Alampi v Transport Accident Commission
[2013] VCC 1790
•22 November 2013
| IN THE COUNTY COURT OF VICTORIA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-04308
| ALFRED GERARD ALAMPI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6, 7 and 8 November 2013 | |
DATE OF JUDGMENT: | 22 November 2013 | |
CASE MAY BE CITED AS: | Alampi v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1790 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Transport accident – injury to the neck – whether the impairment consequences are “serious” – head injury – subsequent brain tumour – whether the impairment consequences were caused by the head injury or the brain tumour – whether the consequences are “serious”
Legislation Cited: Transport Accident Act 1986, s93(4)(b)
Judgment: The plaintiff has leave to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Anderson | Shine Lawyers |
| For the Defendant | Mr G Lewis SC with Mr Gates | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed on 8 September 2011 by which the plaintiff applies for leave pursuant to s93(4)(b) of the Transport Accident Act 1986 (“the Act”) to bring a proceeding to recover damages for injuries suffered by him arising out of a transport accident which occurred on 23 April 2008.
2 Mr B Anderson of Counsel appeared for the plaintiff and Mr G Lewis, Senior Counsel, appeared with Mr P Gates of Counsel for the defendant.
3 The application is brought pursuant to s93(4)(d) of the Act. Subsection (6) provides that a court must not grant leave under ss(4)(d) unless the court is satisfied that the injury is a “serious injury”.
4 The definition of “serious injury” relied upon by the plaintiff is under ss(17) – serious long-term impairment or loss of a body function.
5 The injuries suffered by the plaintiff for which leave is sought are injury to his neck and a brain injury.
6 The following evidence was adduced at the hearing of the plaintiff’s proceeding:
· The plaintiff gave evidence and was cross-examined;
· Ms S Sloan, neuropsychologist, gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”), pages 4-149: Exhibit A;
· The defendant tendered its Court Book (“DCB”), pages 31-45; 54.1; 62-63.6; 83.1-83.5; 106-137 Exhibit 2.
The Plaintiff’s background
7 The plaintiff was born in 1968 in Mooroopna. He is a single man. He lives with his mother on the family farm at Tatura. The family farm comprises an 85-acre orchard.
8 The plaintiff last attended the Shepparton North Technical School. He completed Year 11. He subsequently commenced an apprenticeship as a panel beater, which he completed in four years.
9 The plaintiff worked as a panel beater for about ten years post the completion of his apprenticeship. He subsequently operated a café business with his sister for about four-and-a-half years. He returned to the family orchard for some time doing general work, before commencing employment with Shepparton Terrazzo Works Pty Ltd (“STW”) as a truck driver.
The transport accident
10 On 9 September 2005, the plaintiff was driving a Volvo prime mover to which “A” and “B” trailers were attached. The trailers were loaded with concrete panels manufactured by STW. He was driving the rig along the Goulburn Valley Highway on the way to Melbourne.
11 The plaintiff drove the rig into a sweeping right-hand bend. It would appear that he lost control of the rig, with the result that it left the roadway.
12 According to the plaintiff’s affidavit sworn 4 October 2011, he remembered looking into his left-hand rear-vision mirror and observing that a trailer, or perhaps both of them, were not in position on the roadway where he expected them to be. He believes that strong winds may have caught the rear end of the load on the trailers, making it hard for him to control the prime mover.
13 The plaintiff was removed from the scene of the incident by ambulance. According to the same affidavit, he has only a vague recollection of being stuck in the prime mover.
The issues
14 The plaintiff suffered a fracture of the C2 vertebra in his neck. Mr Anderson submitted that the evidence supported the conclusion that the plaintiff has suffered a serious long-term impairment of the function of his neck. Mr Lewis submitted that the evidence did not support that conclusion.
15 The plaintiff suffered a brain injury. Unfortunately, he also suffered a tumour in his right temporal lobe. It was diagnosed as a diffuse astrocytoma. It was treated surgically on 5 August 2007. He underwent a second bout of surgery on 30 August 2007 to remove one of two small areas of residual tumour in the hippocampus. A subgaleal collection in his brain was later drained surgically. After the last episode of surgery he underwent six weeks of radiotherapy.
16 Mr Anderson submitted that the plaintiff had suffered a brain injury, resulting in cognitive impairment which supports the conclusion that he has suffered a serious long-term impairment of the function of his brain. The issues for me to determine are:
· Did the plaintiff suffer a brain injury as a result of the transport accident?
· Did that brain injury result in impairment consequences before the tumour was diagnosed?
· Was the tumour actively symptomatic at around the time of, or after, the transport accident?
· If it was, then did the tumour cause the impairment consequences which the plaintiff says were caused by the transport accident?
· If the plaintiff suffered impairment consequences which are causally related to the transport accident and impairment consequences causally related to the tumour, then to what extent do they contribute to the present impairment consequences experienced by the plaintiff?
· If it is possible to distinguish the impairment consequences caused by the brain injury and the tumour, are the impairment consequences causally related to the transport accident “serious”?
17 Mr Lewis essentially agreed with my breakdown of the questions relevant to the brain injury. He submitted that there is persuasive medical and neuropsychological evidence to support the conclusion that, despite evidence that the plaintiff suffered a brain injury as a result of the transport accident, the impairment consequences he subsequently experienced are due to the tumour, and not the transport accident.
The injuries
18 The plaintiff was removed from the scene of the incident by ambulance. He was taken to the Northern Hospital. He was admitted as an inpatient. On examination, he was noted to be initially disoriented, but became oriented within 10 minutes of admission.
19 The ambulance officers who conveyed the plaintiff to the hospital must have informed the medical practitioners who initially treated the plaintiff that the plaintiff was experiencing neck pain. The ambulance patient care record completed by the attending ambulance officers on the day of the occurrence of the incident discloses that the plaintiff’s main problem was severe neck pain.[1]
[1]PCB 82-83
20 On admission to the hospital, the plaintiff had a CT scan. According to the radiologist who performed the scan, the CT scan showed a transverse fracture across the superior aspect of the body of C2. It was also described as a non-displaced type III odontoid fracture of C2.[2] On the following day (10 September 2005), the plaintiff had a halo thoracic brace applied under local anaesthetic. Under examination-in-chief, the plaintiff said that the brace was fixed by screws to his forehead to a brace around his chest. The evident purpose was to reduce the plaintiff's upper body movements to allow the healing of the fracture.
[2]PCB 23 and 47
21 The report of the hospital dated 29 May 2011 sets out the treatment which the plaintiff was provided at the hospital. He was discharged as an inpatient on 19 September 2005. He was seen as an outpatient on 4, 18, and 25 October 2005; 29 November 2005; 13 December 2005 and lastly on 7 February 2006. Over the period from his discharge as an inpatient to when he was discharged as an outpatient, he had four further CT scans on 12 September 2005,[3] 19 October 2005,[4] 13 December 2005[5] and 16 December 2005.[6]
[3]PCB 27-28
[4]PCB 30
[5]PCB 35-36
[6]PCB 37
22 The CT scan taken on 12 September 2005 demonstrated an unstable C2 fracture, and of interest to the brain injury he was noted by the radiologist to be suffering from persistent confusion. The CT scan taken on 19 October 2005 showed an undisclosed type III dens fracture of C2. The CT scan taken on 13 December 2005 showed a fracture line across the base of the left C2 articular facet extending inferiorly to involve the articular surface of the facet joint on the left side of C2, and obliquely across the body of the C2 vertebra. Again, it was described as a type III fracture of C2. The CT scan taken on 16 December 2005 showed a non-displaced oblique type III fracture involving the C2 body inferior to the dens and with the fracture line extending into the left lateral process. The left side of the fracture line was still visible, but the right side of the fracture appeared indistinct, suggesting new bone formation.
23 Dr Coulthard, general practitioner, referred the plaintiff to have another CT scan. It was taken on 20 September 2006. The radiologist reported that it showed old healed fractures of C2 to the right of the midline anteriorly and the left of the midline posteriorly. The fractures were noted to be in anatomical alignment. It also showed that there was no evidence of facet arthropathy, and otherwise showed no other abnormality.[7]
[7]DCB 49
Post hospital discharge
24 After the plaintiff was discharged from the hospital as an outpatient he made a successful attempt to return to work with STW in either late 2005 or early 2006. The plaintiff could not recall precisely when it was he returned to work. In any event, he worked in the office of STW for some time. He was then able to return to truck driving with STW until he began to show evidence of the effect of the tumour. He drove a truck from about mid 2006 to about mid 2007.
25 During the period that he worked for STW the only treatment he obtained was physiotherapy treatment. It was provided by Mr Marx, physiotherapist who provided the plaintiff with seven episodes of physiotherapy treatment from 27 April to 19 June 2007. The treatment involved ultrasound, passive mobilisation of C1, C2 and the C3 facet joint, and with a home exercise regime.[8] The plaintiff was not using any medication of any kind for pain relief during that period.
[8]PCB 50-51
26 The plaintiff saw Dr Coulthard in about June-July 2007. By that time the plaintiff was experiencing seizures, which Dr Coulthard thought were epileptic fits. He referred the plaintiff to Dr Prentice, neurologist. It would appear that the plaintiff saw Dr Prentice in early June 2007. He referred the plaintiff to have an MRI scan, which was taken on 11 July 2007. According to the radiologist, it showed a tumour in the right temporal pole.
27 Dr Prentice referred the plaintiff to Mr Murphy, neurosurgeon, for an opinion. The lesion was diagnosed as a diffuse astrocytoma. Mr Murphy undertook each of the operations of the plaintiff’s brain which I have summarised in paragraph 15 above. Dr Prentice took steps to prevent the plaintiff from truck driving for five years. The plaintiff was able to drive a car. He was cleared by Dr Prentice to return to truck driving in about 2012.[9]
[9]The letters and reports of Dr Prentice and Mr Murphy are at PCB 52-62 and 69-80
28 The plaintiff first returned to work after treatment of the tumour with Wiggs Muscle Car Parts in 2011. He obtained a job through an organisation known as Work Trainers. The job came to an end because the plaintiff had a disagreement with the employer. It would appear that the employer was undertaking panel beating work without the relevant qualifications, and without the correct equipment.[10]
[10]Transcript 42
29 The plaintiff next obtained employment with STW on a 13-week contract, working 15 hours per week. After completion of that contract, the plaintiff engaged in a course of study. He has completed short courses in Civil Construction Certificate III and Transport and Logistics Certificate III. Through those courses the plaintiff has obtained licenses to operate a bobcat and an excavator. He also obtained a traffic control ticket and a certificate in Occupational Health and Safety.[11]
[11]Transcript 46-48
30 The plaintiff candidly conceded that if he had not suffered the tumour and its consequences that he would still be truck driving for STW.[12] It would appear that the work he did with Wiggs Muscle Car Parts and STW under contract was work that he was capable of doing. He did not give any evidence to suggest that he had any difficulty doing the work, except for the disagreement which he had with his employer at Wiggs Muscle Car Parts.
[12]Transcript 38-39
The neck injury
31 Mr Lewis submitted that the plaintiff has made a reasonable recovery from a potentially serious injury to his neck. He has not had any treatment since his discharge from the hospital save for some physiotherapy treatment. He was not absent from his employment with STW between mid 2006 and mid 2007. If it were not for the tumour he would still be working as a truck driver with STW. In any event, his capacity to return to work even after suffering the tumour is demonstrated by the fact that he was able to return to work with Wiggs Muscle Car Parts and STW, and by his acquisition of further training which equips him with skills which he can exploit in the workforce.
32 Mr Anderson submitted that an examination of the evidence demonstrates that the plaintiff has suffered a serious injury, even though most of what Mr Lewis submitted is an accurate picture of the plaintiff’s treatment and capacity for work.
33 In determining the impairment consequences which the plaintiff says are serious, it is necessary to not only explore what the plaintiff said in his affidavits, but also what he said to examining medical practitioners, and their opinions of the nature and extent of the injury to his neck, and the extent to which it incapacitates him generally and in his retained capacity for work.
34 The plaintiff swore an affidavit on 4 October 2011 in which he said very little about the impairment consequences of the injury to his neck except for some very general references. He said:
“11I continue to suffer from a range of ongoing problems as a result of the truck accident. I suffer from pain and stiffness in my neck. The pain is always there. I also suffer from an unusual sensations like an electric current going down my right arm in to my two middle fingers. I have to be very careful with my movements. I have to make sure that nobody bumps in to me. I have trouble sleeping because of my neck and right arm problems.”[13]
[13]PCB 8
35 In his next affidavit sworn 19 November 2012, the plaintiff said:
“6I continue to suffer from pain and stiffness in my neck. The pain is always there to some extent. I have learned to live with the pain as best I can and to compensate to my injury by avoiding particular or sudden movements or any impact or jarring. The neck pain gets worse with stress. The pain also gets worse in cold weather. On some days my neck will make a clunking sound when I turn it. My neck stiffens up if I don’t move it enough, but if I move it too much then the pain levels increase. So I have a delicate situation were I can’t move my neck too little or too much.
7I continue to suffer from sensations going down my right arm in to my two middle fingers. I can no longer turn my head quickly or repeatedly because this causes pain through my neck. I am constantly aware of my neck problems. I nurse my neck and I protect it from sudden or repetitive movement.
8I continue to have difficulty with sleeping because of my neck problems. If the angle of my head is wrong then I will get woken up by neck pain and stiffness. I will often wake up during the night with a stiff neck and my neck will always be stiff in the mornings.”[14]
[14]PCB 11-12
36 In his last affidavit sworn 13 September 2013, the plaintiff said that he continues to suffer from all of the problems which he set out in his previous affidavit.
37 Mr Shannon, orthopaedic surgeon, examined the plaintiff on 10 August 2011 and 10 July 2012. He provided three medical reports dated 15 August 2011,[15] 16 July 2012,[16] and 24 October 2012.[17] In his first report, he recorded the following history:
“He states that his neck gets intermittently stiff, particularly in the morning.
He has difficulty in sleeping.
He has pain extending to the right trapezius muscle, the shoulder and upper arm, but this is intermittent.
Arm pain tends to occur when he stress[es] his neck.”[18]
[15]PCB 99-103
[16]PCB 104-107
[17]PCB 108-109
[18]PCB 100
38 On examination, Mr Shannon found the following:
“ He has mild restriction of cervical movement and a full range of shoulder movement. There is no neurological abnormality in the upper limbs.”[19]
[19]PCB 100
39 Mr Shannon was of the opinion that the plaintiff had suffered a fracture at the base of the odontoid process of the C2 vertebra extending into the lateral process and facet joint. He considered that it was a significant injury particularly because it involved a facet joint. He then said:
“The region of the spine involved is these cervicothoracic spine and the clinical findings are that he has relatively mild restriction of movement, but radiological evidence of involvement of posterior elements and in particular, a facet joint which I would regard as a significant injury.”[20]
[20]PCB 101
40 In his second report, Mr Shannon recorded the following history:
“ In regard to the neck, he states that he still has quite a bit of soreness in the neck, particularly in cold weather.
He has difficulty in sleeping and has to constantly change position.
He has noticed episodes of clicking and clunking associated with more severe pain in the neck lasting a few minutes.
He has constant background ache in the neck, but has got used to it.
He finds that his symptoms are worse when he is stressed.
He is taking no medication for pain, but uses an occasional heat pack.
… .”[21]
[21]PCB 105
41 Mr Shannon then expressed the following opinion:
“There has been little change in Mr Alampi’s condition since my previous examination.
He has ongoing discomfort and stiffness in his neck with occasional mechanical symptoms associated with more severe pain.
As mentioned, it is probable that his fracture has soundly united, but I have no detailed information on more recent Scans to confirm this.
Assuming that the fracture is soundly united, he has reasonable function in his neck and from the point of view of his fracture, he would be capable of resuming driving duties, although given the significant neck injury he would probably be advised to avoid heavy loading and unloading.
However, from the point of view of his neck, he is capable of driving a truck or other light to moderate physical work.
… .”[22]
[22]PCB 106-107
42 Mr Shannon was provided with three computer discs showing the radiology relevant to the plaintiff’s neck. He was asked to make comment on what he saw on the radiology. It would appear that he was specifically asked to determine whether the fracture has united or not. He operated on the assumption that the fracture has united. He then said:
“With or without healing of the fracture, I would not recommend purely in regard to the neck injury, that he go back to unrestricted truck driving, particularly loading and unloading and I would certainly advise him against going back to road trail bike riding, jet skiing and possibly vehicle restoration.
Even if the fracture had united, I would expect him to be left with residual problems in the neck because this is a significant injury to the cervical spine and my recommendations on activities are outlined in my report.”[23]
[23]PCB 109
43 The plaintiff was examined by Mr Brearley, orthopaedic surgeon, on 26 April 2012 and 21 August 2013. He provided two reports dated 26 April 2012,[24] and 21 August 2013.[25] In his first report he recorded the following history:
“He says he has continued to have problems with his neck. He is unable to turn his head normally and he cannot run rapidly or repeatedly. He says that when he becomes stressed he has neck stiffness and pain in the neck. On a busy day his neck is also stiff and somewhat painful.”[26]
[24]PCB 87-92
[25]PCB 120-124
[26]PCB 88-89
44 On examination, Mr Brearley found the following:
“… There is some limitation of neck movements. Flexion is to 45°, extension is to 30°. Lateral flexion to right and left are to 30° and rotation is to 60° to both sides. He has pain on full … rotation.”[27]
[27]PCB 90
45 Mr Brearley was of the opinion that the plaintiff had suffered a permanent impairment of the function of his neck, noting that the injury involved the articular surface of a facet joint. Mr Brearley discussed the plaintiff’s vocational options. In that respect, he said:
“ He has in fact made a good recovery from his neck injury but he still has some ongoing symptoms as described above.
He would have difficulty doing his former job as a truck driver in the long-term and he should do work which is less taxing as far as his neck is concerned for there has been a significant injury there. He does need to avoid working with his neck flexed for long periods and he would have to avoid repeated turning of the head.”[28]
[28]PCB 91
46 In his second report, Mr Brearley recorded that the plaintiff told him that there had been no real change in the condition of his neck since he first saw him. He was of the opinion that the plaintiff was capable of doing relatively light work only. He said that the plaintiff would not be able to do manual work associated with truck driving but would be capable of truck driving, for example, driving a truck carrying containers.
47 Professor Hart, orthopaedic surgeon, examined the plaintiff on 9 May 2012. He provided a report dated 9 May 2012.[29] He recorded the following history:
“Mr Alampi complains of mild intermittent neck pain, which involves the entire neck. He said that he also suffers from intermittent neck stiffness. The pain radiates to the lateral aspect of his right arm, but does not extend beyond the elbow. He is not aware of any aggravating factors. He is able to turn and extend his neck freely. He is not experiencing any paraesthesia in the upper extremities … .”[30]
[29]DCB 31-45
[30]DCB 39
48 On examination, Professor Hart found the following:
“He was tender at the mid-cervical region in the mid-line, but there was no spasm of the erector spinae muscle.
There was an almost full range of flexion/extension. Rotation was to 70 degrees bilaterally and there was a full range of lateral flexion bilaterally.
… .”[31]
[31]DCB 40
49 Professor Hart was of the opinion that the plaintiff had suffered a fracture of the body of C2 extending into the facet joint of that level. He was of the opinion that the fracture had healed in good position, and that the plaintiff had recovered a good range of movement in his neck, but was suffering from mild intermittent pain. He considered that the plaintiff was able to return to his pre-injury duties as a truck driver with no restrictions.
50 Dr Horsley, occupational physician, examined the plaintiff on 10 April 2013. She provided two reports dated 10 April 2013[32] and 10 November 2012.[33] In her first report, she recorded the following history:
“Mr Alampi has ongoing neck stiffness and discomfort. The discomfort ‘comes and goes’. It can be activity related. It can be spontaneous. It particularly exacerbates if he is tired. It resolves with sleep and rest. When he does experience discomfort it can be up to 6 out of 10. He can also experience a locking sensation with a load [skil loud] clunk approximately once per day. When this occurs it lasts for a second and it is 9 out of 10 on the visual analogue scale. He can experience discomfort into the upper right lateral arm at times. He suffers from headaches which he believes are more related to his brain tumour. …
He has normal functional tolerances with a normal sitting, walking, dynamic standing and static standing tolerance and driving tolerance. He states that his driving tolerance is up to eight hours with rest breaks. He prefers an automatic vehicle and an automatic truck.”[34]
[32]PCB 113
[33]PCB 110-112. The date on the report should be 10 November 2013
[34]PCB 116
51 On examination, Dr Horsley found the following:
“Cervical movement was restricted. Forward flexion was normal. Extension was reduced in the last 10 to 20°. Left and right lateral flexion and left and right lateral rotation will limited in the last 10 to 15°.”[35]
[35]PCB 117
52 Dr Horsley then expressed the following opinion:
“ He sustained an undisclosed fracture of C2 involving posterior elements and has ongoing disability with persistent intermittent discomfort and a mild restriction of movement. The fracture of the C2 vertebra extended into the lateral process and facet joint.”[36]
[36]PCB 118
53 Later, Dr Horsley added:
“ Given the length of time since the injury and ongoing nature of the symptoms, I believe that the symptoms are likely to persist. Mr. Alampi has been retrained with a Civil Construction Certificate III and a Transport and Logistic Certificate III and hopes to move into the road construction area. He hopes to work with excavators and bobcats. I have reservations about the prudence of this, with the repetitive vibration involved. This is likely to be instrumental in accelerating the degenerative process at the C2 facet which is likely to result in increasing stiffness and further loss of range of motion in the cervical spine into the longer term. It would be hoped that with his retraining, that he will be able to move into a more supervisory role into the longer term. There are road machines with a non vibratory component, such as rollers and multi-rollers which would be more physically appropriate into the longer term.”[37]
[37]PCB 118
54 Lastly, Dr Horsley added that there were no major physical restrictions to the plaintiff returning to suitable work except to avoid operating machinery with a significant vibratory component for an extended period.
55 Under cross-examination, the plaintiff said that in his own assessment he can move his neck to at least 80 per cent of normal range or through a reasonable range of movement. He also said that he agreed that as at mid-2012, he was experiencing mild intermittent neck pain.[38] Under re-examination the plaintiff said that he presently has pain in his neck. It was very rare that he was free of pain, and that he experiences pain every day, and for most of the day.[39]
[38]Transcript 55
[39]Transcript 66
56 The plaintiff candidly admitted that he is capable of engaging in truck driving with restrictions. Essentially, he said that he could return to the same level of truck driving that he engaged in between June 2006 and July 2007.
57 The last medical treatment obtained by the plaintiff was the physiotherapy provided by Mr Marx. He has not been prescribed any medication to treat his neck condition nor does he take any non-prescription medication.[40]
[40]Transcript 52
The Plaintiff’s capacity for work
58 The plaintiff’s injury to his neck prevented him from pursuing his occupation as a truck driver from the date of the occurrence of the transport accident until mid June 2006. From about mid 2006 to about mid 2007, he returned to work as a truck driver. Under re-examination, he clarified what that truck driving involved:
Q:“You gave evidence that between mid-2006 and mid-2007, when you went back to work truck driving - - -?---
A:Mm’hm.
Q:--- most times guys would chain the loads down for you. Why were they chaining the loads down for you during that year?---
A:I was unable to do it myself.
Q:Why were you unable to do it?---
A:Because of my neck.
Q:So were your workmates aware of your neck problem during that year?---
A:Yes.
Q:Did they look after you?---
A:Yes.
Q:If you got that old job back - that old truck driving job that you were doing from mid-2006 to mid-1007 - - -?---
A:Yes.
Q:- - - would you still need them to do most of the chaining work?---
A:Yes.
Q:Why is that?---
A:Because of my neck.
Q:When you went off to the physiotherapist and had those sessions during 2007, were you still driving trucks at that time?---
A:Yes.”[41]
[41]Transcript 62-63
59 Under re-examination, the plaintiff said that he could not return to his old trade as a panel beater because of the injury to his neck. He said that panel beating work and crash repairs was heavy work which needed to be undertaken “fast” with a fast turnaround. He was cross-examined and re-examined about his capacity to undertake restoration work on vehicles. It arose because the plaintiff has restored a Camaro car and has taken it to car shows. Under re-examination, he described the restoration work as a hobby; that he engages in it to keep occupied, and he undertakes it at a reasonably slow pace.[42] The plaintiff described how he has gone about undertaking restoration work on the Camaro. I was left the impression that it is not particularly arduous work, and is undertaken by him in a leisurely fashion.[43]
[42]Transcript 65-66
[43]Transcript 55-61
60 Prior to the occurrence of the transport accident, the plaintiff was able to engage in truck driving without restriction. Although it was not my impression that he engaged in any particularly arduous or repeated tasks involving chaining down loads, it was something which he did from time to time, and importantly, it was something which he was able to do without restriction. I accept the plaintiff’s evidence that he cannot engage in chaining down loads nor in truck driving involving elements of manual labour. The manual labour he was referring to was in relation to driving trucks with Tautliner curtains which need to be drawn around loads and fixing gates onto the trays of trucks which would involve lifting and manual handling.[44]
[44]Transcript 67
61 The plaintiff was also cross-examined and re-examined about his capacity to undertake industrial spray painting and to drive a bobcat and an excavator. It was my strong impression that the occupation of industrial spray painter would impose stresses and strains on the plaintiff’s neck which he would not be able to tolerate, or not be able to tolerate for very long. Similarly, it was my strong impression that the plaintiff had not engaged in any work operating a bobcat or an excavator. I do not accept that he could realistically undertake work as an industrial spray painter nor as the operator of a bobcat or excavator. My principal reason for reaching that conclusion is not only because that work would impose stresses and strains on the plaintiff’s neck, but because there is sound medical support for that conclusion.[45] Dr Horsley counselled against the plaintiff undertaking work of that kind.
[45]Transcript 66-67
62 A feature of the plaintiff’s evidence which was not challenged by Mr Lewis was his candour in the quality and reliability of the answers he gave when cross-examined and re-examined. I have no hesitation in concluding that the plaintiff is both a creditworthy and reliable witness. He made every effort to give a good account of the impairment consequences of the injury to his neck. Indeed, the plaintiff was candid with the examining medical practitioners in describing the impairment consequences of the injury to his neck, and his capacity for work. What he told the examining medical practitioners is entirely consistent with what he deposed to in his affidavits and what he gave in his oral evidence.
Impairment consequences of the neck
63 After considering the relevant evidence which I have summarised above, the conclusions I have reached regarding the impairment consequences contended for by the plaintiff are as follows:
· The plaintiff suffered a major injury to his neck from which he made some measure of recovery. Mr Shannon and Mr Brearley were impressed by the seriousness of the damage to the plaintiff’s neck to describe the injury as significant.
· The plaintiff was incapacitated for work from the date of the occurrence of the transport accident to about mid June 2006.
· He was not able to return to the same level of physical functioning as a truck driver when he returned to that occupation in mid June 2006. His fellow workers knew of his injury and accommodated him to the extent that the plaintiff did not engage in any manual work such as chaining down loads. It would appear that he was limited to undertaking the straightforward tasks of truck driving only.
· The plaintiff has had a level of pain which he experiences daily, to varying degrees. I do not accept that because he described his right level of recovery as being 80 per cent, and that he accepted that he has intermittent pain, is necessarily consistent with the whole body of the evidence which I have reviewed. The relevant evidence is not only what the plaintiff deposed to in his affidavits, but also the histories recorded by the examining medical practitioners and his cross-examination and re-examination. I think his answers in re-examination are a very good summary of the nature and extent of the pain and limitation of movement he experiences. He said that he presently has pain in his neck. It is very rare for him to be free of pain. He experiences pain every day, and for most of the day.
· In addition to pain, he suffers stiffness. He has to be careful with the movements he performs with his neck. He needs to be careful that he is not bumped. His sleep is interrupted by pain.
· He suffers from some pain radiating from his neck into his right upper limb. There is practically no medical evidence diagnosing the cause of that pain. However, he gave a history of experiencing that pain to Professor Hart and Dr Horsley, neither of whom doubted that he suffers that pain, and I infer that they accepted its relationship with the injury to his neck.
· The plaintiff is not fit to engage in panel beating work involving crash repairs. He needs to be careful not to engage in vibratory work, such as operating a bobcat or an excavator.
64 Mr Lewis submitted that it is for me to balance what the plaintiff has lost as opposed to what he has retained. He submitted that the nature and extent of the pain and disablement plaintiff has suffered is modest. He submitted that the plaintiff has retained a capacity to work full-time as a truck driver; to restore cars; to ride a motorcycle to the extent demonstrated by the traffic infringements imposed on him,[46] and he has had little medical treatment.
[46]DCB 108-119
65 I have considered the plaintiff’s evidence, the medical evidence and the addresses made by Mr Anderson and Mr Lewis. The conclusion I have reached is that the plaintiff has suffered a serious long-term impairment of function of his neck.
66 Essentially, when I have undertaken the process of balancing what the plaintiff has lost as against what he has retained, what emerges is that the plaintiff has suffered each of the consequences which I have summarised in paragraph 63 above. What impresses me about those consequences is that they impact upon most aspects of the plaintiff social, domestic and working life, and that has been the case since the occurrence of the transport accident in 2005, which is a period of eight years. It is likely that he will continue to suffer those consequences for the balance of his life.
67 I am not persuaded that the absence of medical treatment weighs against the plaintiff. It is reasonably clear from my analysis of the medical evidence that the plaintiff does not require any particular medical treatment. That would appear to be the case, because there is nothing he can be offered to ameliorate the symptoms of pain and to improve his capacity to work. The fact that he is not using any medication, I think, is rather more because the plaintiff is a stoic. He impressed me as being someone who suffered a dramatic injury, and has made serious efforts against the odds to rehabilitate himself and to return to gainful employment, and to as many aspects of his pre-injury life as he can.
The brain injury
68 In the plaintiff’s first affidavit, he said very little about the impairment consequences of his head injury. He said the following:
“12I also suffer from ongoing problems with memory and concentration. I forget basic things such as what I have done, where I am, or what I need to do. I cannot concentrate on things for any length of time.”[47]
[47]PCB 8
69 In his second affidavit, the plaintiff elaborated as follows:
“4I continue to suffer from problems with memory and concentration. My biggest problem is with short term memory. I have to rely upon routine, a diary, and notepads so that I don’t forget what I am supposed to be doing. I have to constantly write things down so that I don’t forget them. I forget basic things such as what I have done, where I am, or what I need to do.
5I have had these problems with short term memory since the truck accident on 9 September 2005. I have been shown copies of the hospital records from the Northern Hospital which relate to the week that I was in hospital following the accident. The hospital notes refer to my ongoing problems with memory and vagueness while in hospital and at the time of my release from hospital. I can say that I was definitely suffering from these problems as a result of the accident. I continued to suffer from these problems after being released from hospital and during that time that I was having tests and treatment for my brain tumour as set out in paragraph 10 of my previous Affidavit. The brain surgery did not make my memory problems any better.”[48]
[48]PCB 11
70 Both Mr Anderson and Mr Lewis were content to rely upon the excellent summary prepared by Ms Sloan, neuropsychologist, in her report dated 30 September 2013.[49] The summary sets out observations made of the plaintiff following the occurrence of the transport accident and during his period of hospitalisation, and during the period of his outpatient treatment relevant to his head injury.
[49]PCB 126-148
71 Therefore, I do not propose to go to the primary evidence. I will follow the route taken by Counsel and will rely upon Ms Sloan’s summary, which is as follows:
“On the morning of 9th September 2005, Mr Alampi was the driver of a single vehicle trucking accident in which his vehicle rolled over (Dr Davis 4th April 2012). The exact time of the accident has not been recorded in the documents provided for the preparation of this report, however, ambulance records indicate that an ambulance was dispatched at 0556 hours, and on the scene by 0557 hours (Ambulance Victoria 9th September 2005). A loss of consciousness of undocumented duration was noted and his Glasgow Coma Score (GCS) was reported on scene as 14/15 at 0650, and dropped to 13/15 at 0715.
Mr Alampi’s GCS was reported as 14/15 on arrival at hospital at 0728. At 0757, his GCS was reported as 15/15 (ED record 9th September 2005). At 0835 he was reported as oriented to place and self, but confused to time. CT brain conducted on 9th September 2013 and 0848 hours was reported as a normal study (CT brain 9th September 2005). Also reported was a fracture of the second cervical vertebra (CT Cervical Spine 9th September 2005). A halo brace was fitted. At 0930 hours he was reportedly oriented to self and day but confused to time and date and his GCS was reported as 14-15/15. He was reported as repeating questions at 1000 hours, and his GCS was again 14-15/15. At 1043 hours he was reported as repeating questions such as ‘when will family be here/what happened?’ but was oriented to date and self, and his GCS was recorded as 15/15. Later the same day his GCS was recorded as between 14-15/15 at 1300 hours and 1350 hours, but it appears that recordings then ceased (ED record 9th September 2005).
The next progress note regarding Mr Alampi’s cognitive function was on 11th September 2005; he was reported as oriented to time and place with a GCS of 15/15, but concerns from his family were documented regarding ‘occasional short term memory lapses’.
On 12th September 2005 at 1000 hours he was reported by the physiotherapist as:
‘oriented to day only. Not oriented to time/date. Cannot recall seeing physio 1/7 go or whether he has used 2WF (two wheeled frame) … req (require) s/v (supervision) for orientation around ward.’
On this date the physiotherapist also noted:
‘concerns about pts (patients) cognitive function, disorientation and vagueness. ?need rehab ? Bethesda ?Further Ax (assessment).’
He was reviewed on the same day by the Orthopaedic Registrar who noted:
‘poor memory for short[-t]erm, vague with some long term. Oriented time, place, person.’ A CT Brain was ordered to ‘rule out further bleed’.
CT brain conducted on 12th September 2005 reported clinical notes of ‘persistent confusion not worsening’ with a conclusion of ‘no evidence for subdural or extradural haematoma and within the limits of the study, no evidence for parenchymal bleed’.
On 13th September 2005, the Orthopaedic Registrar noted persistent short term memory loss, although he was reported as fully oriented by the physiotherapist (Northern Hospital progress notes 11th – 13th September, 2005).
On 14th September 2005 nursing notes reported ongoing ‘forgetfulness’. On the same day, at the request of the Orthopaedic Registrar, Mr Alampi was reviewed by Neurology to investigate ‘noted STM (short term memory) problem – no memory of day’s events or accident or day of accident’. Neurology notes report that Mr Alampi had ‘no memory of the accident, no mem (memory) getting up that morning’. Neurological opinion was that ‘He (Alfred) should improve over the next week or so but will probably never remember the accident’ (Northern Hospital progress notes 14th September 2005).
Mr Alampi was discharged on 15th September 2005 (note, while other reports refer to discharge date of 19th September, as indicated in Dr Brand’s report, it appears that he was referring to the final admission progress note, which was entered post discharge).
Mr Alampi was referred for community physiotherapy and occupational therapy rehabilitation to improve mobility and to return to work and driving. The referral indicated that Mr Alampi had reduced short term memory but that it was ‘likely to return’ (Ms Aralios 15th September 2005). A referral letter of the same date noted ‘ongoing short-term memory problems consistent with concussion’ (Dr Campbell Orthopaedic Registrar, 15th September 2005).
On today’s assessment, Mr Alampi's last reported memory prior to the accident was getting up that morning and leaving home, which would give an estimated retrograde amnesia of between one and two hours (he would generally wake at 4am to meet delivery deadlines).
Marie Atsidakos (Mr Alampi’s former partner) reported that she saw Mr Alampi very soon after the accident and that he was ‘extremely confused and dazed and didn’t know where he was or what was going on’. She reported that his confusion continued during his admission, for example he would say that the bus and children had been involved in the accident (which they had not). She reported that his recall of the details of the accident continued to change over time and, for weeks after the accident, he continued to ask what had happened to him, with repeated questions e.g. ‘this can't have happened to me… are you sure this has happened?’
Mr Alampi reported that he had experienced ‘short term memory issues’ since the accident. He indicated he was told to ‘give it six months’ but it ‘never came good’. He reported behavioural change in the form of becoming ‘short-fused’ and ‘argumentative’. He also reported daytime fatigue such that he would need to sleep after lunch.”[50]
[50]PCB 128-131
72 The plaintiff was diagnosed with a tumour in his right temporal lobe. I have summarised the nature of the tumour in the surgical treatment the plaintiff had for it in paragraphs 15 and 27 to 28 above. Otherwise, the treatment the plaintiff had from Dr Prentice and Mr Murphy is summarised in their letters and reports in the plaintiff's Court Book.[51] I do not propose to summarise the contents of their letters and reports, because there was no issue that the plaintiff developed a tumour and had surgical treatment, but what is at issue is when the tumour occurred, when it began to evidence symptoms, and whether the impairment consequences of the plaintiff’s brain injury are due to the transport accident or the tumour, or due to both.
[51]Dr Prentice is letters and reports are at PCB 69-80, and those of Mr Murphy are at 52-62
73 The controversy over the question of causation now brings me to the opinions of Dr Hjorth, neurologist, Mr Nye, neurosurgeon, and Professor Davis, neurologist.
74 Dr Hjorth examined the plaintiff on 21 July 2011. He provided a report dated 1 August 2010.[52] He recorded a history of the transport accident, and in particular, that the plaintiff suffered a head injury in the transport accident, and later suffered the onset of the tumour. He then recorded the following relevant history:
[52]PCB 84-86
“ His memory has been bad since the accident. He thought the operation would help but it hasn’t helped. There had been no seizures since the surgery and he is not taking any medicines.
Present problems
1 His short term memory is bad. He forgets what he has done or where he is or what he has to do. He is easily distracted. … .”[53]
[53]PCB 84
75 Dr Hjorth then examined the plaintiff and found the following:
“He was a serious, worried man. I gave him a screening neuropsychological test - the Montreal Cognitive Assessment - and this gave a score of 21/30 which indicates that he does have moderately severe damage to his intellectual function. I should add that the MOCA is not nearly as good as formal neuropsychological testing but it’s quicker and at the time that I saw Mr Alampi, there were no neuropsychological testing available to me.”[54]
[54]PCB 85
76 Dr Hjorth then expressed the following opinion :
“I think that the memory trouble is probably the result of the accident that he suffered. This was a fairly severe head injury as judged by the length of post-traumatic amnesia and it would not be surprising if it caused memory trouble. Of course the brain tumour might have contributed to that.”[55]
[55]PCB 85
77 Mr Nye expressed a very different opinion. He examined the plaintiff on 8 October 2007. He provided two reports, dated 9 October 2007[56] and 3 June 2008.[57] He recorded the following relevant history:
“… The subject has no recollection of the accident, or the preceding events of the day, faculties were regained after admission to hospital and possibly on the day of injury, and this information confirms that a concussive head injury was sustained with associated relatively short periods of retrograde and post traumatic amnesia. … .
…
The above developed symptoms indicating epilepsy initially with dizzy spells, abnormal olfactory sensations and déjà vu phenomena, and possibly in November 2006 generalised seizures occurred and in February 2007 medical advice was obtained with subsequent investigation and disclosure of an intrinsic tumour, for which treatment as identified has been undergone.”[58]
[56]DCB 63.1-63.6
[57]DCB 62-63
[58]DCB 63.2 – 63.3
78 Mr Nye then expressed the following opinion:
“ Following my examination of the above I concluded in the work related accident of 2005 a concussive head injury was sustained with associated cervical fracture, requiring treatment as identified. The worker may have experienced some post concussion symptoms, however at a later stage minor and major epilepsy developed with subsequent demonstration of an intrinsic cerebral tumour, for which surgery has been undergone, and in relation to which radiotherapy is now proposed.
I consider the development of epilepsy and subsequent identification of cerebral tumour to be unrelated to the earlier injury.”[59]
[59]DCB 63.3 – 63.4
79 And later, Mr Nye said:
“2The injury sustained in the course of work in 2005 resulted in conditions from which recovery occurred. The present condition is in my opinion unrelated.
3The worker’s current condition, that is treated cerebral tumour contributes to an incapacity for employment, and need for treatment services.”[60]
[60]DCB 63.4
80 Professor Davis examined the plaintiff on 4 April 2012. He provided a report dated 4 April 2012.[61] It would appear that he was provided with a significant quantity of medical material because he provided a summary of the plaintiff’s medical treatment relevant to the head injury the plaintiff suffered in the transport accident and the development of the tumour. I do not propose to summarise that history, but I will refer to it later in these reasons.
[61]PCB 93-97
81 Professor Davis recorded the following relevant history:
“ He told me that his biggest problem was his short-term memory. He told me that he had good and bad days. He is forgetful, told me that he couldn’t rely on his memory and has to write things down. He can lose the track of conversations, is readily distracted and forget[s] tasks that he has to perform. He states that when he was driving a truck, he didn’t really have to rely too much on his memory and he did seem to cope fairly well. He has a private vehicle licence but of course given the history does not hold a heavy vehicle licence which is a major occupational problem.”
82 Professor Davis then examined the plaintiff and found the following:
“ He was pleasant and cooperative but rather vague and slow to respond to questions. He was accurately oriented in time and place although he could not name the suite number. He did know the floor of the building and my name. Short-term memory testing was reasonably good being able to remember 3 objects immediately and (after considerable hesitation) the same 3 objects a minute or so later. He could spell the word ‘world’ backwards and was very slow with serial 7 arithmetic. There were no focal neurological signs.”[62]
[62]PCB 96
83 Professor Davis then expressed the following opinion:
“1He had a mild but definite head injury in this accident with a period of post-traumatic amnesia, probably well under 24 hours. I have not seen an ambulance report but he probably had a GCS of 14/15 on arrival at the Northern Hospital and they point out that he had no recollection of the event with subsequent confusion. However, he became orientated within 10 min[s] and notably a CT brain scan was normal. Following this type of head injury, a mild acquired brain injury is plausible.
2He is adamant that there were problems ever since the head injury but one wonders whether the early features of an infiltrating tumour (not detected by CT scan) may have also been playing a part.
3Sometime later, he started developing complex partial seizures typical of temporal lobe epilepsy and has done (at the stage) extremely well without recurrence following surgical procedures and radiotherapy.
4He has some ongoing impairment of higher mental functioning. I have not seen a neuropsychological report but this is chiefly involving memory. He appears to be rather slow although screening short-term memory testing was fairly reasonable.
5I think it would be reasonable to assume that he has had a mild acquired brain injury from the head injury sustained in this accident but the impairment from this head injury (and/or the cerebral tumour) would not be of sufficient magnitude to preclude an ability to return to work. It is unlikely that he will obtain a heavy duty vehicle licence although this is technically possible in the course of time. He could certainly do other work of a suitable nature.
… .”[63]
[63]PCB 96-97
84 I am unaware whether Dr Hjorth and Mr Nye were provided with similar medical material that was provided to Professor Davis. It occurs to me that the provision of that medical material is critically important in obtaining an understanding of the nature and extent of his presentation to determine the grade of the head injury he suffered. I think Professor Davis was probably in a better position to make a judgment about the grade of the head injury than were Dr Hjorth and Mr Nye, because of the quantity and quality of the medical material he had at the time when he examined the plaintiff.
85 What is evident from the opinion of Professor Davis is that he accepts that there is a causal relationship between the head injury suffered by the plaintiff in the transport accident and the impairment consequences relied upon by the plaintiff. I am fortified in preferring the opinion of Professor Davis, because it is an opinion shared by Dr Hjorth, although, quite obviously, more vigorously held by Dr Hjorth, and to some extent by two neuropsychologists whose opinions I have analysed below. I therefore reject the opinion of Mr Nye as being less reliable.
86 The next question which I must deal with is the extent to which the impairment consequences relied upon by the plaintiff are causally related to the brain injury he suffered in the transport accident.
87 There are two neuropsychological opinions which are somewhat at odds. Dr Bardenhagen, neuropsychologist, assessed the plaintiff on 23 June 2008. It would appear that the plaintiff was referred to Dr Bardenhagen by Dr Prentice. She provided a report dated 22 August 2008.[64] I do not propose to summarise the tests which she conducted, but only to refer to her opinion, which is as follows:
“It is likely that Alfred suffered a moderate traumatic brain injury following the truck accident. This is on the basis of his reported loss of consciousness, memory and attentional problems that recovered over the following months. The right glioma may or may not have been present prior to the head injury. It would be difficult to separate the effects of the Traumatic Brain Injury and the glioma if they occurred concurrently. However, Alfred reported the expected course of recovery after the TBI including successful return to work, only to experience problems in his memory, organizational and decision making abilities after the glioma which have affected his ability to work effectively.
His current problems appear to be more related to the glioma but it is difficult to separate these to insults out fully.”[65]
[64]DCB 83.1 – 83.4
[65]DCB 83.3 – 83.4
88 Dr Bardenhagen does not appear to have had access to the same medical material which was provided to Ms Sloan. It is very evident from the quotation I have taken from Ms Sloan’s report in paragraph 71 above, that Ms Sloan was very particular in isolating background information which was critically important in determining the question of causation.
89 Where Dr Bardenhagen and Ms Sloan differ is that Ms Sloan acknowledged the difficulty in determining which of the plaintiff’s impairment consequences were due to the transport accident and the tumour, but was able to identify the parts of the plaintiff’s frontal lobe which had been damaged by the transport accident as opposed to the tumour. In order to understand her evidence clearly, I asked her to firstly assume that the tumour had not occurred and to then inform me what impairment consequences she would expect the plaintiff to be left with. Secondly, I then asked her to assume that the transport accident had not occurred and only the tumour and then to inform me what impairment consequences she would expect the plaintiff to be left with.
90 In relation to the first question, she gave a long, but informative and helpful answer:
“Well, I think assuming that he did have three days’ post-traumatic amnesia, which according to some classifications is a severe traumatic brain injury, I would expect him to still have problems today because of that injury. Typically the problems are slowness in thinking, so taking longer to take things in, missing details of what’s been said and maybe misunderstanding what’s been said because parts have been missed; needing to bring a fair degree of cognitive effort to tasks which then result in quite significant fatigue, so I’d expect him to still be experiencing fatigue. I would also be expecting him to still experience irritability and low frustration tolerance so a tendency to lose his temper more quickly, and I would also expect him to have ongoing memory difficulties. Because he’s a man, an older man when he had his injury and to all accounts a competent man and certainly an intelligent man who had some very well-learnt skills beforehand, I think he would also be someone who was probably now managing in many of his previous life roles and he could well have sustained a return to work; not at the level of 65 hours a week though that he was working prior to the injury, but perhaps more of a normal working hours, if you like, or part-time hours doing something very well learnt. The difficulty comes when someone with those kinds of problems tries to take on something new and that is usually when their difficulties are highlighted. So if he’d been able to stay in the same job, doing well-learnt things, living with his mum in his town, you know, doing well-learnt activities, he probably would have appeared to be coping quite well but he would have been struggling with this residual slowness, fatigue, forget fullness and low frustration tolerance.”[66]
[66]Transcript 82-83
91 In relation to the second question, she gave an equally long, but equally informative and helpful answer:
“Typically with a lesion in that region you would expect to find these non-verbal memory difficulties. So when we test memory we give a wide range of tests and some of them tap this non-verbalability that the right side of the brain is largely responsible for. I would have expected that to be at the level that I saw or even worse, perhaps that I saw on the testing. It’s hard to account for the verbal memory difficulties though, because if he’d only had the right temporal lobe removed his left side of his brain, his left temporal lobe should’ve been working quite well and his verbal memory should’ve been quite good. So that’s the bit that’s difficult, that you wouldn’t expect with just a right temporal lobectomy. You would also expect mood difficulties because that part of the brain is also responsible for the regulation of mood and I think some of his mood problems are probably due to the brain injury, not just a reaction to how his life has changed. And he describes also problems with motivation and drive which he didn’t describe, I note, in the early stages after the traumatic brain injury. Those descriptions tended to come in later after the surgery, and that part of the brain again also has a big role in motivation. So I would say that probably the non-verbal memory difficulties, problems with motivation and some of the aspects of his mood disorder I would have expected to see if he’d just had the tumour and the tumour resected.”
Impairment consequences of the brain Injury
92 Therefore, the impairment consequences relied upon by the plaintiff which Ms Sloan considered were not caused by the transport accident are non-verbal memory difficulties, problems with motivation and some aspects of his mood disorder. Those which she considered were caused by the transport accident: slowness of thinking; taking longer to take things in; missing details; maybe misunderstanding what has been said; cognitive effort to tasks resulting in quite significant fatigue; irritability and low frustration tolerance with a tendency to lose his temper; ongoing memory difficulties, and difficulties taking on something new in the sense of vocations, but being able to cope with well learnt things, such as an occupation which he was familiar with through past experience.
93 I accept the opinions of Dr Bardenhagen and Ms Sloan regarding the impairment consequences which the plaintiff suffered at the time when they undertook their assessment of him. I prefer the opinion of Ms Sloan on causation, because it is consistent with the opinions of Professor Davis and Dr Hjorth on causation. It appears to me that an analysis of the latter demonstrates a consistency in the conclusions they have reached, that the plaintiff did suffer a dramatic head injury which has caused a brain injury which is likely to be responsible for some of the impairment consequences relied upon by the plaintiff.
94 Ms Sloan has identified a discrete part of the frontal lobe which has been damaged due to the head injury, and is able to identify the impairment consequences which she would expect to have resulted from such an injury. They are many and they strike me as being very serious. The evidence which I have quoted from in paragraphs 90 to 91, and the comparison I have made between the damage to both sides of the frontal lobe in paragraph 92 impress me that the impairment consequences are many and are serious.
95 Mr Anderson submitted that any degree of brain injury resulting in cognitive impairment must, of itself, be serious. He submitted that the brain is at the very centre of a person’s capacity to function. I think that is right, and it does not require elaboration beyond stating what is the obvious. I accept the plaintiff’s evidence which I have quoted in paragraphs 68 to 69 above, and I accept the histories which he gave to Professor Davis and Ms Sloan, and in particular, of the impairment consequences he says are causally related to the transport accident.
96 Before proceeding any further, I should deal with one matter raised by Professor Davis and Dr Bardenhagen and that is whether the tumour was present at the time when the transport accident occurred, and whether the symptoms which the plaintiff subsequently experienced, before the tumour was diagnosed, are causally connected to the tumour. It appears to me that Professor Davis posed the question whether the tumour was present at around the time when the transport accident occurred rather than offering an opinion that it was, and similarly that is what Dr Bardenhagen did. I am not satisfied that the evidence discloses that the tumour was present at the time when the transport accident occurred.
97 I am satisfied that the plaintiff has suffered a serious long-term impairment of the function of his brain.
Conclusion
98 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law.
99 After discussion with Counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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