. 100, 150 metres … before the accident”;[43]
[43]T29, L10-20
(h) before the transport accident, he did not do heavy jobs around the house. He watered the garden and that would take him about 45 minutes. He planted tomatoes but he does not do that now;[44]
[44]TT29-30
(i) prior to the transport accident, he did exercises but he cannot do exercises now;[45]
[45]T31, L27-28
(j) prior to the transport accident, he had shortness of breath, “but not much”;[46]
[46]T32, L13-16
(k) when pressed in relation to whether he had shortness of breath in 2017, he replied “I can’t remember”;[47]
[47]T32, L24-25
(l) he was taken to the record of a stress echocardiogram conducted on 22 May 2017,[48] which recorded that he was assessed as having “borderline exercise capacity for age, limited by fatigue and dyspnoea or shortness of breath”. He was asked whether he accepted that if the hospital recorded these matters, then they were true. In response to this, he replied “I had dyspnoea, but not much … very little … from 2010, I didn’t have any problems”. When pressed again about his shortness of breath in May 2017, he replied “I had a little bit. Very little …”;[49]
[48]Ex D1, p77
[49]TT30-33
(m) when pressed further in relation to this matter, he replied that about a year after the heart transplant, he had dyspnoea. He was unable to sleep and he was given “the super machine”. [50] I took this to be a reference to a CPAP machine;
[50]T34, L12-30
(n) he was taken back to the content of the May 2017 echocardiogram study and again asked whether or not he had dyspnoea at that time as the document recorded. He again replied “I can’t remember if I had dyspnoea at that time”;[51]
[51]TT34-35
(o) he was asked about the Emergency Department records relating to injuries he suffered in a previous motor vehicle accident in July 2017. Those documents recorded that he had complained of nausea en route to the hospital “with associated interscapular back pain”. When asked whether or not he recalled having pain between his shoulder blades at that time, he said “I didn’t have pain”. He also replied “I had dyspnoea, shortness of breath … I was nervous. That’s why I’m not able to breathe.”[52] He also denied having abdominal pain at that time;[53]
[52]TT35-38
[53]TT37-38
(p) he was taken to the list of ailments from which he suffered in 2017, which were recorded under a heading in the Emergency Department note “Relevant Medical History”. It was pointed out to him that these ailments included heart transplant, Hepatitis B, pulmonary hypertension and chronic pain. He agreed that he had problems with hepatitis. He insisted that in 2017, “I was okay”. He agreed that he knew what the word “chronic” meant. He denied being able to remember any of these ailments: “I can’t remember these things … I can’t remember, I’m not going to lie”;[54]
[54]TT38-29
(q) he was taken to a letter written by his general practitioner, Dr Assad, on 14 July 2017. It was pointed out to him that Dr Assad described him at that time as requiring “full-time care”. When pressed on this matter, the plaintiff agreed that at this time “I needed a carer … I had my wife”. It was put to him that Dr Assad described his daughter as being his carer. He agreed that at that time, his daughter lived with him and his wife. When asked if she was the full-time carer for him, he replied “Yes, she helped me a lot … she washed my clothes … she made my bed, she ironed my clothes … she did everything”;[55]
[55]TT39-41
(r) he said that at this time, his wife did the garden;[56]
[56]T41, L9-11
(s) he was taken to a report by Dr Jason Teh dated 23 September 2020, where Dr Teh had recorded that the plaintiff told him that he had had three years of back pain, sometimes with chest pain. To this he replied: “I have pain in the chest, but not in the back. But I don’t know where did you find this?” He agreed that at that time, he sometimes had chest pain which felt like it was squeezing his chest. He said that was because he had a heart problem. He said that the chest pain was on his right-hand side. Then he did acknowledge that he had pain in his back, but said “it only happened a couple of times”;[57]
[57]TT41-43
(t) it was suggested to the plaintiff that before September 2020, he had experienced episodes of back and chest pain with shortness of breath. In response to this, he replied “a little bit”.[58]When asked how many episodes of this type of pain he had experienced, he replied, “if I was to count this, I would be in Greece …”;[59]
[58]T44, L16-18
[59]T44, L26-30
(u) when asked how many times per day such pain would occur, he replied: “Once or twice … the pain … normally … roughly when I got angry … my condition, [I] got angry easily.” Then he said that this would happen “once a month”.[60] He said that the reason he got angry was because his family did not let him do anything;[61]
[60]T45
[61]T46, L1-5
(v) he was taken to a record from Alfred Health dated 29 January 2018. The note recorded that he was complaining of swelling in his left elbow. He said he could not remember the elbow, but had swelling in his feet. It was pointed out to him that the note recorded that he was complaining of “chest pain and general malaise”. To this he replied: “I can’t remember. The hospital I went 200 times [sic].” When asked if he accepted that this would be true if it was recorded in the notes, he replied: “Yes … depression”;[62]
[62]TT46-47
(w) he was taken to a point in the note which recorded that his feet and legs were swelling. He was taken to a note which recorded that he had “squeezing chest pain radiating to the left scapula”. To this he replied that he remembered the leg swelling. He said that he had pain in the right of his back “had on the right-hand side there, not the left … I always had dyspnoea”;[63]
[63]TT47-48
(x) he was taken to the part of the note which recorded that he was then suffering from obstructive sleep apnoea and not using his CPAP machine. In response to this he replied: “I don’t sleep at all … I didn’t like this mask, because I was feeling suffocated … I gave it to somebody else … I didn’t want it … now I can sleep only two hours at night … but before the accident … I slept properly”;[64]
[64]T50, L10-25
(y) when pressed about his sleep prior to the accident and what he had meant when he said, “I never sleep properly”, he replied “after the accident”. It was suggested to him that before the accident, he did not sleep well either. In response he replied: “Who said this? Which doctor said this? … I was sleeping mostly seven hours”;[65]
[65]T51, L13-20
(z) he was taken to a note which recorded that in January 2018, he was suffering from chronic kidney disease. He was asked whether or not he accepted that he did suffer from this long-term disease. He replied: “I never had this”;[66]
[66]T52, L13-20
(aa)he was taken to the report of Mr Speck, who he saw in January 2024. He was taken to a part of Mr Speck’s report which recorded that the plaintiff said that he did not do any home maintenance or domestic chores and had not done so for “many years because of his heart condition”. In response to this, the plaintiff replied: “No, I did always chores, works in the house”;[67]
[67]T55, L8-12
(bb)it was put to him that he had told Mr Speck that his wife did the gardening, for instance, looking after their tomato plants. He replied: “Yes, she is still doing this and mows the lawn”. When it was suggested to him that this was the situation before the transport accident too, he replied: “Yes”;[68]
[68]T56, L6-13
(cc)he was asked about a note from July 2007 which recorded that on three occasions he had laser acupuncture for back pain. He did not deny having back pain at this time, but said that he did not have this acupuncture “because I [was] scared”. He said that he had massage treatment for the back pain;[69]
[69]T57, L23-30
(dd)it was suggested to him that in July 2007, he had depression. He agreed that this was true;[70]
[70]T58, L1-2
(ee)in May 2012, he was diagnosed as suffering from anxiety neurosis and was prescribed Xanax tablets. He said that he did not take that medication;[71]
[71]T58, L24-29
(ff)he was taken to a note which recorded that in July 2012, he was suffering from panic attacks. In response to this he replied: “I never have taken those tablets … I have these panics because of the pain, because I was scared with my heart, with a new heart. I was fearing because I have the fear that I was going to die but I did not want to die”;[72]
[72]T59, L2-11
(gg)he agreed that in October 2013, he had pain in his sternum and also in his ribs;[73]
[73]T59, L12-14
(hh)he agreed that this was the same area that hit the steering wheel when he was in the transport accident. He said that he had pain in 2013 in this area “because the stitches haven’t healed properly …”;[74]
[74]T59, L17-26
(ii)he agreed that for many years after the heart transplant, he had to be careful of his sternum area because it was still sensitive: “Yes, I had to be careful for everything”;[75]
[75]TT59-60
(jj)he agreed that in March 2014, he had been prescribed Endone by his general practitioner. He said that he did not take those tablets. He said they caused him unpleasant side effects such as vomiting, constipation and headache. It was put to him that his pain would have to be quite severe for him to put up with the side effects and take Endone. In response to this he replied: “I took only four times a day – two times a day – two tablets every four hours”;[76]
[76]TT60-61
(kk)it was put to him that in May 2014, he reported to his general practitioner that he was having severe pain in both knees, and limitation of movement. In response to this he replied: “My mobility was limited. … Dr Assad made a mistake, I didn’t have any problems with my knees. I have only a problem with my ankle, where I hit my ankle, not with my knees”;[77]
[77]T61, L5-11
(ll)it was put to him that he had described experiencing morning stiffness at this time. In response he replied: “No, before the accident I was okay. The problem is because I was scared of my heart, I was fearful of my heart. What Sam says is not true, I didn’t have problems with my knees … I had my grandchildren in my house and I wanted to show to one of them how to kick the ball and I was going to show him [how] to do this, a demonstration, I hit my ankle … only one, the left one”;[78]
[78]T61, L15-23
(mm)he denied having difficulty using stairs in 2014;[79]
[79]T62, L24-27
(nn)he recalled an episode in June 2014 when he came to Dr Assad’s surgery and was upset because he could not get an Endone prescription. In response to this he replied: “I was very bad when I went there and my heart was killing me.” He described having to wait a long time and getting very upset. He said the receptionist told him that he needed to go to the hospital, and called an ambulance;[80]
[80]T64, L8-28
(oo)it was put to him that in fact he came into the surgery wanting to see someone very urgently and was not happy to wait. It was also recorded that he had subsequently gone to a chemist and asked the pharmacist for Endone. He was asked if he remembered that. In response he replied “No”;[81]
[81]TT64-65
(pp)he was taken to a note made by Dr Assad on 11 June 2014, in which he was described as having a “chronic pain syndrome”. In response to this he replied: “It was after the operation that I suffered what I suffered, after the operation. The point is, because nobody knows what I go through, it was too hard … I wish I was dead. I had an attack every day of my life because my old heart doesn’t work, it goes only 12 per cent, so sometimes this heart oppose this heart and it’s killing me … that’s why I go to the hospital a lot of times.” It was suggested to him that he goes to the hospital because he has pain. In response to this he replied “yes”;[82]
[82]T65, L2-14
(qq)it was suggested to him that in June 2014, he had pain in his back and in his chest. In response he replied: “No, here in the chest, my new heart, only on my new heart. I don’t care about the old one.” It was suggested to him that at this time, he was having pain in his back and chest, and he was reminded that this is before the accident. In response he replied: “I had a pain on my right, this side, yes”;[83]
[83]T65, L18-20
(rr)he was taken to a note made by Dr Assad in September 2014, which recorded that he was having lower back pain. He said that he remembered this.[84] He agreed that he was prescribed Lyrica at this time for that pain. He qualified this by saying, “I’m going to be honest, he was giving me medication but I never take it. That’s the honest truth … I only tried … once. I take 17 tablets in the morning and 17 at night”;[85]
[84]T65, L21-23
[85]T65, L24-29
(ss)it was suggested to him that he had been taking painkilling medication for years before the accident. In response to this he replied: “I take only Panadeine … Endone, I used to take in the hospital. After the transplant, about a year after, I have a lot of problems with my heart and they gave me the Endone and … I was vomiting, I was constipated and had a headache and when I told him I have this problem, he said it’s okay. Then I stopped them by myself and I used to take Panadol and I can’t remember after three days”;[86]
[86]T66, L11-22
(tt)he clarified that he would take Endone every time he was in hospital;[87]
[87]T66, L23-27
(uu)it was put to him that in February 2015, Dr Assad recorded again that he was complaining of severe chest pain. In response he replied: “Yeah, I used to go with these things all the time with the chest pain”;[88]
[88]TT66-67
(vv)he denied attending Dr Assad in 2016 and complaining of breathing difficulties and infection;[89]
[89]T67, L8-18
(ww)he was taken to a note made in November 2016, which recorded that he again saw his general practitioner complaining of low-back pain. In response to this he replied: “Maybe I went”;[90]
[90]T67, L19-23
(xx)it was suggested that on 1 December 2016, he went to his general practitioner complaining of pleuritic chest pain, meaning “lung-type” chest pain. In response to this he replied: “In the heart only, not in the lungs”;[91]
[91]T67, L24-27
(yy)it was put to him that in January 2017, he went back to his general practitioner with low-back pain when he was bending over. In response he replied: “Yeah, I had some pain at the lower back”;[92]
[92]T67, L28-29
(zz)he was asked if, on 4 May 2017, he had attended his general practitioner complaining of pleuritic chest pain which is internally, in the lung. He denied this and said: “I didn’t have any pain, I never had any pain in there, on the lungs. I didn’t have this. I haven’t complained about this in the hospital”;[93]
[93]TT67-68
(aaa)it was suggested to him that in October 2017, he had reported having low-back pain to his general practitioner. In response he replied: “I complain with my legs and my back, I never complain. Always I complain about only my chest … that’s the only problem I ever had, my chest, but not on the left side, only the right hand side and it was very scary for me … with Dr Sam, I don’t know why he puts these things down. I have got no idea …”;[94]
[94]T68, L4-15
(bbb)he agreed that in October 2017, he had a discussion with his general practitioner about getting a Disability Parking Permit. He agreed that he did get such a permit. He said he was driving to the hospital every day or second day and that is why he needed the permit. It was suggested to him that the permit was to save him walking from the car park into the hospital: “There’s a car park there but the space in front of the door, the main door, you can park for 15 minutes. When I go there, I got the disabled sticker, I got this problem, okay, don’t worry, go”;[95]
[95]TT68-69
(ccc)it was put to him that on 13 December 2017, he had told his general practitioner that he was not capable of walking fast or long-distance walking. In response he replied: “I never told him anything about that … I never complained to him about my walk. To be honest, before the accident, I used to coach my grandchildren and coach other children as well and I used to run with them”;[96]
[96]T69, L8-15
(ddd)he was pressed in relation to this and it was suggested to him that he had told the doctor that he was not able to walk fast and not able to walk long distances. In response to this he replied: “I walk long distances. I remember one time when I walk roughly 2 kilometres.” It was suggested to him that at the end of 2017, that type of distance would have been beyond his capacity. In response he replied: “I was okay … I could walk”;[97]
[97]T69, L24-29
(eee)it was suggested that he had told Dr Speck that he had gone to The Alfred hospital a few times by ambulance with pain on the right side of his back, below the shoulder, and also on the left side at the shoulder blade. In response to this he replied: “Yeah … my whole back was painful”;[98]
[98]T70, L11-29
(fff)it was put to him that he was sent by Dr Assad to The Alfred hospital on 6 July 2018. He agreed that this had occurred. It was put to him that he had presented to the hospital complaining that his back pain had “flared up”. He responded: “I didn’t complain then … I went to the hospital but not my back.” It was put to him that the hospital notes recorded an exacerbation of his usual mid-thoracic back pain, two days ago with no clear cause. In response to this he replied: “There was no pain … I didn’t have any pain, it’s only on the chest and on the back”;[99]
[99]T71, L4-19
(ggg)it was put to him that he had told the hospital that the pain in his back usually did not radiate but that it had now radiated around both sides of his chest. He replied “Yes, there and at the back”. It was put to him that he also told the hospital that his breathlessness was not getting any worse. In response he replied: “It wasn’t difficult, my breathing. It was okay”;[100]
[100]TT71-72
(hhh)it was suggested that on 12 October 2018, he went back to The Alfred hospital, complaining about intermittent chest pain, associated with swelling of his lower legs. He responded: “Even my legs now are swollen … it’s because of the fluids, I have had since 2007. Now my ankle’s swollen too.” He was asked whether he had had this difficulty since 2007 after the transplant, to which he replied “I have this after the transplant … yes”;[101]
[101]T72, L11-25
(iii)he was asked whether this swelling affected his ability to walk. He denied this and said: “I can walk … I was walking okay”;[102]
[102]T72, L26-29
(jjj)he agreed that in October 2018, he told the hospital that his shortness of breath was getting worse: “Yeah, and I explain about it and they send me to a psychologist”;[103]
[103]TT72-73
(kkk)it was suggested to him that at the same time, he told the hospital that he usually sleeps on two pillows. He replied: “Yes, then. Now I sleep on five”;[104]
[104]T73, L18-20
(lll)he confirmed that prior to the transport accident, he had been given a CPAP machine to use, but he did not use it because he did not like it;[105]
[105]T73, L24-29
(mmm)he confirmed that on 15 March 2019, he went to The Alfred hospital because he had fallen off a ladder.[106] He confirmed that he also told the hospital that he had four or five falls on the stairs at home;[107]
[106]T73-74
[107]T74, L9-10
(nnn)he agreed that when he fell off the ladder, he fractured his left fifth and sixth ribs and also fractured his T5 vertebrae in his back.[108] He said that falling off the ladder was “nothing for me actually”;[109]
[108]TT74-75
[109]T77, L18-24
(ooo)it was suggested to him that this was in fact a pretty painful and significant incident. In response he replied: “I know, but I’m having pain right now but I’m strong enough to handle it”;[110]
[110]T77, L25-27
(ppp)he agreed that on 27 April 2019, he went to the hospital complaining of right flank and back pain. It was put to him that he had told the hospital that he had had intermittent back niggles in the past but never this type of pain before. In response he replied: “It was like stabbing, not like niggles and I’ve got it right now here”;[111]
[111]TT78-79
(qqq)it was suggested that he told the Emergency Department that he was feeling short of breath but that he always felt short of breath and it was no worse than usual. In response he replied: “[I’m] going to be short of breath for the rest of my life but not like I am right now. I used to have some breathless … when I got upset, that’s it … .”;[112]
[112]T79, L23-29
(rrr) it was put to him that on 24 June 2019, he had seen a cardiologist called Dr James Hare, to whom he reported that he had chronic intermittent back pain at times. He agreed with this proposition. He said that at this time, he was going okay;[113]
[113]TT81-82
(sss) he was asked whether he had attended the Emergency Department of The Alfred hospital on 11 January 2020, presenting with “general malaise”. He agreed that this was true. He agreed that he had told the hospital that he had been generally unwell since New Year’s Day, that he was progressively feeling weaker and weaker, and on that day, had tried to pick up a grandchild but felt like he might drop the child as he did not have any energy. He said that “seems right”. He agreed that he had muscle aches and pains all over which were worse than usual. He agreed that he reported that he could “barely walk a few metres at the moment”;[114]
[114]T82, L8-31
(ttt) he confirmed that on 23 December 2019, he had told the doctors at The Alfred hospital that his main concern at that time was his long-term intermittent back pain;[115]
[115]T83, L17-26
(uuu)in March 2020, he was diagnosed as having plantar fasciitis. It was in his left foot. He said that he was “scared in case I get a gangrene …”;[116]
[116]TT84-85
(vvv)he agreed that on 22 April 2020, he attended at The Alfred hospital again complaining of chest pain. He also agreed that he had told them that he had his “usual shortness of breath”;[117]
[117]T85, L22-26
(www)on 5 May 2020, he presented at The Alfred hospital Emergency Department complaining of chronic right upper quadrant pain. He agreed that he had presented with “progressively worsening pleuritic chest pain”;[118]
[118]T86, L4-14
(xxx)it was put to him that he had told the hospital that the pleuritic pain was worsening and was radiating across into his left back. He agreed that this was true. It was put to him that he had described the pain as “10/10 in severity”. He agreed that this was true;[119]
[119]T86, L11-23
(yyy)he confirmed that he had told the doctors that at this time, there were no pain-free periods during the day. He agreed that he had told them that three days earlier, he had developed right back pain and it was worse when he breathed in. He agreed that he told them that the pain on the right side was the same as the pain on the left side of his back;[120]
[120]T87, L5-8
(zzz)he agreed that he had told the doctors that he had had poor sleep over the previous few days because he could not lie flat in bed;[121]
[121]T87, L11-13
(aaaa)he acknowledged that in May 2020, his general practitioner, Dr Assad, wrote to Manningham City Council to obtain assistance with domestic chores regarding gardening and house cleaning, due to his existing medical conditions. He agreed that a gardener was sent, but he said that he did not like that person. He said that his wife ended up getting somebody else;[122]
[122]TT87-88
(bbbb)he confirmed that on 22 June 2020, he was referred by his general practitioner to the Emergency Department at The Alfred hospital with “typical chest pain centrally which felt like it was crushing” and which radiated into his back;[123]
[123]T89, L21-27
(cccc)in August 2020, Dr Assad wrote a letter stating that the plaintiff’s wife was his “sole carer”, because the plaintiff had had a heart transplant and needed a full-time carer for his medical and domestic needs as well as transport;[124]
[124]T90, L12-18
(dddd)the letter was written so that his wife would be able to get a Carer’s Allowance;[125]
[125]T91, L10-15
(eeee)in September 2020, he saw his general practitioner about lumbar back problems for which the doctor gave him a prescription for painkilling medication;[126]
[126]T91, L16-21
(ffff)about this time, he also attended at the Caulfield Pain Management Centre and saw Dr Teh. It was put to him that he told Dr Teh that he had three years of back pain and sometimes chest pain as well, which was squeezing in nature, with shortness of breath. He agreed that he had told Dr Teh some of this but said “… but I didn’t tell him about my back, I tell him about my chest. That’s the only thing I was thinking of”;[127]
[127]TT91-92
(gggg)he acknowledged that he may have told Dr Teh that he had been having some sleeplessness. He agreed that he may have told Dr Teh that he was able to walk up to two kilometres at that time;[128]
[128]T93, L10-13
(hhhh)it was put to him that he had told Dr Teh that even though he could walk this distance, he got tired and very fatigued. In response he replied: “I was tired but it didn’t bother me. I was used to it”;[129]
[129]T93, L19-21
(iiii)he saw Dr Assad a few days before the transport accident, complaining of lower back pain. He said that he remembered seeing the doctor in that month;[130]
[130]TT93-94
(jjjj)since the transport accident, the only treatment that he has been having is seeing the general practitioner. It was suggested that he had also recently got a prescription for medical marijuana. He agreed that this was to help his pain. It was put to him that he had had the pain for a very long time. He agreed with this proposition. When it was suggested to him that he had had the pain since well before the transport accident, he was unresponsive;[131]
[131]T98, L13-20
(kkkk)it was suggested to him that he re-presented at The Alfred hospital on 16 December 2020 after the transport accident, complaining of pain in his sternum. He agreed that this was true. It was suggested to him that this was the last time he had attended The Alfred hospital about the transport accident. To his he replied: “I had a general check-up”;[132]
[132]TT98-99
(llll)he said he had “no idea” if Dr Assad had referred him to any other specialist since early 2021, in relation to injuries flowing from the transport accident;[133]
[133]T104, L5-8
(mmmm)he denied that in June 2021, he told Dr D’Intini, that at that time, he had no chest pain, palpitations or significant shortness of breath. He agreed that perhaps he had no palpitations but he said that he had significant shortness of breath every day. He also said the pain was killing him. It was suggested to him that he had told Dr D’Intini that he had long-term complaints of mid-thoracic back pain. He agreed that this was true, and said that it affected him every day;[134]
[134]T105, L8-31
(nnnn)he denied that on 28 June 2021, he reported right-sided chest pain to The Alfred hospital. He said the pain extended and radiated to his back. When it was pointed out to him that the note did not record that, he asserted that the hospital had not checked him on his back. It was put to him that he had told the hospital that he felt short of breath but also that he had had shortness of breath for a long time since the transplant. In response to this he replied: “I did, but not much. Right now I get breathless every 10, 15 minutes”;[135]
[135]TT108-109
(oooo)it was suggested that he had told the hospital on 28 June 2021 that up until a few weeks beforehand, he had been able to do physical activity including walking and that things had gone downhill in the last few weeks. In response to this he replied: “I can’t remember, I cannot recall”;[136]
[136]TT109-110
(pppp)he said that he had COVID both in 2021 and again in February 2022. He said that after the COVID “I was completely out of myself”;[137]
[137]T110, L8-23
(qqqq)he said that after COVID, he did not walk much because “I locked myself in the house all day”;[138]
[138]T110, L24-27
(rrrr)he has not smoked since after his heart attack;[139]
[139]T113, L13-15
(ssss)in August 2021, it was recorded that he had obstructive sleep apnoea but was not using his CPAP machine. He agreed this was true;[140]
[140]T115, L9-11
(tttt)he agreed that also in August 2021, he was having foot and ankle pain on his left leg.[141] He agreed that for these reasons he was “not able to move around easily …”.[142]He denied having painful corns and callouses on his feet at that time. He denied having foot ulcers at that time;[143]
[141]T116, L23-25
[142]T116, L26-28
[143]T117, L3-9
(uuuu)he agreed that he saw a podiatrist but said: “It’s only for my foot because I was scared in case I catch the gangrene. I was scared … because I’ve seen a lot of this and my leg, instead of getting clear, was getting darker purple and it was getting darker and I said to my wife and to the doctor, ‘I think I’ve got gangrene’ but I was lucky, I didn’t have it, and now it’s gone”;[144]
[144]T117, L12-20
(vvvv)he agreed that his defibrillator was removed in October 2021.[145] He denied that after the defibrillator was removed, there was no pain from that site anymore. He said: “It’s killing me. I’ve got the wires in there”;[146]
[145]T117, L25-30
[146]T118, L23-24
(wwww)he was pressed about whether he had told Dr Teh that after the defibrillator was removed it was “not an issue anymore” and no longer a source of pain. In response to this, the plaintiff said: “I feel pain because of the way it keeps coming up. It’s upright now and if I go down, it’s like a needle there and when I tell the doctor that I’ve got this kind of pain there, but to be honest, I’m scared … now they put something on it to cover it but it’s painful”;[147]
[147]T120, L15-28
(xxxx)he was pressed once again about whether or not he had told doctors that once the defibrillator had been removed, that source of pain was gone. In response to this question, he replied: “They are just wires and I have got pain in my body”;[148]
[148]T124, L8-11
(yyyy)he was taken to notes about his admission for COVID on 9 February 2022. He agreed that he had presented with generalised lethargy. He also said, “I had shortness of breath”. It was put to him that he had a loss of appetite at this time, to which he replied: “They brought me all kind[s] of food but I was not able to eat”;[149]
[149]T124, L19-30
(zzzz)it was suggested to him that after his discharge from The Alfred hospital, he presented again complaining of feeling “generally weak and unwell”. To this he replied, “and then I went back later, I think I was scared, I was weak and tired”. It was put to him that the note recorded that he was finding it difficult to perform activities of daily living. In response to this, he replied: “Yes, I wasn’t able to do anything.” It was pointed out to him that the note recorded that he was usually active at home and even cut the grass at that time. In response to this, he replied: “Yes, I did just a bit and I stop, just … I stop every two or three minutes I had to stop”;[150]
[150]T125, L2-15
(aaaaa)he said that when he developed COVID, he developed pneumonia, fluid on his lungs, and this scared him to death. It was suggested to him that this made him very tired and he could not do what he normally did, to which he replied: “Yes … yes, I’m not going to lie”;[151]
[151]T125-126
(bbbbb)it was suggested to him that the pneumonia robbed him of all his energy, which meant he could not do what he normally did at that time. In response, he replied: “Put me down all the way. To be honest … I was scared to go home”;[152]
[152]T126, L12-16
(ccccc)he denied having a persistent cough and shortness of breath at that time. He agreed that he had always had a cough and shortness of breath after the heart transplant;[153]
[153]T126, L17-24
(ddddd)he was referred to a note which stated that as at March 2023, he was independent in showering, dressing and grooming. In response he replied “I could take a shower but I couldn’t get dressed”;[154]
(eeeee)he denied that in March 2023, he had told anybody that he had an exercise tolerance of walking up to two kilometres. In response he replied: “I can’t move 50 metres away from home. I’ve lost everything now.”[155] He agreed that at that time, he was independent in terms of shopping and banking, and said that he did these activities with his wife. It was put to him that he told the hospital, in terms of recreation, that he enjoyed gardening, walking and going to the movies. In response to this he replied: “No. I went two times to the Casino. For the last six years, I went two times to the Casino, that’s how I’ve been”;[156]
(fffff)he has not been able to run since he had his heart transplant;[157]
(ggggg)he was asked whether he remembered a new pain commencing in his left back chest wall in about June 2022. In response to this he replied: “Yes”;[158]
(hhhhh)he agreed that he had told Dr Teh that taking out the defibrillator late in 2021 had cured his old pain and now he had developed a “new pain” in June 2022. When pressed about whether or not this was correct, he replied: “Yes”;[159]
(iiiii)it was suggested to him that in April 2023, he saw Dr Teh, who had recorded that he had had several presentations at The Alfred hospital Emergency Department with pain “which sometimes originates from the chest but then radiates to the back, shoulders and appears to move about”. He said that this was true. He agreed that the note which recorded that “the pain can occur two or three times per day and last for an hour or two”, is correct. He agreed that at that time, he was getting tired very easily and became breathless on exertion. He agreed that as at April 2023, his exercise tolerance was limited to about 50 metres, restricted by back pain and thigh pain;[160]
(jjjjj)he agreed that he was assistant coach of the Glen Waverley under 9s soccer team in 2019. He agreed that he was not coaching in 2020. He said that was because of COVID. He also agreed that in 2020, his health was “not so good” either and he was having various issues: “I did, yes … I went to the hospital and I still go … I’m still going there”;[161]
(kkkkk)he saw the Richmond Tigers play at the MCG on five occasions last year;[162]
(lllll)he agreed that about six weeks ago, he had been to Surfers Paradise with his daughter;[163] and
(mmmmm)he said that his family had wanted to take him to Adelaide to go to the football but he could not go. He explained that that was because “I get upset and I get worried, not because of the football, because of my grandchildren. If Richmond lose, they cry. I can’t handle that.”[164]
[154]T127, L14-31
[155]T128, L6-19
[156]T128, L22-28
[157]T128, L20-21
[158]T130, L23-24
[159]T131, L1-9
[160]TT131-132
[161]TT132-133
[162]TT133-134
[163]T134, L21-22
[164]T134, L23-28
22During re-examination, the plaintiff gave the following relevant evidence:
(a) he denied having attended the MCG for Richmond Tigers’ matches before the transport accident. He said that he went to Richmond matches “last year only”;[165]
(b) since the transport accident, he has only driven the car twice;[166]
(c) he described the present pain in his sternum as “two times more worse” than the pain he felt in 2013;[167]
(d) he said that the pain from around where the defibrillator was is “very bad … almost every day and especially at night – a lot”;[168]
(e) when asked to compare the pain he felt in his upper body before and after the transport accident, he replied “the pain that I have now is about seven times more than the last - when I had [it] before. It’s very bad … It’s almost every - all day. The only way I get rid of it is when I go to bed”;[169]
(f) he said that he now sleeps only two or three hours per night because of the pain “[i]n my back, here, on my neck, my shoulder, my arms and my legs. My legs have no covering at night”;[170] and
(g) he was asked to compare the shortness of breath that he had before the accident and also after the accident. In response to this he replied: “The one I have now, it’s very worse. Before it was coming for an hour and gone. Now, it comes every 10 minutes on me … every day”.[171]
[165]T135, L12-15
[166]T135, L27-28
[167]T137, L1-4
[168]T137, L5-14
[169]TT137-138
[170]T138, L9-13
[171]T138, L14-23
The lay witnesses
23The plaintiff relied upon affidavits from three lay witnesses: His wife and two of his daughters.
24The plaintiff’s wife, Mrs Vivien Tyrikos, sworn three affidavits, the first sworn on 13 June 2023, the second sworn on 26 March 2024 and the third sworn on 3 April 2024. The plaintiff’s daughter, Ms Denise Konstantinou, swore three affidavits, the first sworn on 13 June 2023, the second sworn on 26 March 2024 and the third sworn on 3 April 2024. The plaintiff’s other daughter, Ms Marieka Tyrikos, swore two affidavits, the first sworn on 13 June 2023 and the second sworn on 26 March 2024. None of these witnesses were required to attend for cross-examination. The relevant evidence contained within their affidavits is as follows:
(a) Vivien is the plaintiff’s carer. Since the transport accident, her caring responsibilities have significantly increased;[172]
[172] Ex P1, pp24, 26, 28 and 29
(b) each of the deponents noticed a significant decrease in the plaintiff’s physical output since the transport accident;[173]
(c) each of the deponents noted that the plaintiff suffers increased pain since the transport accident, and the medication he takes has little effect;[174]
(d) the plaintiff now takes four to six Panadol tablets per day as well as four vitamin D tablets and three magnesium tablets. He has begun to take medical marijuana.[175] His mental health as significantly declined since the transport accident;[176]
(d) the plaintiff spends most days lying in bed or reclining on a couch. This is because he has difficulty walking due to the effects of the transport accident;[177]
(e) the plaintiff’s sleep patterns have been severely disturbed since the transport accident;[178]
(f) since the transport accident, the plaintiff has been unable to undertake activities with his grandchildren, such as kicking the football or going to the park and playing. This has also affected his mental health.[179] Prior to the transport accident, he used to coach an under 9s soccer team. He enjoyed this activity and was very involved in it. He was still very mobile at that time;[180]
(g) prior to the transport accident, the plaintiff used to attend most home games played by the Richmond Tigers. Now he only attends one in every few games. It is simply too tiring and difficult for him to walk to the gates of the ground and up to his seat. When he does go, it takes a long time for him to get to the gates as he has to stop every few metres to gather himself and catch his breath. This takes away his enjoyment of the experience;[181]
(h) the plaintiff forgets things and has slowed down significantly;[182]
(i) his shortness of breath continues to get worse.[183] Even the slightest movement seems to exhaust him. Vivien and the plaintiff attempted a trip to Inverloch over the Easter weekend. The plaintiff was unable to walk down the main street because of shortness of breath and pain in his body. He spent the whole time inside the motel. On past trips prior to the accident, they were able to partake in activities together. This is not possible now due to the plaintiff’s breathing difficulties and extreme fatigue which he experiences when attempting to move around. This is difficult for both of them to deal with;[184] and
(j) in the past, the plaintiff has been able to go on holidays with his family without any great difficulty. His daughter recently took him to Surfers Paradise and the experience was different. The plaintiff was very short of breath and had to stop every few minutes to rest. It took him close to an hour to get to the departure gate at the airport. When he was in Queensland, he spent most of this time sitting or lying in bed.[185]
[173] Ex P1, pp24, 26 and 28
[174] Ex P1, pp24, 27 and 28
[175] Ex P1, pp40-41, 42 and 44
[176] Ex P1, pp24 and 25
[177] Ex P1, pp 29, 41, 43 and 45
[178] Ex P1, p25
[179] Ex P1, pp25, 27, 29 and 199
[180] Ex P1, p199
[181] Ex P1, p200
[182] Ex P1, pp41, 43 and 45
[183] Ex P1, pp26 and 29
[184] Ex P1, p197
[185] Ex P1, p200
Medical records – injuries suffered in the transport accident and significant injuries/illness suffered after the transport accident
The Plaintiff’s medical records
25The plaintiff relied upon two letters from Dr Teh to the plaintiff’s general practitioner, the first dated 6 July 2022 and the second dated 26 April 2023. In the first letter, Dr Teh noted the following matters:
“… I initially assessed … [the plaintiff] in September 2020 … He was at that time complaining of atypical chest pain and back pain which was investigated with a CT pulmonary angiogram and echocardiogram, excluding pulmonary embolus and pericarditis.
… [The plaintiff] has a significant medical history which includes heterotopic heart transplantation in 2008 for ischaemic heart disease, AICD in the native heart in 1995, obstructive sleep apnoea on CPAP and recent COVID-19 infection/pneumonia [in] 2022 … .
… [The plaintiff] states that after the pacemaker was removed, his chest wall pain subsequently improved.
He still becomes dyspnoeic but this has been the case since his heart transplantation and his exertional tolerance remains up to 200metres (sic) limited by dyspnoea. … .
… [The plaintiff] describes a new pain in his left posterior chest wall which commenced three weeks ago and this pain is worse with inspiration. He states that he saw you yesterday and has been advised to attend the Emergency Department for further investigation. The pain is worse when he bends down but twisting motions do not aggravate. He denied any change with his baseline dyspnoea.
I found him to be a rather difficult historian … .
… [The plaintiff] was rather focused on the cause of his new pain and felt that his original pain has resolved following removal of the pacemaker. … Given the resolution of his chronic pain, I will discharge him from the Pain Clinic but will be happy to review him again if required following a new referral.”[186] (emphasis added)
[186]Ex P1, p50
26In the second letter, dated 26 April 2023, Dr Teh made the following observations:
“… I initially assessed … [the plaintiff] in September 2020 for atypical chest wall pain which had developed post cardiac transplant/pacemaker insertion. The pain resolved following removal of the AICD pacemaker in October 2021. He was therefore discharged from the Pain Clinic at that time.
…
… [The plaintiff] has had several presentations to The Alfred Emergency Department with pain but he is a rather vague historian in this respect. He complains of pain which sometimes originates from the chest but then radiates down to the back, shoulders and appears to migrate at times. The pain can occur two to three times per day and lasts for an hour or two. He was a rather vague historian, however in respect to this.
He also reports fatiguing very easily and becomes breathless on exertion. His exertional tolerance is limited to about 50 metres but then reports that this is also restricted by back pain and thigh pains.
…
Socially, … [the plaintiff] lives with his partner and daughter. He remains busy despite his pain. He also described a recent left lower leg injury which has affected his mobility.
On examination, he appeared to have widespread pain today on palpation, from the anterior chest wall to the back, shoulders, legs and left shin. His gait was antalgic secondary to pain in his left shin. He was generally hypersensitised with trigger points in most muscle groups.
The cause of … [the plaintiff’s] pain is difficult to define and appears generalised and somewhat migratory. He did, however, describe a large back component to his pain today. The pain is likely musculoskeletal. I note that from the Transplant Clinic, he has been referred for a repeat CT scan of the thoracic spine to exclude a compression fracture which I would strongly agree with. He should also have a CT scan of the lumbosacral spine and I will add this to the request. … I note that his BMD was in the osteopenic range in the past. He would be at risk of compression fractures as he is also on long term prednisolone.
A connective tissue disorder should be excluded and [I] have asked him to see you in this respect … .”[187]
(emphasis added)
[187]Ex P1, pp75-76
27The plaintiff relied upon one report from Mr Thomas Kossmann, orthopaedic surgeon, dated 26 May 2023. In that report, Mr Kossmann reported, inter alia, that in the transport accident on 5 September 2020, the plaintiff suffered two broken ribs on the right side. He said that it was reported to him that the plaintiff’s defibrillator on the left side of his chest had been dislocated as a result of the transport accident. He noted that the plaintiff underwent surgery to remove this defibrillator on 4 November 2021, but the wires of the defibrillator remained. He recorded that the plaintiff suffered, inter alia, from ongoing pain issues in his chest and thoracic spine. It was noted that the plaintiff attended a pain clinic in relation to this pain, but Mr Kossmann was not in possession of the relevant report. Mr Kossmann also noted that the plaintiff said that he has difficulty breathing.
28Mr Kossmann recorded that the plaintiff reported being “very active” prior to the transport accident. In particular, the plaintiff told Mr Kossmann that he was able to play football with his grandchildren and was working in the garden. Mr Kossman noted that the plaintiff says he can “hardly do this (sic) kind of physical activities anymore. He cannot walk long distances.”[188]
[188]Ex P1, p79
29In conclusion, Mr Kossmann repeated that in the transport accident of 5 September 2020, the plaintiff suffered from two broken ribs on the left side. He also said that as a result of the transport accident, there had been a dislocated defibrillator, now removed. He said that the plaintiff reported pain in the cervical spine (of unclear reason), pain in the thoracic spine (of unclear reason) and pain in the left side of the chest (of unclear reason). He thought that the plaintiff’s prognosis regarding his cervical and thoracic spine was “unclear”. He said that the injuries suffered in the transport accident “are not stable”. Ultimately, he commented that the plaintiff “suffers predominantly from pain issues”. He recommended referral to a pain management specialist and that numerous further investigations be undertaken.[189]
[189]Ex P1, pp84-85
30Analysis shows that Mr Kossman’s report is unsatisfactory in many respects. Firstly, it places reliance upon an incorrect history given to him by the plaintiff regarding the injuries suffered in the transport accident and the extent of the plaintiff’s physical capability prior to the transport accident. Similarly, while Mr Kossmann noted the fact that the plaintiff had an extensive medical history, including previous mid-thoracic back pain, he made no attempt to analyse the consequences of any of these pre-existing conditions on the plaintiff’s physical capacity, activities of daily living or enjoyment of life and then to compare them with the plaintiff’s current presentation. There was no mention made of pre-existing shortness of breath. Mr Kossmann recorded that the plaintiff reported that he had suffered injuries in the transport accident which had “a profound impact on his social, domestic and recreational activities”. Mr Kossmann accepted this report from the plaintiff without making any analysis of the documentation recording the plaintiff’s previous presentation.[190] No mention at all was made of the fact that the plaintiff had contracted COVID, possibly on two occasions, firstly in 2021 (as reported by the plaintiff) and again as documented in the medical records, in 2022, when he was hospitalised and developed pneumonia. No mention was made of the effect that illness had upon the plaintiff’s presentation and physical capabilities. For those reasons, I am not able to place any reliance on the conclusions expressed in Dr Kossman’s report.
[190]Ex P1, p80
31The plaintiff relied on two reports from Dr Sam Assad, general practitioner, the first dated 12 June 2023 and the second dated 28 March 2024. In the first report, Dr Assad noted that as a result of the transport accident, the plaintiff hit his chest against the steering wheel prior to the airbag deploying. He said that the plaintiff reported experiencing “chest sternum pain … panic attack and a severe anxiety episode, bearing in mind, he had a history of heart transplant”. He said that investigations undertaken at the hospital revealed “no intracranial haemorrhage, or pulmonary contusion or pleural effusion or haemothorax or pneumothorax or acute rib or sternal or clavicular fractures”.[191] He ultimately diagnosed the plaintiff as suffering from the following:
“1- Chest pain due to contusion of his chest sternum, hitting his chest on the steering [wheel] prior … [to] deploying the airbag .
2- Post traumatic stress disorder, panic attack and global anxiety disorder … .”[192]
[191]Ex P1, p92
[192]Ex P1, p93
32Dr Assad thought that the plaintiff’s prognosis was “really bad” by reason of the “severity of the trauma, his background history as a heart transplant patient” and the fact that the plaintiff “does not have solid coping strategies”.[193]
[193]Ex P1, p93
33In the second report, Dr Assad confirmed his earlier diagnosis and noted that the plaintiff’s injury to the sternum had recently developed into a Chronic Pain Syndrome “due to his fragile mental state”. He thought that in relation to both this development and also in relation generally to the plaintiff’s “mental psychological trauma”, the prognosis could be considered to be “bad”.[194]
[194] Ex P1, p110
34I note that the claim for psychological injury initially brought by the plaintiff, was specifically abandoned by him during the hearing. I note that the plaintiff’s reports to Dr Assad of having suffered a panic attack and global anxiety disorder following the transport accident, are in direct conflict with the record of the ambulance attendance at the scene of the transport accident.[195] In that document, the plaintiff’s appearance in the immediate aftermath of the transport accident was noted to be “Calm/Quiet”,[196] with no shortness of breath, no altered conscious state, no dizziness, no visual disturbance and no palpitations.[197] Similarly, I note that there is no suggestion that the plaintiff had suffered or was suffering from any panic attack in the notes of The Alfred hospital following the transport accident.
[195] Ex P1, pp169-171
[196] Ex P1, p171
[197] Ex P1, pp169-171
35I note that the plaintiff had been diagnosed as suffering from a Chronic Pain Syndrome since at least 2014 and chronic chest and mid-thoracic back pains for many years prior to the transport accident. I note that to the extent it is suggested by Dr Assad that the plaintiff’s chest pain increased following the transport accident (apart from the acute pain noted during the plaintiff’s admission to The Alfred hospital on 5 December 2020), this assertion is in conflict with the notes of The Alfred hospital, which record that by 7 December 2020, the plaintiff was reporting chest pain that was “the same as his chronic chest pain”.[198] Lastly, I note that Dr Assad makes no reference either to the plaintiff’s extensive pre-existing history of back and chest pain prior to the transport accident, nor to the fact that the plaintiff had contracted COVID and associated pneumonia requiring hospitalisation, in in early 2022. On this basis, I am unable to place any reliance on the opinions expressed in the reports of Dr Assad.
(j) I have already set out the issues which have been identified with the opinions expressed by Dr Rosalion in relation to the cause of the plaintiff’s shortness of breath since the transport accident. In those circumstances, I prefer the opinion provided by Associate Professor Jeremy Hammond, the relevant substance of which is as follows:
(i)in a report dated 28 November 2023, Associate Professor Hammond expressed his opinion that the plaintiff’s current symptoms are those of “marked functional limitation, decreased exercise tolerance, shortness of breath, functional decline, chronic chest wall pain and depression”;
(ii)having reviewed the entirety of the plaintiff’s medical records held by Bulleen Plaza Medical Centre and Alfred Health, Associate Professor Hammond expressed the opinion that the plaintiff’s current status is “very likely to have been contributed to by his suffering from Covid-19 related pneumonia”. He also thought that “the physical finding of decreased air entry at the base of the right lung, observed by both myself and Dr Rosalion, is contributed to by the report that the donor heart was located in the right hemi-thorax, and also by the report that … [the plaintiff] does have a longstanding paralysis of the right hemi diaphragm …”; and
(iii)Associate Professor Hammond noted that “Persistent atelectasis of the right base with an associated pleural effusion is recorded on serial imaging, before the motor vehicle accident”. Lastly, he observed that “Matters are further complicated by … [the plaintiff’s] diagnosis of Covid-related pneumonia, with likely ‘long Covid’ symptoms”.
103Having considered all of the relevant medical records and other evidence, I am unable to be satisfied to the requisite standard that the plaintiff suffered an increase in his pre-existing shortness of breath as a result of the transport accident.
104A comparison of the plaintiff’s shortness of breath, both prior to and since the transport accident, reveals that until 2023, the plaintiff’s presentation in relation to this issue, remained relatively consistent in nature and intensity, both pre- and post-transport accident.
105In reaching this conclusion, I have had particular regard to entries in the medical records such as the following which record: “usual” shortness of breath, which had been present since the transplant, and was “not any worse” (April 2020); the plaintiff’s “longstanding shortness of breath since his transplant” (June 2021), and in relation to a persistent cough and shortness of breath, “I have always felt this way ever since my heart transplant in 2008” (February 2022).
106I note that to the extent that the plaintiff’s exertional tolerance has been impacted since the transport accident, in a letter dated 26 April 2023, written by Dr Teh, he noted that the plaintiff had reported fatiguing very easily and that he “becomes breathless on exertion. His exertional tolerance is limited to about 50 metres but [he] then reports that this is also restricted by back pain and thigh pains.” (emphasis added)
107Lastly, I also note and accept the opinion expressed by Associate Professor Hammond, that the plaintiff’s current presentation in relation to shortness of breath, is likely to be impacted by the fact that he was diagnosed with COVID and associated pneumonia in early 2022 (against a background of pre-existing right diaphragm palsy and right and left lung atelectasis), and that he has experienced worsening physical functionality associated with persistent impacts of COVID since that time.
108As such, while the plaintiff has undoubtedly experienced a decline in physical functionality since 2023, given the relative stability of his presentation prior to this time, there is no evidence which satisfies me to the requisite standard that the transport accident is a cause of this decline.
Conclusion and Orders
109Given findings set out above, I am unable to be satisfied that the transport accident is a cause of any ongoing injury either to the plaintiff’s thorax or to his respiratory system.
110In those circumstances, the application must be dismissed.
111I will hear the parties in relation to the question of costs.
SCHEDULE
The Plaintiff’s pre-transport accident presentation
| Date | Event | ||
| 12 January 2001 | Bulleen Plaza Medical Centre notes: P had a collapse at work the previous year and was noted to be “very edgy [and] angry all the time”. During 2001, he was counselled about smoking, had some epigastric pain and was prescribed Endep (antidepressant) and Lipitor (cholesterol-lowering)[286] | ||
| 8 March 2007 | Bulleen Plaza Medical Centre notes: P was noted to have mental health issues and inflammatory arthritis[287] | ||
| 13 March 2007 | Bulleen Plaza Medical Centre notes: Centrelink certificate for two months off work issued to P from 8 March to 4 May 2007[288] | ||
| July 2007 | Bulleen Plaza Medical Centre notes: three attendances for laser acupuncture for back pain. Depression is also noted, with the provision of Centrelink certificates[289] | ||
| 2 October 2007 | Bulleen Plaza Medical Centre notes: P is recorded as having had a massive heart attack[290] | ||
| 25 May 2008 | Bulleen Plaza Medical Centre notes: the notes indicate that a defibrillator is to be implanted and subsequently, the need for anti-coagulants is noted[291] | ||
| 19 October 2008 | Heterotopic cardiac transplant. In relation to this, Dr Jeremy Hammond, Associate Professor of Medicine, Melbourne Hypertension Clinic, University of Melbourne, noted: “… The donor heart was placed in the right side of the chest cavity (right hemithorax). After his myocardial infarction and cardiac transplantation, the plaintiff had developed significant anxiety concerning his cardiac status. He experienced a number of residual symptoms, including chest pains, which he described as ‘niggles’, some of which were apparently considered to be manifestations of his anxiety. After his cardiac transplantation, he had recovered sufficiently, such that he was able to walk his grandchildren to school, some four to five minutes’ walk, kick a soccer ball to his grandchildren and drive his car. He was also active socially and attended local soccer games. He would take out the rubbish bins and also mow a small area of grass”[292] | ||
| 3 April 2009 | Bulleen Plaza Medical Centre notes: Follow-up referral to Heart Transplant Unit at The Alfred hospital. Prednisolone 5mg prescribed[293] | ||
| 15 May 2012 | Bulleen Plaza Medical Centre notes: anxiety neurosis diagnosed. Xanax tablets 0.5mg prescribed, with dose increased to 2mg on 12 July 2012 for panic attacks[294] | ||
| 23 July 2013 | Bulleen Plaza Medical Centre notes: referral made to the Heart Transplant Clinic - for symptoms of cardiac palpitation[295] | ||
| 1 October 2013 | Bulleen Plaza Medical Centre notes: first mention made by P of mid sternum and rib pain to Dr Assad[296] | ||
| 31 March 2014 | Bulleen Plaza Medical Centre notes: Endone prescribed to P[297] | ||
| 22 April 2014 | Bulleen Plaza Medical Centre notes: further analgesics prescribed to P with Panadol[298] | ||
| 2 May 2014 | Bulleen Plaza Medical Centre notes: Further Endone prescribed to P[299] | ||
| 19 May 2014 | Bulleen Plaza Medical Centre notes: P presents with “severe pain both knees and limitation of movement and morning stiffness and disability (sic) to negotiate stairs”. Diagnosis of osteoarthritis of P’s knees made. Endone, 5mg tablets, prescribed [300] | ||
| 7 June 2014 | Bulleen Plaza Medical Centre notes: difficulties with narcotic prescriptions as recorded by practice manager: “‘… Patient came in today demanding an Endone script be given to him by a doctor. He came in at 11.55am and said he needed to take the tablets before 12.00. Staff explained to him that it was [an] approx 15 minute wait. Patient was not willing to wait and demanded a doctor fill the scri[pt] [sic] for him. Staff then explained that doctors working today are not his regular doctors, therefore he would have to wait to see a doctor. Patient was unahppy [sic] & stormed off to the Chemist. Chemist was then contacted and informed, they also informed staff that he went into the chemist demanding ENDONE tablets be handed to him. …”[301] | ||
| 11 June 2014 | Bulleen Plaza Medical Centre notes: P described as having a Chronic Pain Syndrome by Dr Assad. Further Endone prescribed[302] | ||
| 15 July 2014 | Bulleen Plaza Medical Centre notes: further Endone prescribed[303] | ||
| 23 September 2014 | Bulleen Plaza Medical Centre notes: further Endone prescribed[304] | ||
| 26 September 2014 | Bulleen Plaza Medical Centre notes: “low back pain especially on bending. O/E loss of lumbar lordosis tender L5/S1, L4/L5 lower limbs neuro exam NAD ...” Diagnosis of L4-5 and L5-S1 disc problem made. Lyrica, 75 mg at night prescribed[305] | ||
| 26 February 2015 | Bulleen Plaza Medical Centre notes: severe chest pain. P refused ambulance transport from the clinic[306] | ||
| 2015 | Bulleen Plaza Medical Centre notes:Further attendances with chest pain. P referred to Cardiology Clinic[307] | ||
| 29 June 2015 | Bulleen Plaza Medical Centre notes: follow-up after excision of a left shoulder lipoma[308] | ||
| 2016 | Bulleen Plaza Medical Centre notes: attendances are predominantly for respiratory symptoms and infection[309] | ||
| 14 November 2016 | Bulleen Plaza Medical Centre notes: lower back pain on bending. Diagnosis of L4-5 and L5-S1 disc problem again made[310] | ||
| 1 December 2016 | Bulleen Plaza Medical Centre notes: P was noted to have pleuritic chest pain[311] | ||
| 16 December 2016 | Letter to Bullen Medical Centre (as reported by Associate Professor Hammond): letter notes that P experienced a lot of trouble with back pain and had been in and out of both the clinic and the emergency departments. On 02/12/2016 P had undergone a CT pulmonary angiogram, which excluded pulmonary embolism as a cause of his pain. The pain was considered to be musculoskeletal in nature. It was also noted that P experienced episodes of vomiting each three days. A repeat echocardiogram was ordered[312] | ||
| 18 January 2017 | Bulleen Plaza Medical Centre notes: P was noted to have lower back pain initially on bending. Lyrica dose increased to 150 mg twice daily[313] | ||
| 4 May 2017 | Bulleen Plaza Medical Centre notes: P was again noted to have pleuritic chest pain[314] | ||
| 22 May 2017 | a document entitled “Exercise Stress Echo” reported that P then had “Borderline exercise capacity for age, limited by fatigue/dyspnoea [shortness of breath]”[315] | ||
| 25 May 2017 | Echocardiogram report noted that an Exercise Stress Echocardiogram had shown normal left ventricular size and systolic function (of the donor heart) with no obvious (myocardial) ischaemia. The ECG was reported as showing an underlying native heart sinus rhythm with occasional extra activity seen from the heterotopic (donor) heart[316] | ||
| 11 July 2017 | Medical record from the Emergency Department of The Alfred hospital. Attendance relates to a motor vehicle accident in which P was involved in July 2017. The note records that in that motor vehicle accident, P’s car was “T-boned” on the passenger’s side and that P had complained of “nausea en route” to the hospital “with associated interscapular back pain and lower abdominal pain”. Under the heading “Relevant Medical History”, it was noted that P was then suffering from pulmonary hypertension and chronic pain. He was being prescribed numerous medications at that time, including amitriptyline.[317] This medication was prescribed for back pain[318] A CT scan of P’s chest/abdomen/pelvis/thoraco-lumbar spine was requested.[319] | ||
| 12 July 2017 | Discharge summary after P involved in an earlier motor vehicle accident. The note indicates that P’s car was hit on the passenger’s side. Investigations performed at the time revealed no musculoskeletal injuries and also revealed no cardiac injury including normal serum troponin levels and an unchanged ECG. Right basal atelectasis (collapse of the lower lobe of the right lung) was noted. P’s CT scan did reveal facet joint arthropathy (which Associate Professor Hammond noted was a possible cause of his ongoing chest pain)[320] | ||
| 14 July 2017 | Bulleen Plaza Medical Centre notes: it was recorded that P requires a full-time carer, that his daughter is travelling overseas from 5 August to 7 November 2017, and she is the carer for him[321] | ||
| 25 October 2017 | Bulleen Plaza Medical Centre notes: P is again noted to have lower back pain with a diagnosis of L4-L5 and L5-S1 disc problems. Disabled parking is referred to[322] | ||
| 22 November 2017 | Serial biochemistry tests confirm the presence of chronic kidney disease (Estimated GFR 32 mL/min per 1.73m2, serum creatinine 186 umol)[323] | ||
| 13 December 2017 | Bulleen Plaza Medical Centre notes: it is recorded that P is “not capable of fast walking and long distance walking”[324] | ||
| 22 January 2018 | Bulleen Plaza Medical Centre notes: P was referred to hospital for chest pain and vomiting. Bruising noted in both arms. P prescribed Targin 5/2.5[325] | ||
| 29 January 2018 | Notes of The Alfred hospital: P admitted on 15 January 2019 with swelling to the left elbow. Note records that “At time also complaining of chest pain, and general malaise … now presenting with left shin swelling and pain. Denies trauma. Also associated with squeezing chest pain radiating to left scapula”[326] | ||
| 2 February 2018 | Bulleen Plaza Medical Centre notes: P was noted to have a lower leg abscess requiring drainage. P referred to The Alfred hospital[327] | ||
| 2018 | Bulleen Plaza Medical Centre notes: further attendance by P for general medical problems and treatment of right-hand infection[328] | ||
| 6 July 2018 | Notes taken in the Emergency Department of The Alfred hospital: P presented with “Exacerbation of usual mid-thoracic back pain 2 days ago ... pain suddenly got worse, sharp, tight, spasmodic pain. States has been 10/10 on occasion over past 2 days, currently 7/10. Baseline is 4/10….now radiated around bilateral chest … Denies any worsening dyspnoea … right diaphragm palsy; chronic back pain since operation, extensively investigated … OSA [Obstructive Sleep Apnoea] not using CPAP”[329] | ||
| 8 July 2018 | Discharge summary from an admission which P had at The Alfred hospital noted that the presenting complaint was “exacerbation of thoracic back pain with [a] history of heterotopic heart transplant 11 years ago”. The principal diagnosis was noted to be: “Flare of MSK back pain…. HOPC: Background of chronic mid thoracic back pain, previously investigated without identification of clear aetiology. Presents with 2 days of worsening of existing pattern of pain, 10/10 intensity (baseline4/10). No neurological deficit … .” Past history was noted to include “… Right diaphragm palsy …”[330] and “Chronic mid-thoracic back pain of unclear cause”.[331] | ||
| 10 July 2018 | Physical Healthcare physiotherapy notes: P was noted to be suffering from: “‘Pain on palpation of the rib cage especially on intercostal muscle+ pain on palpation of accessory muscles of respiration. pain is there [constantly] but has been worse recen[t]ly. Pt has a heart transplant. He went to the hospital recently to find out why he has chest pain and was found that the pain is ? due to nerve [impingement]. Pt is [excessively] SOB and uses accessory muscle of the chest for breathing.’”[332] | ||
| 12 October 2018 | Note of The Alfred hospital: P was admitted to The Alfred Hospital Heart Failure Unit. He complained of two weeks of intermittent right-sided chest pain with worsening swelling of his lower limbs and increasing shortness of breath. He was considered to be suffering from cardiac failure and was treated with intravenous Frusemide.[333] Documentation included the notation that … [P] had a known right diaphragmatic palsy (presumed to relate to phrenic nerve palsy, dating back to the time of his heart transplantation) and “chronic back pain since [heart transplant], extensively investigated.” It was also noted that P “usually sleeps on 2 pillows, nil change and frequently awakes at night due to nocturia (baseline).” [334] | ||
| 19 November 2018 | Bulleen Plaza Medical Centre notes: Endone prescribed for lower back pain. Imaging with x-ray of P’s lower back[335] | ||
| 27 November 2018 | Bulleen Plaza Medical Centre notes: P attends again with lower back pain. Diagnosis of an L4-L5 and L5-S1 disc problem[336] | ||
| 28 February 2019 | Bulleen Plaza Medical Centre notes: P attends with a left neck infection for which he received antibiotics[337] | ||
| 14 March 2019 | P was admitted to hospital following a two-metre fall from a ladder. It is recorded that he suffered from an “unconscious collapse, with no clear cut presyncopal symptoms, and awoke on the floor thereafter. Fractures of his T5 vertebra and left 5th and 6th ribs were noted”[338] | ||
| 15 March 2019 | Notes of The Alfred hospital: P presented to Emergency Department. HOPC noted as: “‘Delayed presentation trauma Fall from ~ 7th rung of ladder yesterday at 5pm Presents today with increasing pain and SOB.’”[339] Also noted was “… Overnight, increasing difficulty with pain in R side rib and back as well as R hip …”[340] CT scan taken of P’s chest/abdomen/pelvis showed T5 spinous process fracture together with left fifth and sixth lateral rib fractures[341] | ||
| 17 March 2019 | Discharge Summary from The Alfred hospital, which recorded an attendance at the Emergency Department of The Alfred hospital after “recent [discharge following] trauma and L sided rib fracture. was discharged with endone and panadol. was improving and endone only taken 1-2 tablets a day. since this evening atraumatic worsening of pain, pain worse on movement palpation and breathing …” The plaintiff was advised that he “might need more time for ribs to heal up properly as significant trauma … .”[342] | ||
| 23 March 2019 | Bulleen Plaza Medical Centre notes: P attended for pain management following the fall from the ladder, with two ribs and spinous process of the T5 vertebra fractured[343] | ||
| 4 April 2019 | Notes of The Alfred hospital: P presented to Emergency Department. P attended following discharge after recent fall from ladder. P reported that pain “was improving but noted an increase in pain without any injury”[344] | ||
| 27 April 2019 | Notes of The Alfred hospital: P presented to Emergency Department. P reported “right flank/back pain” which occurred while the plaintiff was watching his grandchildren play soccer. He felt a “twinge” in the right flank while sitting down, stood up to move around and experienced a sudden onset of very severe right flank pain. P had difficulty driving home as he had to keep stopping due to severe pain. At that time P felt something intermittently gripping/squeezing his right flank/back, coming in waves. He reported having had intermittent back “niggles” but had never had had this type of pain before. When asked if he was experiencing shortness of breath, P said that he “always feels SoB, no worse than usual”. P treated with intravenous fentanyl by ambulance, but reported that the pain persisted and is still “9/10”. P treated with Endone and stayed overnight in hospital.[345] | ||
| 27-28 April 2019 | Notes of The Alfred hospital: P presented to Emergency Department. P reported “… sudden onset right, mid back pain … broke back 3 weeks ago +2 rib fractures at similar level on left hand side – states pain today is different to back pain …vomited prior to discharge”[346] | ||
| 12 May 2019 | Notes of The Alfred hospital: P presented to Emergency Department. P reported “scapular and left-sided back pain”[347] | ||
| 24 June 2019 | In letter to Bulleen Medical Centre, Dr James Hare recorded as part of P’s history: “… His mid thoracic back pain was again noted. It was recorded that in March 2019 … [P] had fallen and had suffered a fractured T5 vertebra of his spine, in addition to fractures of his left 5th and 6th ribs laterally.” [348] | ||
| 23 December 2019 | Note of The Alfred hospital: letter from Dr Jason Bloom, Registrar, of the Heart and Lung Transplant Service, records the fact that in March 2019, P “Fractured T5 spine, left fifth and sixth rib laterally” and that P’s “main concern at present has been his long-term chronic intermittent back pain which occurs at times and has been noted on multiple clinic reviews. He has been previously trialled on amitriptyline and pregabalin … It does not seem to be limiting his mobility and on examination today he was moving very freely…[P] is unencumbered by breathlessness. He continues to walk regularly and his is very active in the garden … he transported over 12 bags of mulch … a fortnight ago, totalling over 25kg, without any significant issues. … .”[349] | ||
| 11 January 2020 | Notes of The Alfred hospital: “Presenting Complaint general malaise … Generally unwell since 1/1/20 … Progressively feeling more weak … - Today picked up grandchild and felt like he was going to drop them … Doesn[’]t have any energy … ”. The note also recorded that P “states could barely walk a few metres at the moment (however was able to drive … [himself] to hospital and walk to triage desk)… Has noticed a gradual decline in functionality since September … Mood low, has had enough of being in pain all the time”[350]“Past medical History: Ongoing chest pain”[351] Associate Professor Jeremy Hammond describes this admission in the following way: P “was admitted with symptoms of progressive weakness and functional decline. It was recorded that … [P] had suffered a gradual decline in function since September 2019, reporting that he could ‘barely walk a few metres’” [352] | ||
| 2 March 2020 | Bulleen Plaza Medical Centre notes: P attends with right foot pain. A diagnosis of plantar fasciitis is made[353] | ||
| 22 April 2020 | Bulleen Plaza Medical Centre notes: P sent to The Alfred hospital for assessment of left pleuritic pain and shortness of breath[354] The notes of The Alfred hospital record: “left sided pleuritic chest pain … OSA no longer on CPAP … Usual SOB since [transplant] states not any worse …”[355] “Past medical History: Ongoing chest pain”[356] | ||
| 5 May 2020 | Notes of a medical admission to The Alfred hospital: “… Pt re-presenting (sic) today with progressively worsening pleuritic chest pain … 2/52 … [history] of progressively worsening, constant L) anterior pleuritic chest pain radiating across axilla into L) back, sharp in nature, 10/10 severity with slightest movement … 3/7 ago development of R) lateral back pain, worse with inspiration, same character … Poor sleep over last few days secondary to not being able to lie flat in bed due to pain, sleeps on few pillows …”[357] “Past medical History: Ongoing chest pain”[358] In relation to this admission, Associate Professor Jeremy Hammond noted the following: “[P] was admitted with symptoms of progressively worsening pleuritic chest pain. Recent Emergency Department presentation for left pleuritic chest pain on 22/04/2020 noted. Left pleuritic chest pain noted. Reduced breath sounds were noted over the right base. P was assessed as having New York Heart Association Class II-III symptoms (marked limitation of physical activity. Patient is comfortable at rest. Ordinary physical activity results in fatigue, palpitation, dyspnoea or other cardiac symptoms). A CT Pulmonary Angiogram revealed no evidence of pulmonary embolism. Minor atelectasis was noted in the right lower lobe”, adjacent to the transplanted heart, left lingula segment and lower lobe of the left lung…”[359] | ||
| 7 May 2020 | Bulleen Plaza Medical Centre notes: letter written to local council regarding Home Help, as the P needs “council help re residence gardening and house cleaning please due to his medical conditions”[360] | ||
| 11 May 2020 | Bulleen Plaza Medical Centre notes: P noted to be again experiencing left-sided chest pain[361] | ||
| 22 June 2020 | Notes of The Alfred hospital. Referral by GP for “urgent cardiology consult and follow up …”, due to him suffering from “typical chest pain central crushing in nature with radiation to his back with history of cardiac transplant …”[362] The reason for P’s admission was noted as being: “Feels like something stuck in chest/throat”[363] | ||
| 25 June 2020 | Bone Density Report noted that P had low bone density for his age and was estimated to have a “ten-year risk of hip fracture of 3.2% and [a] ten-year risk of major fracture of 8.9%. ..”[364] | ||
| 7 August 2020 | Bulleen Plaza Medical Centre notes: letter created indicating that P “needs [a] full time carer for his medical and domestic needs as well as transport …”[365] | ||
| 23 September 2020 | Letter from Dr Jason Teh to Bulleen Plaza Medical Centre: Consultation following P’s admission to The Alfred hospital in May 2020.[366] Dr Teh investigated the plaintiff who was then complaining of “atypical chest wall pain which had developed post cardiac transplant/pacemaker insertion”.[367] Dr Teh reported that “On closer questioning”, P described “a three year history of back pain, sometimes associated with chest pain”. P reported that pain “occurs most days now and has been mostly in the chest. He has been coughing. Paracetamol has had only mild effect on his pain management. He takes around 6 to 8 paracetamol tablets per day. He has been taking Endone around once per week. He [feels] depressed and has tried an antidepressant medication in the past and saw a psychiatrist once at The Alfred.” P “enjoys playing with his three grandchildren and previously enjoyed soccer … He complains of some insomnia.” P reported that “He currently walks independently unaided up to 2 km but tires and becomes fatigued” and that he is “becoming quite despondent with his persistent back and chest pain.” [368] Dr Teh reported (in a letter dated 23 April 2023), that the plaintiff’s pain “resolved following removal of the AICD pacemaker in October 2021”[369] | ||
| Prior to Transport Accident | As reported to Dr Speck by P: P attended at The Alfred with back pains that were “in the right side below the scapula and on the left side in the region of the shoulder blade”. [370] P hasn’t done any home maintenance or domestic chores “for many years in view of his cardiac condition”[371] P was able to kick the soccer ball with his grandchildren[372] | ||
| As at 5 December 2020 | P’s past medical history was recorded as including: “1. Heterotopic cardiac transplantation 19/10/2008 for ischaemic cardiomyopathy; 2. Pulmonary hypertension; 3. Chronic kidney disease; 4. Dyslipidaemia; 5. Hypertension; 6. Nine millimetre pancreatic body cyst (chronic Hepatitis B[)] (surface antigen positive) (on long term Entecavir) (anti viral medication); 7. Obstructive sleep apnoea (not using CPAP); 8. Gastric and small bowel angioectasia (leading to recurrent gastrointestinal bleeding); 9. Chronic mid thoracic back pain (no obvious cause found); 10. Vocal cord lipomatous swelling; 11. Temporomandibular joint disease.”[373] | ||
[286] Ex D1, p42
[287] Ex D1, p42
[288] Ex D1, p42
[289] Ex D1, p42
[290] Ex D1, p42
[291] Ex D1, p42
[292]Ex D1, p55-56
[293] Ex D1, p42
[294] Ex D1, p42
[295] Ex D1, p42
[296] Ex D1, p42
[297] Ex D1, p43
[298] Ex D1, p43
[299] Ex D1, p43
[300] Ex D1, p43
[301] Ex D1, p43
[302]Ex D1, p43
[303]Ex D1, p43
[304]Ex D1, p43
[305]Ex D1, p43
[306]Ex D1, p43
[307]Ex D1, p43
[308]Ex D1, p43
[309]Ex D1, p43
[310]Ex D1, p43
[311]Ex D1, p43
[312]Ex D1, p60-61
[313]Ex D1, p43
[314]Ex D1, p44
[315] Ex D1, p77
[316]Ex D1, p61
[317] Ex D1, p82
[318] See note 23 December 2019 (Ex D1, pp95-96)
[319]Ex D1, pp34 and 83
[320]Ex D1, p62-63
[321]Ex D1, p44; see also p129 (see also other letters re council help re gardening and house cleaning Ex D1, p132 (7 May 2020) and need for full time carer Ex D1, p135 (7 August 2020))
[322]Ex D1, p44
[323]Ex D1, p60-61
[324]Ex D1, p44
[325]Ex D1, p44
[326] Ex D1, p86
[327]Ex D1, p44
[328]Ex D1, p44
[329] Ex D1, p84; see also p37 and pp138-139
[330]Ex D1, p37; see also p138
[331] Ex D1, p139
[332]Ex D1, p46
[333] Ex D1, pp60-61 and p87
[334] Ex D1, pp60-61 and p87
[335]Ex D1, p44
[336]Ex D1, p44
[337]Ex D1, p44
[338]Ex D1, p63
[339]EX D1, p38
[340] Ex D1, pp90-91
[341]Ex D1, p38
[342] Ex D1, 140
[343]Ex D1, p44
[344]Ex D1, p38
[345]Ex D1, pp38-39
[346] Ex D1, p39
[347]Ex D1, p39
[348]Ex D1, p60-61
[349] Ex D1, p95-96
[350]Ex D1, p39, see also pp97-98
[351] Ex D1, p127
[352]Ex D1, p63
[353]Ex D1, pp44
[354]Ex D1, pp44
[355] Ex D1, p102
[356] Ex D1, p124-125
[357] Ex D1, 111-112; see also pp39
[358] Ex D1, p123
[359]Ex D1, p63; pp102-104
[360]Ex D1, p44; see also p132 (see also other letters regarding need for full-time carer Ex D1, p129 (14 July 2017) and p135 (7 August 2020))
[361]Ex D1, p44
[362] Ex D1, p133
[363]Ex D1, p39
[364] Ex D1, pp141-143
[365]Ex D1, pp44-45; see also p135 (see also other letters regarding need for full-time carer Ex D1, p129 (14 July 2017) and council help regarding gardening and house cleaning: Ex D1, p132 (7 May 2020))
[366] Ex D1, pp15-16
[367] Ex P1, p75
[368]Ex D1, pp15-16
[369] Ex P1, p75
[370]Ex D1, p30
[371]Ex D1, p32
[372]Ex D1, p32
[373]Ex D1, p60
- - -
0
5
0