Arnephy v Transport Accident Commission

[2020] VCC 46

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-19-01593

MARK ARNEPHY	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	23 January 2020
DATE OF JUDGMENT:	6 February 2020
CASE MAY BE CITED AS:	Arnephy v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2020] VCC 46

REASONS FOR JUDGMENT
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Subject:  
Catchwords:            
Legislation Cited:    
Cases Cited:            Transport Accident Commission v Katanas [2017] HCA 32; Jones v Dunkel (1959) 101 CLR 298; O’Donnell v Reichard [1975] VR 916; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260;
Judgment:                

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Harrison QC with Dr A Newman	Shine Lawyers
For the Defendant	Mr A Moulds QC with Ms J Clark	Solicitor for the Transport Accident Commission

HIS HONOUR:

Introduction

1 Mark Arnephy seeks leave to commence a proceeding for damages under s 93 of the Transport Accident Act 1986. He says he has a serious long-term impairment or loss of body function of his spine, jaw and right upper limb and a severe long-term mental or behavioural disturbance or disorder.[1]  At the start of the hearing before me, the claims regarding the jaw and mental or behavioural disturbance were not pursued.   

[1]An amendment to include the left upper limb was made at the start of the hearing before me. 

2       Mr Arnephy is now aged thirty-three.  For the time being, he lives in Vancouver in the Canadian province of British Columbia. 

Circumstances

3       Mr Arnephy is one of four children.  Throughout his time at primary and secondary school, he was a significant achiever.  At primary school, he was the Year 6 captain.  Attending St Bede’s College for his secondary education, he was its Year 12 student of his year.  He was the Vice-Captain of its First XVIII and captain of the Seaford Junior Football Club.  Academically, in his VCE, he attained an ENTER score of over 96, which is high. 

4       His tertiary education is less impressive.  He attended the University of Melbourne to study for a Bachelor of Commerce in building and construction.  He was following in the footsteps of his two older brothers.  After 18 months, he withdrew from the course.  He then started a degree in exercise physiology at Victoria University but withdrew after two years.  He then worked in a café and then in online retailing in stationery for about six years. 

5       In July 2014, he travelled to France where he worked with his brother and learnt the art of coffee roasting. 

6       During the following year, he started working full-time as a coffee roaster for business called “Red Star Coffee Roasters” in Port Melbourne.  He saw coffee as his long-term career for, in his estimation, there were a “lot of opportunities” for coffee roasters.  His father, Jose, described what happened after his son withdrew from Victoria University:[2]

“…Mark has always done his own thing.  He said he wanted to find a career he enjoyed.  Mark then moved overseas for several years.  He was in France for a time with his older brother Paul who is considered something of a coffee guru.  Mark worked with Paul in France.  He developed a keen interest in and passion for coffee like his brother.  It was nice to see two of my boys working with each other and taking pride in their work.  It was great to see Mark find a field of work that he was passionate about.  Mark said to me that he wanted to build a long-term career in the coffee industry, just like his brother.  When he returned home, he managed to get a job at a coffee roasting business, intent on pursuing a career in that industry.” 

[2]Affidavit sworn on 19 January 2020 at [3].

Accident and immediate aftermath

7       At 5.50 am on 21 April 2016, Mr Arnephy was riding his bicycle to work.  Travelling in the left hand lane next to the kerb, he was struck by a car attempting to overtake him.  He was thrown from his bicycle onto the road, sustaining injury.  An ambulance took him to hospital.  His jaw was fractured in two places.  He sustained “whiplash” causing pain in his neck, which radiated into his right shoulder and arm, pain in his ribs and upper body on the right hand side, cuts and abrasions.  Some of his teeth were chipped.  He underwent an open reduction and internal fixation of his jaw. 

8       Mr Arnephy was off work for about three weeks, returning on light duties.  At least by 13 September 2016, if not earlier, he had resumed his normal duties on a full-time basis.  In about June 2017, he stopped that work, explaining why during cross-examination:[3]  

“Yes? – So during that time I – so my thinking was to stop work because it was an aggravating factor in my recovery, to treat my life as I’m basically doing full time rehabilitation to get over the injury….”

[3]Transcript at p 18. 

9       Elsewhere, he elaborated by saying he believed the pain rendered him unfit to work as a coffee roaster and stopped work.  He described the physical side of coffee roasting:[4]

“My job was physically demanding.  My duties included frequent use of my arms, standing, walking, bending, stooping, looking down, climbing, repetition, sequencing, heavy lifting and moving of products weighing up to 30 kg.” 

[4]Affidavit sworn 2 November 2018 at [12].

10      Having ceased work, he spent months trying to rehabilitate himself.  He attended a clinic called “Urban Leopard Myotherapy Centre”.  Its principal was a myotherapist but Mr Arnephy saw a chiropractor, Tyson Aldenhoven, in the practice.  He also undertook myotherapy and osteopathy and attended upon a sports physician and an orthopaedic surgeon, Richard Dallalana. 

11      Despite the lack of medical or other such evidence, I accept Mr Arnephy’s self-assessment of his inability to continue with coffee roasting for physical reasons.  Self-assessment of his or her capacity to work can be inaccurate.  It can be overly optimistic or pessimistic.  With Mr Arnephy, I accept its accuracy.  He sacrificed a career he loved to rehabilitate himself.  In this area, the ability to find a fact does not always require acceptable expert evidence. 

12      The rest of the quotation at the top of this page continued:

“…Ah, after about three or four months of that I wasn’t seeing the results that suggested it was working so at that point I decided to look into a career in myotherapy…”. 

13      By November 2017, he was still experiencing pain on the right hand side of his neck, in his right shoulder and shoulder blade, in his right arm above the elbow, right lateral chest pain and axillary right side pain radiating to below the level of his elbow.  By then, he was using an oil, St John’s Wort, but no pain-relieving medicines.  The former gave slight relief.  He had before received various treatments, myotherapy, physiotherapy, chiropractic and osteopathy with an estimated fifty visits in all.[5] 

[5]See report of Craig Mills, dated 21 December 2017 at p 4. 

14      Pausing there, Mr Arnephy is a person who before the accident sought and attained a high physical standard.  He rode a bicycle to and from work which took about 50 minutes each way.  He went to a gymnasium three or four times each week, mainly doing powerlifting.  He played sports, including football, with his friends.  These games were social, not competitive.  Having this standard defined his view of himself:[6]

“My self-concept and self-confidence were very much based around having a fit, active healthy body.  ….I feel embarrassed and ashamed at the state of my body.  I feel trapped inside my body, as it does not allow me to do many things I want to and used to be able to do.”

[6]Affidavit sworn 2 November 2018 at [11].

15      However, no health practitioner advised him to stop that work because of his injuries.  Nevertheless, he was very disappointed giving it up as a career and, in November 2018, he missed working in it.  By then, he was close to two-thirds through his course in Canada. 

16      Mr Arnephy went to Canada to study myotherapy at the Vancouver College of Massage Therapy.  He told his father the course in Canada was shorter than those in Australia:  two years as opposed to four or five.[7]  However, his reasons for studying in Canada were more complicated:[8]

“At that time I had come to the realisation that I could no longer pursue my career as a coffee roaster and I was really struggling mentally.  I felt like I no longer fitted into my ‘pre-accident life’.  Instead of living that reality, I decided to move to unfamiliar territory, which had no memories, where I knew nobody, and start afresh.  I always planned to move back to Australia eventually, but I needed some time to start again.” 

[7]Paragraph 7 of the affidavit of Jose Arnephy sworn 19 January 2020. 

[8]Affidavit sworn on 24 June 2019 at paragraph 3. 

17      Although denying in cross-examination the proposition he moved to Canada for lifestyle reasons, in truth, he did so for a new start, both occupationally and socially.  He was escaping the consequences of the loss of an occupation for a man who had had a chequered academic and occupational career before.  He was escaping the impact of his injuries, especially as he viewed himself.  His father noted his withdrawal from contact with his family.  At that stage, after completing the course, he intended to return to Melbourne and undertake an advanced diploma in myotherapy at RMIT.[9] 

[9]Report of Brendan Hayman dated 15 November 2017 at p 3. 

18      An indication of his determination is the financial cost of this move.  He stopped working at a job which paid $55,000 per year.  Studying in Canada involved the expenses of relocation and tuition with the latter costing 36,000 Canadian dollars. 

19      Mr Arnephy did extremely well, completing the 20-month course with high distinction and obtaining registration to practise as a massage therapist. 

20      The course comprised five “terms”, starting with Winter 2018 and ending with Spring/Summer 2019.  Except for the first “term”, each of the others contained a subject called “Clinic Internship”.  Despite a large number of subjects in each “term”, this subject occupied two days of five day week with each week involving 40 hours of contact time.   

21      “Clinical internship” was the practical component of the course.  During it, he treated three patients on two or three days and involving between six and ten treatments each week.  On the treatment days, the pain in his neck, thoracic spine and shoulders intensified, rendering him largely incapable of doing much else on those days.   

22      The work of a massage therapist is physical involving long periods of bending over patients, using arms away from the body, pushing and pulling during manipulation.  Collectively, these activities aggravate the pain in his neck, thoracic spine and shoulders.    

23      However, the wish to escape may mean his choice of career is unwise.  Since early January 2020, he has worked two days each week.  It is a very quiet time of the year and he has performed only two treatments each day.  He has had no problems.  Putting aside his experience during the course and in keeping with his positive outlook, he hopes to increase to three days per week in February and then four days in March and reaching 20 to 24 hours each week of “hands on” treatment.  Ultimately, after accumulating 2,000 hours of “hands on” work, he can apply to teach in that institution.  If successful, he would combine practice with teaching for he likes the theoretical side of myotherapy.  He believes he can work in the profession while resting his body when teaching.

24      Despite the respondent not funding treatment while he is overseas, he has received chiropractic, massage, acupuncture and received prolotherapy injections.  He went to some lengths to be treated.  After arriving in Canada, he twice visited a chiropractor in Seattle.  Seattle is a considerable distance from Vancouver but the attraction was this practitioner used the same technique as Dr Aldenhoven, called Advance Muscle Integration Technique (AMIT).

Current situation

25      Mr Arnephy suffers pain in his neck, thoracic spine and shoulders.  He no longer feels pain in his jaw.  The feeling in his neck varies between an ache and a sharp pain due to activity.  The latter causes him to stop that activity.  It then takes “some time” before the pain regresses to his constant low-level ache.  He also regularly experiences a “grabbing sensation”.  The ache, sharp pain and grabbing sensation are mostly found on the left side of his neck.  Two postures aggravate his neck symptoms:  reaching forward; and holding a sustained posture (e.g. looking at a computer screen for prolonged periods).  During sleep, if he rolls onto a side, he aggravates severely his neck pain.  Sleeping this way causes a lot more pain, it “ruins” his day but does not wake him. 

26      He experiences a constant dull ache in his thoracic spine.  It is irritating and is aggravated by activities such as heavy lifting, carrying his bag for too long or reaching overhead. 

27      He experiences a constant ache in his left shoulder.  It feels unstable and clicks with circumduction.  The ache is aggravated by reaching forward or heavy lifting. 

28      Things have changed with his right shoulder.  Now, he does not notice it when at rest.  Overuse and some actions cause pain.  The latter comprise reaching, stretching, lifting or repeated movement.

29      He uses Prologel cream for each area of his pain.  He avoids using pain relieving medicines stemming from his earlier experience of ankylosing spondylitis.  He has now a high pain threshold and prefers therapy, exercise and avoiding aggravating activities.

30      Returning to Australia after completing his course, he was again treated by Dr Aldenhoven between October and November 2019. 

31      After his return to Vancouver, he will have occasional acupuncture and massage.  He will continue his daily routine of exercises at home.  He has learnt much through his course about managing pain through exercise. 

Isolation

32      Despite escaping to Canada, Mr Arnephy mixed with the other 25 students in his course and made friends.  He has obtained a work visa and will return to Canada.  Vancouver is a long way from Melbourne and his family. 

Team activities

33      Before the accident, he was active in non-competitive team sports.  After the accident, they ceased. 

Bicycle riding

34      He continued to ride his bicycle but now less often and for shorter distances.  Leaning forward and holding the handlebars aggravates his neck and shoulder pain.  Even the less frequent and shorter distances cause increased pain lasting days.

Gym

35      Again, before the accident, he attended a gym four or five days each week doing weightlifting exercises.  Now, he cannot push, pull or load his arms.  Various gym activities are denied including deadlifts, rowing, pull-ups and push-ups for these aggravate the pain in his neck, spine and shoulders. 

Other activities

36      Since mid-2017, he stopped attending dancing classes.  He has stopped running because it aggravates his neck and shoulder pain. 

37      He feels embarrassed or ashamed because of his view of his physical condition. 

Domestic activities

38      He can perform activities of daily living but scrubbing, lifting heavy or large things increase his pain.   

Relationships

39      He has had four one-year relationships but none since 2015.  The lack of a current relationship is unrelated to the injuries he received. 

Medical evidence

40      Apart from the reports of various x-rays and scans, there are no reports of treating practitioners, whether medical or otherwise.  The parties relied upon the medico-legal reports of three orthopaedic surgeons and two psychiatrists.  Relevantly, the radiological evidence reveals nothing abnormal. 

41      At the time of the accident, Mr Arnephy was in good general health.  In 2006, he experienced back pain with a diagnosis of ankylosing spondylitis.  The pain left without the taking of immunosuppressive medicine.  He has not suffered significant back pain in the last five or six years. 

Mills

42      Craig Mills is an orthopaedic surgeon.  On 16 November 2017, he examined Mr Arnephy at the joint request of the parties.  Dr Mills noted pain on the right side of the body:  neck; shoulder, upper arm; shoulder blade and lateral chest.  He noted Mr Arnephy’s report of the level of this pain, never zero and averaging six to seven out of ten.  He noted a large number of treatments from a variety of practitioners.  He noted occasional spasms in the neck as well as hip pain. 

43      Mr Arnephy had stopped working as a coffee roaster when he saw Dr Mills.  He told him of his plans for 2018 and, presumably, beyond.  He told of his care with activity to avoid exacerbating his pain, his daily rehabilitation exercises, the marked restriction on his bike riding and its production of neck pain after five minutes of riding.  There were positive comments about standing, walking, sitting, driving and sleeping.

44      As to diagnosis, apart from the injuries to the jaw and chin, Dr Mills maintained the accident caused an aggravation of cervical spondylosis, a strain of the right sternoclavicular joint and an aggravation of lumbar spondylosis.  These injuries were stable and unlikely to change.

Hayman

45      Brendan Hayman is a psychiatrist who interviewed Mr Arnephy on 14 November 2017.  He diagnosed him suffering from a relatively mild Adjustment Disorder with depressed and anxious mood with an excellent prognosis. 

Grossbard

46      Garry Grossbard is an orthopaedic surgeon.  He examined Mr Arnephy on 14 October 2019. 

47      He found Mr Arnephy had made a good recovery from the fracture of the left side of his mandible.  Mr Arnephy complained of intermittent neck pain mainly on the left side with variable intensity, worsened by vigorous activity and helped by rest.  There is difficulty if he puts force along the line of his left arm on the left side.  On the right side, his symptoms were intermittent and related to activity.

48      On examination, he found Mr Arnephy’s shoulder movements were normal.  Some of the neck movements were dysmetric:  lateral flexion was 45 degrees to the right and 60 degrees to the left; rotation was 70 degrees to the right and 90 degrees to the left. 

49      To Mr Grossbard, the major issue was the cervical spine with emphasis on the left side rather than the right.  While the sterno-clavicular area had been the area of major symptoms initially, it now exhibited only tenderness to deep palpation.   

50      Mr Grossbard diagnosed a soft tissue injury to his cervical spine with referred pain into the trapezius area and upper arms, more on the left than right.  There was mild tenderness on the left, particularly in the suboccipital area and mildly dysmetric neck motion.  On clinical grounds, he thought it likely that there was underlying cervical spondylosis but without radiculopathy. 

51      Despite constant discomfort in the left trapezius and shoulder area Mr Grossbard noted Mr Arnephy completed his course of myotherapy, which he felt was a considerable physical undertaking.  With forceful activity, Mr Arnephy experiences pain in his shoulders and arms, including high levels of pressure through his extended arms.  He will continue to experience pain with forceful and repetitive activity through his arms, particularly on the left side.  His ability to work as a myotherapist is uncertain. 

52      Mr Grossbard suspected the level of discomfort in his shoulders and arms due to forceful and repetitive activity would continue to be an issue.  This is the nearest Mr Grossbard came to a prognosis. 

Owen

53      John Owen is an orthopaedic surgeon who examined Mr Arnephy on 9 October 2019. 

54      He recorded Mr Arnephy’s description of pain[10]: 

“His current complaints relate to pain mainly in the left side of his neck.  He describes two sorts of pain.  One radiating from the left side of the neck down over his collar bone into the front of his shoulder, the other more from the neck down the back of the arm into the triceps and axillary area. 

It is made worse by particularly pushing and pulling, for example the movement of doing a push up he finds very difficult….”. 

[10]Plaintiff’s court book at p 75-6. 

55      Apart from facial injuries, Dr Owen diagnosed a soft tissue injury to the cervical spine.  He was unable to be more specific.  Lacking appropriate imaging, it was uncertain whether there was discogenic pain.  If the injury was a lesion or contusion, then he felt it was more peripheral to the cervical spine, perhaps the left shoulder joint or the supporting structures such as the sternoclavicular joint or the AC joint.  Ultimately, he suspected the existence of some local contusion to the area of the neck and very close to where his jaw fractures were (i.e. mid jaw).  Certain shoulder movements will activate or irritate this lesion causing pain.  There is no treatment that would help and the prognosis is for ongoing pain in the left side of his neck. 

56      Dr Owen could not imagine any form of treatment would help Mr Arnephy.  He will have ongoing pain in the area of the left side of his neck. 

57      As to the effect on Mr Arnephy’s capacity for work, the neck will prevent him working as a myotherapist in “an absolutely unrestricted way” but Dr Owen suspects the restriction will be only an inconvenience rather than an “absolute problem at work”. 

Entwisle

58      Almost two years after Dr Hayman saw Mr Arnephy, Timothy Entwisle, another psychiatrist, saw him on 23 October 2019.  Like Dr Hayman, he diagnosed an Adjustment Disorder which had completely resolved by then. 

Legal considerations

59      As the High Court said in Transport Accident Commission v Katanas:[11]

“The terms ‘serious’ and ‘severe’ are not defined in the Transport Accident Act but, for the last 25 years, it has been accepted that the question whether an injury is ‘serious’ for the purpose of s 93(17) is to be answered according to the narrative test laid down by the Full Court of the Supreme Court of Victoria in Humphries v Poljak:

‘To be ‘serious’ the consequences of the injury must be serious to the particular applicant.  Those consequences will relate to pecuniary disadvantage and/or pain and suffering.  In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”

[11][2017] HCA 32 at [4].

60      In [6], the Court said the application of the test involves a two-stage process.   

Discussion

61      His credit was not raised.  In fact, he struck me as entirely creditable. 

62      As he told Dr Hayman, he prefers naturopathic methods to Western treatment.[12]  This explains his sporadic attendances upon general and other medical practitioners.  Although he attended other health practices including those where Dr Aldenhoven practised, I have neither reports nor clinical notes from these.  Nevertheless, while in Australia, he was active in seeking naturopathic treatment.

[12]Report at p 3. 

63      Due to the accident, Mr Arnephy sustained an injury to his cervical spine.  On the strength of Dr Mills’ opinion, it is an aggravation of pre-existing lumbar spondylosis, the aggravation causing the underlying condition to become symptomatic.  The results of the aggravation are continuing and will do so into the long-term.  The opinions of Mr Grossbard and Dr Owen are consistent with that finding.  The symptoms experienced in the left and right upper limbs are referred from the neck.

Pain and suffering

64      Apart from the neck, initially, the symptoms were on the right side of his body were more significant than those on the left.  Now, they are more significant on the left.  This is a referral of pain from the neck and into the trapezius area and his upper arms, especially the left.

65      For a relatively young man, the prospect of a background ache, escalating to pain after certain activities, for the long-term, is a bleak prospect. 

66      After attempting courses and employments, he found in coffee roasting a career he loved and foresaw long-term opportunities.  The effect of his injuries forced him to give it up.  He has embarked upon another career.  His ability to prosper in it is doubtful.  He has plans but, from an outsider’s perspective, they appear overly optimistic.  His future as a practitioner of myotherapy is doubtful.  His future as an academic in myotherapy depends, in part from his ability to practise.  It too is doubtful.      

67      The injuries have seen Mr Arnephy give or limit many of his social and sporting activities.  His move to Canada has separated him from his family, especially his parents.  He had an excellent relationship with his family.  In leaving Australia, he has created a new life with new relationships and ceasing the old.  It appears he has formed new relationships in Canada but has separated from the old ones. 

68      Apart from his lost income, expense of relocation and the cost of his tuition, there is the issue of pecuniary disadvantage.  If being a practitioner in myotherapy is unsustainable and academia is unachievable, then the financial disadvantage could be enormous.  Time will tell.  The view of Dr Owen of his work restriction as an “inconvenience” is too limited.  Given his experience in the course with providing treatment to patients, his ability to do so as a qualified practitioner must be doubtful notwithstanding his desire to increase his days of work in the coming months.  Unfortunately, it has an unreal air about it.

69      The defendant pointed to the failure to file reports from the un-named sports physician and the orthopaedic surgeon, Richard Dallalana and invoked the principle in Jones v Dunkel.[13]  This was in the context of the absence of contemporaneous medical evidence supporting his decision to cease as a coffee roaster.

[13](1959) 101 CLR 298.

70      The application of the principle was explained in O’Donnell v Reichard.[14]  The opening words of the relevant passage on p 929 are:

“The law may be stated to be that where a party without explanation fails to call as a witness a person who might reasonably be expected to call, if that person’s evidence would be favourable to him…”. 

[14][1975] VR 916 at 929.

71      It would be speculative to view either as a person whose evidence would be favourable to Mr Arnephy.  Mr Arnephy was vague as to when he saw the sports physician although it was probably before he left for Canada and possibly while he was working as a coffee roaster.  The sports physician referred him to Mr Dallalana.  He asked neither for any certificate concerning his capacity for work because he did not know he could and, more importantly, would not have done so because he had made his mind up.  It is unlikely the sports physician or Mr Dallalana formed any relevant view of the capacity for work.  They were consulted to advise on treatment.  The only advice to emerge from the cross-examination was Mr Dallalana advised against surgery.  I would draw no adverse inference. 

Conclusion  

72       The test is stern.  As Ashley JA said in Dwyer v Calco Timbers Pty Ltd (No 2):[15]

“…Whether the consequences of compensable injury for an applicant satisfy the test is to be assessed having regard to the spectrum of all cases, not simply those which end up in litigation.  The latter may be supposed to be – which is not say that they are – cases in which the consequences are not glaringly apparent one way or the other.”

[15][2008] VSCA 260 at [7].

73      The consequences for Mr Arnephy are not glaringly apparent one way or the other with the emphasis on “glaringly”.  If they were, in a properly operating scheme, this proceeding would not have occurred.  As has been said in other cases, this application is borderline.  I have set out the consequences for Mr Arnephy which are fairly described as at least “very considerable” and certainly more than “significant” or “marked”.  I am satisfied Mr Arnephy has sustained serious injury in the terms of paragraph (a) of the definition and will grant him leave to commence a proceeding for common law damages.         

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