Batdorf v Transport Accident Commission
[2012] VCC 343
•20 February 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY
Case No. CI-11-00091
| MICHAEL JON BATDORF | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | His Honour Judge Misso | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 February 2012 | |
DATE OF JUDGMENT: | 20 February 2012 | |
CASE MAY BE CITED AS: | Batdorf v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 343 | |
REASONS FOR JUDGMENT
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SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: transport accident - serious injury - whether the consequences were serious
LEGISLATION CITED: Transport Accident Act 1986, ss 93 (4) (d) and (17)
RULING: leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Rattray QC with Mr M Schulze | Maurice Blackburn, Lawyers |
| For the Defendant | Mr R Gorton QC with Ms A Ryan | Wisewould Mahony, Lawyers |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed on 14 January 2011 by which the plaintiff applies for leave pursuant to s.93(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 20 June 2002.
2 The application is brought pursuant to s.93(4)(d) of the Act. Subsection (6) provides that a Court must not grant leave under ss.(4)(d) unless the Court is satisfied that the injury is a “serious injury”.
3 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.”
4 The injury suffered by the plaintiff for which leave is sought is an injury to the right lower leg.
5 The following evidence was adduced at the hearing of the plaintiff’s proceeding:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered one page of a form completed by him dated 12 March 2009: Exhibit A
· The plaintiff tendered his Court Book (“PCB”), pages 1-20; 24-29; 64-73, and 92-97: Exhibit B
· The plaintiff tendered a financial statement: Exhibit C
The Transport Accident
6 On 7 January 2009 the plaintiff was riding a motorcycle along Princes Highway, Clayton. His domestic partner was a pillion passenger. He stopped his motorcycle at a red light controlling the intersection of Princess Highway and McNorton Road. A vehicle travelling from the opposite direction executed a right-hand turn in the intersection and in the course of doing so collided into the plaintiff’s motorcycle and a number of other vehicles likewise stopped at the red light.
The Plaintiff's Injury
7 The plaintiff suffered a number of injuries as a result of the transport accident. The major injury, and indeed the injury on which this application was based, is an injury to his right lower limb.
8 In his first affidavit sworn 29 September 2010 the plaintiff described the medical treatment which he obtained following the occurrence of the transport accident.[1] It is unnecessary for me to set out much of that history because it became very apparent that the defendant was not contesting the nature nor the extent of the plaintiff’s injury, but only the consequences which the plaintiff contended had resulted from the injury.
[1]PCB 4-6
The Medical Opinions
9 Mr Rattray relied heavily upon the opinion of Mr Jones, orthopaedic surgeon who examined the plaintiff for the defendant in April 2011,[2] and also the opinion of Mr O'Brien, orthopaedic surgeon who examined the plaintiff on 12 April 2010 and again on 18 October 2011.
[2]PCB 92-97
10 I will firstly turn to the opinion of Mr Jones. Mr Jones obtained a history from the plaintiff that he experiences intermittent cramping in the calf muscles of the right foot when lying down in bed; he is unable to stand on his toes and as a result has difficulty assuming a squatting position; he cannot wear tight fitting shoes on the right side; he has had to give up ice-skating; his capacity to walk was limited to one hour; he is unable to run, and he has given away bike riding and running with his dog.
11 He noted that the plaintiff was not having any active treatment. He was using Panadol for pain relief. Whilst he did not wear any special footwear he had a pair of boots made which compensated for the slightly increased size of his right foot
12 On examination Mr Jones noted the following:
"On examination Mr Batdorf presented walking with a slight right-sided limp. He was a tall man of some 6'2" and overweight. The right foot was clinically larger than the left to a minor degree.
…
The site of this patient’s pain was indicated to be over the dorsal aspect of his forefoot at the bases of the first to fourth toes. Subjectively there was some slight paraesthesia of the skin over the medial aspect of his right instep. Generally the movements in the great toe and lesser toes were slightly restricted when compared with the left and third toe in particular appeared to be slightly shortened and dorsally angulated."
13 Mr Jones examined a number of x-rays, and he was provided with the report of Mr O'Brien dated 22 April 2010, and a report of Mr Stapleton, plastic surgeon dated 24 June 2010. On the basis of his examination, the x-rays and reports he noted the following:
"I note in particular the x-ray reports dated 07.01.09 displaying "a fracture involving the neck of the second metatarsal with displacement and non-displaced transverse fracture through the base of the third metatarsal and head of the third metatarsal itself". There was also "a fracture involving the proximal phalanx and a fracture of the tip of the fourth toe".
14 Mr Jones was then asked a series of questions. The relevant answers are as follows:
2.This patient has suffered from a soft tissue injury to his right forefoot and fractures involving the second and third metatarsals and proximal phalanx of his third toe. There is also a reported fracture of the tip of the fourth toes. Subjectively the patient described some paraesthesia in the skin of his right instep suggesting damage to one of the cutaneous nerves involving the skin in this area. Sensation in circulation in his toes is normal.
3.This patient has sustained a severe forefoot injury involving fractures of the described bones.
4.This patient's current symptoms of a slightly enlarged forefoot with forefoot pain and stiffness are consistent with the injury sustained by Mr Batdorf.
5.… In Mr Batdorf’s complaint the source of his metatarsalgia is the result of mal-union of some of the fractures in his forefoot as well as a soft tissue component to his injury. This has resulted in maldistribution of weight and the forefoot itself with restriction of the movements of the major toes of his right foot. I agree with Mr O'Brien's diagnosis of this condition.
6.This patient continues to suffer from the effects of the injury described. He is able to work at his current job as a Truck Driver and would equally be capable of undertaking full-time sedentary work. Additional employment which places increased demands on the forefoot such as prolonged standing and prolonged walking particularly on rough or uneven ground would likely see an increase in the level of symptoms experienced by the patient. I believe that he would have difficulty performing labouring type work.
7.Given the length of time since his injury I believe this patient's right forefoot condition is permanent. I would not anticipate any improvement in his level of complaints. There is the capacity for his condition to fluctuate somewhat depending on the demands that he makes on his forefoot but I believe that he has reached the ultimate range of activity that his right forefoot will allow."[3]
[3]PCB 96-97
15 Mr O'Brien expressed a very similar opinion, however, he did not use the graphic language used by Mr Jones to describe the severity of the injury, that is, whilst describing very much the same deficits he did not choose to describe the injury as "severe".[4] Mr O'Brien's attention seems to have been directed to undertaking an impairment assessment on both of the occasions on which he examined the plaintiff. Mr Stapleton was concerned to examine scarring on the plaintiff's right foot, however, in the course of his examination he made similar observations regarding the deficits in the plaintiff’s right foot consistent with those made by Mr Jones and Mr O'Brien.[5]
[4]PCB 71
[5]PCB 75-76
The Consequences
16 The only issue which falls my consideration is whether the consequences suffered by the plaintiff as a result of the impairment of function of his right lower leg are serious.
17 The plaintiff swore two affidavits in support of his application. The first was sworn on 29 September 2010 and the second on late December 2011. In each affidavit he described the consequences he has suffered. In his first affidavit he described suffering constant pain and stiffness in his right foot and ankle; pain in the toes of his right foot, and in particular, his big toe and second toe; and severe cramping pain in the second, third and fourth toes of his right foot. He described having good days and bad days in terms of pain he experiences, and on the bad days the pain can be severe and difficult to tolerate.
18 In relation to mobility, the plaintiff said that the condition of his right lower leg is aggravated by prolonged periods of standing and walking, and especially if he stands or walks on hard surfaces. Movement such as squatting, crouching or jumping increase the pain he experiences. Running and jogging is so painful that he avoids them. He suffers interruption to his normal pattern of sleep from time to time because of the onset of pain. He has limited his use of footwear to wider fitting shoes to accommodate the swelling in his right foot.
19 The plaintiff was in the habit of engaging in social sporting and recreational pursuits. He played with his children, and in particular, he went ice-skating with his daughter, kicked a football with his son and went out with his family on family outings. He also used to ride a bicycle. He used to take his dog for a walk.
20 The plaintiff also engaged in some domestic activities. The impression I obtained was that he engaged in only a modest level of gardening, household chores and similar domestic activities. However, he did say that he has trouble digging in the garden, no doubt due to the pressure exerted when he used a spade or garden fork. He also has difficulty mounting and dismounting ladders and walking up and down stairs.
21 The plaintiff repeated a description of very much the same consequences in his second affidavit, however, he added that the good days he has experiences are becoming less frequent. His domestic partner, Ms Caroline Best, swore an affidavit on 25 January 2012 corroborating much of what the plaintiff said in his affidavits and oral evidence regarding the consequences and experiences.
22 The plaintiff described himself as a workaholic. He drives a truck most often up to 60 hours per week working a five-day week. He has established a business in which he repairs trailers. Initially, he conducted the business from his home, but in recent times he has rented a factory. He works Saturdays and Sundays for about 10 hours each day.
23 Mr Gorton cross examined the plaintiff and the consequences which the plaintiff contended had resulted from the injury. What became apparent from the cross examination is that the plaintiff is so committed to his work as a truck driver and in his self-employment that he has little or no time for other social, domestic or recreational activities. The plaintiff reluctantly accepted that most of his time is taken up with work, but that he could make the time to engage in social and recreational activities if he was physically able to.
24 It became apparent that the plaintiff’s children are no longer interested in sporting and recreational activities. His daughter is no longer interested in ice-skating. His son is no longer interested in kicking a football. Otherwise I gained the impression that the plaintiff’s children do not engage in sporting and recreational activities much at all, and certainly not with the plaintiff.
25 The plaintiff has had very little medical treatment since a short time following the occurrence of the transport accident. He takes modest levels of medication. His more recent problems with his lower back were the reason why he last attended a medical practitioner for treatment.
26 Mr Gorton submitted that the plaintiff could not point to consequences of any particular gravity which could satisfy the statutory test of serious. He submitted that while the plaintiff has pain and interference with his mobility that must be seen in the context of the fact that the plaintiff is working long hours as a truck driver five days per week and then the whole of his weekend in self-employment. In essence, he submitted that the plaintiff's working life is a very good road test of the extent to which he is able to rely upon the use of his right lower limb which is inconsistent with a right lower limb with consequences that are serious. Furthermore, Mr Gorton submitted that the plaintiff has recently become a father again. His need to assist in the care of his child also reduces the time that he would otherwise have to engage in social, domestic, recreational and sporting pursuits.
27 Mr Rattray submitted that there were a number of consequences which spoke volumes of the seriousness of the consequences endured by the plaintiff. He submitted that the plaintiff has pain; interference with his mobility; an inability to work in his self-employment without taking 5-10 min breaks regularly during the working day; his work as a truck driver rarely involves activity which tests his right lower limb; his right foot is swollen which effects his ability to wear certain sorts of footwear, and he suffers interference with his sleep.
28 In relation to the plaintiff's lack of medical treatment, Mr Rattray submitted that the plaintiff’s injury is the sort of injury which would not require medical treatment, so to criticise him for not having medical treatment is to ignore the nature of the injury.
Findings
29 The plaintiff is a relatively young man. He was born on 19 May 1972. He is nearly 40 years of age.
30 I find that the plaintiff suffered the injury described by Mr Jones, and that he suffers the physical deficits graphically described by Mr Jones. Although, Mr Gorton did not choose to make any submissions regarding the opinion of Mr Jones it seems to me that there is unanimity amongst the medical practitioners that the plaintiff suffered a major injury to his right lower limb.
31 The fact that the plaintiff is able to work as a truck driver suggests that the consequences of his right lower limb injury are tolerable, however, it must be understood that the work he undertakes as a truck driver appears to keep him off his feet for the majority of the day. Similarly, with his self-employment he is able to take breaks as he wishes. He takes breaks often and of a moderate duration of 5-10 minutes at a time due to increasing pain in his right lower limb. I gained the impression that the plaintiff’s self-employment allows him to pace himself. The plaintiff said that there are some activities he finds difficult, they being, where he needs to squat and kneel because of the pressure replaces on his right lower limb.
32 Even if I were to conclude that the plaintiff's days of ice-skating; kicking a football; riding a bicycle, and taking a dog for a walk are basically over, due to his work commitments, I do not see that the pain he experiences; interference with mobility; interference with sleep and the necessity to choose more comfortable footwear are of themselves not consequences which speak of serious consequences in a man of not quite 40 years who will have to tolerate these consequences for the balance of his life.
33 The plaintiff struck me as an entirely believable witness. He gave his evidence in a candid, straightforward and believable fashion. Although, it was pointed out to him that some aspects of what he said in his affidavits were inaccurate, my overall impression was of a man who gave a good account of himself.
34 What the plaintiff has lost is the full, free and unrestricted use of his right lower limb. It is apparent from the findings that I have made thus far that when the plaintiff places stress and strain on his right lower limb that he suffers the consequence of pain and interference with his mobility. I accept that he could make the time to go ice-skating and ride his bicycle. It was my impression that he has filled in the time that he used to give to those activities by working.
Conclusion
35 On the basis of the foregoing reasons, findings and conclusions, I find that the plaintiff has suffered a serious long-term impairment of function of his right lower limb, and I grant leave to bring a proceeding at common law.
36 After discussion with Counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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