Aden v TAC

[2017] VCC 1454

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

 Revised
(Not) Restricted
Suitable for Publication

Case No. CI-12-03273

NASIR ADEN	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

JUDGE:	HIS HONOUR JUDGE JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	9-10 October 2017
DATE OF JUDGMENT:	11 October 2017
CASE MAY BE CITED AS:	Aden v TAC
MEDIUM NEUTRAL CITATION:	[2017] VCC 1454

REASONS FOR JUDGMENT

Subject:  Transport Accident
Catchwords:            Serious injury
Legislation Cited:     
Cases Cited: Richards v Wylie [2000] VSCA 50
Judgment:                Leave granted to bring proceedings for damages

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Middleton QC with Mr J Valiotis	Shine Lawyers
For the Defendant	Mr G Lewis QC with Ms J Frederico	Solicitor to TAC

HIS HONOUR:

1       The plaintiff seeks leave for an impairment of the left foot and ankle resulting from a transport accident on 7 February 2008. The application really resolved to an impairment of the foot. He was a passenger in a car that was involved in a significant impact. The driver lost control and the vehicle hit a pole. His left foot was trapped behind the driver’s seat. He had a very sore foot and ankle and was taken by ambulance to the Western Hospital. He was an inpatient there for several days. After the foot was sutured it was placed in a plaster cast for about three months and physiotherapy followed.[1] The hospital records indicate he sustained a crush fracture of the cuneiform bone in the foot.

[1]Plaintiff’s Court Book (PCB) 7

2       Senior counsel for the defendant stated at the outset that the issue in this application was really an appraisal of the plaintiff’s credit. The defendant also submitted that the unsatisfactory state of the medical evidence did not drive the application absent an acceptance of the plaintiff’s credit. For reasons that I will articulate later I found the plaintiff a reliable and accurate witness as to his left foot pain and impairment. I will set out the reasons why I reached that view and will refer to the medical evidence only briefly.  I should say that I do not accept the submission that the medical evidence was unsatisfactory in terms of it making out the serious injury.

3       By way of background the plaintiff is 31 years old. He is one of 10 children. He came to this country from Somalia when he was eight years old. He is a huge man standing 6’7” tall and weighing about 119 Kg.

4       As a teenager doing athletics he experienced some leg and in particular knee problems. In 2002 he saw Mr H Tsigaris an orthopaedic surgeon at the Western Hospital. The surgeon ordered x-rays. The focus was principally on the knee and hip areas.[2] An x-ray of both ankles and feet on 25 September 2002 reported “Planovalgar feet. No pain.”[3] In other words he had flat feet. It was conceded by the defendant that there is no evidence of any left foot pain caused by the flat foot condition prior to the transport accident on 7 February 2008.

[2]PCB 103-104

[3]PCB 16

5       No treatment by Mr Tsigaris seems to have taken place beyond the investigation. While an MRI was mentioned it appears that none was ever taken. Further Western Hospital notes record some problems with flat feet in 2005 to 2007 but again no pain in the left foot. In fact there was a specific note that could hardly be clearer in relation to his feet when it said ‘issue is not pain”.[4] Whoever the author was at the hospital, the word “not” was underlined for emphasis.

[4]Defendant’s Court Book (DCB) 66

6       On the evidence I find the plaintiff has congenital flat feet. I also find that he suffered no left foot pain prior to it being crushed in the accident. I accept his evidence when he said in cross-examination “I have had flat feet for many years and it’s never caused me a problem.”[5]

[5]Transcript (T)  28

7       After he left school in 2005 he performed manual work at a poultry farm and also some restaurant work. The only work he has ever done involved jobs where he spent a lot of time on his feet. As a very young man he commenced getting into serious trouble with the police and eventually was imprisoned for two lengthy periods. He was finally released from custody in July 2017.

8       Dealing with his affidavit material he has continued to have pain in the left foot over the period now of almost 10 years since the transport accident. It is across the top of the foot where the crush of the cuneiform bone occurred. The foot was painful across the top where it was sutured but also through the sole. I had the opportunity of viewing the scar on the upper part of the foot. It measures about 6 cm x 2.5 cm and it is of irregular transverse appearance. The pain varies in severity. If it is bad he still takes painkilling medication and has done for years. His court and prison records indicate some therapy for pain and medication while in the court and under Corrections over the years. If he stands for too long the foot and ankle swell. He has trouble walking distances and trouble running. This has put him out of playing competitive social basketball and soccer which he enjoyed.[6]

[6]PCB 8 -9,11-15

9       The main consequence relied on this application is pain. I accept his evidence “I have constant pain and at times the pain is severe.”[7] Impairment of earning capacity for manual work was also relied on. The only tax material before the court is for the 2007 tax year and it showed him earning $57,384 gross.[8]

[7]PCB 9

[8]PCB 115-116

10      Between the first affidavit in May 2012 and the up-to-date affidavit on 13 September 2017 the plaintiff has been imprisoned over a number of years. This was initially from November 2013 until March 2016.On his release he breached parole and was imprisoned again from July 2016 until July 2017.

11      I accept his evidence that the foot pain remained even after long periods in prison when there was minimal activity he was engaged in and thus minimum pressure was put on his foot. It is significant that his foot still remained symptomatic and painful with reduced function over that time in prison.[9]  He had recourse to some painkilling medication in prison as well as some active therapy.[10] I accept his evidence that a consequence of his impairment was not being able to pursue vigorous sports while imprisoned. He was also not able to work in prison in the usual way in the factories and kitchen. I accept these restrictions when there were only limited activities anyway he could get involved in, saw his weight go up and made his time in prison more burdensome.[11]

[9]PCB 11

[10]PCB 107-114

[11]PCB 12-14

12      The various court records are consistent with ongoing left foot problems in times when he would have been far more concerned with likely sentence outcomes than medical attention for an injured left foot. Mindful no doubt of the requirements for a sentencing judge or magistrate, on 14 July 2011 the Magistrate at Heidelberg noted in the court records to assist Corrections in terms of custody issues: “DEFT IS UNDERGOING INTENSIVE PHYSIO FOR REHAB OF RECENT FRACTURED ANKLE.”[12]  Then on 13 August 2014 a Magistrate at the Melbourne Magistrates court recorded pain management issues.[13]The court even recorded that he “TAKES NUROFEN REGULARLY.”[14] These sentencing notes are consistent with the plaintiff’s evidence, which I accept, that he was taking pain killing drugs in prison for his left foot. [15]

[12]DCB 114

[13]DCB 139,140

[14]DCB 139

[15]T 64-66

13      I accept pain and discomfort remain to the present time. He has had this pain and discomfort now for close to 10 years and it has certainly been a long-term impairment that he suffered after his foot was crushed. He still has trouble walking longer distances and standing. His left foot still puts him out of sports he formerly enjoyed and which he would still be playing.[16]  He still walks with a limp at times and overall use has not improved since 2008.[17]

[16]PCB 13

[17]PCB 14-15

14      This is a case where there is some medical debate about the pre-existing congenital flat foot problems and the injuries actually suffered in the 2008 transport accident. There is a debate also about what is the precise medical reason behind his present symptoms and impairment.

15      Authority has stated that in a section 93 impairment concerning paragraph (a) the task is to assess whether the crush injury to his left foot has produced an organic impairment of the function of the left foot. I am satisfied on all the evidence that it has. Then the consequences of that impairment need to be assessed. When compared with other cases in the range of possible impairments I need to determine whether the consequences in terms of pain and suffering and loss of enjoyment of life or of loss of earning capacity can be fairly described as being at least very considerable.[18] The constant left foot pain that has lasted for many years now is a very considerable consequence.

[18]Richards v Wylie [2000] VSCA 50

16      As usually bedevils this jurisdiction no doctor has been called. The defendant responsibly submitted the case largely turns on credit and what I make of the plaintiff’s evidence. The medical reports are not all consistent in terms of some of the diagnoses and medical issues. I agree with the defendant’s submission about the plaintiff’s credit being important.

17      It was of considerable advantage in this application to both hear and see this relatively young man who has a very lengthy criminal record cross-examined by very experienced senior counsel. Past criminal history is just one of the factors to be taken into account when assessing credit. He was a witness who impressed me with his straightforward, candid and direct answers. He did not seek to shy away or in any way minimise his extensive past and I found him reliable and at all times attempting to tell the truth.

18      Turning to credit it needs to be said at the outset that the defendant’s court book and cross-examination of the plaintiff involved very serious allegations. It was alleged that the plaintiff manufactured two false TAC medical certificates.[19] These certificates purport to be authored by doctors but it was suggested they were frauds. In a similar vein the suggestion was that some wage records from his former employer had been in fact falsely signed off by the plaintiff in lieu of a payroll manager’s signature.[20] In the end and following the plaintiff’s oral evidence the defendant abandoned these allegations. The documents that it clearly intended to rely on were not tendered although of course they were traversed in cross-examination. Throughout such a serious attack on his credit in my opinion the evidence of the plaintiff was reliable, honest and straightforward.

[19]T 57-60

[20]T 34,50,149

19      He was asked a lot of questions about pre-existing complaints about leg problems prior to the transport accident. He did not recall much by way of the details about those complaints which started back in his teenage years but the probabilities are that they were not of any significance. It is important to note that he appeared to have had some sort of medical examination prior to the poultry farm job on 2 May 2007.[21] The facts are that he went on to work on that poultry farm for some 12 months or so and earned the significant earnings already referred to. I also accept his evidence that he continued to play sport such as competitive basketball and soccer. The probabilities are that his flat feet and any pre-existing knee and leg problems were of no real consequence and certainly presented no impairment for either work, daily life nor general tasks.

[21]DCB 53

20      I draw no adverse inference against him for not remembering details about the precise complaints that he made all those years ago. Given his age, being in a relatively new country and the amount of time since those complaints it is of little moment that he really does not recall any details. What is more to the point, this is a man who has had considerable problems with alcohol, been involved in very serious police trouble and has served five or so  years in prison since that time. It is no wonder his memory of events would be minimal given they are that far back and would pale into insignificance in view of events that have come into his life since.

21      He was taken through his very extensive criminal history. He was asked multiple questions about upwards of 20 offences and court appearances covering years between June 2008 and July 2017. He said repeatedly that he was intoxicated when a good deal of these offences took place and I accept that evidence. This would clearly impact on his memory.  Extensive court records and the orders made in different courts over the years corroborate the plaintiff’s evidence about significant alcohol and drug addiction surrounding his offending. [22]  His failure to recall specific details about the vast majority of these multiple charges did not affect his credit. He did not hesitate in admitting these allegations and repeatedly told the court he had a problem with drink. Given the amount of time he has imprisoned for a number of these offences it is no wonder his ability to recall details of them is not to the forefront of his mind as he attempts to get on with his life.

[22]DCB 106-140

22      Another topic on credit was in regard to entries into a bank account. These appear to have come from his brother on a number of occasions and from his stepbrother on other occasions when they helped him out financially at various times.[23] Given the trouble he has been in I find his explanation of family help reasonable. There was no evidence from any bank officer as to how such entries need to be designated in these days of electronic transfers.

[23]DCB 83,89,93,98,99

23      He candidly admitted that while in prison he got into trouble for selling some prescription drugs on a number of occasions. These drugs were apparently prescribed for him and rather than take them had made some money out of selling them to other prisoners. I gave this no weight given the realities of prison life but it is pertinent that he was receiving script medication.  Other topics on which he was challenged included why he missed some appointments at the Western Hospital back in 2008. He really could not recall why that would happen but these records do show that right up to April 2011 the hospital  required him to   attend the fracture clinic for the left foot crush fracture. [24]

[24]DCB 5-7

24      It is now close to 10 years ago since his foot was fractured and the fact that he could not remember why he missed those appointments is really neither here nor there in terms of credit. What it does show is that probably the leg problems he had back in those years were of less focus than the serious police trouble he was getting involved in.

25      The attack on the plaintiff’s credit including very serious allegations of fraud was unsuccessful. As to his description of his constant left foot pain that has remained with him now for almost 10 years and how it is productive of a number of consequences in terms of restrictions, I found his evidence consistent and reliable. He was barely asked a question in cross-examination regarding pain such was the focus on credit matters. His pain is a very considerable consequence for this relatively young man and the impairment of his left foot function amounts to a “serious injury”.

26      I will deal briefly with the medical evidence but for the reasons I have already mentioned less attention needs to be given to it in view of credit being described as really the single discrete issue in this application.

27      The starting point is really the Western Health material and I have alluded to it already. It is clear from that hospital source that the history of his left foot being caught in metal at the base of the front seat has led to a crush fracture of the medial cuneiform from which a small bone fragment had to be excised. I do not need evidence to inform me that is a major bone in the upper part of the foot. There was a full thickness laceration with approximately 10 cm skin loss. The tendons and veins were on view. Clearly it was a very forceful insult to the structures of the left foot and while there is no specific reference to nerve damage it is clear that the doctors were concerned about such pathology in terms of the language that was used. [25] For example it was noted that “the superficial peroneal nerve was intact” which I take to mean was not severed.[26] I did not read into that reference that there was no impact damage to that nerve or other nerves of the foot.

[25]DCB 5-8

[26]DCB 5

28      There are two brief reports from his local doctor, Dr H Ajmal. The first is undated but clearly was some time after the accident as the doctor reported that “His left foot was improving for the first year and half but now from last one half year there is no improvement in his symptoms and function of foot. He is c/o very often foot pain. He was advised pain relief and physiotherapy at that time.”[27] The second report is dated August 2016. It appears he was last seen by the doctor for foot pain in about 2013. [28] He did not really add anything other than noting his patient had been in prison for some years but it does confirm ongoing pain for those five years from 2008 to 2013.

[27]PCB 21

[28]PCB 22

29      The plaintiff tendered a number of medical reports from the medico-legal witness Professor K Myers. They started in 2010 and ended in 2013. It is not necessary to repeat these in detail but they show a 2 cm wasting of the left calf in 2010. This follows Dr Fish for the defendant noting a 1.5 cm wasting in 2009.  Later another defendant’s doctor, Mr Kierce, found 2.5 cm wasting in September 2017. [29] I find this progressive wasting is consistent with nerve damage that Professor Myers commented on when performing an AMA whole person impairment assessment and finding motor loss in the distribution of the femoral and common peroneal nerves.[30]

[29]PCB 26, DCB 3,32

[30]PCB 27

30      The plaintiff was born with flat feet. His right foot is flat and his left foot is flat. The evidence establishes there has been ongoing wasting of his left leg since the accident. There is no wasting of his right leg. This objective sign points to the ongoing effects of his left foot injury resulting in limited function and use of the left leg.

31      As to diagnosis it seemed Professor Myers described his left foot injury as aggravating pre-existing problems and I take it from that he was probably referring to the pre-existing flat feet problem. As well as the wasting he found an altered patch of sensation over the dorsum of the foot and weakness of plantar flexion of the foot.[31] These findings are all consistent with permanent damage to the nerves of the foot.[32] Prof Myers commented some 5 ½ years after the accident that Mr Aden has “an injury to left foot which is causing ongoing pain. This has resulted in weakness and wasting of the left calf and thigh.”[33] The professor of surgery ended by saying “I consider that all of these problems result from the transport accident and not from any pre-existing condition.”[34] He was somewhat hesitant initially about the precise pathology causing what appeared to him to be genuine pain, but ultimately came to the opinions referred to. I accept the opinions of Professor Myers as being  well argued and considered across four reports in describing damage to the cuneiform bone, but also to soft tissue structures including  tendons and nerves of the left foot, which  are a continuing impairment with wasting that is increasing as time goes on.

[31]PCB 33

[32]PCB 34

[33]PCB 33

[34]PCB 33

32      Mr Russell Miller also provided some five reports starting in 2011 and ending in August 2017.[35] They are extensive and it is not necessary to go through each of these in detail. He also found significant calf muscle wasting when he first saw Mr Aden in 2011. He thought by way of diagnosis at that early stage that there were clinical features of both bony injury as well as soft tissue problems.[36] He considered further material and said that the pre-existing flat foot problem had been made worse and in effect had been significantly aggravated by the motor vehicle accident.[37]

[35]PCB 50-78

[36]PCB 53

[37]PCB 57

33      Then in 2013 he reported that there had been “significant tibialis posterior dysfunction, development of plano-valgus deformity and aggravation of degenerative disease.”[38] In 2016 he reported that the situation was largely unchanged and he finally examined Mr Aden as recently as August this year. He repeated his diagnosis that the flat foot deformity had been aggravated by the accident and that there was tibialis posterior tendon pathology and slow disease progression. Left foot symptoms and disease evolution that he described were predominantly the effects of the transport accident.[39]

[38]PCB 62

[39]PCB 76

34      I accept Mr Miller’s opinion that the crush injury to the left foot has resulted in damage to a number of structures of the foot that include bone, tendon and nerve tissue. Probably there has also been an additional aggravation of the pre-existing flat foot deformity but whether or not that additional damage has been proved, it does not alter my finding that  the ongoing left foot pain is the result of organic injury to the foot structures.

35      I will only turn briefly to the medical material relied on by the defendant in view of what I have concluded as to the plaintiff’s credit. It started with an October 2009 report from Dr David Fish. As stated at that stage about 18 months after the transport accident he noted 1.5 cm wasting and the crush fracture of the cuneiform bone. He thought the plaintiff was then still suffering from the residual effects of the fracture and required intensive physiotherapy. He was only fit at that stage for seated work.[40] He did not see the plaintiff again but was clearly describing an organic injury to the foot.

[40]DCB 3-4

36      Professor S. Davis, neurologist, also only saw the plaintiff once and it was in November 2011. He concluded that there had been a crushing fracture to the medial cuneiform bone and that the plaintiff had chronic pain in the foot. He found some minor sensory disturbance and mild permanent impairment that reflects nerve damage. He found a permanent impairment by way of peroneal sensory disturbance over the dorsum of the foot.[41] In a later brief letter in 2011 he quoted what Professor Myers had said in relation to sensory disturbance. Professor Davis thought the problems were almost exclusively orthopaedic in nature with some involvement of the left superficial peroneal nerves in terms of sensory impairment that was minimal.[42] I accept this witness as supporting the view that as well as the fracture there were other structures of the foot damaged in the transport accident productive of what he said was chronic pain.

[41]DCB 10-12

[42]DCB 23

37      Mr M Shannon reported in 2011 after examining the plaintiff on one occasion only. Inexplicably he did not find any wasting.[43] He is on his own in not finding this objective sign of injury at clinical examination. Without hearing from him I am not prepared to accept Mr Shannon’s opinion when he concluded that he could not find any accident related abnormality in the left foot that explained Mr Aden’s symptoms.[44]

[43]DCB 22

[44]DCB 18

38      The final doctor engaged was Mr P Kierce who reported in September 2017. He recorded 2.5 cm wasting.[45] He also found on clinical examination some numbness and thought it may be a neuroma in the superficial peroneal nerve but he was unable to find any definite orthopaedic diagnosis for the left foot pain. [46] He accepted that Mr Aden suffered a compound fracture of the medial cuneiform bone but felt a chronic pain disorder or syndrome had developed. In other words it was now a psychologically based pain. The weight of the evidence points to organically based pain. I accept the weight of that evidence rather than the opinion of Mr Kierce who did not adequately state the reasons he came to his view. After so many years of constant physically based pain it is no surprise if there has been some psychological or emotional reaction.

[45]DCB 32

[46]DCB 33

39      Finally the defendant relied on a report from Mr M Dooley, orthopaedic surgeon, who the plaintiff was referred to in March 2013 to presumably explore orthopaedic surgical options. Mr Dooley did not think “any specific ongoing orthopaedic treatment” was required.[47] He could not find any definite abnormality in relation to soft tissues but it seemed he qualified his opinion because he did not have the opportunity to review radiology. He still felt that there would be intermittent pain in the foot and this was a few more than five years after the accident. His report reads like he was really looking for an orthopaedic surgical approach but that was advised.

[47]DCB 25

40      The plaintiff has proved his constant pain which he still suffers after nearly 10 years is a very considerable consequence of the left foot impairment in terms of pain and suffering and loss of enjoyment of life. It is not necessary to deal with the loss of earning capacity claimed but less there is any doubt about that I am satisfied he has suffered a loss of his former capacity to work in jobs where he is constantly on his feet.

41      I grant leave to bring proceedings for the recovery of damages.