Buttigieg v Transport Accident Commission
[2014] VCC 1564
•24 September 2014
| 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-12-04873
| VALERY BUTTIGIEG | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8, 9 and 10 September 2014 | |
DATE OF JUDGMENT: | 24 September 2014 | |
CASE MAY BE CITED AS: | Buttigieg v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1564 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Transport accident – serious injury – injury to the left wrist and left hand – pain and suffering only
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Aburrow v Network Personnel Pty Ltd [2013] VSCA 46; Peak Engineering & Anor v McKenzie [2014] VSCA 67; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12
Judgment: Leave granted to the plaintiff pursuant to s93(4)(d) of the Transport Accident Act 1985 to commence proceedings to recover damages for pain and suffering in respect of injury to the left lower arm suffered in the motor vehicle accident on 22 January 2009.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D Ingram with Ms M Pilipasidis | Verduci Lawyers |
| For the Defendant | Mr W R Middleton QC with Mr P V Bourke | Hall & Wilcox |
HIS HONOUR:
1 In this matter, Mr A D Ingram with Ms M Pilipasidis appeared for the plaintiff, and Mr W R Middleton QC with Mr P V Bourke appeared for the defendant.
2 Mr Ingram, in opening, advised that this is an application under s93 of the Transport Accident Act 1986 (hereinafter called “the Act”) seeking leave under s93(4)(d) to issue proceedings for damages emanating out of a motor vehicle accident on 22 January 2009.
3 Mr Ingram indicated that the injury is a part (a) injury under the definition contained in s93(17) of the Act and the body part he identified was the left wrist and left hand. The consequences relied upon are pain and suffering only.
4 Mr Middleton, in advising the Court of the issues in contention, indicated that the first issue is the ability of the Court to be able to identify the injury caused in the motor vehicle accident upon a scenario of many existing physical ailments suffered by the plaintiff. In this regard, he provided to the Court the cases of Aburrow v Network Personnel Pty Ltd,[1] Peak Engineering & Anor v McKenzie[2] and AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz.[3]
[1][2013] VSCA 46
[2][2014] VSCA 67
[3](2012) 34 VR 309
5 The first issue which arose out of cross-examination was the credit of the plaintiff. I found her to be a straightforward and responsive witness who tried to answer all questions to the best of her ability. I perceived no prevarication or exaggeration.
6 Mr Middleton submitted the Court should be concerned as to her credit. Mr Middleton spent much of his cross-examination of the plaintiff in regard to unrelated conditions, in particular as to whether or not she had worn a thermal protector for her right wrist and as to the state of her right shoulder, in order, he said, to demonstrate inconsistencies within her evidence, particularly with the histories given to the doctors when compared to her affidavits and the evidence given by her in Court.
7 Given the number of medical conditions the plaintiff has had to endure, I found despite any such alleged inconsistency, that Mrs Buttigieg’s credit was not impeached at all.
8 For example the plaintiff said in cross-examination that she had no pain in the right shoulder before the accident, from approximately May of 2008. Essentially, she said her right shoulder had been symptom free at the time she travelled overseas for some months in 2008[4] and she had an injection in the right shoulder in January 2008 prior to such trip. I find that the cross-examination on that topic through to Transcript page 45 simply confirmed her evidence in this regard.
[4]Transcript (“T”) 34
9 The plaintiff said she continued to take Panadol Osteo at the same level through to the date of the accident and was subsequently prescribed 5 milligrams of Norspan patches in October 2010 for pain in regard to her back, but utilised such to relieve pain in her back, wrist and shoulder.[5]
[5]T51
10 In regard to any right-hand pain, the plaintiff denied having any, despite Dr Hanna reporting to the Transport Accident Commission in August of 2010[6] and indicating that the plaintiff had reported bilateral hand pains due to the motor vehicle accident. The plaintiff answered that what she was in fact suffering from, at that time, was left-hand pain and pain in the right shoulder, albeit that she accepted that she had osteoarthritis in the right thumb, and albeit that she never suffered from pain, she had some aches in the right thumb at times.[7]
[6]Exhibit E2 – Plaintiff’s Court Book (“PCB”) page 48
[7]T56
11 The plaintiff was adamant throughout the cross-examination that at no time did she suffer from right-hand pain and never wore a support for her right wrist despite the reporting of her wearing same by Mr Dr A Stockman, rheumatologist, in July of 2012[8] and Mr M Kahn, orthopaedic surgeon, in July 2013.[9]
[8]Exhibit H2 – PCB 65
[9]Exhibit M3 – PCB 114
12 The plaintiff said that she had had a support for tendonitis[10] suffered in her right arm which she had some time in the past, when she had worked at a firm called Hunter Chemicals, and she may well have had in her bag, with all her x‑rays at interview with the doctors, that support. Indeed, she said she may well have put it on to show the doctors, but definitely she was not suffering any right wrist pain or actually wearing any right wrist support at such consultations. Indeed, the plaintiff said[11] that she could not recall that she had had any pain in her right wrist but did, and had had, pain in the right shoulder in particular, caused by way of compensation from her left wrist injury.
[10]T59
[11]T63
13 The plaintiff was at pains during cross-examination to indicate that due to issues with her left wrist and hand caused by the motor vehicle accident, she had particular issues with sleeping. That she suffered consequential pain in the right shoulder and back when she would wake up due to disturbed sleep from the issues with her left lower limb and try to adjust to sleeping in other positions.
14 In final address, Mr Middleton maintained his attack as to the plaintiff’s inconsistency. In particular, the evidence as to when the Norspan patches were prescribed for her. In Exhibit 3 at pages 41 and 43 of the clinical records of Mr Hanna, it is clear that the prescription of such patches was primarily for her back. While the plaintiff accepted that, she also maintained that such was utilised for the purposes of the injuries suffered in the motor vehicle accident and it is clear that the prescription of such pain relief clearly would assist her in relief from the pains to her left wrist and left hand. I do not find the fact that this medication was primarily prescribed for her back as proof that when she described in her affidavit the use of such medication for her wrist, she was being untruthful in some way.
15 As for the medications, but for the Norspan patches post accident, the only change to her medical regime detailed in exhibit 4, being a list of all prescriptions she has had from 14 October 2003 through to March 2012, was that the plaintiff continued with the Panadol Osteo post accident in the morning but in the afternoon she replaced that with Nurofen Plus and with daily doses of 100 milligrams of Tramal.
16 Mr Middleton suggested in final submission that paragraph 10[12] of the affidavit of the plaintiff was inconsistent with the above evidence. However, I would reject such, as there is nothing to suggest, in such paragraph, that she was not taking such medicines before the accident, albeit that the patches were new post accident.
[12]Exhibit A3 – PCB 25
17 Whether one could describe such cross-examination as “nit picking”, I have not quite decided; however, I have concluded, having re-read the whole cross-examination, that the credit of the plaintiff has not been impacted by such.
18 The next issue, if possible, is to identify the injury caused by the motor vehicle accident on 22 January 2009 and then the consequences thereof.
19 Despite the submissions of Mr Middleton, I have had no difficulty with the evidence identifying the injuries caused to the plaintiff by the motor vehicle accident. Such, I believe, is clearly ascertainable from the evidence of the general practitioner, Dr Hanna;[13] the rheumatologist, Dr Stockman;[14] the medico-legal reports of the orthopaedic surgeon, Mr Kahn,[15] and the x-rays.
[13]See exhibits E3 and E4
[14]See exhibits H1, H2 and H4
[15]See exhibits M1, M2 and M3
20 I find, on the balance of probabilities, that the motor vehicle accident of 22 January 2009 caused the following injuries to the plaintiff:
(i) A transverse fracture to the distal radius with resultant malunion with dorsal angulation and shortening with 2 millimetres of ulnar positive variance;
(ii) An undisplaced fracture of the left ulnar styloid process;
(iii) As a result of (i) and (ii) hereof, pain and restriction in the ulnar volar aspect of the wrist and pain and restriction in the medial aspect of the left forearm;
(iv) Damage to the median nerve of the left arm with resultant damage, pain, paraesthesia, numbness and colour change to the left ring finger, middle finger and index finger;
(v) Reduced grip strength of the left hand;
(vi) Aggravation/acceleration of pre-existing asymptomatic osteoarthritis of the base of the thumb of the left hand and resultant pain in the base of the thumb and left palm;
(vii) Compressive precipitation of carpal tunnel syndrome of the left wrist and hand.
21 The next question raised in submissions is the identification of the body part for the purposes of determining consequences of such injury in regard to this serious injury application.
22 In this regard, I was referred to Lu v Mediterranean Shoes Pty Ltd & Ors[16] by both parties.
[16](2000) 1 VR 511
23 Mr Ingram, in this regard, submitted the body part is the lower arm, inclusive of the wrist and hand; alternatively, he submitted there were separate injuries to both the wrist and the hand. He indicated that if aggregation was not possible, then, on behalf of the plaintiff, he was making two serious injury applications in regard to the wrist and hand respectively.
24 Mr Middleton submitted that aggregation was not possible here as on the facts there were, and should be found, three separate injuries which could not be aggregated:
(i) A thumb injury;
(ii) A fracture to the wrist; and
(iii) A carpal tunnel injury to the left wrist/hand.
25 I find that it would be an affront to commonsense and the reality of body mechanics and anatomy, given my findings as to the seven injuries caused by the motor vehicle accident, not to find that this is a case where aggregation, on the principles as enunciated by Chernov JA in Lu at page 520[17], is applicable. Hence, on the balance of probabilities, I find that each of the seven injuries, I have identified, arising out of the motor vehicle accident of 22 January 2009, impair the one body function, that of the lower left arm inclusive of the wrist and hand. The lower arm is identified by the doctors as necessary to perform the following functions:
[17]Lu v Mediterranean Shoes Pty Ltd (supra) at paragraph [27]
(a) Rotation of the wrist and lifting, grabbing, gripping or holding of objects in the left hand (Mr Kahn, orthopaedic surgeon;[18] Dr Hanna, general practitioner;[19]; Mr Harvey, orthopaedic surgeon;[20] and Dr Stockman, rheumatologist);[21]
[18]Exhibit M3 – PCB 116
[19]Exhibit F – PCB 52
[20]Exhibit F – PCB 55
[21]Exhibit H3 – PCB 68
(b) The use of the hand, which is affected by radiation of pain from the ulnar side of the left forearm and into the left wrist and down to the base of the carpometacarpal joint (Mr Kahn);[22]
[22]Exhibit M3 – PCB 117
(c) Performing any heavy strenuous work requiring use of her left hand, thumb and wrist (Mr Kahn);[23]
[23]Exhibit M3 – PCB 120
(d) Reduced grip strength of the left hand;
(e) Limitation of picking up small objects, turning the steering wheel of a car, lifting heavy pots or doing up buttons (Mr Freilich, neurologist).[24]
[24]Exhibit L1 – PCB 88
26 The plaintiff has also suffered indirect consequences from these aggregated injuries by way of a reduction of body function of the lower arm caused by such injuries, being that her sleep has been interfered with owing to pain which she suffers in the lower left arm at night. Unfortunately, due to other already existing unrelated conditions, she can obtain little relief from this interference with sleeping caused by her left arm, as both her right shoulder and back are compromised and when she has to sleep on these areas due to pain to the lower left arm, she suffers consequential pain and interference with her sleep from those other areas (Dr H Sutcliffe, occupational physician).[25]
[25]Exhibit K – PCB 80
27 The chronic nature of the pain in her left lower arm, which increases with use of such left arm, has caused an increase in the level of her psychiatric distress (Dr Paul Kornan, psychiatrist).[26]
[26]Exhibit J – PCB 74
28 In assessing the consequences of these aggregated injuries to the lower arm, the following factors are important:
(i) The plaintiff’s current age, being seventy-one;
(ii) I accept the evidence of the plaintiff that despite the multitude of other medical issues in her life prior to the date of the motor vehicle accident, that she was able to holiday overseas independently in 2008 for an extended period and indeed, led a tour party of 86 people. The plaintiff was, during such time, able, for example, to carry and deal with her own suitcases;
(iii) The plaintiff has had no prior history of injury to the left wrist or hand prior to the motor vehicle accident;
(iv) While on pain medication prior to the motor vehicle accident, such medication is now also utilised to relieve and control the chronic pain endured as a result of the aggregated injuries to her lower left arm;
(v) The function of the plaintiff’s left lower arm, wrist and hand is considerably diminished and she needs a thermal wrist support for it. She is limited in picking up objects, performing gardening tasks and domestic cleaning et cetera. She had no prior limitation of her left lower arm;
(vi) Mr Buttigieg,[27] the plaintiff’s husband, states that he is aware of his wife’s constant wrist pain and need for a brace and TENS machine for pain relief. He now assists her in domestic and shopping chores to the extent that he is able, given his own state of health;
[27]Exhibit B – PCB 26a
(vii) As to the plaintiff’s lower arm condition, post the motor vehicle accident, it has not been put to the plaintiff that her refusal to have a carpal tunnel release or a left distal radius osteotomy as recommended was, owing to her history of bunion operations and osteomyelitis, unreasonable in the sense referred to in Tatiara Meat Company Pty Ltd v Kelso[28] as to measures which could be taken to reduce chronic pain;
[28][2010] VSCA 12 at paragraphs [50]-[55]
(viii) In the most recent report of June of 2014, Dr Stockman, rheumatologist, notes the history of the plaintiff of constant pain at level 7 (on a scale of one to 10) from the following symptoms in the left lower arm:
“… pain in the volar aspect of the left wrist, pain in the palm of the hand near the base of the thumb and pain in the ulnar aspect of the left wrist radiating into the forearm … with aggravating factors being gripping or holding objects. … Mrs Buttigieg complains of recurrent pins and needles and numbness involving the ring, middle and index finger of the left hand. Furthermore, the index and middle fingers go white on occasions particularly in cold weather. She showed me a photo of the distal aspect of the left middle finger being completely white.”
Dr Stockman notes the medication for such pain, being the Norspan patch, 10 milligrams, and opioid analgesic, Tramadol, 100 milligrams slow-release in the morning, and Panadol Osteo. Dr Stockman was of the view that such medication should be continued. It should be noted that the plaintiff said in evidence that the Panadol Osteo taken in the afternoon has been replaced by Nurofen Plus.[29]
[29]Transcript 46
(ix) Unfortunately, not as recently, but in June 2011, the occupational physician, Dr Helen Sutcliffe, noted, under history:[30]
[30]Exhibit K – PCB 80
“Carpal tunnel syndrome was diagnosed and she was treated with an injection into the wrist with some decrease in symptoms. Surgery was recommended but she declined this as she had fear of surgery. Mrs Buttigieg informed me that she had persisting pain in the left hand, wrist and arm extending to the elbow. She described pain in the left upper limb constantly present and increases with use of the arm. She cannot lift with the left arm alone and uses both hands to lift. She wakes at night with pins and needles in the left hand every night and she has increased symptoms if she sleeps on her left. She cannot sleep on her right because of right shoulder pain. Activity always increases the pain in the left upper limb and she judged the pain to be present at an intensity between 8 and 10 on a visual analogue scale of 0 to 10 when 0 was equivalent to no pain and 10 the worst possible pain. The pain was described as hot, burning and aching in nature. The second and third fingers turn white and blue and feel ice cold. She informed me that she had no swelling or sweatiness in the area.”
Dr Sutcliffe opined:[31]
[31]PCB 82
“She has also developed carpal tunnel syndrome directly related to the injury and she has persisting pain in the median nerve distribution consistent with some degree of neuropathic pain. Mrs Buttigieg has thus sustained permanent impairment of function of the left wrist as a result of the MVA and she has a permanent disability related to activities of daily living and domestic, social and leisure tasks. There is a poor prognosis and no likelihood of improvement or resolution.
(x) The orthopaedic surgeon, Mr Khan, said, in July 2013:[32]
[32]Exhibit M – PCB 20
“She is unfit to perform heavy strenuous work requiring use of her left hand, thumb and wrist and has poor grip in her left hand which is consistent with the after effects of the injuries in the above motorcar accident.”
(xi) Finally, Mr Ireland, hand surgeon, said, in a report of May 2013, as to the prognosis of the plaintiff:[33]
“The prognosis for any further improvement is poor. In my opinion the complainant would benefit from surgical treatment in the form of carpal tunnel release. The symptoms of left basal thumb joint arthritis and the malunited fracture of the distal radius are not severe enough to warrant surgical intervention.”
[33]Exhibit N – PCB 136
29 I would specifically reject Mr Fraser’s (rheumatologist) opinion[34] that the plaintiff was exaggerating her symptoms and signs somewhat. Mr Fraser seems to be very much at odds with all the other medical opinion that I have referred to in this regard.
[34]Exhibit 1 – Defendant’s Court Book (“DCB”) 3
30 Indeed, upon analysis and after a consideration of all of the evidence before me, I find, on the balance of probabilities, that the aggregated injuries caused by the motor vehicle accident of 26 January 2009 have produced an organic impairment of loss of body function of the plaintiff’s lower left arm. I find such impairment to be permanent and I find such impairment and function of the lower left arm as caused by the injuries likely to last and impact upon the plaintiff into the foreseeable future.
31 I find on the evidence of the plaintiff and all the medical evidence, that the injuries have had a particularly deleterious impact upon the plaintiff, causing pain and suffering and loss of enjoyment of life, particularly in her ability to utilise her bodily functions to carry out her normal daily activities, her home duties and recreations.
32 In assessing such impairment objectively and in accordance with s93(17)(a) of the Act, I find the consequences of her pain and suffering and the impairment upon the plaintiff’s enjoyment of life are certainly “more than significant or marked” and are “very considerable”.
33 I therefore find the impairment of body function of the plaintiff’s lower left arm a permanent serious impairment.
34 As to the order to be made, I find that as a result of the injuries that occurred in the motor vehicle accident on 22 January 2009, the plaintiff suffered a “serious injury” as defined by s93(17) of the Act.
35 I grant leave pursuant to s93(4)(d) of the Act to the plaintiff to commence proceedings to recover damages for pain and suffering in respect of such serious injury.
36 In regard to Mr Ingram’s alternate submission asking the Court to determine upon a claim for two separate serious injuries, individually for each of the left wrist and hand, I find that in this particular case the consequences to the function of the left lower arm emanate from, and are commingled with all of the seven aggregated injuries I have identified. Upon the facts, therefore, of this particular case, I find it is not possible to make a determination in such form individually for the wrist or hand.
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