Aydin v Transport Accident Commission
[2013] VCC 1639
•26 November 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-04293
| ONDER AYDIN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 and 7 November 2013 | |
DATE OF JUDGMENT: | 26 November 2013 | |
CASE MAY BE CITED AS: | Aydin v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1639 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Transport accident – serious injury – consequences of injury – whether the injury was, when compared with other cases in the range of possible injuries, fairly described as “at least very considerable”
Legislation Cited: Transport Accident Act 1986 s93
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129
Judgment: Leave to the plaintiff to bring a proceeding to recover damages in respect of injuries suffered by him in a transport accident which occurred on or about 9 December 2008.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V A Morfuni SC with Mr E Makowski | Zaparas Lawyers |
| For the Defendant | Mr A D Clements SC with Ms S Manova | Wisewould Mahony Lawyers |
HIS HONOUR:
1 On or about 9 December 2008, Mr Aydin was involved in a transport accident which occurred in the course of his employment with J & S Farming Contractors Pty Ltd (“the employer”). He fractured his ankle in that accident, and further alleges that he has suffered consequential anxiety and depression as a consequence of that injury.
2 He seeks the leave of this Court to issue a proceeding to recover damages in respect of injuries suffered in that accident.
3 His right to do so is governed by the provisions of s93 of the Transport Accident Act 1986 (“the Act”). In order to obtain such leave, Mr Aydin must satisfy the Court that he has suffered a “serious injury”.[1]
[1]Section 93(6) of the Act
4 The term “serious injury” is defined in s93(17) of the Act, insofar as is relevant to this application, as:
“(a) serious long-term impairment or loss of a body function; or...
(c) severe long-term mental or severe long-term behavioural disturbance or disorder.”
5 In order to succeed in his application, Mr Aydin must satisfy the Court that the consequences of his physical injury and/or non-physical injury are “serious”. In order that an injury be considered to be serious:
(a)the consequences of the injury must be serious to the particular applicant;
(b)those consequences may relate to pecuniary disadvantage and/or pain and suffering;
(c)the question to be asked is whether the injury, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as at least very considerable and more than merely significant or marked.[2]
[2]Humphries & Anor v Poljak [1992] 2 VR 129 at 140
6 Mr Aydin alleges that the consequences of his injury satisfy the threshold test as being “at least very considerable”. The defendant denies that this is so.
Background
7 Mr Aydin is aged thirty-four. He was born and raised in Australia, alternating between Shepparton in Victoria and Bowen in Queensland. His parents worked as seasonal pickers, travelling widely. He was educated up to Year 10.
8 In 1995, he and his family went to Turkey, where they stayed until 2002. In that period, he performed national service in the Turkish army.
9 On his return to Australia in 2002, he worked pruning fruit trees for a short period, and then came to Melbourne and found work as a process worker in various factories through employment agencies. He was unemployed from time to time. This is confirmed by reference to his income summarised in a schedule tendered as part of exhibit 1.[3] In the year ending 30 June 2005, he earned $21,268; in the 2006 financial year, he did not file a taxation return; in the 2007 financial year, he earned $6,102; in the 2008 financial year, he earned $7,021.[4]
[3]Defendant’s Court Book (“DCB”) 27
[4]Those income figures do not include benefits from the Department of Social Security.
10 It appears he commenced with the employer in late November 2008. Prior to that time, he had last worked as a cleaner for a few months in mid-2008.
11 He had only worked for the employer for about one week when the accident occurred. He was on probation at the time.
12 His duties required him to stand on a pallet on a moving trailer. He slipped on the wet boards of the pallet, lost his balance, his right foot became jammed within the pallet, and he fell from the trailer to the ground. His foot had remained jammed in the pallet.
13 The accident occurred at about 11.00am on 9 December 2008. For reasons unknown, the employer did not arrange for Mr Aydin to be transported to hospital, and did not call an ambulance. He waited until the end of the shift, when a bus was available to take him to the Sunshine Hospital.
14 Mr Aydin advised hospital staff on arrival that he had injured his ankle at home. He explained in his affidavit and oral evidence that his employer had told him to do so and that he had feared losing his job if he mentioned the accident had occurred at work. I accept that evidence and find that the accident occurred in the course of his employment as described above.
15 In hospital, he was x-rayed and advised that he had suffered a transverse fracture through the right medial malleolus (right ankle). He was operated on the following day. Two screws were inserted so as to transfix the intra-articular fracture of the medial malleolus. These remain in situ.
16 Mr Aydin went home on crutches with his right foot in plaster. He remained in plaster for about seven weeks and then commenced physiotherapy, initially twice a week for about six months, and then once a week after that. That treatment continued until 2010. He also received weekly hydrotherapy.
17 He saw his regular general practitioner, Dr Cenap, regularly, and was given prescriptions for analgesia.
18 He has been prescribed Panadeine Forte for pain, along with anti-inflammatory medication. Such medication continues to the present time.
19 He has continued to suffer right ankle pain, worse on the inside of the ankle in the vicinity of the operative scar. The ache spreads around the back of his right heel and over the top of the foot.
20 He was prescribed medication to help him sleep. He had difficulties with pain at night. He developed depression, and has been prescribed anti-depressant medication by his general practitioner.
21 In January 2013 (just over four years after the injury), he obtained casual employment as a farmhand on a chicken farm. He works two days a week, each of 7.5 hours. He and his family were struggling financially and he needed the extra income. His employer at the chicken farm is aware of his ankle injury and makes allowances for him by assigning him tasks which do not involve prolonged walking, standing or heavy lifting. Notwithstanding, he spends about two hours each shift driving a forklift and the remaining 5.5 hours packing and performing other duties in the warehouse, requiring him to be on his feet. On occasions he works out in the field. His employer allows him to take a 15-minute break two or three times per day. In addition, he takes a half-hour lunch break.
22 He remains in the chicken farm employment. He is paid $120 for each day’s shift.
23 In addition, he receives a Newstart allowance from Centrelink, to whom he declares his chicken farm income.
24 I found that Mr Aydin gave his evidence in a frank and honest manner save for some minor exaggerations referred to below.
Diagnosis of injury
25 The initial injury suffered by Mr Aydin is not contentious. He suffered a transverse fracture through the right medial malleolus which was minimally displaced.
26 It was common ground that the radiology showed the fracture had united.
27 The contentious issues regarding the injury are:
(a) What are the consequences of that injury?
(b) Whether or not osteoarthritis had developed or was likely to develop in the ankle joint. The significance of such a finding is that it might provide a ready explanation for Mr Aydin’s ongoing pain and would indicate that it was likely to deteriorate in the future.
28 Mr Thomas Kossmann, orthopaedic surgeon, examined Mr Aydin in May 2013 at the request of his solicitors. In his report dated 8 May 2013, Mr Kossmann opined that Mr Aydin’s continuing pain and restriction of movement of the right ankle was most likely caused by an advancing osteoarthritis of the ankle joint.[5] On physical examination, Mr Kossmann had found a reduced dorsal extension in the right ankle. Other movements examined, namely inversion, plantar flexion, and eversion, were identical with the left ankle. In any event, Mr Kossmann was satisfied there was restriction of movement in the right ankle and considered that Mr Aydin was developing advancing osteoarthritis for which he may have to be treated in the future. Mr Kossmann could not exclude that he may have to undergo further surgery. He stated that in a worst case scenario Mr Aydin would develop severe osteoarthritis and might have to undergo fusion or arthroplasty of the ankle joint.
[5]Plaintiff’s Court Book (“PCB”) 66
29 As a consequence of those comments, Mr Aydin was sent for a further x‑ray of his ankle on 23 July 2013[6] and a further CT scan of the ankle on 4 October 2013.[7]
[6]PCB 45
[7]PCB 45
30 Mr Kossmann was asked to look at those investigations and provide a supplementary report on 17 October. He agreed that the x‑ray and the CT scan showed no signs of advanced osteoarthritis. Nevertheless he stated:
“However, in my clinical experience, the development of osteoarthritis is a long-term development and the radiological signs often show up at a much later time point and may not be visible on x-rays for quite some time.
Mr Aydin complained of pain and movement restrictions in his right ankle, which is a cardinal sign in the development of osteoarthritis.
The next step to diagnose osteoarthritic changes within Mr Aydin’s right ankle would be the removal of the screws in Mr Aydin’s ankle and then referring him for a MRI of his right ankle. The screws interfere with the MRI and osteoarthritic changes may not be visible. Therefore the screws in Mr Aydin’s ankle must be removed first before a MRI can be performed.”[8]
[8]PCB 71a
31 Later in his report, he said:
“Worrisome is also that Mr Aydin is hearing clinic (sic) noises in his right ankle, another sign that his ankle is more severely damaged than it may appear on the present x‑rays.”[9]
[9]PCB 71b
32 In his report of 19 August 2013, Mr Charles Flanc, general surgeon, opined that the plain x‑ray taken shortly before did not show any major arthritis of the ankle. Further, he noted that the joint space was not narrowed, and looked quite smooth. He thought that any arthritis would, at most, be minor.[10]
[10]PCB 54
33 Mr Peter Lugg, orthopaedic surgeon, examined Mr Aydin in February 2012 and again in September 2013 at the request of the defendant. He provided a supplementary report in October 2013, having viewed the most recent CT scan and x-rays. He agreed that those investigations showed no evidence of developing osteoarthritis. He also agreed with Mr Kossmann that developing arthritis can be long-term, and radiological signs can show up much later, even more than five years after the original injury. He agreed that complaints of pain and stiffness in the right ankle were cardinal signs of the development of osteoarthritis. However, his own examinations had not revealed much in the way of stiffness.[11]
[11]DCB 24–25
34 Mr Lugg agreed that an MRI scan would provide a better quality image if the malleolar screws were removed, but thought that even with the screws present, a reasonable view of any degenerative changes would be obtained. Mr Lugg had recommended an MRI scan eighteen months earlier, and noted that none had been performed.
35 Mr Lugg concluded that symptoms of pain and stiffness “could be due to early degenerative change not visible on recent imaging”. He thought that if a subsequent MRI scan proved to be normal, then it was unlikely that post-traumatic degenerative changes would occur, although it was still faintly possible and could not totally be ruled out in the long term. If the scan was normal, another cause for Mr Aydin’s symptoms needed to be searched for.[12]
[12]DCB 25
36 I was not assisted further on this issue by other medical reports tendered.
37 On the basis of the medical opinions tendered, I am not satisfied that Mr Aydin has established that he currently has developing osteoarthritis in the ankle joint. Whilst I accept that it is a possibility that such condition is either developing or might develop at some time in the future as a consequence of the accident, I am not satisfied that this is likely or probable. It is he that carries the onus of establishing the extent and nature of his injuries.
38 I accept that a further MRI scan is required to clarify the issue and that removal of the screws may be necessary to obtain a definitive picture. Mr Aydin has elected to proceed with his application at this time and without seeking such clarification. There is no evidence before the Court that removal of the screws would be unwise or would put Mr Aydin at risk. In any event, Mr Lugg is of the view that clarification might be achieved without such removal.
39 Both of the parties acknowledged that a finding one way or the other concerning developing osteoarthritis was not conclusive as to whether Mr Aydin had or did not have a serious injury.
40 With regard to non-physical injury, there was no evidence that Mr Aydin had ever been examined by any psychiatrist or psychologist. His general practitioner had not considered it appropriate or necessary to refer him to such a specialist. In the absence of such evidence, I am not satisfied that Mr Aydin has suffered any severe long-term mental or severe long-term behavioural disturbance or disorder as a consequence of the accident. Counsel for Mr Aydin did not submit that he had.
Consequences of injury
41 Counsel for Mr Aydin submitted that the consequences of his injury were:
(a) He suffers from daily pain in his ankle especially when working.
(b) He requires daily medication for pain in the form of Panadeine Forte nightly, Panadol Osteo, six tablets per day, and Naprosyn (anti-inflammatory) daily.
(c) His sleep is affected by pain.
(d) He is restricted greatly in the activities he can carry out with his children, especially sports.
(e) He is prevented from gardening, which he previously enjoyed.
(f) Although he can use a rider mower to mow his lawn, he is now required to take regular breaks so that it might take him three to four days to complete such a task.
(g) Prior to the accident, he had full and free use of his right lower limb and had been capable of working at least 30 hours per week as a cleaner. He acknowledged that for some months leading up to the commencement of work with the employer he had been unemployed. He submitted that currently he was restricted to part time work of about 15 hours per week (over two days) in light work and that, as a consequence, he had suffered and would continue to suffer from a substantial loss of earning capacity .
(h) His capacity for employment has been greatly reduced.
42 In addition, I note the opinion of Dr Cenap that Mr Aydin is likely to have some difficulty walking up and down steps or ladders.
43 In oral evidence, Mr Aydin stated that his work with the employer prior to the accident consisted of 4 hours per day, three days per week, a total of 12 hours per week.
44 In 2012, he had applied for a number of process work positions involving full-time hours. He was not successful. He understood that such jobs would have involved him standing near a conveyer line. He said he had wanted to work because he was the only breadwinner in his family and he needed the money.
45 Throughout most of 2012 he had visited his disabled uncle three or four times per week. He denied he was, in effect, a carer for him. He spent a total of 12 to 15 hours per week with him. He was able to push his uncle’s wheelchair to the park a short distance away and kept him company at his home.
46 He had sought and obtained work at the chicken farm in January 2013 because of financial hardship.
47 He stated that, if he was offered further shifts by his current employer, he would “give it a go” because he needs the money. He had not been offered additional hours to date.
48 Mr Aydin had a relatively poor work record as evidenced by his income between 2005 and 2009.[13] He admitted that he had been a daily user of marijuana since the age of fifteen. Before his injury, he admitted to using 3 grams per day. He said this involved smoking three to four joints per day. He agreed that this might be one reason for his poor work record. He did not believe he had an ongoing dependence on marijuana although he did say that he was trying to quit so that he could work more hours. He said in 2013, he had cut back his use and now smoked marijuana two days per week when he was not working.
[13]DCB 27
49 Looking at all of the evidence relating to his previous and current hours of work and the reasons therefore, I am not satisfied Mr Aydin has established that he would up until now have worked any longer or more regular hours than he currently does if the injury to his ankle had not occurred. I am not satisfied he has established an actual loss of earnings to date as a consequence of the injury.
50 However, I am satisfied that, before his injury, he had the capacity to work full-time hours but, for one reason or another, chose not to do so. His regular use of marijuana may have been a reason. Nevertheless, I find that his earning capacity has been reduced as a consequence of his injury. I find that he is now and in the future likely to be restricted in the hours he can work on his feet.
51 Given his education, limited skills and limited work experience, I consider it unlikely that he has the capacity to be retrained or further educated so as to be qualified to perform sedentary, administrative work.
52 Further, I accept that his ability to participate with his children in vigorous activities or to run around with them has been largely eliminated, although I consider he could engage in many less vigorous activities with them. In evidence, he said he would not be capable of taking them to the park. I do not accept that.
53 In evidence, he alleged he was impaired in the extent to which he could attend to his small vegetable garden. I accept that some if not most of such activities would be beyond him given his ankle injury.
54 He alleged his injury impaired his ability to hike and fish. I accept that he does not have the ability to walk long distances over uneven ground, but I am not satisfied he did much hiking before his injury. He said he had hiked regularly for ten years prior to his injury, but he could only name two locations where he had done so. I considered this to be an improbable history.
55 With regard to fishing, he claimed not to be able to fish off piers at Geelong and Williamston as much as he previously did. When pressed as to why this was so, he agreed that he would normally set up a chair on the pier and conceded that he was not fishing so much now because he had no luck in catching fish. I accept that he could not fish from rocks since his injury. I accept that he had fished from rocks at Lorne from time to time before his injury and that he would be unable to do so now.
56 Mr Aydin agreed he could drive a car in an unrestricted manner.
57 I accept that the amount of medication allegedly taken by him is not insignificant and is likely to reflect substantial levels of pain.
58 In January 2010, Mr Battlay, general surgeon, took a history from Mr Aydin that his general practitioner had advised him to see a specialist about having the two screws in his ankle removed. Mr Aydin has taken no such steps. In his oral evidence, he said he could not recall such advice nor telling Mr Battlay of it. I accept that the history set out by Mr Battlay is likely to be correct. It is inherently likely that his general practitioner would have given such advice given his ongoing complaints of pain. It is puzzling that Mr Aydin has not followed this up with Dr Cenap. Dr Cenap made no reference to such advice in any of his reports.
59 With regard to the likelihood of Mr Aydin returning to work, medical opinions varied.
60 Dr Cenap considered the disability of the ankle to be about 60 per cent and permanent. He thought he could only work 10 to 15 hours per week with restrictions.[14] I assume that Dr Cenap was referring to the sort of employment Mr Aydin is currently engaged in at the chicken farm.
[14]PCB 32
61 Whilst Mr Flanc was unable to identify the exact cause of Mr Aydin’s continuing symptoms, he accepted that they were caused by the injury in question and accepted the symptoms were genuine.[15] He considered he would be unable to cope with work involving heavy lifting, climbing, prolonged walking or standing.[16] He had been given a history that Mr Aydin’s current employment involved only forklift and tractor driving.[17] I do not accept that is so. Mr Aydin conceded that he was on his feet for more than 5 hours each shift he worked, albeit with the ability to take short breaks. Nevertheless, he is working modest part-time hours and I consider it is unlikely that he would be able to cope with those duties on a full-time basis.
[15]PCB 54
[16]PCB 54
[17]PCB 55
62 Mr Kossman considered that Mr Aydin will continue to experience pain and restriction of movement of the ankle.[18] He maintained that view even after sighting the recent CT scan and report.
[18]PCB 66-7
63 Mr Lugg considered that an MRI scan should be performed. Even if it showed no sign of developing osteoarthritis, he said then another cause for Mr Aydin’s symptoms needed to be searched for. Mr Lugg does not state that, in the absence of proven osteoarthritis, the reported symptoms of pain and restriction of movement should not be accepted.[19] Mr Lugg considered, in any event, that Mr Aydin had restricted endurance for standing, and walking was restricted to 15 to 20 minutes.[20]
[19]DCB 25
[20]DCB 22
64 Dr Davison, occupational physician, was provided with a similar history of symptoms in September 2013.[21] He thought there were some inconsistencies on presentation,[22] although no other medical practitioner made such a finding. Unlike virtually all other practitioners, Dr Davison found no reduction in social or occupational functioning. In doing so, Dr Davison stands alone. Acceptance of his evidence would involve me rejecting the evidence of Mr Aydin’s general practitioner, who has seen him on numerous occasions, and also the evidence of two orthopaedic surgeons and a general surgeon. I prefer the views of Dr Cenap, Mr Flanc, Mr Kossman and Mr Lugg which seem logical and are, in most respects, consistent on this issue.
[21]DCB 10 -11
[22]DCB 12
65 I place little weight on the reports of Mr Battlay, Mr Hunt and the physiotherapists, Ms Do and Mr Phu, insofar as they address the issue of Mr Aydin’s capacity for work. Those reports were prepared more than three years ago and do not assist me in assessing his current work capacity.
66 Mr Aydin is only thirty-four years old. He has several decades of life ahead of him. I accept that the prognosis regarding his ankle injury is poor.
67 I think it unlikely that he would realistically expect ever to obtain work in an office or performing duties of an administrative nature. I accept that his range of employment options, whilst perhaps not completely closed, has been very significantly reduced. I am satisfied Mr Aydin has suffered a substantial loss of earning capacity. Whilst his past enthusiasm for employment may have been lacking, I do not consider that it should be assumed that a man of his age, now with a wife and young family, would have necessarily continued in his pre-accident lifestyle in terms of his working hours or use of recreational drugs.
68 Looking at all of the evidence, I am satisfied that the consequences of Mr Aydin’s injury, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as at least very considerable and more than merely significant or marked.
69 I accept that Mr Aydin’s ankle fracture is regarded by all doctors as being successfully united and might be regarded by some as not to be serious. However, I do not accept that a minor injury necessarily has minor consequences (or vice versa for that matter).
Conclusion
70 For the reasons expressed above, I am satisfied that Mr Aydin has suffered a serious injury in the transport accident, as that term is defined in s93(17) of the Act.
71 Accordingly, pursuant to s93(4)(d) of the Act, there is leave to Mr Aydin to bring a proceeding to recover damages in respect of injuries suffered by him in a transport accident which occurred on or about 9 December 2008.
72 I shall hear the parties in relation to costs.
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