Philippiadis v TAC [2015] VCC 219

County Court of Victoria|2015-03-05

Judgment: For the defendant; both applications dismissed.

1 Mr Gregory Philippiadis was injured in a motor car collision on 7 November 2008 ("the first accident"). He was subsequently injured in a motor car collision on 3 February 2011 ("the second accident"). He seeks leave to bring a claim for damages in respect of injuries he suffered in each of those transport accidents. To obtain leave, he must satisfy the Court, in respect of each collision respectively, that he suffered a "serious injury" as defined and satisfying the requirements of s93 of the Transport Accident Act 1986 ("the Act").

2 Mr Philippiadis' applications in respect of both transport accidents were heard together, and these reasons address the issues in both proceedings.

3 Although multiple injuries were originally the subject of each application, at the hearing the applications were confined to an injury to the neck in each transport accident.[1]

4 The plaintiff's case is that in either the first or second collision, or in both, he suffered injury to his neck, being soft tissue injury which aggravated or exacerbated pre-existing degenerative condition and injury, such that the symptoms and their consequences caused by at least one of the transport accidents satisfy the definition of a serious injury.

5 He relies on part (a) of the definition of "serious injury", alleging that each respective injury to his neck constitutes serious long-term impairment of a body function, namely the function of his neck. That part of the definition requires the plaintiff to satisfy the Court that the consequences of the injury to him, when judged by comparison with other cases in the range of possible impairments, can be fairly described at least as "very considerable" and certainly more than "significant" or "marked"[2].

6 The defendant does not dispute that on each of the dates alleged Mr Philippiadis was involved in a transport accident in which he suffered some injury or injuries. The defendant's case is that no single injury suffered by the plaintiff in either collision could constitute a serious injury under the requirements of the definition. The defendant points to the plaintiff's multiple pre-existing injuries and medical conditions, in particular relating to his neck, the extent to which they were already symptomatic and impairing his general activities before each collision, and the extent to which they have been symptomatic and disabling since each collision[3]. The defendant further relies on the authorities which preclude combining or aggregating the effects of multiple injuries[4], or of two accidents on one body function, and which require injuries that are an aggravation or exacerbation of previous injuries or conditions to be assessed for the consequences that result from the aggravation or exacerbation as opposed to the ultimate level of impairment[5].

7 The evidence consisted of the documents set out in the attached schedule, including affidavits of the plaintiff and his wife. The plaintiff was the only witness required by the defendant for cross-examination.

8 As in most cases of this nature, the credibility and reliability of the plaintiff's own evidence is important because not only the Court, but doctors whose opinions are in evidence, are reliant on the plaintiff's own account of the history of the occurrence, timing, extent and duration of symptoms and their impact on the plaintiff's life.

9 In this case my impression was that Mr Philippiadis was genuinely trying to tell the truth as he recalls it and from his perceptions, but not always reliable in those memories or perceptions.

10 I took into account that although he speaks creditable English and made his affidavits and gave oral evidence without an interpreter, English is not his first language, and it was apparent that he did not always understand what he was being asked. He does not have the extensive vocabulary or knowledge of certain expressions to follow some of the finer aspects of what he was being asked, nor to respond fully or immediately at times when asked questions in terms he did not understand. Further, there were clearly some misunderstandings as to tense, or timing to which certain questions were addressed. This was not surprising given his age, the extensive period of time in respect of which he was being questioned, and that it involved two accidents some years apart. I made allowance for these circumstances, in relation to answers he gave when I did not think he had understood the question fully, and did not attribute to him any deliberate avoidance or prevarication in answering.

11 My impression was that he is a reasonably stoic and determined man, who was not deliberately exaggerating or embellishing what he had to say about his injuries or their impact on his life. I thought that his wife's description of his attitude to his injuries was accurate - that he is a proud man who does his best to keep the extent of his suffering to himself, or at least not to show her. Nevertheless, when considered objectively and compared with other evidence, his perceptions of some matters appeared less reliable.

Relevant findings as to the plaintiff's background and circumstances preceding the transport accidents

12 Mr Philippiadis is now aged 82. He was born in Greece where he completed 11 years of schooling, worked as a mechanic in textile factories, and served his period of conscription in the Greek Navy. He migrated to Australia in January 1961.

13 He has a long history of employment, from initial factory work to labouring for Victorian Railways, State Rivers and Water Supply Commission, and Snowy Mountains Authority, and then driving taxis and trucks. During some 25 years of such employment he suffered some injuries, the consequences of which are still with him.

14 In 1962, Mr Philippiadis was a passenger in a truck which rolled, and he suffered a serious head injury as a result of which he apparently underwent Electric Shock Therapy. Since that time he has had epilepsy, but it has been controlled with medication, at least since the 1990s.

15 In 1967 he underwent major surgery on his neck - a two level cervical fusion at C4-5 and C5-6. This was performed by renowned orthopaedic surgeon, Mr Henry Crock, and after a recovery period settled well, enabling Mr Philippiadis to return to full-time work. Despite his wife's evidence[6] that she had never known him to suffer or complain of neck problems before the first accident, I am satisfied from medical attendances that from time to time he would suffer exacerbations or recurrences of neck symptoms, and at times headaches. In December 2002 in an attendance on his GP after a CT scan of his cervical spine, there were "A lot of concerns", discussion of CT showing disc degeneration above and below the neck fusion, and whether symptoms in his arms could be from his neck[7]. Nevertheless, each of those previous exacerbations had apparently settled in time, and although for such episodes he had been prescribed medication, he did not take either painkilling or anti-inflammatory medication on a long-term basis.

16 The last flare-up or acute episode of his neck symptoms prior to the first transport accident was late April 2008, some six months before the accident. He attended his long-time general practitioner complaining of acute neck pain which he attributed to one of three possible causes - moving a room divider, picking tomatoes, or spending long hours on the phone to Greece during Greek Easter. As a result of that episode of acute neck pain, and with clinical examination indicating tenderness at C4-5 and reduced range of movement, his doctor prescribed Panadeine Forte tablets, Mobic and arranged an x-ray of his cervical spine. That was reported as showing that the fusion was solid but spondylosis was present above it with possible left C4 nerve root irritation. As Panadeine Forte caused him dizziness, it was discontinued after only two days, and while Mobic was continued on that date, it was ceased as at 30 June because he could not tolerate that medication either. Alternative anti-inflammatory medication prescribed that date was specifically for his back, and there was no ongoing complaint of neck symptoms on 30 June 2008. Prior to April 2008 the last mention in his GP's notes of neck symptoms or headaches was in April 2004 when an x-ray of his cervical spine had been taken.

17 So far as his long-term work and lifestyle was concerned, following the cervical fusion surgery in 1967, by 1969 he was working as a taxi-driver part-time, and also driving delivery trucks. In 1971 he moved to Ballarat, continuing to drive delivery trucks. In 1979 he obtained his own truck with a freezer section, and with it worked delivering fish and orange juice.

18 In 1982 he was assaulted, suffering injuries to his lower back and head and was off work for some seven weeks. He returned to work as an employee truck-driver delivering fish until about 1986. During that period he suffered a fall off a truck and injured his left elbow.

19 In 1987 he obtained a disability pension for reasons not associated with disability from his neck or other physical injuries. In 2004 he became eligible for the aged pension, and is still in receipt of it.

20 Mr Philippiadis' first marriage ended in about 1987. He maintained frequent contact with his two adult children, and with his grandchildren.

21 In 1991 he obtained two diplomas and qualified as a massage therapist, and has subsequently completed further massage qualifications. He commenced working as a masseur at a natural therapies clinic in Ballarat, run by a lady whom he married two years later. They continue to live in Ballarat, where she still runs that clinic, and also maintains other business interests, with some of which he has at times helped.

22 Mr Philippiadis also developed bilateral carpel tunnel syndrome, suffering symptoms from the early 2000s. This condition had at times caused pain in both wrists and forearms, which would interfere with his sleep, and for which medication at times had been prescribed but not on a continuous basis.

23 In the period leading up to the first accident in November 2008, Mr Philippiadis was working for his wife as a masseur. Although both his and his wife's affidavits estimate the number of hours he regularly performed massages as higher, I find that the estimate he gave in cross-examination was probably more accurate, being an average of five to six massages a week, up to two a day, and some of them deep massage requiring more arm and shoulder strength to apply the required pressure. He was not performing these on a fully paid basis, but received about $30 per week from his wife's clinic business as spending money. I accept that he enjoyed performing massages and participating in the clinic's business.

24 He was also assisting his wife "a bit" in her running of two "bed and breakfast" properties, by doing some shopping for her, "doing a little bit the floors", and clearing up putting breakfast in the fridge. He also maintained a vegetable garden at one of those properties. His wife also operated a small business of conducting day trips, about once a month, for which she had purchased a mini-bus in about 2005. Mr Philippiadis held a licence to drive passenger vehicles, and occasionally drove the mini-bus to fill it with petrol, but had not driven passengers for many years.

25 At age 78, and despite a number of long-term health issues, he was leading a relatively active life and enjoying it. He would drive his car some distances, including to Melbourne to visit his son and grandchildren, perform massages at his wife's business, assist in her bed and breakfast property next door to their home, and enjoyed gardening especially keeping a large vegetable garden. He and his wife say that they also still enjoyed an active sex life together.

26 On 7 November 2008, Mr Philippiadis was driving his car with his wife as a passenger when an oncoming car veered onto his side of the road, and his car was struck by the oncoming vehicle. He needed help to get out of the car. His wife was also injured. He felt immediate pain in his wrists, shoulders and neck, lower back, right knee and headache.

27 He was taken by ambulance to Ballarat Base Hospital. Ambulance records indicate he was complaining of pain in his neck and right shoulder and a cervical collar was applied to immobilise his neck. At the Emergency Department of the Ballarat Base Hospital, he complained of right neck (generalised) pain and right shoulder pain. The initial assessment was of cervical and right shoulder pain. He was assessed as quite stable, other than some soft tissue tenderness around the cervical spine and right shoulder, and he was sent home that night.

28 Mr Philippiadis attended his general practitioner, Dr Lewis, four days later, complaining of pain in the right side of his chest and pain on breathing, so x-rays were ordered but excluded a fracture. He was prescribed Brufen, Panadeine and breathing exercises, the focus being on his right lung. Two weeks later, he attended again complaining of discomfort in the right buttock, right knee and pain in the left elbow, and was prescribed Panadeine Forte.

29 In early March 2009, Dr Lewis signed a medical certificate for the Transport Accident Commission listing his accident-related conditions as a soft tissue injury of his right shoulder, a soft tissue injury of the right side of the chest, an injury to the right ischial tuberosity (which I take to be the pelvic/hip area), and an injury to the neck[8].

30 While neck pain continued, of greater concern were the increased symptoms from his bilateral carpal tunnel syndrome, which ultimately led to surgery (performed by Mr Plank) on 12 October 2010.

31 At the end of October 2010, his general practitioner, Dr Lewis, was reporting that his then current clinical and functional status involved occasional aching in one or other buttock; his right shoulder pain flares from time-to-time; the soft tissue injury of the right side of the chest had settled; carpal tunnel syndrome was much improved since the surgery earlier that month; his left elbow had symptoms which would need further investigation if they continued after the carpal tunnel surgery had settled; and, most relevantly, it was Dr Lewis' opinion that "the soft tissue injury of the neck does not appear to have worsened his pre-existing neck problem".[9]

32 According to Mr Philippiadis, after the wrist operation and his knee had healed, he still had pain in his lower back and buttocks, but the most serious residual problem was the pain in his neck and shoulders, and that persisted, and was associated with headaches. His says that arising from the first accident, he always has some neck pain which varies depending on his activities, and can be extremely painful. The pain can become worse to the point where it is difficult to move his head, and he gets up most nights because of the pain, for about an hour, and needing medication to go back to sleep. Although several medications have been prescribed and tried by him, he now takes Voltaren, usually three times a day, and Panadol Osteo twice a day. During the day he can have bad headaches and, at those times, he sits down and tries to relax to ease the pain. He says that he did not have this pain before the accident. He says that the pain has led to restrictions in his activities, details of which will be discussed later.

33 His wife says that following the first accident he complained of neck pain, had interrupted sleep, their sexual intimacy decreased, he suffered headaches, and his gardening and massaging activities decreased.

34 On 3 February 2011, Mr Philippiadis was the front seat passenger in a stationary vehicle in which he was helping teach the driver to drive. The vehicle was stationary behind another vehicle when it was hit from behind. He saw Dr Lewis, a few days after this accident, complaining of pain in his neck referred to his left shoulder, the pain keeping him awake at night. A CT scan was ordered and showed the previous fusion from C5-7, marked arthritis changes above and below it, with narrowing of the neural foraminae, especially at C3-4 and C4-5 bilaterally.

35 On 2 May 2011, he presented to Dr Lewis with pain to the left of C4 with some pain down the arm, normal power in the arm, but with reflexes more responsive in the right arm than the left. An x-ray of the cervical spine with functional views showed some anterolisthesis of C4 on C5. Brufen was prescribed and he was referred to a neurosurgeon, Mr Chan, for an opinion. Panadeine Forte was prescribed later that month and Panadol Osteo the following month.

36 Mr Chan saw him in June and August 2011, and arranged for him to undergo two cervical nerve root injections. Mr Philippiadis reported to his general practitioner in mid-February 2012 that, following the injections, his pain had improved.

37 In mid-March 2012, Panadol Osteo was prescribed. In June, his neck pain was returning, and in November , Celebrex was prescribed. Dr Lewis reports that the neck pain remained a problem in December 2012 and early January 2013, and he was then referred to Mr Chan again.

38 Subsequently, Mr Philippiadis has developed a footdrop on his right side for which he wears a calliper, but not all of the time. This apparently was caused by a spinal canal stenosis. It has caused him some falls as he finds that he catches his foot as he walks. One such fall, in May 2014, caused significant left shoulder pain, and could well have been the cause of a supraspinatus tear in his left shoulder found on subsequent ultrasound.

39 Mr Philippiadis says that as a result of the second accident he also had an increase in neck and shoulder pain, particularly in the left shoulder, which appeared to last for a few months before the pain returned to the level which he was suffering before the second accident[10].

40 Dr Lewis, the plaintiff's long-standing GP, reported in July 2010 to the TAC, and in October 2010 to the plaintiff's solicitors[11], in relation to the first accident, that the soft tissue injury of the neck which he suffered in the accident did not appear to have worsened his pre-existing neck problem.

41 After setting out the history since, and as outlined above, the history of ongoing neck symptoms after the second accident, in November 2013 Dr Lewis reported on Mr Philippiadis' prognosis. He thought that Mr Philippiadis could be expected to have neck pain as an ongoing or recurrent problem and there was a possibility that surgery may be required to relieve his symptoms. At that time his carpal tunnel syndrome did not appear to have been cured by his surgery and those symptoms may continue, although he had not complained of them to Dr Lewis for some time before that report.

42 In 2014, Dr Lewis reported with updates of the plaintiff's condition. He reported that after the motor car accident of 2008, the plaintiff complained of pain in the left shoulder more than pain in the neck, and that it felt to him that the neck pain was coming from the shoulder. However, after the motor car accident of 2011, the plaintiff felt that the pain was different, starting in the neck and referred to the left shoulder and left anterior chest. It was after the motor car accident of 2011 that his neck pain, described as referred to the shoulder, became his main complaint. It was after the 2011 accident that the neck and shoulder pain became severe enough to warrant referral to a neurosurgeon. The neurosurgeon had arranged for foraminal cortisone injections, which Mr Philippiadis felt were helpful, but the pain had returned and it was noted that as he was not privately insured, he had been placed on the waiting list for an appointment as a public patient.

43 The severe bilateral carpal tunnel syndrome had continued despite surgery and it was preferred that he not undergo further procedures for those problems. He has arthritis of the left shoulder and similar problems in the right shoulder. Dr Lewis felt it only reasonable to expect that he will have ongoing pain in the neck and both shoulders, and felt it likely that there would be benefit from further injections of cortisone to the neck, although that benefit would be temporary.

44 He also had sciatica and a right footdrop, but has regarded his neck and shoulder pain as the main factors limiting his massage work.

45 In September 2014, Dr Lewis reported that the plaintiff continued to have left sided neck and left shoulder pain and also right shoulder pain, and was attending an exercise program funded by the TAC, but the exercises seemed to aggravate his pain. He had been taking Voltaren but changed to Celebrex and found it more helpful for his pain. (I accept the Plaintiff's oral evidence that he subsequently ceased Celebrex and remained taking Voltaren).

46 In May 2014, he had a fall at home and complained of left shoulder pain. An ultrasound showed a partial tear of the conjoint supraspinatus/infraspinatus tendon with impingement, and at least a partial tear of the subscapularis tendon's insertional fibres. Together with an x-ray showing arthritis of the left A/C joint, this indicates some worsening of his left shoulder condition since the ultrasound of late 2010. Hydrotherapy was recommended and Dr Lewis most recently reports that, in December 2014, Mr Philippiadis stated that the hydrotherapy had improved his neck, which felt stronger, and he could turn his neck to the left with less pain. On examination he could rotate his neck to the left to 70 degrees. Dr Lewis predicted that both the neck and shoulder problems were likely to be ongoing with occasional exacerbations of pain.

47 Mr Patrick Chan, neurosurgeon and spinal surgeon, saw the plaintiff on the referral of his general practitioner in June 2011 and subsequently in August 2011. Dr Lewis refers to a further referral to Mr Chan in December 2012 but that is not mentioned in Mr Chan's subsequent report[12] so I assume there was no actual further attendance on him.

48 Mr Philippiadis gave a history to Mr Chan which included the 1967 spinal fusion surgery, and of the first (November 2008) accident, describing having left sided neck pain that radiated into his left shoulder since that accident, but Mr Chan does not record a history of the second accident, although there is reference to it in Dr Lewis' referral letter.

49 Mr Chan reports that on 21 June 2011, clinical examination showed a good range of neck flexion with neck extension exacerbating the pain and left lateral flexion and rotation of the neck further exacerbating the pain. Upper limb neurological examination was normal. The CT scan of the cervical spine of February 2011, and a dynamic cervical x-ray of 2 May 2011, showed the C5-7 solid fusion. There was significant arthropathy and disc desiccation at C3-4 and C4-5 levels. There was severe bilateral foraminal stenosis at those two levels and anterolisthesis at C4-5 level worse with flexion.

50 An MRI of the cervical spine taken mid-August 2011 showed the previous fusion and that there was severe adjacent segment bilateral foraminal stenosis at C3-4 and C4-5 and mild ventral listhesis at C4-5 level.

51 Mr Chan's impression was that the plaintiff had had exacerbation of mechanical axial pain and left C4 and left C5 radicular pain related to exacerbation of the underlying adjacent segment degeneration by "the accident". He organised for cortisone injection at C3-4 and C4-5 on the left side and planned to review Mr Philippiadis after the injection to assess his response. When last seen on 23 August 2011, the prognosis was fair but was said to be determined further after assessing the plaintiff's response to cortisone injection. As Mr Chan's report is dated 2014, it appears that no such further review occurred.

52 Medico-legal opinion was sought from Dr Capes, occupational health physician, in February 2011. Notwithstanding that this was only two weeks after the second transport accident, Dr Capes noted a history of only the first transport accident. On examination, Dr Capes found neck movements were reduced, especially lateral flexion, and Mr Philippiadis was tender over the left side of the low cervical spine. The right shoulder was tender with some limitation measured by goniometer of shoulder movements, and the left shoulder was also tender over the anterior shoulder and subacromial space, impingement was positive and shoulder movements also measured.

53 Dr Capes' opinion was that the plaintiff, who was relatively active prior to his motor car accident on 7 November 2008, had aggravated and possibly accelerated cervical and lumbar disc degenerative disease. He appeared to have incurred a right rotator cuff lesion and a left shoulder traumatic bursitis with impingement, as well as bilateral carpal tunnel syndrome, which had only been partially helped by surgery. He was not convinced that the plaintiff had any elbow or knee injury caused by the accident.

54 Mr Thomas Kossmann, orthopaedic surgeon, provided a medico-legal assessment for the plaintiff's solicitors in July 2012. He refers to the car accident of 7 November 2008 and traces medical history after that, but does not mention the second transport accident. His diagnosis was of pain and movement restrictions in the cervical spine. There was partial fusion of the lower cervical spine in the form of an ACDF most likely C5-6. He diagnosed pain and movement restrictions in the right shoulder on the basis of a full thickness tear of the supraspinatus tendon, tendinopathy of the infraspinatus tendon, subluxated biceps tendon and full thickness tear of subscapularis tendon. He also diagnosed pain and movement restrictions in the left shoulder on the basis of the partial thickness tear of the supraspinatus tendon, calcification subscapularis tendon and subdeltoid bursa with impingement. Additionally, he diagnosed bilateral carpal tunnel syndrome with residual problems after operation, as well as left elbow restrictions.

55 Mr Kossmann considered that the plaintiff suffered injuries in the car accident on 7 November 2008. He does not specifically analyse the cause of neck symptoms but says that Mr Philippiadis is suffering from pain in his cervical and lumbar spine, both of his shoulders, both of his elbows and both of his wrists. In his opinion, he would suffer from pain in those affected areas, most likely, for the rest of his life. He should undergo maintenance therapy in the form of pain medication, anti-inflammatories, physiotherapy, hydrotherapy and possibly acupuncture but, at that stage, but Mr Kossmann did not believe that he needed surgery. He thought the likelihood that the plaintiff may need surgery for his cervical/lumbar spine was remote, but could not be completely excluded in the event that he suffers from a catastrophic disc prolapse or his pain issues cannot be treated with pain medication and anti-inflammatories any longer. He also discussed the results of the bilateral carpal tunnel surgery and continuing symptoms, concluding that he is still suffering from significant neuropathy with reduced sensitivity in the palm of both hands.

56 Mr Douglas Gardiner, orthopaedic surgeon, provided a medico-legal assessment for the plaintiff's solicitors in January 2015, specifically in respect of the plaintiff's neck and left shoulder problems, but with a history of the other injuries as outlined by Mr Kossmann. He noted that on presentation, Mr Philippiadis was especially concerned about his left shoulder being more painful and more weak and stiff than it had been, and that it disturbed his sleep every night. Significantly, in the context of this case, Mr Gardiner too takes no history of the second transport accident, although it will have been mentioned in some of the reports provided to him, including those of Dr Lewis.

57 Mr Gardiner's diagnosis is of significant and painful cervical spondylosis, as documented, significant tear of left rotator cuff which has significantly affected his function, and other multiple conditions which were the subject of Mr Kossmann's reports. He considered the injuries consistent with the accident, and that they are stable at the moment (from an orthopaedic point of view). However, he considered that the left shoulder problem needed some attention for the significant left rotator cuff tear, whether it be simple arthroscopic debridement up to a reverse shoulder replacement. The prognosis, in relation to the cervical spine problem, was that it had stabilised.

58 I note that Mr Gardiner accepted that Mr Philippiadis has experienced a major disruption of his lifestyle since the accident of 7 November 2008. However, given that there was no history of the second transport accident and any marginal worsening brought about by it, and also by Mr Gardiner noting in the same sentence that the plaintiff was particularly concerned about the recent increased pain and disability with regard to his left shoulder, I place little weight on that part of his opinion. This is because of the manner in which I need to differentiate the consequences of only the subject injuries in the two separate transport accidents.

59 The defendant had the plaintiff examined by Mr Michael Shannon, orthopaedic surgeon, in July 2011. Notwithstanding that that was only six months after the second transport accident, it was only a history of the first accident which was taken. In relation to the neck and left shoulder, he found quite a good range of cervical flexio, but other movements were significantly restricted, particularly lateral flexion and rotation, and moderate restriction of movement of the left shoulder.

60 His diagnosis was of soft tissue injury to the cervical spine and right shoulder, and prognosis of likely ongoing symptoms in the neck and both shoulders indefinitely. He thought that the accident may well have resulted in further soft tissue injury to the cervical spine, noting its significant history, including the two level cervical fusion 20 years earlier and ongoing episodes of pain. With the neck clearly significantly symptomatic prior to the accident, and neurological examination not indicating any objective evidence of radiculopathy, he thought the transport accident had resulted in temporary aggravation of the underlying cervical disc degeneration.

61 In relation to the left shoulder, he noted previous symptoms in the left shoulder and a diagnosis of calcific tendonitis as early as September 2002. He noted lack of recorded symptoms in the general practitioner's notes after the November 2008 accident in relation to the left shoulder until those leading to an ultrasound in December 2010. He thought there was significant rotator cuff degeneration, calcification and evidence of impingement in the left shoulder, but felt it difficult to relate that to the accident in the absence of recorded symptoms in the two years following the accident.

62 The defendant also obtained an opinion from Mr Rodney Simm, orthopaedic surgeon, in October 2013. He had the history of both transport accidents and was provided with reports of Dr Lewis, Mr Chan, Mr Plank, and extensive radiology, both historical and in relation to the treatment.

63 Mr Simm noted that considering the time since the accidents, it was very difficult for the plaintiff to advise him as to the relationship between the current complaints and the accidents. His main complaint on that attendance was pain on the left side of the neck, over the top of the left shoulder and into the left pectoral region. He had limited movement of the neck and complained of being unable to sleep on his left side and having some limitation of left shoulder movement. He was able to place his hand on the back of his head and behind his back but that caused shoulder pain. He had numbness in the little and ring fingers of both hands and some mild, persistent numbness on the fingertips of the other fingers. The hand symptoms no longer disturbed him at night.

64 On examination, Mr Simm found moderate restriction of the cervical movement in all directions with complaint of tightness and discomfort at extremes of movement but no particular tenderness to touch. There were no clinical signs of radiculopathy in the arms. In the left shoulder there was moderate restriction of movement with some pain on restricted abduction of the internally rotated arm and he retained quite good strength of abduction. There was some pain on internal rotation of the elevated arm suggestive of rotator cuff impingement.

65 Mr Simm's opinion was that as a result of the first accident in November 2008, there was evidence that the plaintiff suffered a soft tissue injury to the neck, soft tissue injury to the right shoulder or, alternatively, referred pain to the right shoulder from the neck, and soft tissue injuries to his right knee and right chest wall. He did not accept that there was evidence of any additional injuries, including the wrists or lumbar spine. He considered that Mr Philippiadis has residual symptoms in the cervical spine but they have been present since the 1960s and it was not possible to determine whether there has been any influence on this long-standing condition as a result of the transport accident five years earlier.

66 He considered that as a result of the second accident, that of 8 February 2011, the plaintiff suffered an extension injury to the cervical spine with an exacerbation of his long-standing established cervical condition, and with either referred pain or a soft tissue injury to the left shoulder. He accepted that the neck and left shoulder had been problematic since the second accident. However, there was reference to left shoulder symptoms dating back many years in his medical record. He felt it difficult to determine if his current symptoms of mild rotator cuff impingement of the left shoulder, which were probably age-related, also related in any way to the second accident.

67 He thought the prognosis was of likely continued musculoskeletal symptoms, noting that the long-standing lumbar condition had worsened and he now required the use of a footdrop splint. He did not consider operative treatment indicated for any of the injuries sustained in the transport accidents. He accepted that chronic pain does interfere with domestic and leisure activities. He considered that the cervical diagnosis was multilevel degenerative cervical pathology in association with the fusion undertaken in 1967. He did not consider that either transport accident changed the structural pathology. He considered that the plaintiff has substantial impairment of the cervical and lumbar spines and moderate impairment from degenerative rotator cuff pathology to the left shoulder.

Did a serious injury result from the first transport accident?

68 I am satisfied that as a result of the first accident the plaintiff suffered, amongst other injuries, a "soft tissue injury" to his neck. I am satisfied that the force of the collision described, and the fact that his first complaints to ambulance and hospital emergency staff included neck pain, are consistent with there having been a significant jolting and injuring of the soft tissues of the plaintiff's already symptomatic and structurally compromised neck.

69 There is no doubt that the plaintiff's cervical spine was already significantly impaired. Not only was there a two level fusion from surgery some 40 years earlier, but also long-standing further degenerative changes already discovered on scans in 2002, 2004 and 2008 at levels both above and below the fusion. There had been exacerbations over the years, with symptoms settling again in time, after medication and sometimes radiological investigation. Notwithstanding that underlying pathology and recurring symptoms, I am satisfied that he led a relatively active life for his age, perhaps reflected in what he told Dr Lewis were the possible causes of the last pre-accident exacerbation of his neck.

70 The plaintiff says that since the first accident his neck has remained painful, although the pain has been eased at times with medication, that he has needed more medication for longer, and he has more frequent headaches and virtually nightly interruption of sleep. However, the notes of his general practitioner's clinic do not bear out that the neck pain was a constant problem from November 2008 even if at varying levels. On the contrary, the notes reflect that other conditions, as well as other injuries suffered in the first accident, were the subject of most visits to the doctor, from the initial right side of chest or rib pain, to right buttock, and knee, to the carpel tunnel condition's worsening. While neck pain was initially reported, and repeated with other injuries on 4 March 2009 (when the main reason for the attendance was for a TAC certificate to enable him to get his glasses replaced from the accident), it did not feature much further until a report on 21/1/10 of a sore muscle in the left side of the neck. There was no referral to a specialist for his neck until after the second accident.

71 In my view of particular significance is that as of July and October 2010, Dr Lewis was reporting that the soft tissue injury to Mr Philippiadis' neck did not appear to have worsened his pre-existing neck problem.

72 None of the other medical opinions, except that of Mr Simm, reflect knowledge that there had been two transport accidents, so they do not differentiate the effects of a neck injury suffered in the first accident from those of the second accident. Mr Simm accepted that plaintiff has residual symptoms in his neck but did not consider it possible to determine whether there was any influence on his longstanding condition from the first accident, and noted he had had cervical symptoms since the fusion operation.

73 Also relevant are the other conditions which were impacting on the plaintiff's life and ability to engage in his previous activities. In an entry in the GP's notes for January 8, 2010, the reason for contact was a care plan, with diet and lifestyle discussed, and it was noted that he was limited with physical activity due to sciatica and pain in right shoulder and hands. There was no mention of his neck condition as contributing to limiting his physical activities.

74 The bilateral carpel tunnel condition had worsened after the accident and came to surgery in 2010, causing pain, interruption of sleep and interruption of ability to engage in various activities including gardening, driving, and massages. While there was some improvement specially on the right side after the surgery, the left side remained a problem and both sides have subsequently become symptomatic again.

75 Insofar as his pre-accident involvement in his wife's "bed and breakfast" business was concerned, his wife changed them into longer term rentals some months after the accident, but the main reason was her own inability to continue to run them due to her own injuries from the accident rather than her husband's inability to do any of his previous tasks to assist her.

76 I am satisfied that as a result of the first accident the plaintiff did suffer neck pain, some more headaches than previously, and shoulder pain some of which was a consequence of his neck injury, although not totally so because both shoulders had longstanding and symptomatic degenerative changes.

77 I find that he has been more limited in his activities since the first accident, particularly in not being able to do as heavy gardening tasks such as mowing lawns, and digging the vegetable garden, now done by a friend, Bill. I find that he is able to do fewer massages now than he could before the first accident, and is now limited to two a week, performed on very longstanding clients and not able to perform deep tissue massage. I accept that although he still drives he cannot drive as far as Melbourne to visit his son without rest breaks, compared with his pre-accident driving tolerance.

78 However, I am not satisfied that the neck injury suffered by him in the first accident caused most or all of this impairment of his activities or even substantially contributed to them, when the role and symptoms of the other injuries from the accident and conditions from which he suffered are considered, including the bilateral carpel tunnel, seeming to have been much more significant in their symptoms and disabling effect during the period between the first and second accident.

79 I accept that Mr Philippiadis genuinely believes that since the first accident he has had symptoms which have significantly limited him from engaging in activities he could previously still manage, such that he feels that they have significantly impacted on his enjoyment of life. However, I must view only the consequences of his neck injury suffered in the first accident when deciding on his application in respect of that accident. When the limited reports of neck symptoms to his general practitioner in the period between the two accidents is taken into account, his general practioner's view that the injury did not appear to have worsened his pre-existing neck condition, and compared with the degree to which other conditions were troubling him as reported to his doctor, I consider that objectively they do not bear out his subjective perception of the origin of the symptoms that now impair his lifestyle. Undoubtedly, his subjective view is probably affected by reconstruction of events in his mind, and also by the combination of injuries and conditions that have impacted on his lifestyle since the first accident.

80 I do accept that the neck injury from the first accident caused him pain, and contributed to headaches and loss of sleep, and that he has needed medication to reduce or relieve them. I am not satisfied however, despite Mr Philippiadis believing it to be so, that these symptoms became constant as opposed to intermittent following the first accident, and I make this finding based on the GP clinic records and Dr Lewis' reports about Mr Philippiadis' condition in the period between the two accidents. All of those symptoms had previously been suffered by him from time to time, required medication to relieve them, and were sometimes acute when exacerbations of his neck condition occurred. On these findings, I am not satisfied that the degree to which his neck symptoms and their impact on his life were worsened by the first accident can fairly be described as more than significant or marked and at least very considerable.

Did a serious injury result from the second transport accident (February 2011)?

81 I am satisfied that the plaintiff did suffer a further soft tissue injury to his neck in the second accident. He presented to Dr Lewis a few days later and thereafter continued to complain of neck pain, of referred pain into his left shoulder and of the pain keeping him awake at night. Dr Lewis regarded the situation as warranting the obtaining of a CT scan of his cervical spine. After further presentations with complaint of neck pain and some pain down the arm, Dr Lewis referred him to a neurosurgeon for opinion, and two cortisone injections were arranged and performed.

82 The views of Dr Lewis provide the strongest support for this injury being a serious injury. They reflect that it was after the second accident that Dr Lewis felt the neck symptoms became more prominent and required more active treatment. Following the second accident, he saw fit to refer the plaintiff for neurosurgical opinion to Mr Chan, the referral letter setting out that the neck condition resulted from two accidents and stating that unfortunately after the second accident it seemed worse.

83 It is also only since the second accident that Dr Lewis has reported his opinion that the plaintiff's neck pain is likely to be an ongoing or recurrent problem.

84 It is not possible to discern from the other medical opinions (except Mr Simm) what role they attribute to the second accident in the cause of the plaintiff's long term neck condition. Mr Simm was not convinced the attribution to the second accident was possible.

85 The plaintiff himself attributes most of the consequences of the injuries he suffered to the first transport accident. He said in his affidavit, and confirmed in cross-examination, that the aggravation of symptoms from his neck and back after the second accident largely resolved within months and he then returned to the condition he had been in following the first transport accident.

86 This is also his reason for not making this application in respect of the second transport accident until years later. I believe his explanation that he only did so on legal advice after he attended a conciliation for the first accident at which the Transport Accident Commission representatives asserted that his alleged consequences of injury were caused by the second accident. Also consistent with that belief is that in giving histories to the various medico-legal doctors who have examined him, he has attributed his symptoms to the first accident and, in most instances, apparently not mentioned the second accident.

87 His wife, in her affidavit, says that after the second accident in 2011 he complained for a short while about having increased back pain, but that seemed to pass in a relatively short time and he was then back to his pre-2011 condition[13].

88 I must consider whether the evidence proves on the balance of probabilities that the injury to his neck suffered in the second accident has resulted in consequences which, viewed objectively, can be fairly described as more than significant or marked and at least very considerable. That requires assessing the consequences only of the worsening of neck symptoms and their impact caused by the second accident. In other words, both the long pre-existing level of neck symptoms and impairment, and the added impact of the neck injury suffered in the first accident, must be assessed and then the qualitative and quantitative worsening caused by the second accident, the latter needing to of themselves reach the "very considerable" level.

89 In this case there must also be consideration of the disabling contribution or impact of other conditions on the plaintiff's activities and lifestyle. Of particular relevance since the second accident has been here is the emergence of the foot drop condition, and also the worsening sciatica.

90 I am satisfied that there has been some long-term worsening of the plaintiff's neck symptoms, his pain, headaches and the interruption of his sleep now being virtually nightly. This is reflected in the GP clinical notes, as well as Dr Lewis' reports.

91 However, the plaintiff's evidence and his wife's is that the reduction in his capacity to engage in gardening, driving without breaks, and performing massages, had occurred before the second accident.

92 In light of the plaintiff's evidence that the impairment on his ability to engage in previous activities to the same extent occurred before the second accident and following the first accident, it is difficult for the plaintiff to discharge his onus of proving that the extent of worsening caused by the neck injury in the second accident meets the level of seriousness required to satisfy the definition. There is only Dr Lewis' evidence that neck symptoms reported have been more frequent and have warranted further medical treatment including specialist opinion and cortisone injections, and may require further injections in the future.

93 Based on the evidence including the plaintiff's own, I am not satisfied that the injury to his neck suffered in the second accident, taking into account only the consequences of the aggravation or worsening of his neck condition, and disregarding the consequences of other injuries or co-existent medical conditions, can fairly be described as more than significant or marked and as at least very considerable.

94 The plaintiff's counsel said in submissions that the application in respect of the second accident was pursued to prevent the plaintiff from "falling between two stools". The law relating to these applications requires me to assess the impact of each alleged injury separately, disregarding the effects of other injuries suffered in the same accident, and not taking into account the combined effects of separate accidents, even on the same body function. As a result and applying those principles, I am unable to find that the neck injury suffered by the plaintiff in the first accident, or the neck injury suffered by the plaintiff in the second accident, have caused consequences great enough taken in isolation from other injuries to meet the requisite level of seriousness to satisfy the definition of "serious injury". If I could have combined the effects of all of the injuries suffered in both transport accidents, I would have been able to fairly describe the consequences to the plaintiff as being at least very considerable and more than significant or marked.

Plaintiff's Affidavits dated 29 November 2013, 22 January 2014, 12 January 2015 and statement by the plaintiff dated 10 December 2010.

Affidavit of Jennifer Philippiadis affirmed 12 January 2015

Medical report from Dr Alison Jarman and Patient Care Reports from Ballarat Health Services dated 7 November 2008

Documentation from Dr Charles Lewis including reports dated 31 October 2010, 11 July 2010, 1 December 2010, 13 March 2011, 16 November 2013, 22 March 2014, 4 September 2014, 18 December 2014 and clinical notes for the period 18 April 2000 to 4 June 2010

Reports of Dr Anthony Capes 15 February 2011 and 15 November 2011

Reports of Mr Thomas Kossman dated 13 July 2012 and 13 March 2013

Report of Dr Patrick Chan dated 26 May 2014 and referral letter and response to Dr Lewis

Report of X-Ray of cervical spine dated 30 April 2008

Report of ultrasound of right shoulder dated 20 October 2009

Report of ultrasound of left shoulder dated 1 December 2010

Report of x-ray of left shoulder and pelvis dated 1 December 2010

Report of CT scan of cervical spine dated 11 February 2011

Report of MRI of cervical spine dated 15 August 2011

Report from Dr Charles Lewis including x-ray reports dated 5 April 2014 (ultrasound of left shoulder) 5 May 2014 (x-ray of left shoulder) and 30 November 2010 (left shoulder ultrasound)

Further extracts from progress notes of Dr Charles Lewis

Copy of Medical Assessment document dated February 2012 on form of Victorian Taxi Directorate

Report in relation to CT scan of plaintiff's cervical spine dated 3 May 2000

Reports of Mr Michael Shannon dated 22 July and 8 September 2011

Progress notes on Plaintiff from Dr Lewis 13 August 2013 to 5 January 2015

[1] The case was opened as based on injury to the plaintiff's neck and both shoulders, but in final address confined to an injury to the neck, the consequences of which included some exacerbation of shoulder pain, especially in the left shoulder.

[2] Humphreys v Poljak [1992] VicRp 58

[3] Bezzina v Phi & Anor [2012] VSCA 161

[4] Lu V Mediterranean Shoes [2000] VSCA 65

[5] Petkovski v Galletti [1994] VicRp 32; [1994] 1 VR 436

[7] Entry in GP notes for 3/12/02 - contained in exhibit D, and summarized in parties' summary of those notes.

[8] Exhibit D (writing illegible on TAC form but described by Dr Lewis in report dated 31/10/10

[9] Exhibit D - report dated 31 October 2010 and report to TAC 11 July 2010

[10] Exhibit A, Affidavit of 22/1/14, paragraph 7; confirmed in cross-examination.

[11] Exhibit D - letter dated 11 July 2010 to TAC and letter dated 31 July 2010 to Plaintiff's solicitors

[12] Exhibit G - report of Mr Chan dated 26/5/14

At a glance

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Judgment (128 paragraphs)

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Cases Cited (1)