Amott v Transport Accident Commission
[2012] VCC 1961
•14 December 2012
| THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-00666
| JULIAN AMOTT | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 December 2012 | |
DATE OF JUDGMENT: | 14 December 2012 | |
CASE MAY BE CITED AS: | Amott v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1961 | |
REASONS FOR JUDGMENT
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SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: Impairment of the function of the left upper arm and shoulder – whether the consequences were “serious”
LEGISLATION CITED: Transport Accident Act 1986, s93(4)(b)
JUDGMENT: the plaintiff's Originating Motion is dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Ms A Spitzer | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr J Gorton SC with Ms R Kaye | Hall & Wilcox |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed on 20 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 8 December 2004.
2 Mr P O’Dwyer, Senior Counsel, appeared with Ms A Spitzer of Counsel for the plaintiff and Mr J Gorton, Senior Counsel, appeared with Ms R Kaye of Counsel for the defendant.
3 The application is brought pursuant to s93(4)(d) of the Act. Sub-section (6) provides that a court must not grant leave under sub-s(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 sub-s(17):
“(a) serious long term impairment or loss of a body function.”
5 The injury suffered by the plaintiff for which leave is sought is an injury to the left upper limb.
6 The following evidence was adduced at the hearing of the plaintiff’s proceeding:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”), pages 6-107, and from the defendant’s Court Book (“DCB”), pages 10-13: Exhibit A.
The Plaintiff's Background
7 The plaintiff was born in 1972. He is now forty years of age. He completed Year 10 when he was sixteen years of age. The plaintiff is married. He has two children.
8 The plaintiff obtained a trade qualification as a fitter and turner with Honeywell. He continued in his employment as a fully qualified fitter and turner with Honeywell until 2004, when he was made redundant. He subsequently obtained work as a fitter and turner with S.G. Prittie.
The Transport Accident
9 On 23 September 2004, the plaintiff was a passenger in a car driven along Pascoe Vale Road, Glenroy. The driver of the car lost control during an overtaking manoeuvre, resulting in a collision with a tree or a pole.
10 The plaintiff was removed from the scene of the transport accident by ambulance. He was taken to The Royal Melbourne Hospital, where he was admitted. He suffered multiple injuries. The injuries on which this application is based are injuries to his left upper arm. I propose to concentrate only on those injuries and the treatment for those injuries.
11 The injuries to the plaintiff's left upper arm comprised a comminuted fracture of the shaft of the left humerus. The attending medical practitioners at The Royal Melbourne Hospital treated the fracture by the application of a plaster cast.
12 The plaintiff saw Dr Wulfsohn, general practitioner. He referred the plaintiff to Mr Lynch, orthopaedic surgeon. The plaintiff first saw Mr Lynch on 29 October 2004. Mr Lynch was of the opinion that the fracture showed no early callus formation. An x-ray demonstrated a complete displacement of the fracture.
13 Mr Lynch admitted the plaintiff to the John Fawkner Private Hospital on 10 November 2004, where he operated on the plaintiff's left upper arm. He inserted an intramedullary nail and performed an ostectomy to reduce and stabilise the fractured left humerus.
14 Mr Lynch subsequently reviewed the plaintiff on 26 November 2004, 29 December 2004 and 26 April 2005. By that stage, Mr Lynch was of the opinion that the fracture had united. He recommended the removal of the intramedullary nail, which he performed on 11 May 2005 at the John Fawkner Private Hospital.
15 Mr Lynch subsequently reviewed the plaintiff on 11 October 2005 and 13 July 2007. The plaintiff complained of ongoing stiffness around the left shoulder joint and aching in the left upper arm. He told Mr Lynch that the functioning of his left shoulder was about 85 per cent. Mr Lynch recommended further surgery, which he performed on 27 July 2007. It involved a left shoulder subacromial decompression and resection of the scar. At surgery, Mr Lynch noted that the rotator cuff was well healed and the glenohumeral joint was in impeccable condition.
16 Mr Lynch reviewed the plaintiff on 10 August 2007 and noted that the plaintiff reported a good comfort level and had a full range of movement. Mr Lynch was of the opinion that the plaintiff would be able to return to all of his activities, but would note residual limitation when attempting to throw a ball and when undertaking repetitive above shoulder level activity.
17 The plaintiff has not had any subsequent medical treatment of any note. At present, he uses over-the-counter medication to treat ongoing pain and discomfort in his left upper limb and shoulder. He uses Panadol and Nurofen. He takes two tablets in the morning, two tablets during the middle of the day and two tablets at night. The use of medication causes him constipation from time to time. When he suffers constipation, he stops taking the medication until the constipation has passed.
Consequences
18 The plaintiff was unable to return to work with S.G Prittie for three months following the occurrence of the transport accident. He then returned to work on light duties with restrictions on lifting, and was gradually able to return to normal duties after three months. In April 2009, he was made redundant. He undertook some retraining, obtaining a forklift license and a licence permitting him to drive trucks of various sizes.
19 In January 2010, he obtained work as a truck driver with Victorian Freight Express. At present, he works 12 hours per day, and I assume five days per week.
20 The plaintiff did not have any time off work after returning to work with S.G. Prittie, nor in his work with Victorian Freight Express. He said that the condition of his left upper limb and shoulder has not interfered with his capacity to undertake work both as a fitter and turner and as a truck driver.
21 The plaintiff said that he is involved in some arduous activities as a truck driver. He has to remove and replace gates on the trucks he drives. I understand the gates to be large steel rectangular structures which are fitted to the perimeter of the carrying area of trucks. He removes and replaces them manually. He also draws and opens the curtain on the trucks he drives. I understand the curtains to be a canvas (or similar material) which is pulled around the load, which then encases it in a protective cover.
22 The plaintiff said that he has difficulty removing and replacing the gates, drawing and opening the curtains, and at the end of the day the number of gearshift changes he undertakes leaves him with a fatigued left upper arm and shoulder.
23 The plaintiff pursued a number of social and recreational pursuits which he says he has lost either totally or partially. In his first affidavit sworn 3 November 2010, he summarised the problems he encounters as follows:
“8I have given up riding a motorbike as since the accident I am too nervous to do so. I am also a nervous passenger and am hypervigilant when driving. I have given up playing indoor cricket and no longer go to the gym. I have difficulty getting to sleep and am sometimes woken by discomfort, stiffness and aching in my shoulder.
9I have difficulty lifting and carrying my children, aged 5 years and almost 2 years. I have difficulty reaching into overhead cupboards, hanging out washing or any other tasks involving overhead reaching. I have become irritable because my arm is sore by the end of the day.”
24 In his third affidavit sworn 4 October 2012, the plaintiff said that the symptoms he was experiencing in his left upper limb and shoulder were worsening. He described experiencing a crunching and catching sensation in his left shoulder and an increase in the severity of pain. He said that he experienced difficulty in undertaking work as a truck driver, and in particular, drawing and opening curtains, changing gears, lifting gates, holding freight in place, moving freight around the truck and loading and unloading the freight.
25 In his fourth affidavit sworn 23 October 2012, the plaintiff expanded upon the symptoms he experiences in his left upper limb and shoulder and the extent to which he suffers interference with activities, such as indoor cricket, attending the gym, doing household chores, servicing and repairing family cars, undertaking general domestic tasks, gardening, and undertaking his work as a truck driver. He also said that he has lost the capacity to undertake work as a fitter and turner in the mining industry where he believes he could earn $2,000 to $3,000 per week, but is unable to pursue that employment because of his left upper limb and shoulder. He also said that his sleep is interrupted. He wakes at night once or twice due to shoulder pain, but he is able to then return to a restful night’s sleep.
26 After reading the plaintiff's affidavits, the transcript of his evidence and the medical reports, I am not persuaded that the impairment of function of the plaintiff's left upper limb and shoulder has resulted in consequences for the plaintiff which are “serious”.
27 The plaintiff was clearly able to work in relatively arduous work as a fitter and turner and now as a truck driver. His work as a fitter and turner with S.G. Prittie involved undertaking normal duties from about the six-month mark after he returned to work. I estimate that must have been about June/July 2005. He worked without incident, without the necessity to take any time off work, and without the necessity to resort to any significant medical treatment after he left the care of Mr Lynch. If he was not made redundant, there is no reason why he would now not be doing that very same work.
28 Similarly, the plaintiff undertakes normal duties as a truck driver. He works 12 hours per day, and I have assumed five days per week, which means that he works 60 hours per week engaging in the task of driving and the other necessary associated tasks which I have referred to above. While I accept that the plaintiff has some increased symptoms in his left upper limb and shoulder, it is clear that the increased symptoms do not interfere in any material way with his capacity to work as a truck driver.
29 The plaintiff is able to undertake domestic tasks, gardening, social interaction with family and friends, and go on camping and fishing trips without experiencing any significant difficulty. He has some marginal interference in the way he holds and casts a fishing rod, but that level of interference does not prevent him from fishing.
30 The real consequences which the plaintiff says are serious are his inability to ride a motorcycle, play indoor cricket, attend a gym, and no longer being able to work as a fitter and turner in the mining industry in which he could earn a significant income.
31 During cross-examination, the plaintiff said that he would now not ride a motorcycle because of his worries about safety when riding a motorcycle. It was a concern rather than a physical incapacity resulting from his left upper limb and shoulder that would now prevent him from riding a motorcycle.
32 The plaintiff conceded that because he is working long hours, and because he has lost contact with his former indoor cricketing mates, he is not able to play indoor cricket. However, whilst he is not playing for that reason, I accept that the nature of the impairment of function of his left upper limb and shoulder would interfere with his capacity to bowl and bat. The plaintiff described himself as being ambidextrous. Whilst he writes with his right hand, he bowls, throws a ball and bats left handed.
33 I accept that the plaintiff cannot undertake gym work which would involve significant arm work. He said that doing push-ups, chin-ups and what he described as military presses, are exercises he cannot do. I was asked to take a view of the scarring to the plaintiff's left upper arm and shoulder. I observed a scar on the inside of his left bicep, and from behind there was a slight loss of contour of his left shoulder when compared with his right shoulder. I noted that the plaintiff is otherwise very well muscled in his upper body and arms.
34 The plaintiff made no serious attempt to move from the area where he lives to any mining areas where he could earn $2,000 to $3,000 per week. It was not something he had seriously pursued, save to think about it, and in any event, he is firmly domiciled in Victoria. His working life is cemented in Victoria, as is his marriage and the raising of his children. If he were to move to a mining area and work as a fitter and turner, he would probably be able to undertake those duties given that he was able to return to normal duties as a fitter and turner following the occurrence of the transport accident. There was little evidence to suggest that work in the mines is significantly different from the work the plaintiff has undertaken in the past.
35 In the end, what the plaintiff is able to point to is a relatively mild level of interference with his work. I accept that there are some recreational activities which are made more difficult, such as fishing. I accept that he could probably not play indoor cricket or do a full gym routine. However, when a comparison is made between what the plaintiff has lost and what he has retained, it occurs to me that he has retained a significant portion of the life that he had prior to suffering the impairment of function of his left upper limb and shoulder.
36 It is for these reasons that I have concluded that the impairment of function of the plaintiff's left upper arm and shoulder are not serious. At best, I consider that what he has lost is modest, not significant or marked, and certainly not “serious”.
Conclusion
37 On the basis of the foregoing reasons, findings and conclusions, I order that the plaintiff's Originating Motion be dismissed.
38 After discussion with Counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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