Allatt v Transport Accident Commission
[2018] VCC 673
•1 June 2018 (Revised)
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-05372
| BRADLEY DOUGLAS ALLATT | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10, 11 and 12 April 2018 | |
DATE OF JUDGMENT: | 1 June 2018 (Revised) | |
CASE MAY BE CITED AS: | Allatt v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 673 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – causation – impairment to the right leg – varicose veins – psychiatric impairment
Legislation Cited: Transport Accident Act 1986, s93; Limitation of Actions Act 1958, s23A
Cases Cited:Richards & Anor v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Ansett Australia Ltd v Taylor [2006] VSCA 171
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with Mr A D Newman | Maurice Blackburn |
| For the Defendant | Mr P Y Rattray QC with Ms A L Wood | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 20 May 1987 (“the said date”).
2 The Originating Motion also included an application pursuant to s23A of the Limitation of Actions Act 1958 seeking an extension of time to bring proceedings as the limitation period expired on 22 May 2008, six years after the plaintiff turned eighteen.
3 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
4
The definition of “serious injury” relied upon by the plaintiff is under
s93(17)(a) – “a serious long term impairment or loss of a body function”. The relevant body function is the right leg – in particular, the development of varicose veins (“the condition”).
5 Reliance was also placed on s93(17)(c) whereby “serious injury” is defined as a “severe long-term mental or severe long-term behavioral disturbance or disorder”.
6 The enquiry under sub-paragraph (a) of the definition of “serious injury” focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
7 The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.[1]
[1]See Richards & Anor v Wylie (2000) 1 VR 79
8 In forming a judgment as to whether the consequences of an injury are “serious”, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as “at least very considerable and more than significant or marked”.[2]
[2]See Humphries & Anor v Poljak [1992] 2 VR 129 at 140-141
9 The plaintiff swore two affidavits and was cross-examined. He also relied on affidavits sworn by a number of lay witnesses: his mother, Jennifer Allatt (“Mrs Allatt”), sworn 2 October 2017; his wife, Judith Allatt (“Judith”), sworn 3 October 2017, and his sister, Tania Allatt, sworn 11 October 2017. Mrs Allatt and Judith were cross-examined.
10 In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
11 Counsel for the plaintiff advised that there would be no reliance on Ansett Australia Ltd v Taylor[3] because acceptance of the claim for treatment expenses was based on Dr Blombery’s report, which the defendant now challenges.[4]
[3][2006] VSCA 171
[4]Transcript (“T”) 2; T77; The Transport Accident Commission did not base its initial acceptance on any report from Mr Somjen
12 The preliminary issue for determination is whether the accident was a cause of the condition.[5] It was conceded that if the condition is not related to the accident, the plaintiff does not have a serious injury or a severe psychiatric impairment.[6]
[5]T4
[6]T11
13 Accordingly, at this stage, I propose to deal only with the relevant evidence in relation to causation.[7]
[7]T3
The Plaintiff’s evidence
14 The plaintiff is presently aged forty-four, having been born in May 1974. He is married with four children. He completed Year 12 at Mentone Boys’ Grammar. From the age of sixteen, he worked in the family automotive business and then in his own business in the automotive parts trade.
15 The subject accident occurred in Carrum on the said date when the plaintiff was twelve. He was then a front seat passenger in a car driven by his mother. His sister, Tania, was in the back seat. A car failed to give way at a stop sign and t-boned their vehicle (“the accident”). Their car “did a 360” in the accident and was not driveable thereafter.[8]
[8]T37
16 The plaintiff was holding clothing from the drycleaners at the time of the accident and a coat hanger pierced his right leg. His right leg then collided with the dashboard. He has been informed his TAC Claim Form noted a laceration to his legs.
17 In cross-examination, the plaintiff demonstrated the site where the hanger pierced his right leg. It was in the lower half of his right thigh, around that area, between the top of his knee and halfway up his thigh. The hook part of the hanger pierced his leg. Everything happened so quickly. He pulled the hanger out of his leg. He could not recall how far it went in, but it was a fair way. The hook was on his lap facing towards his head.[9] The hanger went forward into his leg. That is what he assumed happened.[10]
[9]T20
[10]T21
18 The plaintiff went forward in the accident and his legs hit the dash and then everything stopped. He told his mother his legs were broken, telling her – “it’s come through my leg”.[11]
[11]T21
19 The plaintiff was taken to Frankston Hospital (“the Hospital”). While he initially deposed he was discharged the next day, he believed he was triaged and discharged rather than admitted as a patient.[12]
[12]Second affidavit
20 The plaintiff could not remember the treatment he received at the Hospital or from the ambulance service. He had x-rays, so he assumed he was at the Hospital for a couple of hours. He could not recall his wound being stitched or otherwise dressed at the Hospital nor could he remember going back to the Hospital for further treatment.[13]
[13]T21
21 The plaintiff believed his general practitioner at that time was Dr Dickman at Tower Hill Road. Dr Poon was also at that practice, but Dr Dickman was his main treater.[14]
[14]T22
22 The plaintiff did not believe he had any further treatment at the Hospital or from Dr Dickman for any of his accident injuries.[15] He did not recall any special treatment for the puncture wound to his thigh.[16]
[15]T22
[16]T23
23 The plaintiff did not see any doctor until 2007, because the veins were not hurting, but he was pretty sure he had mentioned the condition to doctors beforehand. He was sure he would have followed up the issue with Dr Dickman. He could not recall going back to him on more than one occasion, but he could have done so with his mother.[17]
[17]T25
24 The plaintiff often discussed his embarrassment about the unsightliness of his leg with his mother. He could not recall asking her if something could be done about it and see a doctor. He could not recall Dr Dickman telling him something could be done about the condition.[18]
[18]T31
25 The plaintiff could not recall, in the twenty years leading up to the surgery in 2007, whether he received any advice from any doctors as to what should be done in respect of the condition. He could have; he did not remember. The veins were not causing him pain, but he was embarrassed by them and wore long pants to hide them.[19]
[19]T28
26 Shortly after the accident, the plaintiff noticed varicose veins started to appear on his right leg. They just “popped up”.[20] He has since been told that the new veins formed in his leg to re-establish his blood supply.
[20]T22
27 The plaintiff would say it was between two weeks and a month after the accident that the veins first started to appear. He did not disagree it may have been about two months, as his mother described. The veins would have been fully out by then. They did not “just explode”, they slowly grew out. He did not know how long it took them to get as big as they ever got.[21] The veins grew over a couple of months, two months.[22] After about two months they were prominent because he could remember telling his mother about them.[23]
[21]T23
[22]T25
[23]T27
28 The plaintiff could not recall telling Mr Somjen, vascular surgeon, that large varicose veins developed within six months of the accident. He remembered the veins coming up a couple of weeks after the accident and then they were prominent at about two months. They could have been fully blown at six months. They developed over time.[24]
[24]T27
29 Post-accident, the plaintiff could not recall how much time he had off school.[25] After the accident, he was picked on at school and called “worm boy”.[26] He avoided wearing shorts as he was self-conscious about the veins.
[25]T22
[26]T28
30 The plaintiff was not considerably overweight at school and denied he was fat, as Professor Doherty reported. He was large framed.[27]
[27]T30
31 The plaintiff was too embarrassed to show his legs to play football or go to the beach. They had a pool at home and he wore shorts around the pool.[28]
[28]T31
32 That situation continued until the plaintiff was about thirty-three. He did not ask doctors about whether anything could be done, because all the stories he heard were, “they just tear out the veins”.[29]
[29]T29
33 In the plaintiff’s early thirties, the varicose veins became painful. He attended Mr Somjen through his private health insurance, as he understood the timeframe had passed to claim via the Transport Accident Commission (“TAC”). He also thought varicose vein surgery would be a simple and straightforward procedure.
34 In his second affidavit sworn in September 2017, the plaintiff confirmed he began to experience pain in his right leg around the varicose veins in his early thirties, about 2006 or 2007. He and Judith discussed new laser treatments, which seemed to be less invasive than traditional procedures and required less recovery time, and he decided to consult a doctor about his options.
35 In about 2007, the plaintiff and his mother called the TAC together to enquire about whether it could fund his treatment. She had lodged a claim on his behalf in 1987, so he asked her to call with him. They were told by the TAC claims officer that the claim was out of time and medical expenses could not be paid by the TAC.
36 When asked why it had taken him so long to see Mr Somjen, the plaintiff explained that he was heavily involved with the State SES and he did not know how long vein stripping would put him off work.[30]
[30]T30
37 In 2002, the plaintiff had a superficial laceration to his right shin after an incident with a puppy. He went to hospital and had stitches. His main concern was then tetanus.[31] He guessed the condition would have been quite obvious to someone putting in the stitches, and also to Dr Poon at his surgery, six weeks later when he removed the stiches.[32]
[31]T32, T27
[32]T32; 7 January 2003
38 The plaintiff confirmed he had a physical examination in April 2003 when he applied to join the police force. He guessed the examiner would have seen the veins.[33]
[33]T31; 1 April 2003
Treatment
39 On 2 February 2007, the plaintiff had a duplex ultrasound scan, which he was advised showed varicose veins. On or about 26 April that year, he had varicose vein surgery (“the surgery”). Post discharge, he developed a Deep Vein Thrombosis (“DVT”) and significant nerve pain shooting down to his right foot.
40 The plaintiff was re-admitted to the Base Hospital for three nights and given Heparin and commenced on Warfarin and Clexane for the DVT. He was on Warfarin for some weeks and required regular blood tests to ensure a correct dose was taken.
41 The plaintiff deposed in some detail as to the ongoing investigations and further surgery to his right leg and prescription of significant medication to help manage his leg pain and prevent further blood clots.
42 The plaintiff underwent further surgery to remove a fistula in his right leg and further varicose veins in April 2008. He had further duplex scans of both legs on 8 September 2008 and 21 May 2010, and on 19 July 2010, of his right leg. On 11 August 2010, he had dye imaging and an angiogram of his right leg.
43 The plaintiff had further surgical procedures in November and December 2010, when he had coils put into his veins. Further investigations showed an ongoing fistula in his right leg.
44 The plaintiff was ultimately booked in for further surgery on 24 February 2014, but did not feel he could mentally get through another surgical procedure. He suffered a major mental breakdown at that time.
45 In addition to prescribed medication, the plaintiff had been self-medicating with alcohol and developed a severe drinking problem. He was admitted to Pine Lodge in Frankston for alcohol and drug treatment later that year, and in February 2015, for depression.
46 The plaintiff was cross-examined about his alcohol intake, which he maintained had increased significantly as a result of his right leg pain following the accident.
47 The plaintiff thought his drinking problem first surfaced in late 2013. It had nothing to do with the suicide of the son of one his best friends. The plaintiff was drinking to get rid of the pain. He started drinking very heavily in 2013, not prior thereto.[34]
[34]T17
48 The plaintiff could not recall telling Dr Tolan he started drinking heavily following the death of his father in 2001. He probably was drinking, but he did not start to drink heavily at that time. The plaintiff probably told him he “did have some drinks like anyone would when someone passes”.[35]
[35]T18
49 When asked about the history to Dr Weismann about the child’s suicide triggering an episode of significant alcohol intoxication, the plaintiff said, of course, that would be the reaction you would have when someone passes away like that, but it was not the reason he started drinking. He stopped drinking after that. He was admitted to Pine Lodge for detoxification, and that was when he knew he had to stop.[36]
[36]T19
50 The TAC accepted liability for the condition and subsequent psychiatric condition on 1 April 2016. On 20 June 2016, the TAC advised it would pay for the plaintiff’s past inpatient admissions to St John of God of Hospital in Berwick, and also pain management. These treatments were both for his right leg problem as well as his psychiatric condition.
51 As of May 2016,[37] the plaintiff deposed his injuries had reduced his capacity for employment, and he was currently unemployed and in receipt of income protection payments.
[37]First affidavit
52 The plaintiff began working in the family automotive parts business in Braeside when he was sixteen. The business was sold in 2005 and he bought a factory in Chelsea Heights, from which he operated his own four-wheel drive parts business.
53 In 2013, the plaintiff initiated the sale of the business as he could not maintain it due to his injuries. Potential buyers were only interested in buying the stock and not the business, so he ended up selling the stock to pay out the bank, and he let the business go in 2014. He deposed he had not held employment since that time. After he stopped trading he did nothing. A company bought some of the stock and the rest of it was liquidated by someone else.[38]
[38]T39
54 The plaintiff was devastated to lose the business, which imported and distributed four-wheel drive accessories. He had put his heart and soul into setting it up and he had also invested significant money, including borrowing against his mother’s mortgage.
55 However, it became apparent in cross-examination that the plaintiff had in fact worked at a warehouse over Christmas in 2014. He agreed it was incorrect when he deposed he had not worked since his business ceased.[39]
[39]T16
56 The plaintiff vaguely remembered having a warehouse job. That work was intermittent. He did that job for two weeks at Christmas, but could not remember working in April 2015.[40]
[40]T15
57 The plaintiff confirmed he is presently in receipt of income protection payments, having initially received $57,322 in 2015, with incremental increases thereafter.[41] He thinks he earns the same now as when he operated the business; it could be a bit less.[42]
[41]T16
[42]T39
58 The plaintiff denied that after the 2007 surgery he had problems also with his left leg when asked about the affidavit evidence of his mother and Judith of his right leg being worse than his left. He was putting more weight on the left. He had never had any problems with his left leg apart from weight bearing. He had tired legs at the end of the day.[43]
[43]T34
59 The plaintiff was not aware of any abnormalities in his left leg shown on a duplex scan on 21 May 2010.[44] He has never been aware, at any time, of having left varicose veins.[45]
[44]T35
[45]T38
60 The plaintiff explained he was on Valium and Targin when giving evidence, and had also taken more medication that day which had affected his thinking.[46]
[46]T37
Lay evidence
61 Mrs Allatt, swore an affidavit on 2 October 2017.
62 Mrs Allatt was driving the plaintiff at the time of the accident. Her daughter, Tania, was also in the car. Mrs Allatt distinctly remembered they had just been to the drycleaners. On the way home, the plaintiff was holding dry cleaned items on his lap, including the hangers.
63 As a result of the accident, one of the hangers went into the plaintiff’s right leg. Mrs Allatt could not provide a more detailed description of where the coat hanger went in than the plaintiff had described.[47]
[47]T44
64 After the accident, they got out of the car. The plaintiff was walking around, complaining of a great deal of pain in his legs, and kept saying he thought his legs were broken.
65 As a result of the accident, the car was not driveable and was a write-off. The ambulance and fire brigade arrived and offered to transport the plaintiff. He was in shock in the ambulance and continued to say he had pain in his legs. She and Tania went along with him in the ambulance to the Hospital.
66 Mrs Allatt accompanied the plaintiff to Frankston Emergency.[48] He was reviewed, and x-rays were taken of his legs, but he was not admitted. They were told he had lacerations to his legs, including where the hanger had punctured his right leg. Her husband joined them at the Hospital.
[48]T40
67 The plaintiff was complaining his legs were sore and he thought they were broken. X‑rays of his legs were taken which they were advised showed no fracture. The plaintiff was in a lot of pain. She could not recall if the wounds on his leg were dressed or what was done in respect of the puncture wound in the his right thigh.[49]
[49]T40
68 Mrs Allatt lodged a Claim Form with the TAC shortly after the accident. In that form she noted the plaintiff had lacerations to his legs. She recalled the TAC paid for the medical expenses associated with the Hospital attendance. She and Tania did not lodge TAC claims as they were not injured in the accident.
69 It was months after the accident that the plaintiff began to develop varicose veins, but only on his right leg, which had been injured with the coat hanger. She recalled this was strange as no one else in the family had varicose veins and they were only in the plaintiff’s right leg. She was not aware of her husband, or any member of his family, ever having varicose veins. When she was growing up and around other family members, she never noticed anything.[50]
[50]T40
70 Mrs Allatt lodged a claim after the accident because the plaintiff was still complaining about the back of his leg, so just in case something happened in the future. That was the only reason she lodged the claim. This was very early on and she could not see the varicose veins at that stage. She thought they started, probably after about two or three months. She was not sure, she could just see that there was something changing in the plaintiff’s leg.[51]
[51]T45
71 Mrs Allatt recalled the varicose veins because the plaintiff was initially teased at school about them, with some of his classmates calling him “worm boy”. The plaintiff soon began to refuse to wear shorts outside the house and preferred to wear long pants in public as he said he was embarrassed about his veins.[52]
[52]T42
72 It was probably a couple of months after the accident that the veins started to colour. She could not go back that far – “It is just that if the penny dropped and [she] could go backwards, then [she] would say ‘that’s what [they] did’”. The veins “did not come really huge, like they ended up being huge”.[53]
[53]T43
73 Probably three to four months after the plaintiff complained of pain in the back of his leg she could see the varicose veins.[54]
[54]T45
74 As the plaintiff never complained the veins caused him any pain, they never went to the doctor about it. It was purely a cosmetic issue and she and her husband did not think it was an important health issue for the plaintiff. She never submitted any further expenses to the TAC because none were incurred.
75 It was possibly correct that there was a discussion with Dr Dickman after the accident about what was going to be done with the plaintiff’s veins when she saw him with the plaintiff.[55] She could not remember one way or another, when the plaintiff was still a boy, taking him to the doctor to get some advice about what could be done.[56]
[55]T41
[56]T43
76 The plaintiff then took it upon himself, when he started to get older, and she probably did not go to the doctor with him. She did not think she took him on more than one occasion to see Dr Dickman about what could be done about his veins because they were not annoying him, it was only later they became increasingly painful.[57] The plaintiff did not have pain in the veins in his early years, they were just ugly and he was embarrassed about them.[58]
[57]T41
[58]T42
77 The plaintiff told her about his general dislike for the veins, but she could remember saying to him “let’s go along to a doctor and see what can be done”. She was not really sure about what she would have done because “we just had to be tough in those days”.[59]
[59]T42
78 In around 2006 or 2007, the plaintiff began to say his veins were causing him pain. She recalled him mentioning this to her on several occasions. He said his right leg was often sore after work, and more so than his left leg. He said this might be related to his veins. The right leg veins stuck out, as if someone had put a bit of a tree up through his leg. They had been like that for about fifteen years, and getting bigger.[60]
[60]T44
79 The plaintiff said he had heard about new laser treatment and discussed it with Judith, who is a nurse, and advised he was going to attend a doctor to seek an opinion.
80 They called the TAC to enquire about the status of the plaintiff’s claim. The plaintiff asked her to ring on his behalf as he had lodged the claim as a child and kept the claim number. She was told that although there was a claim number, as the accident was so long ago, the TAC would not be able to pay the plaintiff’s medical expenses.
81 Judith swore an affidavit on 3 October 2017. She met the plaintiff when they were both at school in Mentone. She was then fourteen and he was about fifteen. They began dating when she was about sixteen, in about 1991.
82 From that time, she was aware the plaintiff had prominent varicose veins in his right leg, not in his left. He never wore shorts as a teenager or in his twenties when he went out. He always wore long pants outside the house. He told her he was quite embarrassed by the veins as they were quite thick and prominent.[61]
[61]T47
83 The plaintiff told her on many occasions that he had had a car accident as a child and that the veins came on shortly thereafter. He said he had suffered a laceration to his legs in the accident, that a hanger punctured his right leg and that the veins came on shortly thereafter.
84 From as late as around 1991, when they began dating, she believed the plaintiff continuously had varicose veins in his right leg. He told her about the veins before 1991, but she first saw them for herself in around that year, and from that time until the present, the veins continued.
85 The plaintiff never complained that the veins were causing him pain until around 2006 or 2007. For this reason, as far as she was aware, he never sought any medical treatment for them. As she had been a nursing student, and then a nurse, from eighteen until the present, the plaintiff had always discussed his health concerns with her and often said he wanted her opinion on his health issues. They never discussed any treatment for his veins until around 2006 or 2007, as they were not painful before that time. Realistically, the veins were just part of the plaintiff and had been there the whole time. They did not really talk about it, so they “just accepted it was there”.[62] She was not aware of any complaint by the plaintiff of right leg pain from 1991 to 2005.[63]
[62]T47
[63]T49
86 In around 2006 or 2007, the plaintiff said his right leg was becoming more uncomfortable than his left after a day at work. He said he thought the veins might be causing his right leg pain.
87 Due to his concerns about increased leg pain, the plaintiff asked for her opinion. Around this time, she was aware laser therapy for varicose veins had begun to be more available. She had been told, and read, this was a less invasive treatment than traditional procedures.[64] In particular, they discussed how that sort of therapy required less bed rest than previous forms of varicose vein surgery. The plaintiff was concerned about recovery time from traditional non-laser interventions because he was keen not to lose any time from work.
[64]T46
88 Judith confirmed the plaintiff’s post-operative complications and his ongoing treatment and need for significant medication following the initial surgery.
89 Judith also deposed, in about 2013, the plaintiff began looking at selling his business. He was quite dependent on alcohol and opioids at that point. Also, the cost of his various medications, scans and ongoing procedures were beginning to mount up. She did not identify the plaintiff as having a drinking problem after his father died.[65]
[65]T49
90 While Judith deposed that the plaintiff was having more trouble with his right leg than his left, she did not really accept that there was a left leg problem. His left leg might have just been a bit tired, purely because he was standing on both legs. It was right leg pain.[66]
[66]T49
91 The plaintiff’s sister, Tania, swore an affidavit on 11 October 2017. She was not available for cross-examination as she is overseas.[67]
[67]T1
92 Tania is currently forty-five.
93 In around 1987, Tania was involved in the transport accident in which the plaintiff was injured. She was then about fifteen. She was a back seat passenger and he was in the front seat.
94 Their mother had just picked them up from school. Tania recalled they had stopped at the doctor as she was not feeling very well. They then stopped to get some dry cleaning on the way home and she could recall the plaintiff had the dry cleaning on his lap.
95 Tania recalled they were in a collision. She could remember that the plaintiff got out of the car saying he felt like he had broken his legs.
96 Soon after the accident, the plaintiff developed varicose veins, which Tania could recall, because he was quite self-conscious about them. Before the accident, the plaintiff often wore shorts to school in the warmer months of the year, but thereafter she recalled he never wore shorts outside the house. He wore them around the house in warmer weather, but whenever he went out, he wore long pants, even in the middle of summer.
97 Tania could recall seeing the varicose veins on the plaintiff’s right leg when he wore shorts around the house. As they were very large veins, he was self-conscious about them, and she could recall him saying he was teased about them at school.
98 Tania did not remember the plaintiff ever complaining about pain in his right leg. She recalled the veins were aesthetically unpleasing and the plaintiff said their appearance upset him, but she did not recall him complaining about them being painful at any time or that he had been to a doctor to talk about them.
99 The plaintiff moved out of home when he was about seventeen or eighteen, in about 1992 or 1993. Tania had lived with him in the family home until then. They therefore lived with each other for about five or six years after the accident.
100 Tania was aware that since around 2006 or 2007, the plaintiff had had pain in his legs with various unsuccessful operations. He had told her about this when they had family gatherings or otherwise met up. He said his condition had become much worse in around 2013 or 2014.
Contemporaneous documents
101 Mrs Allatt completed a TAC Claim Form on 17 June 1987, in which she detailed the plaintiff’s injuries as follows:
“Laceration to leg, slight bump on head, shock.”
102 On 17 June 1987, the defendant received a statement from Peninsula Ambulance Service dated 29 May 1987. It set out the accident occurred at the–
“… corner of McLeod Road and Valletta Street, Carrum. Frankston Hospital. Aged 12. Cervical injury, abrasions, left lower leg.”
103 A transport accident form from the Hospital completed in June 1987 set out the plaintiff was treated for painful knees and painful legs, and x-rays were undertaken on 20 May 1987.[68]
[68]T8; Reports and film are not available
104 A doctor’s account for the TAC described the plaintiff’s injuries as painful neck and painful legs, with an attendance at the Hospital on 20 May 1987 where x‑rays were undertaken.[69]
[69]T8
105 By letter dated 14 July 1987, the defendant advised the plaintiff that it was not liable to pay compensation where the accident was not reported to the police. On 22 July 1987, the defendant received a copy of the Victoria Police Collision Report dated 20 May 1987.
106 By letter dated 22 July 1987, the defendant advised the plaintiff of its acceptance of his claim for medical and other reasonable expenses arising from the accident.[70]
[70]Claim number 86/60165
107 The parties agreed that there were no clinical records available from the plaintiff’s general practitioners, Dr Poon and Dr Dickman, before October 2000. Further, between October 2000 and 2007 when Dr Poon referred the plaintiff for varicose vein surgery, the parties agreed there was no mention of any complaint of varicose veins by the plaintiff or any observation of that condition by any practitioner at that clinic. In those circumstances, Dr Poon was not required for cross-examination.[71]
[71]T2
108 The parties agreed that the only evidence as to the onset of varicose veins following the accident was that of the plaintiff and his family members, as deposed to.
Treaters
109 In his clinical note of 31 January 2007, Dr Poon recorded:
“16 yr of R calf varicosities.”
110 In his referral letter to Mr Somjen on that date, Dr Poon advised:
“32 year old man with sixteen years of calf varicosities R>L.”
111 In a venous examination sheet of 12 February 2007, Mr Somjen noted the past history of:
“Appendectomy … MCA 13 year old right leg injury.”
112 In a letter of that date, Mr Somjen advised Dr Poon the plaintiff was a healthy gentleman with a family history of varicose veins. Mr Somjen advised Dr Poon he planned varicose vein surgery.
113 Mr Somjen again wrote to Dr Poon on 29 May, 2 July and 8 October 2007 advising of the plaintiff’s post-surgery condition.
114 Having seen the plaintiff on 23 May 2008, Mr Somjen advised Dr Poon the plaintiff had developed a small arteriovenous fistula (“AVF”) more than a year after his varicose vein surgery. He planned to deal with this issue and recurrent reflux of the proximal small saphenous vein in further surgery.
115 On 8 September 2008, Mr Somjen advised Dr Poon the plaintiff had completely recovered from his redo varicose vein surgery.
116 On 19 July 2010, Mr Somjen wrote to Dr Poon, advising he had seen the plaintiff that day with a recurrent arteriovenous communication in the right popliteal fossa.
117 In August 2010, Mr Somjen advised Dr Poon that the plaintiff’s diagnostic angiography revealed small arteriovenous communications between the mid posterior tibial artery and the superficial venous system. He noted, interestingly, this is far away from the area of his varicose vein surgery. The plaintiff informed Mr Somjen that he had a car accident at the age of fifteen when the right leg was contused. That was the time when he noted varicose veins developing.
118 Mr Somjen wondered whether the small arteriovenous communications date back to the plaintiff’s original knee/calf injury and played a part in the development of the plaintiff’s varicose veins.
119 In correspondence to Dr Poon in December 2010, Mr Somjen advised that when he reviewed the plaintiff’s case with the Austin Hospital radiologist, they came to the conclusion that the most likely scenario was the plaintiff developed the traumatic AVF after his car accident a few years ago. The varicose veins were secondary varicose veins associated with the arteriovenous communication. The varicose vein surgery removed all the visible varicosities; however, it created a kind of trigger for AV fistulas forming.
120 Mr Somjen wrote to Dr Poon on 15 February 2011 after the coil embolization and also on 24 April 2012.
121 In his clinical note of 8 April 2014, Mr Somjen recorded, under the heading Centrelink application:
“1986 front seat passenger in car driving home – from drycleaners mother was driving – penetrating injury to the right lower thigh towards PF ? 1. He pulled it out. Taken to hospital Large haematoma and calf swelling development of varicose vein within 6 months … swollen tender – ongoing couldn’t play sport.”
122 Mr Somjen wrote “To whom it may concern” on 3 April 2014 as follows.
123 The plaintiff was involved in a car accident in 1986. It was a frontal collision and he was a front seat passenger in the car. A coat hanger pierced into the right lower thigh muscles causing a penetrating injury towards the popliteal fossa before, hitting the dashboard. He was hospitalised after the accident. Due to the internal haematoma, he had ongoing significant and painful right leg swelling.
124 Soon after the accident, the plaintiff noticed varicose veins developing on the posterior aspect of the right calf. The varicose veins and the associated leg pain and tightness progressed markedly during the years. He was never able to play competitive sports due to the leg discomfort.
125 Mr Somjen advised that the plaintiff’s case was discussed with Dr Mark Brooks, radiologist at the Austin Hospital, who performed the two procedures in late 2010. A consensus was reached with the radiologist that the development of the traumatic arteriovenous communications most likely dated back to the leg injury in 2006.
126 Mr Somjen concluded the diagnosed Chronic Pain Syndrome was initiated by the original trauma and exacerbated by subsequent surgical and endovascular procedures and had become an independent entity.
127 In a short report dated 29 October 2017, Mr Somjen confirmed, on the first attendance on 12 February 2007, he did not record a family history of varicose veins during the consultation as was detailed in his letter of 12 February 2007 to Dr Poon.
128 Counsel for the defendant advised there was no interest in cross-examining Mr Somjen.[72]
[72]T4
Investigations arranged and procedures undertaken by Mr Somjen
Date of Investigation Reference to AVF 2 February 2007 – Duplex Ultrasound No AVF noted, but findings on the left leg and diagnosis of bilateral varicose veins
26 April 2007 – Operation Notes
No mention of AVF 3 May 2007 –
Duplex UltrasoundJust below the sapheno-popliteal valve, a small arteriovenous communication was demonstrated
8 May 2007 –
Duplex UltrasoundNo mention AVF 11 September 2007 – Duplex Ultrasound
No mention AVF 30 July 2008 –
Operation NotesRight recurrent varicose veins and AVF fistula in popliteal fossa, ligation of AVF
8 September 2008 – Duplex Ultrasound
No mention AVF 11 August 2010 – Diagnostic Angiography and Selective Tibial Angiography
Diagnosis: Right popliteal fossa artery and venous fistula.
Conclusion: right upper calf AVF
21 May 2010 –
Duplex UltrasoundDiagnosis: Bilateral varicose veins, no mention AVF 19 July 2010 –
Duplex UltrasoundDiagnosis: Query AVF and note of small AVF associated with the stump of the origin of the small saphenous vein
16 December 2010 – Duplex Ultrasound Diagnosis: Recent coil embolization of an AVF in the right popliteal fossa, ongoing minor AVF of the main arteriovenous communication 19 April 2012 –
Duplex Ultrasound
Diagnosis: Past history of right coil embolization of the small saphenous vein. AVF fistula persisting AV communication
30 January 2014 –
CT scan Aortofemoral
Diagnosis: Right column AVF in the popliteal fossa; persistent AVF found between gastrocnemius arteries and the popliteal vein just above the level of the knee joint.
129 Dr Mark Brooks, radiologist from the Austin Hospital, carried out a right lower limb angiogram on 19 November 2010. The clinical notes indicated symptomatic AVF right calf, a past history of trauma, varicose veins surgery and surgical ligation of fistula.
130 On 3 December 2010, Dr Brooks carried out a further right lower limb angiogram. The clinical notes indicated asymptomatic AVF right calf, past history penetrating injury, varicose vein surgery and surgery on AVF treated with coil embolisation 19 November 2010 with recurrence of symptoms three days’ post embolisation.
Medico-legal reports – the Plaintiff
131 When Dr Blombery, consultant physician, first saw the plaintiff in October 2015, the plaintiff described on the said date, being a front seat passenger and having just picked up the dry cleaning. They were travelling along a road when a car came from the right, which was not visible because of a truck, and they t‑boned the other car.
132 A coat hanger went through the plaintiff’s thigh distally, and he hit his legs heavily on the dashboard. He thought he pulled the coat hanger out of his thigh himself. He was taken by ambulance to the Hospital and he thought he might have been there for about a day.
133 The plaintiff said approximately two months later, he noticed the appearance of varicose veins in his right leg for the first time. Dr Blombery thought this was obviously very unusual in a child of that age, and the plaintiff said he used to be teased at school and called names such as “worm boy”.
134 The plaintiff said, in his late twenties or early thirties, the varicose veins began to become painful and he was referred to vascular surgeon, Mr Somjen, who apparently told him they were the largest varicose veins he had ever seen.
135 Dr Blombery noted the surgery undertaken in April 2007 and the complications thereafter.
136 The plaintiff told Dr Blombery he had not worked since his business closed down.
137 Noting the trauma involving the coat hanger, Dr Blombery thought of great significance was the fact that the veins appeared in the plaintiff’s legs two months later. He thought this was the typical history that is given in a patient who acquires an AVF, resulting in the appearance of varicose veins. In his view, the injury is usually a result of a direct laceration of the area affected, which causes an arteriovenous communication to develop, which then seals and remains functioning.
138 Initially, Dr Blombery had thought that the coat hanger would have been the cause of that, but the plaintiff was fairly sure that the hanger pierced the leg above the knee. The AVF was found to be in the mid-calf near the posterior tibial artery in 2010. Unless there was some other trauma to his leg at the time, and Dr Blombery presumed it is not possible to obtain a history from the plaintiff’s admission in 1988, he thought one must assume the trauma of the accident resulted in the development of the fistula by another mechanism.
139 Dr Blombery noted that the veins became larger and the plaintiff underwent surgery in 2007 when the AVF does not appear to have been recognised. It was finally recognised in 2010 but failed to improve after surgery and the plaintiff finally required coil embolization.
140 Dr Blombery diagnosed a motor vehicle accident causing a right leg AVF, resulting in varicose veins, complicated by a nerve injury in the process of surgery for it and, later, embolisation. Those injuries were, in his view, consistent with the accident.
141 Dr Blombery confirmed his earlier opinion as to causation following re‑examination of the plaintiff in March 2017. In that report, he detailed the plaintiff’s current condition and treatment and diagnosed central sensitisation
Medico-legal evidence – the Defendant
142 Mr Vidovich, vascular surgeon, reported in October 2017, having seen the plaintiff in August that year.
143 The plaintiff told him his knee struck the dashboard and that his right thigh was also injured by the end of a wire coat hanger which was with dry cleaning which had been just previously collected and placed across his lap. He stated the wire had penetrated into the front of the lower thigh just above the knee and he had to twist it to pull it out. He was unsure as to how deeply the coat hanger had penetrated into his thigh. He said he had a complete recall of the event.
144 The plaintiff could not remember whether he had any x-rays or specific treatment, but he remembered he had extensive bruising of his right thigh and knee.
145 Mr Vidovich noted there were no documents from the Hospital which described, in detail, the nature of injury suffered, and no report mentioned a penetrating injury of the thigh, which one would have expected to have been documented if it had occurred.
146 Mr Vidovich thought the plaintiff’s right leg varicose vein condition was very unlikely to be in any way related to the accident injury. He noted primary varicose veins in men are invariably inherited or of familial origin, often appearing in teenage years, and usually treated many years later when they have become large and symptomatic.
147 It was also Mr Vidovich’s clinical opinion the injuries suffered were very unlikely to have caused the AVFs, which were detected after the first varicose vein surgery in 2007. The fistulae had been located in the popliteal fossa, that is, at the site of the surgery in the fossa, and another AVF was later located, and involving deeper tibial vessels at the mid-calf level.
148 Mr Vidovich noted neither of these areas were injured in the accident, and, in particular, it was his clinical opinion that it is virtually impossible for these to have been caused by the claimed penetrating injury to the thigh by the end of a wire coat hanger. However, the cause of the fistulae in this case is not clear but it is possible that the AVFs in the popliteal fossa were related to, or caused by, varicose vein treatment. The AVFs appeared to have been satisfactorily treated, and this condition could be considered to have stabilised.
149 As Mr Vidovich noted, there did not appear to be any record – hospital, medical or otherwise – which described in detail the injuries the plaintiff sustained in the accident, with the Hospital transport accident Form A noting “painful knee and painful legs”.
150 Mr Vidovich thought the fact that the plaintiff did not require hospital admission for any treatment of his injuries, and he was discharged home later on the same day, suggested that the injuries were relatively minor.
151 In Mr Vidovich’s clinical opinion, it was reasonable to accept the plaintiff might have had bruising over both knees caused by contact with the dashboard. As regards the penetrating injury caused by the hanger, this obviously did not cause any significant injury and did not require any specific treatment. In Mr Vidovich’s clinical opinion, those injuries were extremely unlikely to have resulted in the later development of the condition.
152 Mr Vidovich thought the history of the condition, both in its presentation and treatment, is very typical of this condition, and in his clinical opinion, was entirely incidental to the injuries that the plaintiff sustained in the accident.
153 In Mr Vidovich’s clinical opinion, the plaintiff had recovered from the physical injuries caused by the impact of his knees against the dashboard and he did not have a residual physical disability related to that injury. Because the plaintiff’s varicose veins were not caused by the accident injuries, the diagnosis thereof was unrelated to the accident injury.
154 Mr Vidovich reported again in October 2017, having seen Dr Blombery’s report.
155 Mr Vidovich confirmed the importance of there being no finding of an AVF in the pre-surgery duplex scan carried out by Mr Somjen, an acknowledged expert in the field.
156 Whilst Dr Blombery thought the veins were caused by an AVF due to the injury suffered in the accident, Mr Vidovich thought he did not provide an opinion as to what type of injury caused the AVF. As earlier noted, there was no evidence of a penetrating injury. It was highly improbable, if not impossible, that an injury which had penetrated sufficiently and deeply into the popliteal fossa or calf would not have been recognised at the time by either ambulance officers or the medical staff at the Hospital. A penetrating injury deep enough to enter the popliteal fossa from the front of the thigh or into the calf would have been clinically evident at the time. There would have been a haemorrhage, swelling and bruising of the thigh, fossa and calf, and the plaintiff would have immediately been aware of severe and disabling pain. There was no evidence such an injury occurred.
157 Mr Vidovich concluded that the cause of the AVF in this case was not clear. It may be congenital or acquired. He confirmed that if an AVF had been acquired in the accident, the condition would have been present for many years. It would have been chronic and painful. None of these features were present when the plaintiff presented for varicose vein treatment in 2007 and it was therefore extremely unlikely he had AVFs at that time.
158 It was important to note that the AVFs were detected only after the first surgery and it therefore appeared likely that they may have been caused by the varicose vein treatment.
159 In his addendum report dated 19 February 2018, Mr Vidovich included copies of the relevant pages of three publications in surgical journals which reported AVFs which had occurred as complications of endovenous ablation operations for varicose veins, similar to that undergone by the plaintiff.
160 The February 2007 scan, in Mr Vidovich’s view, confirmed the plaintiff’s varicose veins were due to venous incompetence at the saphenopopliteal junction and not due to an AVF. He confirmed it was extremely unlikely this would not have been detected because of the easily noticeable disturbance of blood flow that would have caused the shunting of arterial blood directly into the venous system had the veins been due to an AVF.
Joint report
161 Dr Blombery and Mr Vidovich met on December 2017 to discuss and answer a number of questions agreed upon by the parties’ solicitors.
162 They were provided with the TAC Claim Form, police collision report and the Peninsula Ambulance Service statement, together with the plaintiff’s clinical notes form Dr Poon and Mr Somjen, various investigations and medico-legal reports.
163 In their joint report, Dr Blombery indicated he thought the accident was the cause of the plaintiff’s varicose veins. Mr Vidovich disagreed.
164 Both Dr Blombery and Mr Vidovich considered there was a contribution from genetic and other underlying factors to the development of the varicose veins. Dr Blombery’s opinion was these factors were playing only a minor role, whereas it was Mr Vidovich’s view they were playing the only role in causing the plaintiff’s varicose veins.
165 Dr Blombery thought the injury to the plaintiff’s right leg caused by impaling with the coat hanger had caused leg trauma with, possibly, an AVF or valve disruption, resulting in the varicose veins. Mr Vidovich thought the veins were caused by the usual mechanism, resulting in varicose veins in most patients, that is, abnormalities in the vein wall, resulting in dilatation as well as reflux through valves in the veins, in this case, the small saphenous vein.
166 If the varicose veins did not arise soon after the accident, Dr Blombery’s view would have been different, but not Mr Vidovich’s. Dr Blombery would not attribute the varicose veins to the accident. He would then agree with Mr Vidovich this was a case of the development of routine varicose veins.
167 If it was assumed there was a history of varicose veins in the plaintiff’s family, Dr Blombery’s answer would be different, but Mr Vidovich’s would not have, and it would support his opinion. In Dr Blombery’s view, it would suggest that there was a predisposition towards the veins developing but, nevertheless, the accident was still a significant contributing factor to their development.
168 Mr Vidovich thought the alleged piercing played no role in the development of the veins, but Dr Blombery thought it resulted in an AVF or trauma to the venous valves and venous function causing the varicose veins.
169 Both doctors agreed there was evidence that AVFs can be induced after endovascular treatment for varicose veins, of which there are several case reports. They agreed that the fistulae which were demonstrated in the plaintiff’s right leg after initial varicose vein treatment in 2007 were more likely to have been related to this rather than a possible AVF that developed at the time of the accident. Dr Blombery considered it was still possible that an AVF had developed in 1987, which had later closed, but Mr Vidovich disagreed.
170 They also agreed there was no direct relationship between the veins and the later development of chronic pain and various psychiatric disorders in the plaintiff. These complications may be related to the treatment the plaintiff received for the varicose veins.
171 They disagreed about the role of the accident in causing the plaintiff’s varicose veins. Dr Blombery thought the accident and the injuries to the plaintiff’s leg played a role in causing the veins, whereas Mr Vidovich thought there was no relationship between the accident and the development of the veins.
172 Dr Blombery relied on the temporal relationship of the development of the veins within two months of the accident to explain the cause and effect relationship between it and the veins, whereas Mr Vidovich thought that was entirely coincidental.
Viva voce evidence
173 Both practitioners adopted their respective reports when giving evidence and I asked them to explain their conclusions. They were both then cross-examined.
174 The following is a summary of the important matters which arose during their viva voce evidence.
175 Dr Blombery concluded that because there was a penetrating injury, it made it very much more likely that there would have been damage to a vein. In the absence of such an injury, it would have been less likely.[73]
[73]T58
176 Dr Blombery confirmed that whilst trauma was an unusual cause of the condition and, in most cases, varicose veins were due to a family history and a predisposition, there were certainly patients in whom it had developed after trauma. He made that connection in this case, because the varicose veins were only on one leg and began a few months after the accident.[74]
[74]T58
177 Dr Blombery confirmed a slight change in his initial opinion from his reports. He would now “sort of say that the coat hanger injury may well have damaged the valves in some way but perhaps not caused an AVF at the time of the injury”.[75]
[75]T62
178 Dr Blombery disagreed with Mr Vidovich’s view that it was unlikely there was injury to the popliteal vein in the accident, explaining that direct trauma to the area may disrupt a valve. Penetrating trauma would certainly be more likely to cause that problem, but he thought blunt trauma, if it was severe, could certainly cause it. He would imagine that trauma at the right site may well have caused disruption of a valve with very little in the way of haematoma or other evidence.[76]
[76]T94
179 Dr Blombery thought it still possible that a coat hanger may have traumatised the vein. It is possible there may have been a small AVF there which had caused the veins to start, then perhaps closed off. It was not seen again because there was no evidence of an AVF in the 2007 scan. If there was one there before that, it would have closed off, or else the penetrating injury resulted in trauma to the veins in the area, a Giacomini vein.[77]
[77]T101
180 Dr Blombery agreed it would be useful if he had notes from the Hospital as to what had happened after the accident, and that getting information from the patient was speculating what had happened.[78]
[78]T103
181 In cross-examination, Dr Blombery agreed he changed his view a little in his first report. He agreed that when he said that “one must assume the trauma of the accident resulted in the development of the fistula by another mechanism,” this was speculation – “all medical statements without aetiology are speculation”.[79]
[79]T104
182 Dr Blombery thought there was trauma to the valve which caused the veins. The coat hanger caused the trauma and it “could have done anything inside the leg”. He agreed he was guessing on what it did, and agreed the timing and the plaintiff’s age were the only connection of the varicose veins with the accident, together with the history of trauma.[80]
[80]T107
183 The greater gap between the accident and the veins, the less likely the connection. More than a year would call Dr Blombery to question the connection.[81] Ordinary varicose veins certainly would not appear within two weeks of trauma.[82]
[81]T116
[82]T117
184 Mr Vidovich confirmed his view that the development of varicose veins was entirely coincidental.[83]
[83]T66
185 Mr Vidovich made it clear that he did not accept there was a penetrating injury. There was no evidence that there was trauma to the popliteal vein or a saphenopopliteal vein. He demonstrated in the witness box, using a coat hanger, that there was no way the hanger could go through the front of the thigh into the popliteal fossa, which was behind the knee. If this had happened, there would have been a significant injury. Such had not been noted by anyone. The plaintiff was discharged from the Hospital that day.[84]
[84]T60
186 In cross-examination, Mr Vidovich could not possibly accept or work out how there was an accident relationship if the plaintiff suffered a blunt trauma to his right knee. The saphenopopliteal junction is deep within the leg immediately behind the knee joint, and for there to have been any trauma to those structures there would have been a huge haematoma and bruise of the leg. He doubted the plaintiff would have been sent home if that had occurred. There was no documentation of any such injury.[85]
[85]T72
187 Mr Vidovich pointed out that there is no evidence on any reports that there was any significant trauma to the vascular structures in the calf or the popliteal fossa that caused an injury to the veins. All there was in this case is evidence that the veins appeared a few months later, and there may have been some symptoms at the time. The rest is “purely speculation” as far as Mr Vidovich was concerned.[86]
[86]T75
188 Mr Vidovich confirmed there was a very large structure around the popliteal fossa.[87] To reach it head on, the coat hanger would have had to go through the knee and the kneecap. “For the life of him,” he could not see how it could possibly occur. There would have to have been tremendous force and the veins would have been noticeable.[88]
[87]T109
[88]T110
189 Mr Vidovich accepted there could be the development of an AVF from trauma, depending on the type of trauma. But from an ordinary blunt trauma, he could not possibly conceive what mechanism it could possibly be.[89] He could not accept an AVF would follow blunt trauma, confirming again there was no evidence of injury to the popliteal artery in the accident.[90]
[89]T82
[90]T83
190 Mr Vidovich described it as speculative to speculate on what was the cause of pain at the back of the plaintiff’s leg.[91]
[91]T86
191 Whilst accepting that the trauma of surgery could cause an AVF, the mechanism in the accident was entirely different compared to a complication of an operation.[92]
[92]T89
Lack of AVF on early scans
192 Mr Vidovich confirmed there was no evidence of an AVF in the 2007 scan pre surgery, conducted by Mr Somjen, who is an acknowledged expert in the field.[93]
[93]T60
193 If there had been an AVF caused by a penetrating injury in the accident, during the next twenty years, Mr Vidovich thought it would have become chronic, causing significant pain or swelling of the plaintiffs left leg and calf. There would have been pulstar varicose veins, pulsing because of an arterial pulsation, which would have been detected clinically when the plaintiff was examined by any competent surgeon,[94] particularly a vascular surgeon. If there had been an AVF for twenty years from the accident, it would have been almost impossible to miss on an ultrasound.[95]
[94]T61
[95]T80
194 Mr Vidovich thought the AVF did not show up until 2010 because it was not there.[96]
[96]T63
195 The radiologist is not an expert in varicose veins. The AVF was not evident on the first ultrasound and, on that basis, Mr Vidovich could not accept Mr Somjen’s ultimate view. The later did not mention in any of his letters or correspondence to Dr Poon that varicose veins in the first place were due to trauma. He raised the possibility, after receiving a letter from the Austin Hospital some years later regarding the AVF, and then suggested the possibility that the condition may have been due to trauma. He had not suggested it in any of his reports until then. Mr Vidovich could not accept Mr Somjen’s view, who had not implicated the accident until 2010.[97]
[97]T76
Was surgery a cause of the AVF?
196 Dr Blombery thought an AVF is not an unlikely consequence of varicose vein surgery.[98]
[98]T61
197 In Dr Blombery’s view, an AVF possibly may have been there originally and then perhaps closed some years beforehand. He thought the AVFs which were discovered after 2008 were probably related to the procedures being done rather than the original accident.[99]
[99]T63
198 Mr Vidovich thought that because the AVF was found after surgery, it was quite clear from journal reports that it was the result of the operation.[100] He confirmed surgery could cause an AVF.[101]
[100]T64
[101]T77-78
The left leg
199 Whilst, the presence of varicose veins in the left leg would not undermine the penetrating injury being the cause of the plaintiff’s injury, Dr Blombery “guessed you could say there was another contributing factor”.[102]
[102]T95
200 In Mr Vidovich’s view, if there were varicose veins in the plaintiff’s left leg, it would suggest the varicose veins were not due to the trauma which only occurred in the right leg.[103]
[103]T95
201 When shown a duplex of both legs undertaken on 21 May 2010,[104] the findings on the left suggested to Mr Vidovich that the plaintiff had a predisposition to varicose veins, and reinforced his view that the veins were due to an inherent condition and were entirely incidental to the injury.[105]
[104]21 May 2010
[105]T97
202 Dr Blombery was aware of that scan; however, he had commented on the 2007 scan which showed no evidence of incompetence in the greater saphenous veins at all. The plaintiff had developed this incompetence since that time, unrelated to the accident.[106] He suggested that there was some predisposition and agreed this was consistent with Mr Vidovich’s view.[107]
[106]T97
[107]T98
203 Dr Blombery’s impression when reading Mr Somjen’s letter that the AVF developed only a year after the surgery, was that was a different AVF from the one that may have occurred at the time of the accident.[108] Dr Blombery thought the second AVF was near the “posterior typical vein,” in the upper calf, well away from where there was any piercing injury.[109]
[108]T105
[109]T106
The Defendant’s address
204 Counsel for the defendant submitted Dr Blombery did not do much to assist the Court by way of a path of reasoning in circumstances where the plaintiff obviously had the onus – more particularly, in the absence of a definitive report from the treating surgeon, Mr Somjen.[110]
[110]T124
205 Counsel for the defendant submitted Mr Vidovich gave a reasoned report, correctly identifying the various chronological sequence of events and then, in analysing it, in a sensible manner.[111]
[111]T125
206 Counsel for the defendant relied both on the absence of any complaint to Dr Poon of the condition until January 2007 and also that doctor’s failure to notice any veins when the plaintiff attended in December 2012 with lacerations on his right leg and his visit in January 2003 when Dr Poon removed the stitches from that wound.[112] Further, the condition was not noted by Dr Poon when he examined the plaintiff for entry to the police force in April 2003.[113]
[112]T125
[113]T126
207 In his referral letter to Mr Somjen in January 2007, Dr Poon gave a history of:
“… a 32 year old man with 16 years of varicosity, R>L.”
208 It was submitted this entry took the first complaint back to 1991, four years after the accident occurred.[114]
[114]T127
209 Counsel for the defendant submitted it was “amazing”, in circumstances where the varicose veins were obviously giving the plaintiff emotional upset, that nothing was done by way of seeing a doctor until 2007. At most, there was a visit to Dr Dickman, about which the evidence is uncertain.[115]
[115]T127, T11
210 Counsel for the defendant submitted in light of the evidence as a whole, the accounts of the plaintiff and family members as to the onset of the condition should be taken with “a grain of salt”.[116]
[116]T127
211 Further, Dr Blombery considered that varicose veins just would not come up in two or three weeks as the plaintiff described.[117]
[117]T127
212 The credit of the plaintiff and other witnesses was not really attacked, save that counsel for the defendant “was not saying anyone was lying, just that they were unreliable”.[118]
[118]T128; an example was the Claim Form, which mentioned lacerations to the leg, not pain behind the knee
213 It was submitted, significantly, the duplex scan of 2 February 2007 did not show any AVF, and the referral from Dr Poon the previous month noted “right leg greater than left.”
214 As Mr Vidovich said, had the AVF been related to the accident, it would have been chronic and there would have been the pulsatile effect with pulsating of the veins, and it was extremely unlikely that would not have been detected.[119]
[119]T129
215 Dr Blombery did not deal with the absence of symptoms at all in the period leading up to 2007 when the plaintiff finally sought treatment.[120]
[120]T169
216 Further, there was no mention of any AVF in the 2007 operation notes, with Mr Somjen first mentioning an AVF coming on more than a year after that surgery.[121]
[121]T129
217 It was submitted the inference was overwhelming that the AVF was caused by the surgery[122] – a situation about which Mr Somjen was not asked to comment.[123]
[122]T130
[123]T145
218 Reliance was placed on Mr Vidovich’s view there is no path of reasoning in Dr Blombery’s report. Dr Blombery initially based his view on there having been a penetrating injury, and then distanced himself from that view, going to a position where he “assumed” the accident was a cause of the condition.[124] Whilst he said the coat hanger “could have done anything” inside the plaintiff’s leg, he did not explain what it did do.[125]
[124]T132
[125]T133
219 Counsel for the defendant was “absolutely critical” of Dr Blombery’s ultimate conclusion that there was something else in the mechanism of the accident that caused the AVF.[126]
[126]T132
220 It was submitted Mr Vidovich’s view was to be preferred because it was well balanced, reasoned, and supported by textbook material, whereas Dr Blombery was “on a rollercoaster ride from one end of the spectrum to the other, without really giving a mechanism by which the injury occurred”.[127]
[127]T136
221 Counsel for the defendant was critical of the state of the evidence as to the lack of any family history of varicose veins. The only evidence in that regard was from Mrs Allatt who, herself, said she did not make any enquiries, and only made observations herself.[128]
[128]T137
222 Counsel for the defendant in his closing address focussed largely on the lack of any information as to the condition following the accident until the plaintiff finally sought treatment for his varicose veins, twenty years later, in 2007.[129]
[129]T137
223 As both Dr Blombery and Mr Vidovich commented, it would have been more than helpful to have had information as to exactly what went on between the accident and the first complaint of the condition in 2007.[130]
[130]T137
The Plaintiff
224 Until the closing address by counsel for the plaintiff, the application focussed on a piercing injury to the plaintiff’s right thigh in the accident which it was submitted resulted in the development of the condition, which later went on to surgery with multiple complications thereof.
225 However, as the case progressed, and in light of the very limited evidence of any piercing or penetrating injury to the plaintiff’s right thigh in the accident, counsel for the plaintiff indicated he was going to refer to the evidence beyond the perforation to the right leg.[131]
[131]T138
226 Counsel conceded that there was no evidence of a penetrating injury beyond that of the plaintiff and his family. It was also conceded, with the level of perforation, “the coat hanger appeared to be a low probability by comparison to a contusion to the back of the leg and injury to the leg in total”.[132]
[132]T138
227 Counsel for the plaintiff submitted the force involved in the accident was of some magnitude, with the plaintiff hitting his legs on the dashboard and the car doing a 360 degree turn. Further, as Mrs Allatt confirmed, after the accident, the plaintiff complained of feeling like his legs were broken.[133] Counsel also relied on the limited contemporaneous material.[134]
[133]T139
[134]T140
228 It was submitted by counsel for the plaintiff that these factors, together with the plaintiff’s complaint of pain at the back of his right leg in the five weeks after the accident before the Claim Form was lodged, were supportive of an argument that the plaintiff developed an AVF in the accident which resulted in varicose veins for which he initially had surgery in 2007.[135]
[135]T141
229 Counsel for the plaintiff relied on Mrs Allatt’s evidence that before the varicose veins appeared, she submitted the Claim Form because of the plaintiff’s complaints of pain behind his leg, “just in case something happened”.[136] Further, whilst not cross-examined, it was submitted Tania’s evidence was consistent in this regard.[137]
[136]T141
[137]T142
230 It was submitted the Court should be confident of the development of the condition shortly after the accident based on the evidence of the plaintiff, his mother and sister. His nickname “worm boy” at school was totally consistent with the condition existing for some time.[138]
[138]T142
231 It was submitted the plaintiff dating the appearance of the varicose veins earlier than his mother is totally consistent with the development of the condition.[139]
[139]T143
232 Further, it was submitted the plaintiff and his mother had always considered the varicose veins were related to the accident. While they did not express this view in their affidavits or viva voce evidence, it was submitted, inferentially, the fact was that when there was a need for treatment, they went to the TAC. Further, the condition was not present before the accident and came on shortly thereafter.[140]
[140]T144
233 Counsel for the plaintiff submitted what was important in Mr Somjen’s report was that he was talking about there being the development of an anterior veinous communication between the mid posterior tibial artery and the superficial venous system, far away from the area of the surgery. It was submitted what was important about that is that the treating surgeon was saying you could develop fistulas and this was not at the site of the surgery.[141]
[141]T147-T148
234 Counsel for the plaintiff suggested Mr Vidovich considered you cannot develop an AVF unless there is surgery – evidence which counsel for the defendant disputed was in fact given.[142]
[142]T148
235 Whilst counsel for the plaintiff agreed that there was no evidence of that plaintiff having suffered any bruising at the time of the accident,[143] it was submitted there was “a record of a person in a motor vehicle accident, high impact, rotating vehicle who gets out of the car complaining of what he thought were broken legs”. It was submitted it was reasonable, in those circumstances, to infer the plaintiff had had an impact on the legs in the accident.[144]
[143]T147 – the history relied on by Mr Somjen
[144]T149
236 Counsel for the plaintiff submitted there was, in fact, a line of reasoning in Mr Somjen’s correspondence.[145]
[145]T149
237 It was submitted, in the absence of another explanation, with no family history, and the development of varicose veins closely in time, the context of trauma to the legs of a significant magnitude established a necessary link.[146] In these circumstances, the central proposition was, evidence of blunt trauma of the nature experienced by the plaintiff was a cause of the condition.[147]
[146]T150
[147]T151, T171
238 Counsel for the plaintiff relied on Dr Blombery’s “one must assume” comment and submitted that inferentially, because of the nature of the trauma and the plaintiff’s ongoing pain at the back of the leg, there had been some trauma in that area in the accident.[148]
[148]T153, T155
239 Counsel for the plaintiff, however, conceded Mr Vidovich gave no support for this view, concluding only gross trauma could cause an AVF.[149] Mr Vidovich’s opinion was criticised on the basis that it was a view without support, questioning his expertise in the field. [150] Further, it was submitted his view was not supported by other doctors.[151]
[149]T154
[150]T84 and ff, T154; at T86, Mr Vidovich said his view was based on sound clinical impression
[151]T155
240 As I indicated to counsel for the plaintiff, Mr Somjen was the obvious medical practitioner to comment on the outstanding issues in this case. In circumstances where I found Dr Blombery just makes assumptions and gives different explanations, and Mr Vidovich’s view is totally against the plaintiff’s submission. Whilst there was some discussion about it being too late to seek another report from Mr Somjen, no formal application was made to do so.[152]
[152]T158
241 Counsel for the plaintiff attempted to explain the absence of a detailed report from Mr Somjen on the basis that there had been acceptance of causation until relatively recently.[153] “All the plaintiff could say was what Mr Somjen said was that the plaintiff was a young man who had a fistula post-surgery in an area not linked to the surgery.”[154]
[153]T159
[154]T160
242 Counsel for the plaintiff confirmed the fistula could not have resulted from the surgery because it was not at the point thereof.[155]
[155]A change of direction from his earlier submission, T164-T165
243 Counsel for the plaintiff submitted because there is no other explanation for the AVF than from the accident, “on that basis the Court can find based on what Dr Blombery and Mr Vidovich agreed to and what Mr Somjen expresses, that there is an injury to the leg that produces the damage that causes the varicose veins”.[156]
[156]T166
244 It was submitted it was relevant the plaintiff did have some ongoing symptoms shortly after the accident to the extent Mrs Allatt submitted a claim. There should be no adverse finding because the plaintiff did not seek treatment for some twenty years after the accident as the medical evidence is this is a common presentation in males in their mid-30s.[157]
[157]T167
245 It was submitted Dr Blombery did not say to have a fistula the plaintiff would have had to have gross symptoms.[158]
[158]T169
246 Counsel for the plaintiff submitted that Mr Vidovich did not discount the fact you can have a fistula long term, he just discounted the cause thereof. He did not discount you could have a fistula without symptoms.[159]
[159]T169
247 It was submitted there was support for the plaintiff’s case both from Mr Somjen and Dr Blombery. Further, Mr Vidovich was out on his own and his opinion is based on there being no significant trauma to the leg and “we say the Court should infer there is a significant trauma to the leg”.[160]
[160]T171
248 In reply, counsel for the defendant submitted there is just no evidence of blunt trauma of the magnitude that resulted in the condition.[161]
[161]T171
249 Further, counsel for the defendant submitted counsel for the plaintiff would have the Court accept the surgery did not cause the fistula, but no one said that. Mr Somjen was not asked, nor did he say that the AVF was not caused by the surgery.[162]
[162]T171
Overview
250 Although it became apparent that the plaintiff worked after his business ceased trading, having deposed this was not the case, I found the plaintiff generally to be a credible witness. However, his evidence was somewhat unreliable, not surprisingly, as to his recollection of the accident, now thirty years ago, and events thereafter, as he was only aged twelve when the accident occurred.
251 In my view, there were similar issues with Mrs Allatt’s reliability given she was trying to recall events thirty years ago. However, I accept that she did her best trying to recall these matters.
252 Whilst liability was accepted for treatment of the condition on the basis of Dr Blombery’s report,[163] the defendant later advised the plaintiff that issue was taken with causation,[164] hence this preliminary application now before the Court.[165]
[163]Letter from the TAC to Maurice Blackburn dated 4 April 2016. No report was provided at this time by Mr Somjen
[164]Letters from the defendant to the plaintiff’s solicitors dated 22 September and 26 October 2016
[165]T2
253 For the following reasons, I am not satisfied that the condition has resulted from the accident.
254 As counsel for the plaintiff conceded, there is no evidence of a penetrating injury of the type that could result in an AVF or the development of the condition.
255 Whilst the plaintiff had some lacerations on his legs which were noted at the Hospital, there is no record of any treatment in relation thereto, with x-rays simply taken, details of which are not available, and the plaintiff discharged from Hospital.
256 In his first report, Dr Blombery initially relied on the happening of a piercing injury as causing an AVF, which manifested as varicose veins, thus connecting the condition to the accident.
257 However, later in that first report, his second report and in his viva voce evidence, Dr Blombery somewhat modified this view. Given the distance between the site where the coat hanger allegedly pierced the plaintiff’s right thigh and the site of the fossa (the back of the leg) were far apart,[166] he considered the coat hanger was not a cause of an AVF, but noted “one must assume that the trauma of the accident resulted in the development of an AVF by another mechanism”.
[166]T131
258 Later in his evidence, Dr Blombery seemed to depart further from this view; somewhat unsure if an AVF was caused by the accident, saying there may have been damage to a value which later resulted in varicose veins.[167]
[167]T62
259 Dr Blombery then said he thought the AVFs which were discovered after 2008 were probably related to the surgical procedures undertaken rather than the original accident.[168] Later in his evidence, he went back to the “piercing injury” explanation.[169]
[168]T63
[169]T107
260 I was not greatly assisted by Dr Blombery’s opinion, which only went so far as to assume there must be something else relevant to the accident that caused the AVF, but not explaining what.[170] Further, he gave a number of vague explanations for the onset of the condition without disclosing any path of reasoning, as counsel for the defendant submitted.
[170]T152
261 Whilst both Mr Somjen and the radiologist thought the condition was caused by the accident, both had inaccurate histories given by the plaintiff.
262 In his “to whom it may concern” letter in April 2014, Mr Somjen described significant trauma in the accident, with a coat hanger piercing into the plaintiff’s right lower thigh muscles, causing penetrating injury towards the popliteal fossa before hitting the dashboard. He also noted the plaintiff was hospitalised and, due to the internal haematoma, the plaintiff had ongoing and significant painful right leg swelling and ongoing right leg pain since the accident.
263 As counsel for the plaintiff conceded, Mr Somjen relied on an oral history provided by the plaintiff, not any available contemporaneous material.[171]
[171]T7
264 Dr Brooks noted when carrying out scans in late 2010, a past history of trauma and past history of penetrating injury.
265 Neither practitioner, Mr Somjen in particular, was provided with an accurate history of the plaintiff’s accident injuries and asked to comment as to whether, in those circumstances, the condition was a result of the accident.
266 Mr Vidovich, on the other hand, whilst not accepting any penetrating injury at all given the lack of complaint and treatment at the time of the accident, did not believe that the condition was accident related and that the appearance of the varicose veins some months after the accident was coincidental.
267 In the absence of evidence of penetrating injury, counsel for the plaintiff then submitted that the condition had developed as a result of blunt trauma in the accident. It was submitted that inferentially, the Court should find that because of the nature of the trauma and the ongoing pain at the back of the leg at the time the Claim Form was submitted, there had been some trauma to those particular structures.
268 However, there was no evidence of any contusions or haematoma found by any examiners after the accident.
269 Mr Vidovich did not accept that there was any blunt trauma of the necessary magnitude in the accident to result in an AVF, again relying on the absence of treatment and significant complaint at the time of the accident.
270 Mr Vidovich explained had there been an AVF as a result of the accident, the plaintiff would certainly have experienced significant symptoms with the appearance of pulsating veins which would have been obvious to any competent examiner and almost impossible to miss on scan. The absence of such findings until 2010 meant the AVF was not there before that time and was not a result of the accident.
271 On that basis, the plaintiff’s lack of experience of pain until about twenty years later in 2007 was a factor against the development of an AVF at the time of the accident, as well as the lack of significant trauma therein.
272 Dr Blombery did not really provide any explanation as to the lack of symptomatology until 2010, simply saying the AVF may have closed off, without explaining how he came to this conclusion and also later saying that surgery was the likely explanation for the AVF.
273 Again, neither Mr Somjen nor Dr Brooks were asked to comment about whether there was blunt trauma of such a magnitude in this accident that could cause an AVF.
274 Further, there is no evidence from those practitioners as to what, if any, symptoms would have been present or findings on examination if an AVF had been caused by the accident. Mr Vidovich’s view that the veins would have been pulsating, obvious and causing significant symptoms was simply not put to them.[172]
[172]T168
275 Whilst Mr Somjen ultimately connected the condition to the accident, he never explained how he came to this view, nor was asked, how he missed the AVF on scan in 2007 and the operation. Further, he did not explain on what basis he changed his original view when he reported a year after the surgery, in 2008, that he thought by that stage, an AVF had appeared, not at that time commenting on the cause thereof.
276 Mr Somjen has not explained what it was from his discussion with the radiologist, Dr Brooks, in late 2010 that made him attribute the AVF to the accident of which he had been aware since 2007.
277 As I mentioned during the hearing, there is simply no analysis by Mr Somjen of all these relevant issues[173]
[173]T162
278 Mr Somjen never excluded surgery as a cause of the AVT or explained why this was the case. He was never asked to explain on what basis he came to his 2014 view.[174]
[174]T136
279 Whilst counsel for the plaintiff relied on various passages from reports and correspondence provided by Mr Somjen, there was however, not a report in the terms that one would expect in a case of this nature from that treater addressing the relevant issues, particularly those that were forwarded to the medico-legal experts for their consideration and ultimate report and evidence.
280 In my view, it was extraordinary the medical practitioner person who had been involved in the plaintiff’s treatment for over twenty years had not been asked the relevant questions.[175]
[175]T146
281 Mr Somjen advised, was asked to provide a report by the plaintiff’s solicitors in October last year to clarify a comment he had made when he first examined the plaintiff in 2007, that he had a family history of varicose veins. In that correspondence, Mr Somjen confirmed he had made an error in that regard.
282 At that stage, whilst preparations were being made for Mr Vidovich and Dr Blombery to provide a joint report and give evidence as to the relevant matters in this case, Mr Somjen was not asked to comment and has provided no relevant opinion in relation thereto.
283 In those circumstances, I infer that Mr Somjen’s views in relation to the issues in dispute would not have been of assistance to the plaintiff. A detailed report from him, as I indicated to the parties during the hearing, would have been most useful when determining the relevant issues.
284 In my view, Mr Vidovich gave compelling reasons for his conclusion and was appropriately critical of Dr Blombery not giving an explanation for his ultimate conclusion.[176]
[176]T131
285 I am not satisfied, on the limited evidence that is available, even with the assistance of medical witnesses who gave evidence in Court and provided a joint report, that the condition resulted from the accident.
286 If there was blunt trauma, excluding the coat hanger, in this accident, of the magnitude that it was submitted occurred, I would have expected the plaintiff to have required medical treatment beyond his attendance at the Hospital and his varicose veins would have been obvious to those on examination over the following years, as Mr Vidovich described.
287 The later discovery of AVF post-surgery has never been explained.
288 Further, the appearance of left varicose veins three years after the accident gives some support to Mr Vidovich’s view that the accident is coincidental to the development of the condition.
289 Whilst the onus is clearly on the plaintiff in this application, both Mr Vidovich and Dr Blombery considered the 2007 surgery may have caused the AVF. Mr Somjen was not asked to comment in this regard.
290 In all the circumstances, as I am not satisfied the condition results from the accident. Accordingly, the application is dismissed.
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