Zepic v TAC
[2012] VCC 305
•23 March 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-01714
| ZARIF ZEPIC | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3, 6, 7 and 8 February 2012 | |
DATE OF JUDGMENT: | 23 March 2012 | |
CASE MAY BE CITED AS: | Zepic v TAC | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 305 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury –
LEGISLATION CITED – Transport Accident Act 1986
CASES CITED – Rachel Jenkins V Transport Accident Commission 19 August 2011; [2011] VCC; Guppy v Victorian WorkCover Authority [2010] VSCA 164 (25 June 2010); Petkovski v Galleti [1994] 1 VR 436; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
JUDGMENT –
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison SC with Ms A Malpas | Victorian Compensation Lawyers |
| For the Defendant | Mr R Meldrum QC with Ms A Magee | Wisewould Mahoney |
HIS HONOUR:
1 In this proceeding the plaintiff seeks leave to commence a proceeding claiming damages for injuries suffered by him by reason of a transport accident which occurred on 27 March 2008 (“the 2008 accident”).
2 In the proceeding the plaintiff relies upon two affidavits sworn by him on 4 August 2010 and 15 December 2011 respectively, together with an affidavit sworn by his son Enes Zepic on 22 December 2011. Otherwise the parties rely upon medical reports and other material tendered by them. In addition, the plaintiff; his son; Dr P Dillane; Professor K Myers; and Dr P Blombery gave viva voce evidence and were cross-examined.
Issues
3 The following issues arise for my determination:
(i) It is put by the defendant that the plaintiff suffered from a pre-existing symptomatic condition in his lumbar spine and that the effect of the 2008 accident has been merely to aggravate that condition;
(ii) It is put by the defendant that the plaintiff’s involvement in a subsequent transport accident in 2010 impacts upon his current incapacity and that the consequences of that accident must be identified and isolated when assessing the effect of the 2008 accident upon the plaintiff’s current incapacity;
(iii) It is put that the plaintiff has suffered a discrete injury to his right shoulder the impairment consequences of which are to be assessed independently from those associated with the injury to the plaintiff’s spine;
(iv) The defendant takes issue with the honesty and reliability of the plaintiff as a witness;
(v) It is put that the consequences to the plaintiff of the physical injuries suffered by him in the 2008 accident do not meet the statutory definition of serious.
The Plaintiff’s Affidavit Evidence
4 In a statement made 30 March 2010, (which was later adopted by the plaintiff as his evidence) the plaintiff said that he had been involved in transport accidents:
· In 1971 in which he sustained an injury to his low back and wrist; and
· In 1976 in which the injury to his low back was aggravated and he sustained an injury to his head.
The plaintiff said that at the time of the 2008 accident, he was:
“generally independent with regard to his self-care and personal hygiene … functional physical activity, travel, sleep, as well as participation in social and recreational activities.”[1]
[1]PCB 3
5 He said that as a consequence of the 2008 accident, he suffered from pain, in particular in his cervical and lumbar spines; that he was limited in activities involving his right arm (particularly those involving reaching up for repeated or prolonged times), and that whereas prior to the 2008 accident, he was able to perform the full range of domestic duties including cooking, shopping and cleaning; he was now restricted in those activities. He said that he suffered from dizziness and headaches, that his sleep was interrupted by his pain and that he was anxious.
6 In a further affidavit, sworn 15 December 2011, the plaintiff said that in the 1990s he underwent surgery on his lower back which led “to a substantial improvement” in his back[2] and that as at the time of the 2008 accident, his back condition did not significantly interfere with his life.
[2]PCB 10
7 He said that the 2008 accident had caused him to suffer:
(i)“constant though varied pain in my cervical spine and right upper extremity”;[3]
[3]PCB 14
(ii)“difficulty obtaining a restful night’s sleep (which the plaintiff attributed to the presence of varied pain from each of my transport accident injuries)”;[4]
[4]PCB 14
(iii)difficulty bathing, grooming and dressing by reason of pain present in his right upper extremity.[5]
[5]PCB 15
The plaintiff said that:
·“My cervical spine, right upper extremity and left upper extremity restricts my ability to perform upper body functions, including those that require repeated, forceful or percussive movements. Sometimes I have pushed myself to do activities in and around the home. I at times felt as though if I am positive and push myself I can force my injury to get better and return to a normal life but even when fortified by medication I tend to be left in much increased pain afterwards”;[6]
[6]PCB 15
·That his ability to attend Bosnian social functions had been reduced;
·That he was no longer able to participate in traditional Bosnian dancing;
·That adopting the postures required of him whilst praying at his mosque increased his cervical pain and shoulder pain such that he often had to pray while seated on a chair;
·That he was restricted in his ability to drive long distances;
·He had been involved in a motor vehicle collision in October 2010 (the 2010 accident) which was “a minor transport accident.”
·“I did not make a compensation claim for this accident. For a short period of time I experienced increased pain in my lumbar spine which eventually settled and returned to the previous level of pain I was experiencing as the result of my transport accident on or about 27 March 2008.”
·That prior to the 2008 accident he was able to undertake the heavier aspects of gardening, mowing the lawn and housework, but that since the 2008 accident, he had been “unable to carry out physical activity for any prolonged length of time without experiencing more pain which means that I tend to break up what used to be routine activities of daily living into stages that I complete or seek assistance for.”[7] He said that he avoided “activities such as … gardening, mowing the lawn, mopping and other heavier household duties. I usually have to leave these tasks for my sons to complete so as to not aggravate each of my transport accident injuries.”[8]
·That before the 2008 accident he used to enjoy fishing with his friends or with his sons and that he would spend long hours fishing. He had been a keen fisherman, travelling to places such as Portarlington, Geelong, Werribee and Horsham to fish and that he had competed in fishing competitions in Horsham where he had won prices for catching perch.
·That since the transport accident he had been “less able to undertake such activities as long drives, casting fishing lines and reeling in fish ....”[9] These activities increased the symptoms in his cervical spine and his shoulders and that “I often have to ask my friend to assist me when casting my fishing rod and reeling in the fish. I often just sit and wait for the fish to bite before calling out to a friend who takes over.”[10]
·That his physical incapacity had: “struck at the core of my identity and sense of self worth. I feel like a liability to those around me and have lost the social contact I used to have as a family man with a normal social and family life.”[11]
The Viva Voce Evidence of the Plaintiff
[7]PCB 17
[8]PCB 17
[9]PCB 17
[10]PCB 17
[11]PCB 18
8 In the course of cross-examination, the plaintiff gave the following evidence:
·Until the age of sixty-five, he had been in receipt of medical certificates attesting to his incapacity for work on medical grounds. He said that during this period:
“A:I could have probably worked some light jobs, but I reached – I got older.”[12]
[12]T 14
·He had undergone surgery to his lumbar spine by reason of the presence of back and leg pain and that following that surgery; whilst he continued to have some pain, it was not as bad as before; he did not require medication to control his pain; and he was able to perform all his household and gardening duties;[13]
[13]T 20
·That right up until the 2008 accident, he had continued to have trouble with his back and right leg but that his problems were “not so severe”;[14]
[14]T 20
·That he presently suffered from neck pain and right arm and shoulder pain; that he had the loss of sensation in his right leg and arm and impaired sensation on the right side of his face;[15] and that this loss of sensation extended across to the midline of his body on the right hand side there being no similar problems on the left hand side;[16]
[15]T 21 – 23
[16]T 24
·That he was unable to walk further than 50 or 100 metres;
·That the symptoms from which he suffered in his left shoulder had resolved;[17]
[17]T 26
·That he continues to drive a car, although that he rarely drove and only drove for short distances. He said that he had not provided a history to medical practitioners that he was no longer able to drive;[18]
[18]T 26-27
·He continued to go fishing about every two weeks but he now needed someone to drive him to Geelong when he went fishing and also to assist him to cast his rod. He said he was unable to cast with his left arm, notwithstanding he had a full range of movement in his left arm and shoulder;
·He said that it would take him 20 minutes or half an hour to walk for 50 metres. When asked how far 50 metres was, he responded:
“A:Around twenty minutes.”
Q:Is it a truthful answer that it takes you between 20 minutes and half an hour to walk 50 metres?
A:I never look at the watch how I walk or how long I walk.” [19]
[19]T 33
·He could not shave with his left hand (the plaintiff denied telling Mr Brearley that shaving was difficult for him now and that he shaved with his left hand);[20]
[20]T 33
·In the twelve months before the 2008 accident, he did all the gardening, but he now did nothing in the garden. The plaintiff said that this had been the case since the transport accident and this was a big loss in his life.[21] Before the 2008 accident, he said he would mow the lawns, plant vegetables and would spend about ten hours per week in the garden. Following the 2008 accident, he said he had tried to do some work in the garden, but he was unable to cope and stopped gardening approximately one month after the 2008 accident:
[21]T 36-37
“Q:Does that mean for a month you tried and were not able to do anything in the month?
A:That’s it.
…
Q:Did you try to use the lawnmower?
A:I tried, but I had to stop because I couldn’t.
Q:Who would start the lawnmower for you?
A:When my son was at home then he started it for me. When nobody was at home then nobody could start it.”[22]
[22]T 39-40
·That his pain was so bad that he was unable to water his vegetable garden; he was unable to pick vegetables; and he was unable to cut flowers;[23]
[23]T 42
·As to performing work around the house, the plaintiff was asked:
“Q:What contribution do you make to the housework?
A:I am watching TV.
Q:Does that mean you do zero, nothing in the house at all?
A:Sometimes maybe I do some things, but very rarely.”[24]
[24]T 43-44
·The plaintiff was asked:
“Q:When you say you couldn’t cut the grass, did you push the lawnmower after it was started over the grass?
A:No.
Q:You never pushed it all? It would start and you didn’t push it all?
A:Maybe I tried to push it but I couldn’t start.
Q:Maybe you did try and push. Did you push the mower after it was started at all?
A:Yes, but I stopped straight away.
Q:And stopped straight away means after you’d covered one metre, half a metre?
A:I stopped after three metres. [25]
[25]T42
·That after the car 2008 accident, he believed that he had lost consciousness;
·That although he went shopping with his wife, he was unable to help her and was unable to push a shopping trolley;[26]
[26]T 51
·That the 2010 accident had not caused any increase in his symptoms. He said that the 2010 accident involved a small hit which had no impact upon his pain at all.[27] The plaintiff subsequently said that he suffered no serious injury in the 2010 accident; that he took painkillers for a few days and “it settled down”.[28] That his biggest problem since the 2008 accident did not involve his legs but his neck and shoulder.[29]
[27]T 67
[28]T 68
[29]T 72
·That most days he went walking and that he would walk to the milk bar which was only 30 or 40 metres from his house;
·The plaintiff was taken to a copy of his claim form (Exhibit 2). He was asked:
“Q:Whose handwriting is there as the witness?”
To which he responded:
“A:I don’t know who that is”
The plaintiff immediately amended this statement identifying the witness as his wife.[30]
·His left shoulder pain had resolved.
·He continued to suffer from headaches which occurred on a daily basis.
[30]T 57
The Affidavit Evidence of Enes Zepic
9 In his affidavit sworn 22 December 2011 the plaintiff’s son Mr Enes Zepic stated that:
· Prior to being involved in the 2008 accident, his father was “an active and capable person. I recall that he used to be involved and independent in his daily activities … I do not recall my father having any significant difficulties with his neck or shoulders and he was able to be active and contribute around the house. I recall that in the past my father had surgeries on his back and right forearm following a previous transport accident. As a result, I recall he had some intermittent back pain in the past but this was relatively minor when compared to his current condition.”[31]
[31]PCB 22
· Since the 2008 accident he had observed the plaintiff to “experience pain in his neck and shoulders particularly when he was getting up. I have also seen him experience pain in his neck, back and shoulders when he attempts to perform heavier home duties. I have noticed my father’s facial expressions that he is often in pain. From my observations, the duration and intensity of the pain has been greater than anything I have observed ever before”.[32]
[32]PCB 22
· Prior to the 2008 accident the plaintiff “was a fit and energetic man who enjoyed going fishing and being outdoors. He was an enthusiastic fisherman and went fishing on a regular basis. Since his transport accident he has had to reduce such activities as getting up, casting his fishing rod and grappling with the fishing rod exacerbates the pain in his neck and shoulders. Since his transport accident I have noticed that others have to help my father when he does attempt to fish. I have also noticed that my father becomes disappointed that he is no longer able to actively participate in such activities that provided him with quality social contact”.[33]
[33]PCB 23
· Prior to the 2008 accident the plaintiff:
(i)Often assisted Mr Zepic in maintaining his car; and
(ii)Was primarily responsible for mowing the lawn and maintaining his house and garden; but that since the 2008 accident the plaintiff avoided assisting him in maintaining his vehicle and requires the assistance of both Mr Zepic and his brother to perform domestic chores.
· The plaintiff’s sleeping pattern is now disturbed due to the presence of increased pain.
· The plaintiff was “increasingly depressed as he is no longer as independent as he used to be and is unable to contribute around the house due to the increasing pain he experiences”.[34]
The Viva Voce evidence of Enes Zepic
[34]PCB 23
10 In the course of his evidence Mr Zepic said that;
· Whereas before the 2008 accident the plaintiff had some restriction in his ability to mow his lawn by reason of his pre-existing back complaint, such that he would mow the lawn slowly or in stages; since the 2008 accident the plaintiff could no longer mow the lawn. He said that his father might now fire the lawn mower up, do a run or two then turn it off and leave he and his brother to finish the mowing. He said that before the 2008 accident his father used to mow all the lawn and that he (Mr Zepic Jnr) “never used to touch the lawnmower”;[35] but that since 2008 accident his father had not mown the entire lawn. He said that for perhaps the past one or two years his father had not touched the lawn but had only pulled the lawn mower out of the shed.
[35]T118
· His father had a vegetable patch in which he liked to grow vegetables; that it was a significant patch and that his father tried to grow vegetables all year round. He said that before the 2008 accident his father would dig the patch himself but that since the 2008 accident, the patch was managed more or less by he and his brother. He said that his father continued to prepare beds and plant vegetables, but whilst the vegetable patch was the same size as it had been before the 2008 accident and that the plaintiff grew much the same range of vegetables, the quantity of planting had changed.
“A:… there’s not – not as many. He used to plant pumpkins. Obviously he doesn’t plant them no more.
Q:Why not?
A:Cause they’re like this big, you know what I mean, you might shovel to get them out of there. So I suppose just the volume’s not as big as what he used to have. The area is still the same cause (sic) it’s a veggie patch there. Well, you can’t do nothing else with it, it’s just dirt.
Q:In terms of looking after it, is there any difference how he used to look after it before the 2008 accident or since?
A:No. I might water it or my brother might water it. He might sit there for a bit and then go inside.”[36]
[36]T118 -119
· Before the 2008 accident his father’s activities as a handyman included painting and hanging doors and that whilst he tried to undertake these activities at the present time “he struggles through”.
“Q.When you say tries to he might do them more slowly but he still does them?
A.Yeah. Or me and my brother have to help him, have to finish it off, whereas he can’t do it himself.[37]
[37]T112
· Before the 2008 accident his father could climb a ladder to paint the roof and that they had painted the house in 2004.
“Q.But not since?
A.Not since, no.[38]
[38]T112
· His father went fishing “most weeks”,[39] that he now drove maybe to the milk bar around the corner or to the mosque but he drove very rarely since the 2008 accident.[40]
[39]T113
[40]T114
· He, together with his mother and his father, did the supermarket shopping. He said that his father tended to write out the list and was able to push the shopping trolley and to pack and unpack the car with shopping goods.
· He described his father sharing the cooking duties at home with his mother “probably half-half”.
“Q:But he’s doing much the same as he used to do in the house before he started to have these motor vehicle accidents?
A:No. Not really. No.
Q:What’s the difference?
A:Well he tends to – I’ve noticed he’s a bit more, how can I say, lazier, not as much motivation to get up and do it. He sort of more pushes me and my brother to do it.
Q:He’s still doing the same range of things that he did but perhaps not as much of it?
A:Not as much, no.
…
Q:So he will put the clothes washing into the washing machine, he will hang it out if he has to?”
A:He might hang out one piece of clothing, whereas me and my brother have got to hang the rest of the 20.
Q:But he was never big on doing the washing and things like that?
A:He was big on it. He was big on doing household - - -.
Q:But now asks you and your brother to do it?
A:Yeah. Me and my brother, yes.
Q.If the floor needs mopping, something like that, your dad will at the very least start if not necessarily do the whole lot?
A:If anything he’ll pick up the bucket and fill the bucket up and then we’ll have to do the rest. It’s sort of more just get it started and then - you know what I mean.
Q:Urging you to keep doing more?
A:Yes.
Q:Has that been something he’s been doing even before the car accident, he was urging you and your brother to play a bigger domestic role?
ANo. Not really.”[41]
[41]T116-117
11 When Mr Zepic was asked to comment upon the level of activities which the plaintiff undertook around the house most of the time, he responded;
“A:Watch TV. I don’t know, cooks – cooks a bit of food. Not really much, that’s about it. He goes to the Mosque and plays chess with a couple of friends.
Q.How does that compare with what he was like before the 2008 accident?”
A.He’d be in the backyard with me. I’ve got a drag car, helping me with my car. A bit of motivation, change this, do that, you know. No real interest no more.”[42]
The Medical Evidence Relied Upon by the Parties
[42]T120
Dr Peter Dillane
12 Dr Peter Dillane ,the plaintiff’s treating general practitioner, in a report dated 1 January 2012[43] opined:
[43]PCB 68
“Mr Zepic sustained soft tissue and spinal injuries in the accident of March 2008. The extent of his injuries became increasingly apparent in the days afterwards as more bruising appeared on his body. I consider the accident has produced exacerbation of degenerative spinal disease and left him with chronic pain in the shoulders, neck and back with intermittent headaches and intermittent sciatica.
He has severe cervical spine degenerative joint disease and less marked disease at other spinal levels. He has been symptomatic with pain in the radicular distribution of this disease after his motor car accident of 2008 with further exacerbation after an accident in 2010. I believe an element of his depression is a result of chronic pain and consequent depression.
Mr Zepic has had a long history of lower back pain and sciatica and I believe he had - but have no record of - surgery to his lumbar spine in the 1970s. He has attended this practice since 1999 and there is no record of shoulder or neck pain prior to the motor accidents of 2008 and 2010.
…
As stated above, Mr Zepic has a long history of degenerative spinal disease. His symptoms date from the time of the 2008 accident. I consider there is still a need for further specialist review specifically of MRI findings and of neural impairment.
The Viva Voce Evidence of Dr Peter Dillane
13 Dr Dillane said that he had acted as the plaintiff’s general practitioner since November 1999 and that the plaintiff’s prior history had involved the need to undergo a laminectomy.
14 He said that the plaintiff had presented to him in August 2000 with some symptoms in his leg and feet which Dr Dillane did not consider to be primarily orthopaedic; that he had referred the plaintiff to a specialist, Dr Vidovic, who had opined that the plaintiff did not present with any significant peripheral vascular disease and suspected that the plaintiff’s lower limb symptoms were related to a long-standing back condition.[44]
[44]T 80-81
15 He described the plaintiff presenting:
· on 12 June 2001 with some right-sided leg pain;
· on 16 October 2001 with right-sided sciatica;[45]
[45]T 83
· in April 2003 with back pain in the area of the paraspinal muscles to the right side of the spine;[46]
· on 26 February 2008 when he attended with right-sided sciatic pain.[47]
[46]T 84
[47]T 85
16 Dr Dillane said that on 26 February 2008, the plaintiff presented in a reasonably restricted manner; that he had lost lordosis and that he had minimal flexion of the lumbar sacral spine. He said that he prescribed Mobic for the plaintiff’s use and referred him for a CT scan. He said that the plaintiff presented to him on 11 March 2008 with a history “that his back felt better after two days of Mobic;”[48] that at that time he had discontinued the plaintiff’s treatment with Mobic;[49] and whilst he wished to review the plaintiff in two weeks, the review involved “mainly about his blood pressure, I believe”.[50]
[48]T 87
[49]See the medical records Dr Dillane with respect to the attendance of 11 March 2008
[50]T 87
17 As to whether or not prior to the 2008 accident the plaintiff was presenting to him with a progressive condition in the lumbar spine, Dr Dillane commented, “I thought there was a progression of his circumstances from time to time of the original problem with his back to now. My experience clinically has been that this kind of back problem tends to occur in exacerbations without necessarily a clinical story of progression. So I don’t really know the answer to the question in this case, except that he clearly had a significant sciatic symptom and signs when I saw him in February 2008”.[51]
[51]T 87
18 Dr Dillane said that following the 2008 car accident, he did not obtain a history from the plaintiff that he had lost consciousness and that the plaintiff initially presented with lumbar pain, right trapezius pain, a blow to the nose and bruising and abrasions to the shins. He described the plaintiff’s right trapezius pain as being “at least partly related to his neck”,[52] that he prescribed Mobic for the plaintiff’s use.
[52]T 91
19 Dr Dillane said that he examined the plaintiff on 2 April when he presented with diffused pain in both his shoulders; tenderness in the thoracic spine; chest pain and tenderness in both his shins and at that time Dr Dillane ordered x-rays of the plaintiff’s neck, his chest and both his legs. He described these x-rays as revealing the presence of pre-existing degenerative changes in plaintiff’s cervical spine.[53]
[53]I do not find it surprising that such changes were present having regard to the plaintiff’s age at this time, namely, 71.
20 Dr Dillane said that the plaintiff continued to present to him through April and June 2008 with headaches, that in June 2008 he had developed pain across the back of his ribs on both sides when rising from a chair and was prescribed narcotic analgesics; that in July 2008 the plaintiff was presenting with pain “all over the back”;[54] that it was on 7 March 2009 that the plaintiff first presented with neck pain as distinct from shoulder pain;[55] and he agreed that from that time there was a pattern of intermittent attendances in which other health issues were predominant.[56]
[54]T 93
[55]T 93
[56]T 94
21 Dr Dillane said that the plaintiff had been involved in a transport accident on 15 October 2010; that he presented to Dr Dillane following that accident with spasm in the right latissimus muscle on the right side of his back[57] and with tenderness in the upper lumbar spine. He said that the plaintiff had described his back pain at that stage as being severe and that when he reviewed the plaintiff on the following day, whilst he was presenting with less spasm, he was still presenting with tenderness in the mid-lumbar area.[58]
[57]T 97
[58]T 98
22 Dr Dillane opined that as at the time of the plaintiff’s presentation on 15 October 2010, the latissimus spasm implicated a nerve being impinged in the thoracic spine,[59] but that on his examination of the plaintiff the following day, there was no tenderness in the thoracic spine but tenderness “only in the border between the chest and the lumbar spine.”[60] He described his primary concern at that time as being to investigate by x-ray, the middle part of the lumbar spine and the lower thoracic spine.[61]
[59]T 99
[60]T 99
[61]T 100
23 Dr Dillane said that the plaintiff presented on 19 October 2010 with pain which was “a little better”, but is continuing to be very tender in the mid-lumbar spine.[62]
[62]T 100
24 Dr Dillane accepted that the accident of 15 October 2010 “shook things up for your patient”.[63]
[63]T 101 Adopting counsel’s question.
25 Dr Dillane said that in the last two years, the plaintiff had presented with predominantly right shoulder pain and that he had not documented clear-cut left shoulder symptoms, although he took the plaintiff’s presentation on 12 January 2007 with left neck pain as being associated with the left shoulder. He described the plaintiff as presenting on two occasions in January 2011 with neck pain and right shoulder pain, commenting:
“A:One of my concerns is that there is – that the issues of his cervical spine have never been satisfactorily resolved to my own satisfaction. I have two MRI scans which show slightly different reports of the degree of foraminal stenosis down the cervical spine. I think that he needs a second neurosurgery opinion and I’m organising that at present, and I have also referred him back on that occasion, 25 January, for further physiotherapy to see if we can mobile the shoulder a little bit more than he at present has, among a number of other things that need to be followed up, not related to this.”[64]
[64]T 105
26 Dr Dillane opined:
“A:I certainly think the 2008 accident appears to have contributed to the neck problems as I have no record of neck - neck or shoulder problems prior to that. The event in 2010 his complaint to me was predominantly of his lower back and that did appear to improve relatively rapidly at that time. How much contribution it’s made to his present circumstances I don’t know.
…
A:I think the 2008 accident has some worrying issues related to his shoulders because of the progression of demonstrated signs over the subsequent weeks.”[65]
Q:Just finally in relation to his back, Doctor, is it your view that it’s impossible to say whether it’s 1971, 1990 the laminectomy, 2008 the transport accident, 2010 transport accident and that general degeneration that you would have in your 70s to say which is the predominant causal factor in that presentation?”
A:I believe that it’s true. I don’t believe you can attribute it to one specific event.[66]
[65]T 105-106
[66]T 107
Professor Kenneth Myers
27 In a report dated 25 August 2010,[67] Professor Kenneth Myers opined that the plaintiff presented with:
[67]PCB 85
·Probable aggravation of pre-existing degenerative intervertebral disc disease in the lumbar spine;
·Probable aggravation of pre-existing degenerative intervertebral disc disease in the cervical spine;
·Probable bilateral rotator cuff injuries;
and commented:
“I believe that at least 50% of any referred pain to the lower extremities from the back results from the accident in 2008. It would appear that all disability in relation to the neck, including headaches, and to both shoulders results from the accident in 2008.”
28 In a report dated 27 September 2011,[68] Professor Myers opined that the plaintiff’s disability resulted from his physical injuries quite separately from any secondary psychological contribution and that the plaintiff presented at that time with bilateral rotator cuff injuries to the shoulder and degenerative intervertebral disc disease in the cervical spine and lumbar spine.
[68]PCB 101
29 In the further report dated 19 December 2011,[69] Professor Myers opined that but for the 2008 transport accident, the plaintiff would have less symptoms in his lumbar spine and no symptoms in his cervical spine or right shoulder.
The Viva Voce Evidence of Professor Myers
[69]PCB 105
30 Professor Myers said that at the time of his examination of the plaintiff on 27 September 2011, he found that the plaintiff’s range of movement in each of his shoulders was restricted to an identical degree. He said that at the time of examining the plaintiff in September 2011, the plaintiff continued to complain of pain in both his shoulders and that on examination he found the range of movement in the right shoulder being more restricted than that in the left.[70]
[70]T 128-129
31 In the course of cross-examination, Professor Myers was taken to the plaintiff’s presentation to Dr Dillane with symptoms of back pain in February 2008, in respect of which he opined:
“A:My impression of that first attendance was that he was directing my attention to his neck and the shoulders and he in fact took some pains to say, that, well my back has not been affected or made worse by this. And if that’s what you’re getting at then I’m in agreement with these notes and with that attitude.”[71]
[71]T 136
32 Professor Myers said that at the time of his examinations of the plaintiff, he had not been aware that the plaintiff had been involved in a transport accident in 2010. Professor Myers was taken to Dr Dillane’s notes and evidence about the effect of the 2010 accident opined:
“A:Overall, it would appear then that the patient had pre-existing problems of the back that we know about that culminated in an operation which we now know is 1990. That according to the history provided to myself no fuss was made about the low back problem with the accident in 2008, and you’re now telling me that there was a further accident which probably aggravated the pre-existing problems.
Q:That would therefore impact upon your opinion that the subject accident of 2008 - - -?
A:I would diminish that 50 per cent, yes.
Q:Would you be in a position to quantify that diminishing?
A:No.
Q:Or it’s just not possible?
A:It’s very difficult.
Q:Thank you.
…
A:I said it would be very difficult. From what you’re describing it would seem as if the 2010 accident was of at least the same consequence as the 2008 accident and probably the same consequence as his pre-existing problems. Split it into a third, if you wish.
Q:Obviously that’s in relation to the low back?
A:To the low back.
Q:And the legs?
A:Yes.”[72]
[72]T 139-140
33 Professor Myers described the pathology in the plaintiff’s right shoulder, when compared with his neck, as
“A:… separate in that pathology has been demonstrated in each. You are correct that clinically it can be difficult to know whether the pain in the neck is referred to the shoulder, whether the pain in the shoulder is referred to the neck, but I felt that there was sufficient evidence to implicate both to say that they are separate disabilities.”[73]
[73]T 141
34 Professor Myers was asked:
“Q:In relation to his general presentation to you it was a combination of all of his problems, wasn’t it, that restriction of his activities of daily living, his neck, his shoulders, as presented to you and the complaints about his legs?
A:Well, no. I think that throughout his emphasis was on the problems in his neck and the shoulders. I think throughout he told me of problems in the back but has sought of played down those in relation to his restrictions compared to the other problems. But that’s an overall impression which is not stated in my reports as specific as that.”[74]
[74]T 142
Mr Michael Dooley
35 Mr Michael Dooley, an orthopaedic surgeon who examined the plaintiff on behalf of the defendant opined in a report dated 28 October 2011,[75] that the plaintiff had suffered a soft tissue injury to his cervical spine, which involved musculo-ligamentous damage and aggravation of naturally occurring age-related degenerative disc disease of the cervical spine with referred pain to the right shoulder and that:
[75]DCB 1
“From an orthopaedic viewpoint alone, I would expect Mr Zepic to note some intermittent neck pain with referral of this pain into the shoulder girdle area.”
Whilst Mr Dooley considered Mr Zepic to be complaining of pain greater than he would have expected to see, he opined that he was not deliberately exaggerating and commented:
“From an orthopaedic viewpoint alone, as a consequence of the soft tissue injuries sustained in the motor vehicle accident, Mr Zepic would note difficulty with heavy physical activity and with a lot of activity at and above shoulder level. Given his previous lumbar spine injury, he would have noted difficulty with any heavy physical activity.”
Mr Roy Carey
36 Mr Roy Carey an orthopaedic surgeon who examined the plaintiff on behalf of the defendant, opined in a report dated 19 January 2012:[76]
[76]DCB 17
“My opinion is that Mr Zepic on the basis of the history, clinical examination and imaging reports provided likely has aggravation of previously asymptomatic cervical spondylosis, and an adhesive capsulitis syndrome affecting the right shoulder, consequent upon his neck injury, but no intrinsic injury of the right shoulder or surround structures.
There is no evidence of right upper limb radiculopathy.
Further, he has aggravation of a previously symptomatic post-operative low back pain syndrome, with right lower limb symptoms but without radiculopathy.
Further, he has a non-organic right hemibody parasesthesia syndrome which demonstrates an idiosyncratic psychological response to injury.
…
As best as I am able, in the absence of the injury complained of, I would anticipate that Mr Zepic would have had continued discomfort and disability with his low back but without cervical, shoulder or other problems which he now has as a result of the 27 March 2008 motor accident, at least in the medium term.”
Dr Steven Jensen
37 Dr Jensen, a musculoskeletal pain medicine specialist, examined the plaintiff at the referral of Dr Dillane in September 2008. In a report dated 26 August 2010, Dr Jensen opined:
(i)That the plaintiff presented with mechanical cervical spine dysfunction on a background of multilevel degeneration with referred pain into both shoulder girdles;
(ii)That the plaintiff’s persisting neck problems were a direct result of the motor vehicle accident;
(iii)That there was :
“…evidence of “significant” “yellow flags” as evidenced by his abnormal illness behaviour. This is usually indicative of significant psychosocial stress. I could not be sure whether this was a conscious or subconscious attempt to amplify the extent of his injuries and subsequent degree of disability”.[77]
[77]PCB 59
Findings
38 In Rachel Jenkins V Transport Accident Commission[78] I held that for the purpose of the analysis required of me pursuant to the provision of the Transport AccidentAct, the body function associated with the spine should not be divided into a number of separate categories. For the reasons set out in that matter, in analysing the effect of the 2008 accident upon the cervical and lumbar areas of the plaintiff’s spine, I am satisfied that the approach which I should take is to consider the effect of the accident upon the plaintiff’s spine in its entirety.
[78]19 August 2011; [2011] VCC
39 In this case, the defendant submits that the plaintiff’s repeated tendency in the course of his viva voce evidence to make forceful statements in which he asserted his level of incapacity and identified the 2008 accident as the sole contributor to that incapacity, should lead me to find that the plaintiff was deliberately dishonest and was a totally unreliable witness.
40 Further the defendant points to a number of inconsistent statements made by the plaintiff to medical practitioners as to the incapacity caused by the 2008 accident: [79]
[79]For convenience the material relied upon by the defendants in this regard was summarised in the document entitled “History Given To Psychiatrists”
(i) which misstated or exaggerated consequences of the 2008 accident; and
(ii) which in the course of cross-examination the plaintiff denied making;
and submits that these statements and the plaintiff’s denial as to the making of them undermine his credit.
41 In considering the issue of the plaintiff’s honesty, I note that in his two affidavits the plaintiff adopted a position different to that which he adopted in the course of his evidence.
42 In his affidavits the plaintiff made very few dogmatic statements to the effect that the 2008 accident totally precluded him from most of the activities and pastimes involved in his life beforehand (rather he spoke in terms of the 2008 accident having restricted him in his ability to engage in those activities). Further, the plaintiff readily conceded the fact that the 2010 transport accident had temporarily aggravated his symptoms; his statement to that effect being;
· Consistent with the evidence given by Dr Dillane on this issue; and
· In stark contrast to the plaintiff’s inconsistent statements on the issue in the course of cross-examination.
43 I am satisfied that in the course of giving his evidence, the plaintiff had a tendency to exaggerate the consequences of the 2008 accident upon him and that this tendency also manifested itself in the plaintiff providing exaggerated histories to a number of the medical practitioners who have examined him. I further accept that these tendencies call into question the plaintiff’s honesty and his reliability as a witness.
44 Equally the repeated statements made by the plaintiff in the course of his evidence in which;
· he denied any ability to undertake tasks such as gardening;
· made extreme statements as to his ability to walk whilst pushing a lawnmower, or as to the time it took him to walk fifty metres;
lacked credibility and were quite unpersuasive.
45 As to whether these matters tell upon the issue of the plaintiff’s honesty however, I note the contrast between the evidence contained in the plaintiff’s affidavit as to the level of his incapacity and that given by him in the course of his cross-examination. Generally I found the statements made by the plaintiff in his affidavits as to the consequences of the organic injuries suffered by him in the 2008 accident to be consistent with the consequences which would, in my opinion, be likely to be associated with significant soft tissue injuries inflicted upon the cervical spine of a man in his early seventies at the time at which he was injured and who is now shortly to turn seventy-six.
46 Further, the plaintiff’s affidavit evidence as to the consequences of the 2008 accident is largely consistent with the affidavit evidence and the viva voce evidence given by the plaintiff’s son, whose evidence is not the subject of challenge on behalf of the defendant.
47 Having regard to what appears to be reliable evidence given by the plaintiff in his two affidavits and unreliable evidence given by the plaintiff in the course of cross-examination and on occasions in statements made by him in the course of medical examinations, I am not persuaded that the plaintiff is a dishonest witness who has embarked upon a deliberate course of deception. Rather, I am of the opinion that the plaintiff (most probably by reason of cultural and age-related factors), coped extremely poorly with the process involved in providing histories, giving viva voce evidence, and being cross-examined. That this is so is, in my opinion, reinforced by the naïve and extreme statements made by the plaintiff in the course of cross-examination to which I have previously referred.
48 That is not to say however that real issues do not arise in this matter in assessing the true consequences to the plaintiff of the injuries suffered by him in the 2008 accident by reason of the fact that the plaintiff, in cross examination, has proven to be a very unreliable witness.
49 Having regard to the issues which arise as to the reliability the plaintiff’s evidence, I am of the opinion that the approach which I should take in assessing the consequences to the plaintiff of the 2008 accident is that I should :
(i) be guided by the medical statements which describe the likely organic disability which would be associated with the trauma to which the plaintiff was exposed in the 2008 accident and the evidence given by both the plaintiff and his son as to the consequences to the plaintiff of his involvement in the 2008 accident insofar as those consequences are consistent with the medical opinion to which I have referred;
(ii) assess the consequences of the injuries sustained by the plaintiff in the 2008 accident primarily upon the basis of the evidence of Enes Zepic who impressed me as a reliable witness who made no effort to overstate the evidence given by him as to the change in his father following the 2008 accident;
(iii) rely upon the evidence given by the plaintiff where it is consistent with the above sources of evidence;
50 I am required in this application to identify the consequences of the plaintiff’s impairment to his lumbar spine which were caused by the 2008 accident in circumstances in which it is put that the injury to the lumbar spine involves an aggravation of a pre-existing condition.[80] Given the relatively small number of attendances by the plaintiff upon Dr Dillane with symptoms of back pain prior to 26 February 2008, I am satisfied that it is inappropriate to describe the plaintiff’s back condition prior to February 2008 as one which was progressive both in terms of its symptoms or the impact which it had upon the plaintiff’s life. In my opinion, the history of this condition is more appropriately described as being stable but involving periodic exacerbations, given the long period which elapsed between the plaintiff’s need to seek medical treatment between 2003 and 2008. Further I am satisfied that, whilst the plaintiff presented to Dr Dillane with a significant exacerbation of this condition on 26 February 2008:
[80]See Guppy v Victorian WorkCover Authority [2010] VSCA 164 (25 June 2010) and Petkovski v Galletti [1994] 1 VR 436
(i) his symptoms were located primarily in his upper lumbar and lower thoracic spine; and
(ii) that he had largely recovered from that exacerbation by 11 March given that Dr Dillane had ceased treatment of the condition at that time and was focussing not upon the plaintiff’s back but upon his blood pressure.
51 For these reasons I am satisfied:
(i) That the plaintiff’s prior back condition did not have a history of causing chronic symptoms which impacted upon the plaintiff’s lifestyle to a major extent;
(ii) That given the relatively rapid improvement in the plaintiff’s symptoms between February and March 2008, the exacerbation of the plaintiff’s back condition in February 2008 was unlikely, in the absence of the intervention of the 2008 accident, to have significantly altered the course which the plaintiff’s back condition had taken in the years preceding 2008.
(iii) That the primary effect of the 2010 accident was to cause the plaintiff an injury to his upper lumbar and lower thoracic spine and as such, that the 2010 accident had minimal permanent impact upon the pre-existing condition with which the plaintiff had presented prior to the 2008 accident in his lumbar spine (which appears to have involved the lower lumbar spine and in particular the lumbar sacral spine such that it induced occasional sciatica particularly to the right side).
52 I accept Dr Dillane’s evidence that the plaintiff’s current presentation with back and leg pain cannot be attributed to one specific event when account is taken of the fact that the plaintiff presents with:
· significant age-related degeneration which pre-dated the 2008;
· a history of having undergone a laminectomy in the 1990’s;
· a history of having been involved in transport accidents in 2008 and 2010.
53 Having regard however to Dr Dillane’s opinion that the plaintiff made a relatively rapid recovery from his 2010 accident and that his symptoms at that time appeared to be located in the lower thoracic and upper lumbar spine, I am satisfied, notwithstanding the evidence of Professor Myers[81], that given that the plaintiff’s current presentation involves low back pain with sciatica, it is appropriate to apportion greater responsibility for the plaintiff’s present low back symptomology to the 2008 accident rather than the 2010 accident.
[81]Namely that one might apportion the responsibility for the plaintiff’s current presentation with back pain - one third with respect to the plaintiff’s pre-existing condition, one third with respect to the 2008 accident and one third with respect to the 2010 accident .
54 In these circumstances, I am satisfied that the 2008 accident remains a significant contributor to the symptoms with which the plaintiff presents in his lumbar spine and the incapacity associated with those symptoms.
55 Further I am satisfied that the effect of the 2008 accident has been to aggravate in a permanent sense pre-existing degenerative condition present in the plaintiff’s cervical spine so as to cause the plaintiff to develop symptoms of pain and restriction of movement in his cervical spine and right shoulder which continue to cause him to suffer from both pain and restriction of movement in those areas of his body.
56 The medical evidence in support of the proposition that the plaintiff presents with an organic injury of the type described above is virtually unanimous. It is clearly the opinion expressed by Dr Dillane who presented as an extremely impressive witness; and that of Professor Myers; Mr Dooley; Mr Carey and Dr Jensen.
57 Mr Dooley; Mr Carey and Dr Jensen opine that the plaintiff presented with both;
· an organic related disability secondary to the aggravation of pre-existing degenerative changes in the cervical spine;
· features of a psychological response to his injury.
In my opinion the effect of the latter condition, manifesting itself primarily in the symptoms described by the plaintiff in his evidence at T22-24, is readily identifiable and capable of being isolated from the organic symptoms of pain and impaired function arising by reason of the aggravation of the underlying degenerative condition in the plaintiff’s spine.
58 I am satisfied that the impairment of function of the plaintiff’s right shoulder does not arise primarily as the result of a discrete injury to the shoulder but that the injury to the plaintiff’s cervical spine materially contributes to the pain and restriction of movement in his right shoulder. I make this finding for the following reasons:
(i) As early as 31 March 2008, Dr Dillane identified the plaintiff’s right trapezius pain as being at least partly related to the injury to his neck;[82]
[82] T 91
(ii) The MRI report of 13 May 2009 raises the issue of the presence of “multi level foci of neural exit foraminal stenoses” as possibly accounting for the plaintiff’s radiculopathy;[83]
[83]PCB 42
(iii) Mr Michael Dooley describes the injury to the plaintiff’s cervical spine as being responsible for causing referred pain into the plaintiff’s right shoulder girdle area opining:
“I do not believe that Mr Zepic has sustained a specific injury to the right shoulder in relation to either the glenohumeral joint or rotator cuff area.”[84]
(iv) Mr Carey describes the absence of any intrinsic injury of the right shoulder and opines that the plaintiff presents with an “adhesive capsulitis syndrome affecting the right shoulder consequent upon his neck injury”.[85]
[84]DCB 3
[85]DCB 25
59 Whilst Professor Myers commented upon the difficulty in identifying whether the plaintiff’s pain in his right shoulder was referred from his neck or was caused by the presence of separate pathology, but preferred the latter view; the hesitancy with which Professor Myers expressed that opinion when contrasted with the opinions expressed by Mr Dooley and Mr Carey, persuade me that whilst the presence of separate pathology in the plaintiff’s right shoulder may be responsible for some pain and restriction of movement in the shoulder,[86] the injury to the plaintiff’s cervical spine significantly contributes in a material way to the plaintiff’s right shoulder disability.
[86]See the findings of the MRI of the right shoulder of 12 July 2011- PCB50
60 Whilst the plaintiff relies upon the evidence of Dr Peter Blombery [87] and the defendant relies upon the evidence of Dr Tony Kostas,[88] I have not taken into account the evidence of either of these witnesses in forming my opinions for the following reasons:
[87]PCB 122-126
[88]DCB 6-7
(ii) As to Dr Kostas, I find the views taken by him to be extreme and unpersuasive. A position to the contrary was not really urged upon me on behalf of the defendant.
(iii) As to Dr Blombery, his statement made in cross-examination that when expressing his ultimate opinion as to consequences of the 2008 accident, he was operating on “auto pilot”; in my opinion so calls into question the approach which he adopted to his analysis of issues which arise in the case that I find both his report and his viva voce evidence to be unpersuasive.
61 Taking into account all the evidence in this application and making due allowance for the plaintiff’s lack of reliability both as a witness and as an historian, I make the following findings as to the consequences to the plaintiff of the 2008 accident;
§ The accident has caused the plaintiff to develop neck and shoulder pain, from which he did not suffer beforehand.
§ The accident has materially contributed to the plaintiff’s symptoms of back pain.
§ The accident has reduced in a significant way the plaintiff’s ability to work in and maintain his house; his garden and his vegetable patch. That these were activities of some significance to the plaintiff prior to the accident which, making due allowance for his age and the pre-existing condition of his lumbar spine, the plaintiff was largely able to manage without significant assistance from his sons. I am also satisfied that the plaintiff was able to carry out the physical activity involved in both gardening and maintaining his vegetable patch and his house without significant restriction prior to the 2008 accident.
§ The plaintiff’s ability to drive his car and to fish with his friends has been significantly restricted. The latter activity being significantly impacted upon by the condition in his right shoulder and his reduced ability to cast and manipulate a fishing rod.
§ The plaintiff’s persona as a relatively energetic man who enjoyed fishing and outdoor activities (as described by his son) has been altered by the accident so that he is now much less active and more sedentary in most aspects of his life.
§ The plaintiff’s pattern of sleeping is disturbed to some extent by his pain.
§ The plaintiff has lost a degree of independence by reason of his accident related injuries and now requires the assistance of his sons to undertake tasks both around the house and in the garden which he was capable of performing without assistance prior to the accident.
§ The injury to his right shoulder impacts upon the plaintiff’s ability to manage matters involving personal hygiene such as shaving[89] and, further, restricts his ability to undertake activity involving movement above his shoulder level.[90]
[89]In this regard contrary to the submission on behalf of the defendant, I do not find it unusual that a person injured in his early seventies may have difficulty developing new skills such as employing his left hand when fishing or shaving; and I accept the plaintiff’s evidence as to his restrictions in this regard which evidence was, in my opinion, largely consistent with the medical evidence as to the physical activity which would be impacted upon by the incapacity in the plaintiff’s neck and shoulder.
[90] In making the findings set out in paragraph 50 above, I have taken into account only the restrictions which I am satisfied are consistent with the expected consequences of the organic injury as referred to by each of the medical practitioners and have excluded the effect which any non organic factors.
62 In undertaking the value judgment required of me in assessing the consequences to the plaintiff of the impairment to his spine arising from the 2008 accident, and determining where the facts of this case sit in a broad spectrum of cases,”[91] I take into account the fact that the plaintiff is now approaching seventy-six years of age and that his age alone must have operated, both at the time of the accident and thereafter, so as to restrict the range of physical activities which were available to him (even in the absence of the occurrence of the accident). Further, I am satisfied that the plaintiff was not prone to intellectual pursuits and that his interests really lay in physical activity such as fishing and gardening. In these circumstances I am satisfied that the effect upon the plaintiff of the losses which I have found as flowing from the 2008 accident are all the greater as they have had the effect of diminishing the relatively few pastimes available to the plaintiff in his advancing years. When seen in this light, the plaintiff’s statement that the accident had “struck at the core of my identity and sense of self worth” does not appear to me, to be extreme or to be an overstatement.
[91] Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
63 Given the findings which I have made as set out above, I am satisfied that the organically based consequences of the injury to the plaintiff’s spine caused by the 2008 accident, give rise to an impairment, which, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as being at least “very considerable” and certainly more than “significant” or “marked”; and accordingly that the plaintiff is entitled to the leave which he seeks in this application.
64 I will hear the parties as to the precise form of the order which is sought in the proceeding and also upon the issue of costs.
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