Callaghan v Transport Accident Commission

[2021] VCC 1760

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Serious Injury List

Case No. CI-20-03928

GRAEME CALLAGHAN	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR TRAN
WHERE HELD:	Melbourne
DATE OF HEARING:	14 October 2021
DATE OF JUDGMENT:	15 November 2021
CASE MAY BE CITED AS:	Callaghan v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2021] VCC 1760

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT

Catchwords:              Serious injury – left ankle injury – mild and intermittent pain - limited medication or treatment – impact on duties as police officer and army reservist.

Legislation:Transport Accident Act 1986; s93(17)

Cases cited: Thapa v Transport Accident Commission [2021] VSCA 239; Transport Accident Commission v Katanas (2017) 262 CLR 550

Judgment:                  Leave granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr I McDonald QC with Dr A Newman	Maurice Blackburn
For the Defendant	Mr W R Middleton QC with Ms S Manova	Solicitor to the Transport Accident Commission

HER HONOUR:

1Sergeant Graeme Callaghan has worked as a police officer for over 30 years. Before that, he served in the Army for 12 years as an investigator with the Military Police, including postings in Malaysia and Afghanistan. He continues to serve as an army reservist. Sergeant Callaghan is now 61 years old. He takes pride in his service to the community as a police officer and army reservist; and enjoys the camaraderie and respect which these roles give him. His wish is to continue in an operational role in the police force, and as a reservist, until his retirement.

2On 9 September 2017, Sergeant Callaghan was working at a police roadblock. He asked a driver, who he suspected of driving without a valid driver’s licence, to show him her licence. He then asked her to move her vehicle forward. As he walked away, the driver turned her wheel to the right and drove into the back of Sergeant Callaghan’s left leg. He heard a snap in his left ankle.

3Sergeant Callaghan was ultimately diagnosed with a ruptured left tendon, which was surgically repaired on 19 September 2017.

4This is a serious injury application. The sole issue in dispute is whether the injury suffered by Sergeant Callaghan to his left ankle is a serious injury within the meaning of s93(17) of the Transport Accident Act 1986 (“the Act”).

5Sergeant Callaghan says that, since the incident, he has continued to experience pain in his left ankle and left heel, which restricts his daily activities. He says that prolonged sitting, standing and driving aggravates his left ankle pain, as does carrying the extra weight of a gun belt and vest when on duty. He says he cannot run. He says walking up and down hills or over rough terrain is difficult; he has to climb stairs sideways rather than straight ahead; he is unable to squat without significant pain; and his pain impacts on his sleep.

6Sergeant Callaghan relies upon a number of impacts on his recreational activities, including an inability to play golf and an inability to fish standing up. However, it is apparent from his evidence that the most considerable consequence of his ankle injury is on his capacity to perform his duties as a police officer. His evidence is that his inability to perform physical aspects of his duties has eroded his confidence at work and that he is concerned that he was unable to fairly share the load with his colleagues. He fears that he will be forced into early retirement from the police force due to his lack of operational fitness. He also says he is due to take  a medical to continue as an army reservist and he is worried that he will fail this and be unable to continue as an army reservist and lose the income he earns from this.

7Senior Counsel for the defendant essentially accepted that Sergeant Callaghan was a credible witness.[1]  However, he submits that the Court should not be satisfied that the injury to Sergeant Callaghan’s ankle is serious given:

(a)   the “mild” and “intermittent” nature of his ankle pain;[2]

(b)   his significant comorbidities, including a shoulder and wrist injury arising from a subsequent work-related accident; back pain; and a right hamstring issue;

(c)   his use of only Panadol as pain medication; and then only a few days per week and not solely to treat his ankle pain;[3]

(d)   his lack of any significant ongoing treatment;[4]

(e)   his capacity to perform his role as a police officer on a full-time basis for the last four years;[5]

(f)    his capacity to operate and enjoy a hobby farm, including the use of cattle yards; and equipment such as a slasher, tractor, blower, ride-on mower and quad bike;[6]

(g)   his capacity to enjoy fishing on a boat;[7] and

(h)   his capacity to engage in self-care and household chores.[8]

[1]        Transcript (“T”) 47, Lines (“L”) 10-22

[2]        T24, L11-17

[3]        T9, L8-17; T8, L14-23

[4]        T24, L18-24

[5]        T25, L1-3

[6]        T15, L6-19; T16, L1-18

[7]        T9-29

[8]        T24, L2-8

8Although this is a difficult case, I have concluded that Sergeant Callaghan has suffered a serious injury, for the following reasons.

9I accept that Sergeant Callaghan was an entirely honest witness. There was no sign of any exaggeration in his evidence. He readily made appropriate concessions. He accepted that his ankle pain is mild and intermittent. He is plainly a stoic individual who, if anything, understates the impact of his left ankle injury. He showed great determination to return to his work as a police officer and army reservist after the incident and also, subsequently, after experiencing difficulties with his right hamstring in 2018 and injuring his shoulder and wrist in a high-speed accident in 2019.

10I do have some concerns about the reliability of his memory. He gave evidence that he did not even attempt to play golf after the incident. This is contradicted by the clinical records of his physiotherapist; and the history he reported to Mr Garry Brossbard in August 2019.[9] He was also unable to recall bike riding after the incident, despite two specific references to 10-kilometre bike rides in the physiotherapist’s clinical records.[10] However, it does not seem to me that concerns about the reliability of his memory of events in 2017 and 2018 are critical to the question of whether he is suffering a serious injury in the circumstances of this case.

[9]        Plaintiff’s Court Book (“PCB”) 41; Amended Defendant’s Court Book (“ADCB”) 107

[10]        ADCB 106-7

11I am conscious that the intermittent and mild nature of Sergeant Callaghan’s ankle pain; the lack of significant medication, other than Panadol, which he uses to treat other pain as well; the lack of other ongoing treatment; his ability to engage in self-care activities; and his ability to maintain his home and his farm, weigh strongly against a finding that Sergeant Callaghan is seriously injured.

12I have also considered the fact Sergeant Callaghan has suffered from a number of other injuries over the last few years. He had past issues with his right knee. I accept that this is not currently troubling him. He had difficulties with his right hamstring which onset in 2018. His hamstring has now been surgically repaired, but in cross-examination he agreed it does still cause difficulties with stairs and hills.[11] However, on balance, I accept that his hamstring has significantly recovered and the left ankle is the main source of his mobility issues, including with stairs and hills.[12] He has issues with lower back pain, which he believes were caused by the incident. I accept that this pain, while ongoing, is less significant than his left ankle and impacts more on activities such as bending and lifting than walking or running. In 2019, he was in a significant high-speed car accident which caused injuries to his shoulder, wrist and hip. I accept that (although they still cause him some issues) he has largely recovered from these injuries.

[11]        T23, L5-13

[12]Plaintiff’s first affidavit, sworn 3 June 2020, paragraph [20], PCB 11; Plaintiff’s second affidavit, sworn 14 April 2021, paragraphs [5]-[6], PCB 17

13The parties each tendered reports from two medico-legal orthopaedic surgeons. I found the most helpful report to be that provided by Mr Michael Dooley, an orthopaedic surgeon called by the defendant. He goes into some detail in explaining the mechanism of the injury to Sergeant Callaghan’s left ankle and the likely consequences. He states that:

“… Following recovery from this injury, one would expect Mr Callaghan to note some intermittent aching type pain, a reluctance and a difficulty to engage in propulsive activity, some aching with prolonged standing and when negotiating inclines and stairs etc. Many patients become somewhat apprehensive about reinjury or the same injury occurring to the contralateral side.”[13]

[13]        ADCB 32

14He continues:

“Mr Callaghan did sustain an injury to his left tendo Achilles in the motor vehicle accident. I believe that the residual symptoms that Mr Callaghan describes are expected for the injury sustained. Although he has undergone surgical repair, the injury does not resolve in the sense that there are no ongoing symptoms.”[14]

[14]        PCB 33-34

15Mr Dooley’s opinion is consistent with Mr Callaghan’s evidence of the restrictions he faces and the consequences for his performance of his duties as a police officer. His opinion also suggests that the absence of recommendations for future surgery, or other treatment, is a function of the nature of Mr Callaghan’s injury, rather than its seriousness.[15]

[15]        Thapa v Transport Accident Commission [2021] VSCA 239 at paragraph [83]

16The views expressed by Mr Ash Chehata, an orthopaedic surgeon called by Sergeant Callaghan, also support Mr Callaghan’s evidence. Mr Chehata notes that “the tendo Achilles is undoubtedly well healed”.[16] However, he goes on to say that that:

“There is no doubt that this will affect his capacity working as a police officer as he is now unable to run, which can occur in some individuals after a tendo Achilles rupture and this will unfortunately likely bring his retirement age far sooner than otherwise would normally be the case.”[17]

[16]PCB 56

[17]        PCB 57

17The two other orthopaedic surgeons, Mr Grossbard, an orthopaedic surgeon called by Sergeant Callaghan, and Dr John Fraser, a consultant orthopaedic surgeon called by the defendant, both express the view that the left ankle injury does not prevent Sergeant Callaghan performing his duties as a police officer. Both of these orthopaedic surgeons assessed Sergeant Callaghan in 2019. To the extent of conflict, I prefer the more recent and detailed opinions of Mr Dooley and Mr Chehata.

18Given my findings above, I accept Sergeant Callaghan’s evidence that it is the ankle injury, specifically, which is the source of the restrictions on Sergeant Callaghan’s capacity to run, walk up and down hills or over rough terrain, ascend and descend stairs, and squat.

19I accept that, as a result of the ankle injury, Sergeant Callaghan cannot play golf in the manner he did previously (up to two to three times per week).[18] Having said that, I am not satisfied, on the balance of probabilities, that his ankle injury prevents him entirely from playing golf, for example with the assistance of a motorised buggy. He gave evidence that he feared the pivoting motion would hurt his ankle.[19] In my view, it is likely his shoulder and back issues would be more limiting on his swing. He also cannot fish standing up. However, there are other fulfilling recreational activities he is able pursue, such as boat fishing and farming.

[18]        T13, L7

[19]        T13, L26-31

20Undoubtedly, the most considerable consequence of this injury is upon Sergeant Callaghan’s performance of his occupation as a police officer on operational duties and role as an army reservist. I accept that these are not pursuits that can be fully and adequately performed by a person who cannot run, who is restricted in ascending or descending stairs, and who finds it difficult to walk up or down hills or over rough ground. 

21Sergeant Callaghan’s evidence in relation to the impact of his restrictions on the performance of his duties is corroborated by the affidavit of his colleague, Senior Constable Blair Wells. It is apparent from that affidavit that Senior Constable Wells is very concerned about Sergeant Callaghan’s capacities to perform his duties as a police officer.  He states that:

“I have openly discussed with Graeme his operational fitness and I have said to him on several occasions that I do not believe he is operationally fit … .

… it is concerning for me that every time that I go out with him that he may not be able to fully support me in the performance of our duties. For example, he may be unable to walk a reasonable distance or run after a suspect we intend to arrest. On a more day to day level, he is reluctant to get in and out of the vehicle and it is nearly always me who does so when we work together. When I work with him, I really do have to do all the work and I am aware that if something goes wrong, I will be the one dealing with it. This concerns me.

… Being slow on your feet is not a good quality for a police officer.”[20]

[20]        Affidavit of Blair Wells, sworn 16 April 2021, paragraphs [9]-[11], PCB 23

22Although at times it is not clear in the affidavit whether Senior Constable Wells is referring specifically to the consequences of Sergeant Callaghan’s ankle injury, I accept that issues with walking and running and being slow on his feet, in particular, are consequences of Sergeant Callaghan’s ankle injury.

23Sergeant Callaghan has in fact worked as a police officer full time for the last four years. However, it is apparent from the affidavit of Senior Constable Wells that this is only with significant support from Senior Constable Wells. This need for support, in itself, is a source of distress for Sergeant Callaghan, and friction with his colleague. It is also fairly clear from Senior Constable Wells’ affidavit that his patience with the situation is wearing thin.

24In my view, a serving police officer of many years’ experience is well-placed to give evidence of the physical requirements of work as a police officer. Both Sergeant Callaghan and Senior Constable Wells fit this criteria. In this context, I accept that, as a result of his left ankle injury, Sergeant Callaghan is not able to adequately perform the operational duties of a police officer to the standard that he would like, or that his work partner reasonably expects. I also accept that this creates a risk that he will either be removed from operational duties, or required to retire in the near future.

25For similar reasons, I accept that there is also a risk that he will not be able to continue in the Army reserves.

26It is plain that Sergeant Callaghan’s work as a police officer and army reservist forms a significant part of Sergeant Callaghan’s identity and is a source of pride and meaning for him. Of course, it may be that he would only have been capable of a few more years in these roles in any event. Nevertheless, I accept that his inability to perform his duties to the standard he wishes ꟷ and the consequential risk of early retirement ꟷ are very distressing to this stoic and dutiful man. The impacts on his employment are thus relevant both to his loss of enjoyment of life and earning capacity.

27Finally, I note that in making these findings I have not placed any weight on the corroborative evidence of Sergeant Callaghan’s son. His son stated in his affidavit that “Dad has a two-storey house and he struggles to climb the steps at his house.”[21] In oral evidence, Sergeant Callaghan denied living in a two-storey house. At the very least, this suggests that his son was not appropriately careful in reviewing and swearing his affidavit. In this context, I cannot accept his affidavit as reliable.

[21]Affidavit of Christopher Callaghan, dated 29 March 2021, paragraph [9], PCB 21

28I am required to consider the subjective consequences of the ankle injury for Sergeant Callaghan before determining whether those consequences are objectively serious when compared with the range of comparable cases.[22] Having considered all of the above matters, I have formed the view that the consequences suffered by Sergeant Callaghan, particularly in the performance of his duties as a police officer and army reservist, the risk that he will not be able to continue in those roles as long as he wishes, and the resultant impacts on his well-being and self-respect, are indeed “very considerable” and certainly “more than significant or marked”.

[22]        Transport Accident Commission v Katanas (2017) 262 CLR 550 at paragraph [6]

29I will grant leave to bring proceedings for damages.

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Certificate

I certify that these 8 pages are a true copy of the reasons for decision of her Honour Judge Tran, delivered on 15 November 2021.

Dated: 15 November 2021

Jane Le     

Associate to her Honour Judge Tran