Balla v Transport Accident Commission

[2012] VCC 1751

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

DAMAGES AND COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-11-00378

Raim Balla	Plaintiff
v
Transport Accident Commission	Defendant

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JUDGE:	S. Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	30 October 2012
DATE OF JUDGMENT:	28 November 2012
CASE MAY BE CITED AS:	Balla v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2012] VCC 1751

REASONS FOR JUDGMENT
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Catchwords: Serious injury application – Transport Accident Act 1986 (Vic) – s93(17)(b) – permanent serious disfigurement – scar – left arm

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Mighell SC	Nowicki Carbone
with Mr D Seeman
For the Defendant	Mr J Gorton SC with Mr B Anderson	Norton Rose Australia

HER HONOUR:

1 The plaintiff, Mr Raim Balla, seeks leave under s 93(17) of the Transport Accident Act1986 (Vic) (the Act) to commence proceedings for the recovery of damages in respect of injuries sustained in a transport accident which occurred on 6 June 2005. In the accident, he suffered a comminuted fracture of the left humeral shaft which required open reduction and internal fixation of the fracture with a plate and fifteen screws. He spent six days in hospital. He was not working at the time.

2 Before me, the application was brought under sub-paragraph (b) of the definition of serious injury set out in s 93(17) of the Act, namely, permanent serious disfigurement. In this case, the disfigurement relied upon is the scar located on the dorsal side of the plaintiff’s upper left arm. The parties agree that there has been a permanent disfigurement. The plaintiff contends that the psychological dimensions of his scar (that is, the embarrassment he suffers due to its length and obviousness), taken together with his experience of sensitivity of the scar, meet the test for serious injury. The defendant contends that the Court should not consider any sensitivity of the scar but that, even if it does, the pain and suffering consequences of the scar do not meet the test for serious injury.

The hearing

3       The plaintiff gave evidence and was cross-examined at the hearing. He relied on his viva voce evidence, his two affidavits, the statements of two lay witnesses, and on the medical reports of Dr Michael Epstein, Mr Felix Behan, Mr Peter Kudelka and Mr Brendan Dooley. 

4       The defendant relied on the medical reports of Mr John O’Brien and Dr Lester Walton.

Plaintiff’s evidence

5       At paragraph 23 of his first affidavit,[1] the plaintiff stated:

Prior to the transport accident the subject of this application I took pride in my appearance and well being. Since the insertion of the metal plate I have been left with a scar which extends from my elbow through to my shoulder which marks where the surgery occurred. This has caused me to become less confident in my appearance as I am conscious of people noticing my scar.[2]

[1]Sworn on 2 December 2009: Plaintiff’s Court Book (PCB) p7.

[2]PCB p11.

6       At paragraphs 25 to 28 of that affidavit, he stated:

Prior to the transport accident the subject of this application I was particularly keen on body building and staying fit.

I am particularly ashamed of the scar on my left arm and when I touch the affected area I can feel the metal plate inside my arm. I find that my brothers and friends always bring up the fact that I can’t do the things that I was once able to do particularly with playing sports which, in turn causes me to become angry and frustrated at my situation.

The restriction on all of my abilities and the subsequent loss of confidence has seen me withdraw from family and friends as I am ashamed at how limited all of my skills have become. I am therefore irritable and easily upset about the effects of the transport accident.

I constantly worry about the injuries that I have sustained and the impact upon my life and whether my situation will ever improve.

7       In his second affidavit,[3] the plaintiff stated that as a result of his ongoing left arm symptoms he was no longer able to perform the regular, heavy exercise that he did prior to the accident. He stated:

…As a result, I have lost a significant amount of muscle tone and have gained a lot of weight. I am now self-conscious about my appearance and I have lost a lot of confidence.[4]

[3]Sworn on 16 October 2012: PCB p14.

[4]PCB p15.

8       In paragraph 9 of that affidavit, the plaintiff stated:

As set out in my first Affidavit, as a result of the accident, I have been left with a long scar on my left arm that extends upwards from my elbow. This scar is discoloured and looks deformed to me. It is sensitive to touch and it hurts if I bump or scrape it against something. I am self-conscious about the scar and I feel very uncomfortable when people look at it. If I am wearing clothes that make it visible, people often comment on it and ask my questions about it. I find this embarrassing and upsetting. As a result, I have lost confidence in my appearance.[5]

[5]PCB p15.

9       At the hearing, the plaintiff agreed that he had been able to work as a car salesman for a number of years after the transport accident and that his scar did not affect his ability to do that work. However, he said that in the hot weather he did not wear short sleeves like the other salesmen. He agreed that he is unaffected by his scar if he wears a long-sleeved shirt and is only affected when he wears short sleeves. He agreed that the scar had never troubled him sufficiently for him to complain about it to his general practitioner and to seek referral to a plastic surgeon. He said that his doctor told him nothing more could be done for the scarring.

10      He agreed that he had never asked for help with any psychological issues related to the scar. He agreed that before the transport accident he used to do a lot of gym work and wore singlets often, and that this occurred less often once he was working full-time. He agreed that the scar did not prevent him from socialising with his friends, from having a girlfriend from 2009, or from going out or having fun. He agreed that he did not think the scar would affect his ability to have a family, to work or to do everyday activities. However, he said that he does not like seeing the scar. He agreed that he has coped emotionally and got on with life, and that the only difference is that he now wears long sleeve shirts and not short-sleeved shirts. He still goes to the beach, and swims, but wears a T-shirt which covers most of his scar. He said he does this because he does not like being asked about his scar. He says that he stands out because he is big. Other people notice the scar. He did not recall what he told medico-legal doctors about the scar or its effect on him. He said that in the morning the scar looks bluer. He said that he feels uncomfortable if he leans on something or if he touches the scar. His girlfriend puts cream on the scar for him, but it does not help.

Lay evidence

11      The plaintiff’s brother, Mr Riza Balla, swore an affidavit[6] in which he noted that prior to the accident the plaintiff dressed well, took pride in his appearance, and wore clothes that showed off his muscular physique, particularly his arms. In the warmer weather, the plaintiff would often wear tank tops or singlets. He stated that the plaintiff “rarely comes to the beach since his accident”[7] and he believed that the plaintiff was “self conscious about his large scar on his arm as well as his weight gain so he doesn’t seem as comfortable taking his shirt off in public like he used to”.[8] 

[6]PCB p18.

[7]PCB p20.

[8]PCB p21.

12      One of the plaintiff’s friends, Mr Robert Stepanovski, swore an affidavit[9] in which he stated, relevantly, at paragraph 17:

The plaintiff now has a big long scar on his left arm… I notice that the plaintiff tends to cover up his arms more than he used to, and I believe that this is due to his big scar. He seems self conscious about his scar. When we go out the plaintiff rarely wears a short sleeved shirt. The plaintiff gets annoyed when people ask about the scar. This used to happen quite a lot. People do not tend to ask about it when the plaintiff wears a long shirt, as it cant be seen. If my mates and I go to the beach the plaintiff rarely comes. He doesn’t take his shirt off in public like he used to.[10]

[9]PCB p21(c).

[10]PCB p21(c)-(d).

Medical evidence

13      Dr Epstein, psychiatrist, reported on 12 September 2012,[11] relevantly, being told by the plaintiff: “He was able to perform all of his normal activities of daily living, however continued to avoid contact sport as he was afraid of reinjuring his arm. He said he experienced cold weather sensitivity at the injury site and had a 22 centimetre scar on the posterior aspect of his left arm. He said he was embarrassed by the scar and tended to conceal it with clothing”.

[11]PCB p40.

14      Dr Epstein assessed a psychiatric impairment of 10% of which 7% was secondary to physical injury. He noted that the major effect of the accident “has been ongoing pain and discomfort and restricted function leading to him losing face with his brothers and cousins and losing confidence in himself to some degree”.

15      Mr Behan, plastic surgeon, reported on 12 September 2011[12] the following description of the scarring:

…There is minimal evidence of subdermal atrophy reflecting the length of the scar. Any hardness and induration has fully resolved. Scar revision surgery would not be appropriate or beneficial in this instance. There no (sic) signs of pigmentary change or sensory deficit in relation to the scar, however the patient is an athlete and is very much aware of the deformity of the scar when exposed to public gaze.[13]

[12]PCB p53.

[13]PCB p56.

16      Mr Behan concluded that “any impairment in relation to scarring is minimal and does not contribute significantly to the patient’s morbidity”.

17      Mr Kudelka, orthopaedic surgeon, reported on 8 February 2010[14] that the plaintiff had a well healed surgical scar 22cms long on the postolateral aspect of the left arm.  He noted:

…The present surgical scar constitutes a very minor cosmetic impairment. It is not particularly visible on frontal viewing of the patient’s upper body, and the patient does not complain about any cosmetic effects of his injury.[15]

[14]PCB p68

[15]At sub-paragraph (h) of the final page of his report: PCB p69.

18      Mr Dooley, orthopaedic surgeon, reported on 9 November 2010:[16]

He complains of the scar at the back of the left arm; at the lower end of the scar there is itchiness and people are constantly commenting on the appearance of the scar when he wears short sleeves.[17]

[16]PCB p71.

[17]PCB p73.

19      On examination, Mr Dooley noted:

…a 27 cm long surgical scar over the dorsal (back) aspect of the left upper arm for the open reduction of the fractured humerus. The scar itself is cosmetically disfiguring and obvious; it is slightly widened, discoloured to a minimal degree, not heaped and not adherent.[18]  

[18]PCB p74.

20      Mr Dooley assessed a 1% whole person impairment in relation to scarring of the left humerus which he described as “Extensive 27 cm scar upper arm, itchy lower end and disfiguring when wearing short sleeved shirts”.

21      Mr Dooley concluded that “the scar in his left upper arm is extensive but well healed and certainly does not require the option of revision plastic surgery for it”.

22      Dr Walton, psychiatrist, provided a psychiatric impairment assessment dated 16 November 2010[19] which contains no complaints in relation to scarring. Dr Walton felt after questioning the plaintiff that he was anxious when travelling as a passenger and felt unhappy when ruminating about his reduced participation in sport. He had gained about 25kgs due to being less active. The plaintiff told Dr Walton that “if he over-exerts himself then he may experience pain and that is more troublesome than might otherwise be the case because he is left-hand dominant”. Dr Walton noted that the plaintiff was optimistic about his future and was not experiencing any difficulties at work. Dr Walton diagnosed an adjustment disorder with anxiety. His report contains no mention of any complaint in relation to scarring. His report concluded that “from a psychiatric perspective, Mr Balla seems to have no problem in relation to any scarring”.

[19]Defendant’s Court Book (DCB) p9.

23      Mr O’Brien, orthopaedic surgeon, reported on 17 October 2011[20] that “[t]here was a long well-healed scar over the posterior aspect of the two thirds of the left humerus. The patient reported tenderness to palpitation along the line of the scar”.[21] He noted that “Mr Balla now describes very mild disability associated with his left dominant arm”.[22]

[20]PCB p48.

[21]PCB p49.

[22]PCB p51.

Submissions

24      The parties agreed that the Court is entitled to consider the psychological consequences to the plaintiff of the disfigurement relied upon, that is, the scar on the left arm. Those consequences include any embarrassment or concern flowing from the appearance of the scar.

25      The parties disagreed about whether the Court is entitled to consider any organic symptoms experienced by the plaintiff in association with the presence of the disfigurement. In this case, the dispute turns on the appropriateness of considering any sensitivity associated with the surface of the scar itself.

26      The plaintiff relied upon a recent decision of His Honour Judge Saccardo[23] in which His Honour took into account the sensitivity associated with the surface of the scar itself.

[23]Vaughan Hollis v Transport Accident Commission [2011] VCC 502, [11].

27      The defendant submitted that there was no binding authority for the proposition that the sensitivity of the scar to touch could be considered as part of the impact of disfigurement upon a plaintiff.

Legal principles

28 The Court is entitled to consider the psychological dimension of the disfigurement which is an expected consequence of that disfigurement and which does not arise by reason of a discrete mental disorder which would fall to be considered under sub-paragraph (c) of section 93(17) of the Act.[24] The psychological dimension may include the embarrassment felt by the plaintiff about the scar, his view that it is ugly, his attempts to conceal them and generally its effect on him, his behaviour and his relationships with others.[25]

[24]Ingram v Ingram [1996] 2 VR 435.

[25]Baker v Transport Accident Commission [1997] 1 VR 662, Turner v Love& Anor [1995] VSC 87, 20.

29      The Court must be satisfied that the consequences to the plaintiff of the permanent disfigurement could be fairly described as at least “very considerable” and certainly more than “significant” or “marked”[26] when compared with other cases in the range of permanent disfigurements.

[26]Humphries v Poljak [1992] 2 VR 129, 140; Baker v Transport Accident Commission [1997] 1 VR 662, 663; Orr and Anor v Rietmeyer (1998) 27 MVR 274.

Findings and reasons

30      I viewed the scar during the course of the hearing. There is some difference in the medical descriptions of the length of the scar, but nothing turns on whether the scar is 22 or 27cms long. I found the photograph of the scar to accord largely with its appearance in real life: long, thin, flat and pink but not prominent. However I accept the plaintiff’s evidence that the scar appears more blue or purple in the morning. I note that the scar, while significant in length, and visible, is located on the back side of the left forearm. It is not detectable at all when the plaintiff wears a long sleeve shirt. If he wears a T-shirt only the bottom portion of the scar is visible. If he wears a singlet or no top at all, then it is clearly visible, but not prominent. As Mr Behan, Mr Dooley  and Mr O’Brien noted, I consider that the scar is well-healed, there are no signs of pigmentary change and there is no need for revision surgery.

31      I accept the plaintiff’s evidence that he feels self-conscious about the scar, does not like seeing it, and hates being asked about it. He wears long sleeves more than he used to in order to keep it covered. He now wears a T-shirt at the beach to cover up most of the scar. I accept that the scar is sensitive to touch in that if he leans against it he feels uncomfortable.

32      However, it is clear that the scar is fully concealed by the choice of a long sleeved shirt. Further, on the evidence the scar has not affected the plaintiff’s ability to earn income as a car salesman; nor did it affect his ability to socialise with his friends, to engage in a relationship with his girlfriend, or to engage in everyday activities.

33      Having regard to all of the evidence, even if I were to consider it appropriate to take into account the sensitivity of the scar to touch, I am satisfied that the consequences of the plaintiff’s disfigurement are considerable. However, I am not satisfied that the consequences referred to above are more than “significant” or “marked”, and “at least very considerable”.

Conclusion

34      It follows that the plaintiff’s application is dismissed. I reserve the question of costs.