Ansari v TAC

[2016] VCC 1569

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-16-00645

Imran Ansari	Plaintiff
v
Transport Accident Commission	Defendant

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JUDGE:	S. Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	18 October 2016
DATE OF JUDGMENT:	27 October 2016
CASE MAY BE CITED AS:	Ansari v TAC
MEDIUM NEUTRAL CITATION:	[2016] VCC 1569

REASONS FOR JUDGMENT
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Subject:  Common law
Catchwords:   Serious injury application
Legislation Cited:  Transport Accident Act 1986 (Vic)

Cases Cited:Humphries v Poljak [1992] 2 VR 129; Mobilio v Balliotis & Ors [1998] 3 VR 833; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Aburrow v Network Personnel Pty Ltd & Anor [2013] VSCA 46; Mazevska v TAC [2014] VSCA 178; TAC v Dennis [1998] 1 VR 702; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260;

Judgment:  Leave is granted to the plaintiff  

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Brett QC with Mr C Hangay	Arnold Thomas & Becker
For the Defendant	Mr S Smith	Transport Accident Commission

HER HONOUR:

1 Mr Ansari seeks leave under s93(17)(a) of the Transport Accident Act 1986 (Vic) (the Act) to issue common law proceedings for the recovery of damages in respect of the consequences of an impairment to the right wrist resulting from injury sustained in a transport accident on 14 February 2012. The injury suffered was an ulna styloid avulsion fracture and an injury to the superficial limb of the triangular fibrocartilage complex (TFCC) ligament.[1] This is a range case. The plaintiff gave evidence and was cross-examined. I have considered all of the evidence relied upon by the parties.

[1] See report by Mr Chehata PCB p.56

2       The defendant says that on the evidence, the plaintiff suffers pain four times per day for 2-3 minutes at a time, requires Panadol 2-3 times per week and Panadeine Forte once a fortnight; that he managed to work as an automotive electrician after the transport accident for 3 years with little time off work due to the condition; that his symptoms have not been severe enough to require surgery; that the clinical examinations reveal a modest restriction in range of movement; that his recent decision to stop work as an automotive electrician and to take up full time employment as a courier was partly motivated by knowledge of a likely downturn in the work available with his then employer; and that he has curtailed his leisure activities more because of his current heavy family responsibilities rather than the right wrist injury.

3       The plaintiff’s evidence may be briefly summarised. He is 34 years old and is right-handed. He came to Australia from Pakistan in 2009 and worked as a courier 20 hours per week while studying to be an automotive electrician. After qualifying, he obtained employment with Northern Fleet Pty Ltd from July 2012 as an automotive electrician, earning $63,000 per annum. In the first part of 2012, he helped his future employer on weekends in order to gain experience. He worked for Northern Fleet until December 2015. His employer told him in November 2015 that the company had lost an important contract and that there may be less work available for him the following year. At around the same time, he received an offer from his former employer to return to work as a courier and administrator. He was having trouble managing the work duties as an automotive electrician because of the various positions he had to adopt while working on the vehicles, having to bend and twist the right wrist, grip spanners and other heavy objects. He persisted with the work in spite of the pain it caused him. The plaintiff insisted that one of the reasons for his move away from automotive engineering was the difficulty he experienced doing his work with his right wrist injury. He said that a few times during that period he sought to see his general practitioner, Dr Habib, about his right wrist, but was unable to get an appointment with him. He was worried that if he said anything about the wrist to his employer, he would lose his job. He said he worked in spite of the regular pain to his right wrist, and just focused on his future. In his current job, he earns about $1,000 per week gross but has to pay for his own fuel and car expenses, which cost him around $200 per week, leaving him a weekly income of around $800 compared with a weekly income of $1,200 he earned as an automotive electrician. He has not applied for any other job as an automotive electrician because he needs a less strenuous job that does not provoke regular pain. He always planned to work as an automotive electrician and is disappointed that he can no longer do so.

4       In relation to the advice given to him by Mr Moaveni, hand surgeon, the plaintiff said they discussed the possibility of surgery, but Mr Moaveni knew he was working, told him any surgery might improve his wrist but might give him a problem with his movement and take some months to recover from, and suggested that he continue working and see how it went. The plaintiff said that Mr Moaveni did not tell him that surgery would give around 70% chance of pain reduction and functional improvement. The plaintiff decided not to have the surgery because he could not afford to take 4-6 months off work to recover.

5       The consequences of the plaintiff’s right wrist impairment may be briefly summarised. He suffers daily pain in the right wrist which is not constant. It comes on about 4 times per day and last a few minutes each time. It comes on when he drives, leans on anything with his right wrist or tries to lift objects. He tries not to use his right hand most of the time, and often keeps it in his pocket to avoid using it.  He is married with two young children. His wife does not drive. He has trouble lifting with his right hand, and with gripping heavy objects, particularly with a bent wrist. He is affected when dressing. He tries to limit use of the right hand. As a result of his physical restrictions, he has been unable to run, to attend the gym and play badminton as he did before the transport accident, and he has put on more than 20kgs in weight. Prior to the transport accident, cars were his hobby, and he used to do his own car servicing as well as minor servicing for friends. Now, due to the right wrist problems, he no longer repairs or tinkers with cars, which upsets him. He used to garden and mow the lawns. He can no longer use vibrating machinery and pays someone to do the gardening. Repetitive use of his right wrist when washing up causes him pain, as does sweeping. He avoids sleeping on his right side. He used to enjoy social cricket but can no longer play due to the pain he gets in the wrist. He used to go camping from time to time but can no longer set up a tent. He can no longer work in his chosen career as an automotive electrician.

6       The medical evidence may be briefly summarised as follows. The plaintiff was referred by his general practitioner for physiotherapy following the transport accident. The physiotherapist reported in May 2012[2] that while there had been some functional improvement, the plaintiff was still getting pain with lifting more than 5kgs, with pressure on the wrist during extension and for about an hour in the morning. He recommended referral to a hand specialist. The plaintiff was referred to an orthopaedic surgeon, Mr Grant Pang, who reported on 17 May 2012[3] that the ulnar styloid fracture had not demonstrated any bony union, but noted that this usually heals with fibrous union. He felt that the ongoing pain may be due to a number of things, including a TFCC tear. After an MRI performed in May 2012, Mr Pang[4] diagnosed subluxation of the plaintiff’s distal radio ulnar joint (DRUJ) with injury to the TFCC which was associated with extensor carpi ulnaris (ECU) tenosynovitis. He recommended referral to a specialist hand surgeon.

[2] PCB p.25

[3] PCB p.26

[4] PCB p.28

7       The hand surgeon, Mr Ash Moaveni, reported on 22 May 2012[5] to Dr Habib, that physiotherapy had not helped the plaintiff, who had a full range of movement in the wrist but had tenderness over the fovea. He stated that the MRI showed a triangular fibrocartilage tear as well as tendinitis in the ECU sheath. He suggested a cortisone injection to relieve pain and referral for hand therapy, with review in 6 weeks. After reviewing the plaintiff, Mr Moaveni wrote to Dr Habib[6] that there was a reported improvement in symptoms, although the plaintiff still gets ulnar sided wrist pain particularly with movements requiring grip strength. He noted that if he had surgery, the plaintiff would need four to six months before he could return to full duties as an automotive electrician. He noted that the plaintiff was starting a new job, and did not want this delayed. Mr Moaveni noted that he had suggested to the plaintiff that he should go ahead and start his new job and see how his wrist felt.

[5] PCB p.29

[6] PCB p.30

8       Mr Kenneth Brearley, orthopaedic surgeon, reported on 6 December 2013[7] to the plaintiff’s then solicitors that the plaintiff was “having some pain in the right wrist when working in awkward places and when doing some of the smaller tasks on motor vehicles” but had not needed to take time off work or have treatment for his symptoms. He noted the plaintiff was having trouble with heavier domestic duties, gardening and mowing, but still managing them. Similarly, he was unable at the gym to lift weights and do push-ups.

[7] PCB p.48  

9       Mr Moaveni reviewed the plaintiff in August 2015 after fresh x-rays and an MRI were obtained. He reported[8] to Dr Habib that these investigations confirmed the ulna styloid avulsion as well as the TFC tear. He noted that given that 3 years had passed, his preference would be for surgical repair however he told the plaintiff the results could not be 100% guaranteed and the rehabilitation would take up to 4 to 5 months. On 14 April 2016, Mr Moaveni reported to the plaintiff’s solicitors[9] that surgery by way of wrist arthroscopy and TFC repair had been discussed with the plaintiff, that there was about 70% chance of pain reduction and functional improvement with surgery, and that without surgery the plaintiff was likely to suffer ongoing pain, weakness and stiffness in the right wrist.

[8] PCB p.32

[9] PCB p.33

10      Mr Ash Chehata, orthopaedic surgeon, reported on 17 May 2016[10] to the plaintiff’s solicitors that he had reviewed all the films and confirmed the diagnosis of a right ulna styloid avulsion fracture, a TFCC ligament injury, but a stable distal radial ulna joint managed conservatively thus far. On examination he noted that the plaintiff was “quite painful”[11] on ulna deviation and on loading of the wrist, and in supination he had pain with a reduction in grip strength on the ulna side. He noted that the plaintiff reported ongoing loss of strength in the right hand as well as pain on gripping and loading the wrist in extension. He had modified his duties and was able to continue with his life, although repetitive activities caused ongoing symptoms and this has impacted on his future capacity with manual labour jobs, on his ability to do some activities in the gym, on his ability to mow laws or run or play cricket or do many domestic household chores. Mr Chehata felt that the plaintiff’s condition had stabilised, that he had tried hand therapy, cortisone injection, wrist splinting, wrist strengthening and that there was no need for further treatment, and there was little likelihood of deterioration. He stated that he did not consider that surgery would necessarily give the plaintiff a reliable result.

[10] PCB p.55

[11] PCB p.56

11      Mr Damian Ireland, hand surgeon, reported to the defendant’s solicitors on 7 September 2016[12] that the plaintiff was suffering from “minor persisting right wrist dysfunction following soft tissue and minor bony injury to the right wrist”. He felt that there was no longer any evidence on imaging of joint instability or tendinitis, but noted the imaging findings of “a minor flake fracture involving a small portion of the ulnar styloid process at the right wrist and a probable partial apical tear of the triangular fibrocartilage complex at the distal radioulnar joint”.[13] He concluded that no further treatment was required for his right wrist symptoms. He noted the plaintiff’s stated inability to play social cricket or go to the gym, but also that the plaintiff was managing his current employment and could increase his weightlifting restriction to 10kgs.

[12] DCB p.22

[13] DCB p.25

Legal principles

12      In order to satisfy sub-paragraph (a) of the definition of serious injury in section 93(17) of the Act, the plaintiff must establish that he has suffered a serious long-term impairment or loss of a body function. In determining an application under this section of the Act, the Court must be satisfied that the consequences of the long-term impairment of the particular body function, in terms of pecuniary disadvantage and/or pain and suffering, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described at least as “very considerable” and certainly more than “significant” or “marked”.[14]

[14] Humphries v Poljak [1992] 2 VR 129; Mobilio v Balliotis & Ors [1998] 3 VR 833.

13      Ordinarily, the endurance of permanent daily pain requiring frequent medication “must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence”.[15]

[15] Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267, [199].

14      Apart from the capacity for work, assessing the extent to which pain interferes with the ordinary activities of life will generally involve consideration of its effect on the plaintiff's sleep, mobility, capacity for self-care, performance of household and family duties, recreational activities, social activities, sexual activities and enjoyment of life.[16] Some weight must be given, in considering that the pain and suffering consequences of the plaintiff's impairment are at least very considerable, to the adverb “very”.[17] Any evidence of pecuniary disadvantage must be considered by the court regardless of whether any submissions were made on this issue.[18] Each case has to be determined in the light of its own facts.[19] 

[16] Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, [16]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Aburrow v Network Personnel Pty Ltd & Anor [2013] VSCA 46

[17] TAC v Dennis [1998] 1 VR 702, 703.

[18] Mazevska v TAC [2014] VSCA 178

[19] Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.

15      In determining the application the whole of the evidence is to be considered. The Court must consider what the plaintiff has lost by virtue of the injury and what has been retained. The significance of what he or she has lost, which bears upon the seriousness of consequences, may be informed to an extent by what is retained.[20] It is appropriate to take into account that the plaintiff is only 34 years old and that, compared with other persons with impairments of the right wrist, he will experience the pain and suffering or other consequences relied upon for a longer period of time.[21] In determining the application the whole of the evidence is to be considered, and a successful return to work by a stoic worker is not determinative against a worker on the issue of pain and suffering, particularly where the alternative employment found by a worker has not had the effect of reducing his symptoms.[22] What matters is the extent to which an area of work which the plaintiff enjoyed has been closed off to her or him.

[20] Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260, [27]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [95].

[21] Stijepic v Once Force Group Aust Pty Ltd V Anor [2009] VSCA 181, [44]

[22] Sutton v Laminex Group Pty Ltd [2011] VSCA 52, 79 (Tate JA); Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.

Findings and Reasons

16      I found the plaintiff to be a straightforward, understated witness. I accept the explanations given by him in cross-examination concerning his first affidavit. His counsel tendered two short DVD’s of video surveillance of the plaintiff taken by the defendant in August and September this year. The material shows the plaintiff carrying his son in his left arm, carrying shopping bags in his left hand, reaching into a mail box with his left hand, shutting the boot of his car with his left hand, and walking with his son using his left hand to hold his son’s hand. The plaintiff said that he does things this way to avoid using his right hand because of the pain these activities would cause him. I accept unreservedly the plaintiff’s account of his pain, restrictions, and the impact of his right wrist impairment on his domestic, recreational, social and occupational activities. In particular, I consider that he is a stoic person, committed to supporting his young family, and that he attempted for some 3 years after the transport accident to work in  his chosen occupation notwithstanding the difficulties he experienced when using his right wrist, to which I have referred above. I accept that a substantial reason for his ceasing to work as an automotive electrician, with the attendant loss of income, is the difficulties he experiences undertaking many of the required work activities because of the condition of his right wrist, in particular the pain he experiences when loading it with weight, twisting or turning or gripping.

Conclusions

17      He is a relatively young man with a long work life ahead of him, and with two young children. He is deprived on a daily basis of the ability to use his dominant right hand for many activities of daily living, for domestic, recreational and occupational activities involving pressure on the right wrist. He suffers pain on a daily basis, albeit not constant. He takes medication for it a number of days per week. He has found it necessary due to his right wrist condition to give up his chosen occupation, and take a lesser paid, unskilled job. In all the circumstances, I consider that, in terms of pain and suffering and pecuniary disadvantage, the consequences of the plaintiff’s right wrist impairment are more than considerable when compared with other cases in the range of long term impairments of the upper limb.

18      Leave is granted to the plaintiff to issue proceedings for the recovery of damages in respect of the injury to the right wrist suffered in the transport accident of 14 February 2012. I reserve the question of costs.