Cellatoglu v TAC
[2018] VCC 476
•17 April 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY
Case No. CI-17-02141
| SIBEL CELLATOGLU | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11-17 April 2018 | |
DATE OF JUDGMENT: | 17 April 2018 | |
CASE MAY BE CITED AS: | Cellatoglu v TAC | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 476 | |
REASONS FOR JUDGMENT
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Subject: Serious injury
Catchwords:
Legislation Cited: Transport Accident Act 1986
Cases Cited:
Judgment: Leave granted to bring proceedings for the recovery of damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms K Galpin | Patrick Robinson & Co |
| For the Defendant | Mr G Lewis QC with Ms S Manova | Solicitor to TAC |
HIS HONOUR:
On 2 December 2013 Ms Cellatoglu was about to take her teenage daughter on a driving lesson when a very frightening incident occurred. The car was parked in the driveway of their house parallel to and very close to the side fence situated on the passenger side of the car. Her daughter had started the engine just as the plaintiff was getting in and had her right foot in the well of the car. It suddenly reversed causing her to lose balance and fall against the door resulting in it opening further. Her left hand was crushed between the car door and the fence.
Once the car stopped she pulled her hand out from between the door and the fence and saw the tips of three of her fingers were gone. She started screaming. There was blood everywhere. She went into a panic. She had to use a towel to try and soak up the bleeding.
The ends of her fingers that had been dragged off were eventually found by her son who had stayed at the scene. They were apparently still stuck on the outside of the door. In the meantime she had been taken to Sunshine Hospital. In spite of the ends of her fingers being put on ice they were unable to be saved. She has a permanent and obvious loss of the ends of three fingers and in particular the third and fourth fingers with less loss being off the little fifth finger.
Three photos taken at hospital show graphically and illustrate better than any words can how the crush injury effectively amputated the tops of three fingers. They also show how after surgery the graphs were situated to attempt the rebuild of the ends of the fingers.[1] Donor skin for neuro-vascular flaps was taken from her left thigh to add length and pulp to the shortened fingers.[2] There is no need to detail the treatment journey she went on for her hand but I accept that after two years of treatment her hand therapist said there was no more help she could provide. Her hand now is what it will be in the long term. .
[1]Plaintiff’s Court Book(PCB) 63-65
[2]PCB12
I also had the distinct advantage of a visual inspection of her hand at close quarters. Fortunately the nail beds were not removed when the finger ends were crushed off but the following features are obvious. She still has her nails but two are clearly seen to grow in an increasingly clawed or bent over effect the further they grow out. At this point I should state I disagree with a comment by Mr D Ireland a surgeon who saw the plaintiff for TAC and said “the finger nails were not deformed.” [3] His comment is at odds with what I observed. The damaged fingers are visually apparent as shorter than her right hand fingers. It is something like a centimetre difference for two of them. They are fatter and appear somewhat swollen compared with the right. Also there is a difference in colour on the palm side with a red appearance.
[3]Defendant’s Court Book(DCB)24
By way of background she is a lady now aged fifty who came from Turkey when aged six. Since separating for the final time in about 1997 she has been a single mother who has supported herself and raised her two children. There has been no support financially or otherwise from the father.[4] She has had a formidable struggle for a number of reasons. These have included marital, family and employment issues as well as other injuries and health problems, some being gynaecological conditions requiring major surgery.[5]
[4]Transcript(T)3
[5]PCB7-10
Within a year of her marriage in 1991 there were serious difficulties. Her son was born in 1992. She separated in 1993. They tried to keep the marriage going and got together again in 1994 and 1995. As a result her daughter was born in 1996. But for over twenty years now the plaintiff has been a single mother.
Her mental health had suffered very badly since the early 1990’s. She required regular specialist psychiatric treatment mainly for depression and anxiety symptoms coming on top of some personality disorder. There were two bursts of constant attendances on a psychiatrist, Dr Kochar. Eight visits took place in 1995 and 1996. Then a further period of regular visits to him were from May 1998 to July 1999. He has provided a lengthy report about all these considerable mental health problems back then and it speaks for itself. [6] His documents and the other copious clinical records indicate that before and after the transport accident the plaintiff has had to deal with extremely stressful family and other issues.
[6]DCB4-15
A lot of these are ongoing. They have involved physical, verbal and emotional violence at the hands of her former husband in spite of finally separating over twenty years ago. As well there have been and still are very real problems with her two children and others in her own family causing great mental health problems necessitating professional treatment. Extensive records from Ms Atakan, treating psychologist ,starting on 13 May 2013, illustrate the serious nature of these family and other mental stressors she has had to deal with and is still dealing with. [7]
[7]DCB52-104
She also had a fall in February 2012 when she suffered a number of injuries including her legs and spine.[8] They prevented her returning to her job as a qualified security officer. Documents showed she had suffered a number of other physical injuries including shoulder, knee and heel symptoms in the years before and after the transport accident but really only three comments need to be made. Firstly there has been no other injury to her left hand. Secondly until the fall in 2012 she was able to do a course, get qualified and work full time over a number of years to support herself and her children. Thirdly while she could not recall a lot of details about other health problems put to her that at times came from records sometimes twenty or more years ago, she very readily and candidly adopted them as correct saying “If it’s there and it says so, then it must be.”[9]
[8]DCB131-132
[9]T46,47,53,57 and others
She was seen by Associate Professor Doherty for TAC as recently as last November and was taken to histories it was suggested she gave to him.[10] I have not heard from him. She clearly had some of the usual confusion when a lay person is taken back to what questions were asked and what answers were given at a past consultation.[11] But this was relatively recent by way of her medical attendances and she said a number of matters put to her were just wrong or incorrect. She had not said them to him.[12] I accept what she said about those passages when they conflicted with what was in his report.
[10]DCB34-51
[11]T63-64
[12]T65-68
Perhaps not surprisingly, given the circumstances of this accident, the application relies on a paragraph (c) aggravation of pre-existing depression and anxiety but also on a new mental injury by way of Post Traumatic Stress Disorder (PTSD). However the principal claim is under paragraph (a) for an impairment of the left non-dominant hand. Both pain and suffering and loss of earning capacity are relied on.
“Serious injury” involves an enquiry at the present time whether or not when compared with other cases in the range of possible hand impairments the consequences here can be fairly described as being at least very considerable. The test of “severe ”with respect to a mental or behavioural disturbance or disorder is a higher test than “serious”. “Long term” is required for both (a) and (c ) injuries.
Hearing these applications virtually every day it almost goes without saying that it is always helpful to both hear and see a plaintiff in this jurisdiction involving as it does matters of fact, degree and impression. Thus a value judgment is typically found in evaluating whether pain and suffering consequences are very considerable. I have not only had that advantage of hearing the witness but also the visual examination.
Over three days of evidence I found her a witness of credit. Given her past life she is a woman who long before this accident occurred well understood pain, be it physical or mental. She made a number of admissions against interest. I found her both reliable and accurate as a witness. She did not seek to resile from what was in her clinical records over the years about past physical and mental health issues in her life. More to the point I did not detect any exaggeration of her present hand symptoms.
Credit was put in issue. Topics included her social life and two DVD’s together with some Facebook still photos were tendered.[13] The films showed only a few minutes by way of snapshots of the four and a half years since the transport accident. It has to be kept in mind that over three days and over twenty five hours of surveillance it is admitted by the defendant that only some twelve minutes and twenty seconds of film was obtained on top of her Facebook film.
[13]Exhibits2,3
I will deal with the two films shown. This DVD was apparently from her Facebook page of her in a group apparently dancing or at least moving to the beat of some Turkish music for a few minutes on the deck of a boat. She was then on holidays in Turkey in 2017 and she has made no secret of her trips back to Turkey where she still has close family members. I accept her evidence that it was an attempt to get out in some normal way and that is just the sort of advice that features in the extensive notes from her psychologist and others
The other film was her walking to and from a café where she sat for a while having a drink and meal with her two children. At all times she walked and held her handbag in her right hand. Three times she picked up a glass. Each time she used her right hand. Neither film showed anything by way of physical left hand capacity or function that was either inconsistent or informative. Film is often showed in this jurisdiction and on carefully viewing it here I am satisfied it did not impugn her credit nor what she said about the physical restrictions flowing from her left hand impairment.
Several Facebook photos show the plaintiff with her husband but I accept her evidence about these. The first was a friend’s birthday party and the other was when he unexpectedly turned up when she went to visit her son and her son’s girlfriend.[14] These isolated shots were taken in understandable circumstances of convenience to in effect to avoid making the occasions “unhappy” or “miserable” for those concerned. [15] This was a sensible course for her to follow given the plethora of material in records and notes about this man’s violence towards Ms Cellatoglu over many years. As with the DVD’s the photos did not impact on credit.
[14]DCB125
[15]T106-107
I reject the submission that the absence of an affidavit from her son impacts on credit. Virtually every day in this court there are applications presented without other lay affidavits . In addition in this case there have been very real domestic conflict involving her ex-husband as well as her children and it is perfectly reasonable that she did not reach out to family for affidavits to be provided.
I accept she suffers constant pain in her three fingers. It can extend up the arm. Her fingers are constantly swollen and numb.[16] She candidly related how the pain can be minimised and sometimes even taken away but that is only by resorting to pain killing medication.[17] I am satisfied that to suffer such pain which will clearly be long term is of itself a consequence that is very considerable. But it is even a greater problem when account is taken of the occasions when symptoms will be worsened by just doing something or touching things in certain ways that we take for granted probably multiple times every day.[18]
[16]PCB3-14
[17]PCB25c
[18]PCB13-14
But there are other very real problems that go beyond just pain. She has reduced grip. She drops things she should not drop. She has a lack of strength. She has altered sensation. She has a lack of hand mobility. Coldness heightens symptoms and she has all these constant reminders of that car door and that fence. I accept her evidence about all the effects of the organic impairment of her shortened, swollen and altered fingers.[19]
[19]PCB13-14,17,19,25b-c
Without descending into personal details over three hearing days Ms Cellatoglu presented as a lady who was well groomed and obviously took some pride in personal appearance. I accept she has felt a certain amount of self-consciousness about her hand when others have made unfavourable comments.[20] I accept a number of personal tasks are impacted by the limitations on everyday function of her hand. [21]
[20]PCB19
[21]PCB17
Just to take the loss of the ability to properly type with both hands, in this day and age of technology that is a very considerable loss in everyday life in terms of pain and suffering. [22] This is without even considering the magnitude of that impediment in the world of the modern office. Counsel and others in this court are very often typing away with both hands in spite of everything being transcribed.
[22]PCB25d
I am satisfied on the probabilities that all of the hand symptoms and disabilities I have described are organic and caused by the crushing amputation of the three finger ends. There has only been a quite limited challenge to what she describes as the limitations and symptoms particular to her hand. The focus of cross-examination was largely on her many other physical and psychiatric conditions both before and after the transport accident and on what social life she can or cannot lead. Very little attention was directed to particular hand functions or symptoms.
Credit was raised in the sense of analysing little difference between a before and after picture of her mental health and lifestyle in that regard. Some psychological and emotional response to this injury and the trauma of how it occurred is understandable. This is even more so for a plaintiff who clearly takes pride in her appearance. Our hands are a part of the human anatomy that after our face is probably the most public part.
The evidence proves that the pain and functional problems she describes are organically founded. Therefore there is no disentangling exercise required with respect to psychiatric illness or effects.
Similarly there is no disentangling required with respect to other physical problems that she suffered from before the transport accident and still suffers from. I accept her sleep would be impeded by a number of other factors but the role and the body function of the hands in daily life and thus enjoyment of her life are generally distinct and unique to the hands. They are not significantly impacted on by these other injuries and problems. There are some other physical problems in other body parts she has to cope with but the symptoms and loss of function I have judged are largely those that are peculiar to her hands The resultant impairment of her left hand is very considerable.
This case does not require any detailed analysis of the medical opinions in regard to the pain and suffering consequences of the organic impairment. The number of medical reports tendered in this case has been mercifully few.[23] I have taken them all into account encompassing as they do both the physical hand injury and its psychiatric effects as well as pre-existing health issues. Lengthy comment is not warranted. Here the organic hand injury, once I was satisfied about the plaintiff as a witness of credit, basically speaks for itself. I am satisfied “serious injury” has been proved in that regard with respect to pain and suffering consequences.
[23]PCB 26-60 being Dr Ahmet, Mr K Myers, Mr B McBain, Dr N Struass. Dr J King and Professor Marshall for the Plaintiff. DCB4-15,22-51 being Dr S Kochar, Dr D Ireland and Professor Doherty for the defendant.
Out of deference to the parties I will make some brief remarks about the reports that are relevant but not about the litany of other documents pertaining to “non-hand conditions”. The psychiatrists on both sides recognised the organic hand injury and the traumatic circumstances in which it was suffered.[24] I have already set out my findings as to both.
[24]PCB40,46,DCB36
The many pages of notes from her own local doctor, Dr Ahmet, start in 2001 and go right up to late 2017.[25] They have been relied on by the defendant in that many visits since the transport accident contain no note about the hand. Three comments are warranted.
[25]Exhibit 1
Firstly, it has to be said these very brief computer driven notes cannot possibly be anything like a full record of what was said between doctor and patient. They can often be read in about ten seconds or less. A complaint as fulsome as “family stress” is recorded at times in only two or three words. This court has been reminded to exercise caution about relying too much on what is in and what is not in these types of skimpy of clinical notes. No better example can be seen in the history this doctor sent to two different specialist psychiatrists he asked to treat her in 2015. All he told them about “Past History” was “right calcaneal enthesopathy”.[26] Secondly, the hand injury was really being treated by the public hospital and the hand therapist, not Dr Ahmet. Thirdly, there was little point anyway in telling him over and over about hand limitations that are plain enough from the obvious amputation injury.
[26]DCB154,155
I prefer his most recent report as being more likely to be a faithful expression of his current opinion about her hand injury than his sketchy notes. He knows her well and I accept his up to date report about the organic hand injury: “The prognosis of her injury is poor by virtue of the fact that she has lost three distal phalanges either in part or completely. The prognosis stems from the disability which is the loss of full use of the affected fingers. The loss of three distal phalanges is going to have a serious long-term effect on the way she uses her left hand and the accuracy with which she grasps objects and twists everyday objects because the grip has been modified by the injury. The grip is less than it was. The use of the hand is not as it was previously so everyday activities and enjoyment of life are diminished.”[27]
[27]PCB26
I accept his opinion as to pain and suffering consequences satisfying the grant of leave in regard to loss of enjoyment of life so it is not necessary therefore to consider the loss of dexterity and the other symptoms in regard to any loss of earning capacity. But Dr Ahmet did make it clear she would not be able to work in a role that required fine hand movements.
Dr Ahmet’s opinion about the pain and suffering consequences is supported by others. These include Associate Professor K Myers who was also clear that there would be no improvement in her condition. He said the injury to her hand has resulted in marked restriction of strength and movement of the hand together with pain and altered sensation. He thought these resulted in a marked impairment in social, domestic and recreational activities and he also thought there was no prospect for future employment.[28] I accept his clearly articulated views.
[28]PCB29-30
The hand therapist, Ms B McBain, has not reported since 2014 so that is well out of date. She ended by saying she planned to continue to review the patient regularly and to progress exercises designed to increasing function.
The surgeon, Professor Marshall, saw the plaintiff for TAC in 2016 and found her “open and cooperative”[29]. He considered the condition was stable and involved a crush injury to three fingers with “persisting three digit dystrophy with severe causalgia”.[30] He found a permanent impairment and was apparently not asked by TAC to see her again. He provided a permanent AMA percentage impairment figure. His view was there would be persisting tenderness and allodynia and he agreed there would be limitations in terms of daily living.[31]
[29]PCB53
[30]PCB55
[31]PCB58
On behalf of the defendant the only material that is in any way up-to-date about her hand injury is from Mr Ireland who saw her in twice . In 2017 he really did little other than diagnosing left-hand dysfunction due to soft tissue and bony fingertip injuries to the middle ring and little fingers.[32] He also found a permanent percentage impairment under the AMA Guides.[33] He prepared a diagram that included his drawing of how three fingers were demonstrably shortened.[34] I have not heard from him but he did not seem to factor the effects of this nor all her complaints of pain into his opinions and impairment assessments.
[32]DCB25
[33]DCB26
[34]DCB27
When he saw her again in 2018 he increased the percentage impairment it seemed with respect to the ring finger but was now critical of her in the sense that he saw some discrepancy between the severity of the subjective symptoms and the objective physical findings.[35] He did not adequately explain why he came to this view. Without hearing from him there was no satisfactory reasoning set out. After hearing and observing her over three days and considering all of the evidence I disagree that there is any such discrepancy.
[35]DCB32-33
The other reports are from doctors directed to her paragraph (c) injury. In view of the hand impairment being proved a “serious Injury” it is not necessary to deal with the (c) claim in any detail. I will make just a few brief comments less there is any doubt about the matter. I am satisfied without giving full reasons that on the probabilities there has been an aggravation of her mental or behavioural health after analysing the evidence on a before and after basis. There have been several changes since the transport accident. She has recommenced seeing a specialist psychologist. Prescription medication started up in June 2014. She has become suicidal. In 2015 she overdosed in a suicide attempt and was found by her children. An ambulance had to be called. She was an inpatient in hospital over a number of days. She also needed monitoring by a CAT team.[36]
[36]PCB12-13
In addition to the aggravation of pre-existing psychiatric problems there has been the additional condition of PTSD caused by the transport accident. However a fuller before and after exercise has not been required in order to determine if a “severe” long term condition has been proved.
It follows that I grant leave to bring proceedings for the recovery of damages.
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