Yuksel v Transport Accident Commission
[2020] VCC 390
•8 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Tayfun Yuksel | Plaintiff |
| v | |
| Transport Accident Commission | Defendant |
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JUDGE: | Judge Pillay | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 March 2020 | |
DATE OF JUDGMENT: | 8 April 2020 | |
| CASE MAY BE CITED AS: MEDIUM NEUTRAL CITATION: | Yuksel v Transport Accident Commission [2020] VCC 390 | |
REASONS FOR JUDGMENT
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Subject: Serious Injury Application
Catchwords: Serious injury application – disentanglement – credit – central pain sensitisation
Legislation Cited: Transport Accident Act 1986; Evidence Act 2008
Cases Cited:Meadows v Lichmore Pty Ltd [2013] VSCA 201; Gajic v Victorian WorkCover Authority [2019] VCC 1372
Ruling: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Ms E Tueno | Slater & Gordon Lawyers |
| For the Defendant | Mr W Middleton QC with Ms J Clark | Solicitors to the Transport Accident Commission |
HIS HONOUR:
1 On 29 July 2016, while on its way to the Virgin Australia terminal, the Melbourne City Express SkyBus braked suddenly causing Mr Tayfun Yuksel to fall. At the time of the accident, he was a passenger standing in the central aisle. He fell back and to the right. He struck his back, right shoulder and right arm on a luggage pole and fell onto some passengers.[1]
[1]Plaintiff’s Court Book (“PCB”) 10
2 Mr Yuksel claims that this fall has resulted in a serious injury within the meaning of section 93 of the Transport Accident Act 1986 (Vic). Prior to determining that ultimate question in dispute there is a degree of agreement between the parties. That agreement extends to the following matters.
3 First, they agree that Mr Yuksel sustained a compensable injury in the fall. They agree that, at least, that injury was a soft tissue injury to the right upper limb.
4 I interpolate that it was described by Mr Harrison QC, who appeared with Ms Tueno for Mr Yuksel, as an aggravation of pre-existing asymptomatic degeneration and chronic pain sensitisation.[2]
[2]Transcript (“T) 2 Line (“L”) 12-14
5 Second, they agree that any soft tissue injuries have now faded.[3]
[3]T 3 L 6; counsel for the plaintiff put their case on the basis of pain sensitisation rather than an ongoing soft tissue injury, see T 76-77.
6 Third, they agree that the claim is not for severe psychiatric injury. The defendant does however argue that there is an element of psychiatric injury entangled with the consequences of the injuries Mr Yuksel complains of.
7 What then is really in dispute between the parties are the following matters:
A. Does Mr Yuksel continue to suffer from an organic injury? Mr Yuksel argues this is a chronic pain syndrome, being a central pain sensitisation, as diagnosed by Mr Blombery.[4] The defendant disputes this, arguing that the diagnosis is misconceived as:
[4]PCB 82
(i) it is a diagnosis of last resort, that is all X-ray, MRI, ultrasound and EMG scans are normal, clinical signs are non-anatomic, it is not CRPS type 1,[5] such that there is no adequate reasoning to support the diagnosis made by Mr Blombery;
[5]PCB 82
(ii) it is a diagnosis made without an appreciation of the proper past medical history, that is, relevant psychiatric issues and lower back pain, neck pain and migraine preceding the date of injury; and
(iii) it is based on accepting Mr Yuksel’s symptoms and history when such symptoms should not be accepted on credit grounds by Mr Blombery.
B. If Mr Yuksel does suffer from an organic injury causing chronic pain syndrome, the consequences cannot be disentangled so as to define the physical consequences on which to determine whether he suffers from a serious injury from the psychiatric consequences be they associated with the incident or not.[6] Matters of credit arise here also.
C. Whether the physical consequences, as isolated from the psychological, reach the requisite threshold of being very considerable or marked.
[6]Meadows v Lichmore Pty Ltd [2013] VSCA 201 at [21]
What is the defined injury?
8 Turning to the defined injury first. Mr Yuksel’s counsel put that he had suffered impairment of the right upper limb. The injury said to underpin that impairment was initially a soft tissue injury - a contusion as described in the report of the Royal Hobart Hospital.[7] Although it was relatively minor, the injury had gone on to become:
“… A myofascial pain syndrome which is essentially a pain sensitisation phenomena where there is sensitisation of pain nerve pathways, both in the periphery as well as the brain and spinal cord, such that non-painful stimuli become interpreted by the cerebrum cortex as being painful” [8]
[7]PCB 28
[8]PCB 82, Report of Dr Blombery dated 14 January 2019
9 Mr Middleton QC who appeared with Ms Clark for the defendant did not accept this proposition.
10 What is clear is that there is no diagnostic test for such an injury. Here, there is no diagnostic test that has identified an underlying structural injury. There is no ultrasound, MRI, X-ray or EMG which is diagnostic for such an underlying structural injury.[9]
[9]PCB 119 – 125. Note PCB 39 which refers to an ultrasound showing impingement of the right supraspinatus tendon however Mr Doig, the orthopaedic specialist, opined it showed mild degeneration only and did not explain the symptoms at PCB 73. the ultrasound itself at PCB is consistent with Mr Doig’s comments. See MRIs at PCB 123-125, X-Ray at PCB 28, and EMG at PCB 120.
11 Similarly, the orthopaedic opinion of Mr Doig, who looked at all the diagnostic tests, was that it was not obvious why Mr Yuksel was having ongoing problems.[10] Mr Menz had the same view,[11] as did Mr Lefkovits.[12]
[10]PCB 56, 78
[11]Defendant’s Court Book (“DCB”) 9
[12]DCB 27
12 The consultant treating neurologist could find no specific neurological cause,[13] and even after the EMG and MRI were performed had that same opinion.[14]
[13]PCB 42
[14]PCB 44
13 The diagnosis of the condition then is made on the basis, in part, of excluding other causes, and by an acceptance of Mr Yuksel’s recounting of his symptoms and history. While Mr Blombery is the most clear in his diagnosis of chronic pain syndrome, there is also support for that position from a number of others. Dr Hamza describes a mild myofascial pain syndrome mixed with psychiatric issues.[15] Dr Lee, his neurologist, at an early stage thought he might have some CRPS,[16] but did not confirm that diagnosis subsequently.
[15]PCB 31
[16]PCB 42
Assessment of credit
14 Given that the diagnosis of chronic pain syndrome is so reliant on the reporting of the patient the accuracy of their statements is critical. The assessment of their recounting is informed by the credit of the patient. Here the credit of Mr Yuksel was put in issue on numerous bases.
15 First, as to his presentation in the witness box. At the outset of his cross-examination Mr Yuksel was given the defendant’s court book and asked to turn to a particular page. He is right-handed, however he turned the single A4 pages only with his left hand. He was asked why he could not turn the pages with his right hand. He said his arm was stiff.[17] I found it very useful to watch Mr Yuksel. I did not find his answers consistent with evidence in the court book. For example, his ability to complete university study, drive a car and travel overseas yet not to be able to turn single A4 sheets of paper suggests an inconsistency in his evidence[18].
[17]T 4 L 30-31
[18]See the report of Mr Sullivan who has a history that he can lift up to 5kgs with his right arm before experiencing pain PCB 3
16 Second, he deposed that his right upper limb injury had affected his study. It was pointed out to him that (a) he had only had to decrease his study load for six months and (b) his grades actually improved after the injury. Mr Yuksel acknowledged that this was correct. Further, upon being shown a copy of his academic transcript, he admitted to completing a study load of eight units in 2017, which was in fact an increase from the six units he had completed in the year prior to the accident.[19] This seems at odds with his affidavit evidence which suggested he struggled with managing workloads he was previously able to complete.
[19]DCB 39
17 Third, it was put he had not properly revealed his past medical history to his doctors after the sky bus injury. This was broken into a number of discrete areas.
18 At paragraph 6 (c) of his first affidavit he had disclosed to a pre-accident ‘very brief and temporary episode of back pain’ however his treating doctor’s notes of 26 February 2007 read that he had lower back pain such that he was unfit for gym activity for a few years.[20] This seems inconsistent with his affidavit evidence.
[20]DCB 29, 54
19 He did not disclose any history of prior migraines in his affidavits, particularly at paragraph [6] where he listed his relevant past medical history.[21] Yet to Dr Tang in November 2014 he discussed severe migraines. His answers on this point were inconsistent with the medical material. Mr Yuksel stated in cross-examination that he had told his treating doctors about his complaints of migraines prior to the accident, although he could not recall specifically which doctors he had said this to.[22] He had told Dr Lee that he only had ongoing headaches since the motor vehicle accident.[23] Dr Lee does not otherwise note any history of migraines.[24] Further, Mr Hamza’s report makes reference only to a history of pneumonia, tonsillectomy and smoking and nothing regarding pre-existing migraine. I formed the impression that Mr Yuksel was not forthcoming with his doctors or in his affidavit evidence regarding his true history of migraines and headaches prior to the accident.
[21]PCB 9
[22]T 14
[23]PCB 52
[24]PCB 42, 44, 52
20 His recounting of the SkyBus incident was said to be unbelievable. Having listened to his evidence closely, I do not agree with that submission as put in the course of cross-examination. It appeared to me that he answered logically and the contemporaneous report to the Royal Hobart Hospital is supportive of his version of events.
21 Failure in any affidavit to mention his past medical history of psychological counselling. This is recounted in some great detail between pages 42 and 52 of the Defendant’s Court Book. These pages record nearly a year of treatment, immediately prior to the accident, with psychologist Ms Nikki Bleja. None of this was recorded in detail in his affidavit material or recorded by his medico legal practitioners. In her notes Ms Bleja records that Mr Yuksel was suffering from disturbed sleep on multiple occasions, that he was in the “severe range” for depression and was prescribed antidepressants which he subsequently took for between four and five months.[25] Mr Yuksel was also taken in cross-examination to a request for special consideration to his University submitted because his levels of anxiety and depression were interfering with study.[26] He stated in cross-examination that he had not submitted the request and the contents were not true as he was not depressed at the time.[27] After it was pointed out that the request was written in the first person, Mr Yuksel acknowledged he had submitted it.[28] I formed the impression that his failure to acknowledge depression and anxiety both in his affidavit and initially in cross-examination, especially in the context of having taken medication for months, shows that Mr Yuksel was not forthcoming about the details of his medical history which are not supportive of his claim.
[25]DCB 44-51
[26]DCB 34
[27]T 41 L 9-10, 12-13
[28]T 49 L 4-8
22 During the cross-examination I consider that Mr Yuksel did not give candid and frank evidence. For example, it was suggested in re-examination that when he deposed to his relevant past psychiatric history at [6](d) of his affidavit as occurring in 2005, it was meant in fact to refer to 2015,[29] (and would therefore have disclosed his significant immediate past medical history) he seemed quick to embrace that proposition. This is despite having sworn the affidavit, confirming it contents as true and correct at the beginning of his evidence and not saying anything about such an error when cross examined on the point. It smacked of an attempt to say anything in order to further his claim while being comfortable concealing things unfavourable to his case.
[29]PCB 9 at paragraph [6](d)
23 The defendant also referred in cross-examination to a facsimile sent by Tiger Airways, Mr Yuksel’s employer, to Dr Woo requesting confirmation that two medical certificates in relation to Mr Yuksel had been issued by his practice.[30] Dr Woo’s reply stated that the certificates were not genuine.[31] I first turn to the question of whether the facsimile, the letter and the certificate are admissible as evidence. The letter from Dr Woo falls under s 64(2)(b) of the Evidence Act 2008 (Vic) (“the Act”) as Dr Woo is the maker of the representation, is taken to be available,[32] and it would cause unnecessary delay to call him to adopt the letter. The facsimile from Tiger Airways is captured by s 64(2)(b) for the same reasons.[33] The identity of the maker of the medical certificates is a point of debate between the parties, but in any event falls under either s 63(2)(b) or s 64(2)(b) of the Act. Taking into account that this is a civil proceeding, I find that all four documents are admissible. When questioned on the documents, Mr Yuksel said he was unsure how the certificates came into being and that there had been an internal error on the part of Tiger Airways.[34] There are several possible conclusions that can be drawn from this. First, the certificates may have been created by Mr Yuksel and supplied to Tiger Airways. The defendant seems to pursue this line of reasoning, suggesting that Mr Yuksel was dishonest about his medical condition to his employer. Second, the certificates may have been generated by Tiger Airways by way of error. Third, the certificates may have been created by a third party and supplied to Tiger Airways. I do not need to make any firm findings in relation to this point. What I do consider relevant is Mr Yuksel’s response to the cross examination on this point. Save for vaguely indicating that he was aware of an issue to do with the certificates and an internal error on the part of Tiger Airways, he said no more. Given this fracas involved his employer and his treating general practitioner his answer was dissembling to say the least. I consider it demonstrates an effort to conceal the true picture from the Court’s gaze.
[30]DCB 30-32
[31]DCB 33
[32]Dr Woo falls under Dictionary Pt 2, cl 4(2) of the Evidence Act 2008 (Vic) as he does not meet any of the criteria under cl 4(1)(a)-(g).
[33]In particular, the author of the facsimile is taken to be available under Evidence Act 2008 (Vic) Dictionary Pt 2, cl 4(2) as not all reasonable steps have been taken by the defendant to secure their attendance per cl 4(1)(f)-(g).
[34]T 40, L 15-19
24 Having set out those matters as to credit I find that the plaintiff has demonstrated a lack of candour in his evidence and in recounting his history and circumstances to doctors. This has also affected the opinion of those doctors he calls in aid of his case. They have relied on an accurate recounting of his symptoms and history and such has not been forthcoming.
25 Given those findings as to his credit and also to the significant past medical history[35] it is impossible to accept the opinion of Mr Blombery, in particular. I am not able to make a finding that the plaintiff has suffered an injury, as is submitted being a chronic pain sensitisation. I consider that if Mr Blombery, or even Dr Hamza, had been informed of the true medical history and given an accurate recording of symptoms by the plaintiff this may well have led to a changed opinion.
[35]Mr Yuksel suffered from back pain at DCB 49, migraines at T 13 L 17-24 and psychological problems at DCB 43-52.
26 However even if I’m wrong about that and Mr Blombery was still able to reach the view that Mr Yuksel had an organically based chronic pain syndrome, I find it impossible to identify which consequences flow from it separately from his psychological condition. Certainly Dr Vadasseri, his treating psychiatrist, diagnosed current depression, anxiety and PTSD.[36] The Victorian Rehabilitation Centre clinical evaluation is similar.[37] Some of these psychological diagnoses were present well before the accident and were clearly affecting his life. The impact on his sleep is a classic example. He states in his affidavit material that after the motor vehicle accident one of the consequences of his physical condition is its effect on his sleep. Yet on 28 April 2015 the notes of Ms Bleja show his sleep was affected by his psychological state at that time.[38]
[36]PCB 67. He records no history of past or family mental health issues and implicitly has no history as recorded by Ms Bleja of sleep difficulties pre-accident by reason of the psychological state. He records that as a result of the accident Mr Yuksel’s sleep is affected.
[37]PCB 34 - 38
[38]DCB 45
27 Where a significant psychological component to the injury is suggested, the medical evidence must be in a condition such that the court is able to clearly identify whether and to what extent the pain has an organic basis.[39] If this is not the case, it will be difficult for the plaintiff to establish on the balance of probabilities that the organic basis accounts for pain and suffering consequences which satisfy the test.[40] Given Mr Yuksel’s failure to accurately put his history to the relevant practitioners, such as Dr Vadasseri,[41] I am not in a position to perform the necessary disentanglement between the physical and psychiatric consequences.
[39]Meadows v Lichmore Pty Ltd [2013] VSCA 201 at paragraph [29], recently applied in Gajic v Victorian WorkCover Authority [2019] VCC 1372
[40]Meadows v Lichmore Pty Ltd [2013] VSCA 201 at paragraph [29]
[41]PCB 67 where Dr Vadasseri notes that there is no past history of mental health issues, similarly Dr Hamza at PCB 31. Some version of past psychological problems was given to Mr Sullivan, but it was incomplete and did not reveal the depth of mental health issues that is obvious from Ms Belja’s notes PCB 94.
28 In all the circumstances I deny Mr Yuksel’s application.
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