Cleary v Transport Accident Commission
[2013] VCC 1292
•11 October 2013
| 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-11-00339
| CLIFFORD ARTHUR CLEARY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3,4, 7 and 8 October 2013 | |
DATE OF JUDGMENT: | 11 October 2013 | |
CASE MAY BE CITED AS: | Cleary v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1292 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Transport accident – crush injury to right lower leg – Chronic Pain Syndrome with Anxiety and Depression
Legislation Cited: Transport Accident Act 1986, s93(17)(a) and (c)
Cases Cited:Fokas v Staff Australia Pty Ltd [2013] VSCA 230; Transport Accident Commission v Kamel [2011] VSCA 110; Elias v Transport Accident Commission [2013] VSCA 123
Judgment: Leave granted to bring proceedings for the recovery of damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie SC with Ms S Lean | Shine Lawyers Limited |
| For the Defendant | Mr A Moulds SC with Ms R Annesley | Hall & Wilcox |
HIS HONOUR:
1 The plaintiff seeks leave to bring proceedings to recover damages pursuant to s93(4) of the Transport Accident Act 1986 (“the Act”). He relies on s93(17)(a) with respect to a crush injury to the right lower leg, impairing the body function of the leg. He also relies on s93(17)(c) with respect to a chronic pain disorder with anxiety and depression.
2 The plaintiff was injured in a severe and frightening transport accident that involved virtually a head-on collision on 5 April 2006. His vehicle was written off. He was taken to Maroondah Hospital by ambulance. A number of injuries were treated but principally it was his legs that required most attention. A psychiatric condition has also developed later.
3 Appellate authority only last month is a recent reminder of the approach in a case such as this.[1] It requires a two-step manner of firstly determining whether there is a substantial organic basis for the consequences relied on. If so, there is no disentangling required.[2] Only if the answer is “no” to that first question, then the plaintiff must disentangle the physical contribution to his pain from the psychological.[3]
[1]Fokas v Staff Australia Pty Ltd [2013] VSCA 230
[2]Transcript (“T”) 18
[3]Fokas v Staff Australia Pty Ltd (supra) at paragraph [5]
4 If there is an impairment of body function that is the product of both the organic and the mental conditions and it is predominantly the product of the organic condition, the serious injury test is under paragraph (a). In such a case the disentangling exercise is not required.[4]
[4]Transport Accident Commission v Kamel [2011] VSCA 110 at paragraph [65] and Elias v Transport Accident Commission [2013] VSCA 123 at paragraph [58]
Background
5 The plaintiff is aged fifty-eight years. He has had an extensive work history in different occupations that include managing businesses, both in paid employment and a self employment context.[5] While his businesses have not always been a great success financially, he has demonstrated a motivation for work over many years. Since 2000, he was the principal income generator in his own business, engaged in the distribution and supply of food and drink through vending machines located at various premises basically in the eastern metropolitan area. The job included a good deal of driving, walking and standing in order to attend to these machines over long hours.[6]
[5]T 29-30
[6]Plaintiff’s Court Book (“PCB”) 16, T51, 56-57
6 I find the plaintiff is a man with a good work ethic, although his effort did not always translate into great monetary return. After the injury, he tried to work on in this business as long as he could with considerable organic leg symptoms affecting his performance. His preparedness to do his best and to battle on at work and in his daily life is really unchallenged.[7]
[7]PCB 7-9
7 I accept the plaintiff has endured years of daily pain due to the organic leg injury.[8] The pain is worsening as time has gone on.[9] This is against a background of extensive treatment including referrals to different specialists and wide-ranging investigations. As well he has had ongoing medication of different types which have not really helped and have caused side effects.[10] Such pain, of itself, is a very considerable consequence in all the circumstances of this case.
[8]PCB 13
[9]PCB 18, T60, 67-8
[10]PCB 8, T22,24,65,69
8 The plaintiff’s endurance of ongoing pain and his attempts to keep working in one form or another, as well as keeping up his junior coaching and sporting club involvement should not be used against him. This indicates a man who is not prepared to let symptoms that have been with him now in his leg for some seven and a half years, stop him attempting to pursue a normal life.[11]
[11]Transport Accident Commission v Kamel (supra) at paragraphs [67]-[68]
9 I accept that, in spite of his best endeavours to put up with his physical leg pain, there has been a very considerable impact on his capacity to work in his business and his earning capacity generally. His hours have dropped considerably and at times he could not work at all. His attempts to keep the business going proved to be in vain and he eventually went bankrupt.[12] With the help of friends and family he tried to keep the business going.[13]
[12]PCB 11-12, 14-15, 19-20
[13]PCB 7, T41, T43, T53-54
10 The plaintiff still tries to do some work now but really only in an advisory or consulting capacity. He is lucky to perform more than 5 to 10 hours per week.[14] I accept that this is a reasonable reflection of his remaining earning capacity and that situation is unlikely to change.
[14]PCB 23
11 The plaintiff’s wife accurately sums up the plaintiff in this context when she says:
“He has a mentality of putting work before his health which I think has been to his detriment.”[15]
[15]PCB 27 and 29
12 I have had the benefit of seeing the plaintiff in cross-examination. I found him generally a candid and forthright witness who was quite straightforward in admitting the activities he is involved in, both now and generally since the accident. I accept him as an accurate witness when he describes the difficulties that he has experienced and still does due to his leg pain.
13 No doctor questioned the genuineness of his complaints even though many were troubled about the precise diagnosis. His credit has not been put in issue.[16]
[16]T153
Medical evidence
14 This case is said to involve “a big medical debate” in relation to the cause of the plaintiff’s pain.[17] Mr Miller, the only physical doctor to give oral evidence, summed up the debate somewhat when he said a crush injury like this involves diffuse damage to the skin, the fat, the nerves and the bones.[18] Across the medical witnesses in this case there are opinions that range from fat necrosis, injury to nerves, neuropathic pain, scarring around the nerves, ligamentous damage and arthritis when discussing the paragraph (a) evidence. The application raises all the usual difficulties of having to make findings when only Mr Miller gave oral evidence about this. The task is then to reach conclusions on written opinions that are often not fully articulated and presumably assisted by written enclosures which are not always identified.[19] There are close to fifty medical reports plus radiological and other attachments that have been tendered.
[17]T18
[18]T87-88
[19]DCB1 and DCB 3d
15 The material includes a body of evidence over a period from 10 May 2006 to 2 September 2013 from the Monbulk Family Clinic. It is very comprehensive. It includes the opinions of three general practitioners who have been charged with the treatment of the plaintiff and encompasses some eight reports, together with other attachments.
16 The first of these general practitioners is Dr Gruner, who describes a number of referrals for exploration of the organic leg injury. By 8 October 2009, he describes a stable level of incapacity and pain and gloomily stated:
“… on our current knowledge no further intervention are (sic) expected to cure his left ankle and no substantial improvement is expected after three years.”[20]
[20]PCB 36
17 This permanent incapacity, as I read his opinion, is all related to an organic leg injury. In a report in 2012 he notes, by then, the presence of:
“… the very unfortunate sequelae of evolving a chronic pain syndrome after an ankle injury.”[21]
[21]PCB 37
18 Pronounced depression and chronic pain were now very apparent but there is nothing to say the doctor has altered his view about pain being contributed to by the physical injury.
19 Dr Gruner referred the plaintiff to an orthopaedic surgeon, a neurologist and a rheumatologist.
20 Probably the second of the Monbulk Clinic’s general practitioners, Dr M Schwartzbord, sums up the medical situation best of all. In September 2009 he took over the care from Dr Gruner and reports on 22 June 2011 that in spite of various treatments the leg injury has resulted in chronic pain. In time, and I accept this is readily understandable, he has developed additional clinical depression and anxiety as a result of this pain and disability that is still organically-based.
21 A summary of Dr Schwarzbord’s opinion in 2011 was:
“In the period from the accident through to February 2009 Mr Clifford had undergone assessment by multiple GPs and specialists including 2 orthopaedic surgeons, Mr Razif and Mr Bedi, a Neurologist Dr Valerie Tay and a Rheumatologist Dr Melissa Wong. He had been investigated with an MRI of his ankle and a bone scan. He had tried physiotherapy, simple analgesia and tricyclic antidepressants for analgesia. He had cortisone injections into his ankle. Nonetheless, despite the thorough assessment and multimodal interventions he has continued to suffer with chronic right ankle pain. The exact aetiology of his ankle pain varies depending on the specialist involved and ranges from scarring around his tibial nerve, to talonavicular/subtalar joint arthritis. I tend to refer to it simply as chronic ankle pain.
The chronic ankle pain is a permanent disability that is relatively stable in nature. It can fluctuate depending on the level of activity. … .”[22]
[22]PCB 43-44
22 Further, he noted, after describing the history of the physical injury:
“In addition to his chronic ankle pain Clifford also suffers from clinical anxiety and depression. There is no documented history of mental illness prior to his injury. … .”[23]
[23]PCB 44
23 Dr Schwartzbord goes on to say that the plaintiff has largely accepted his permanent pain and he clearly has a reduced work capacity after the injury, working at that time about 25 hours a week, which was a reduction from pre-injury work hours of 40 to 50 hours a week. He felt also the plaintiff had difficulty with any activity that involves prolonged standing, walking, driving, twisting and turning.[24]
[24]PCB 44
24 Not surprisingly after the development of the anxiety and depression, Dr Schwartzbord referred the plaintiff for psychological help in September 2010 to treat this later problem. However Dr Schwartzbord still continued treatment consistent with ongoing physical problems. For example he sent him to a podiatrist in November 2010 and then to a pain management specialist in 2011. Reading all the material from this general practitioner, it is noteworthy that he uses the word “also” when describing the development of the psychiatric problems of anxiety and depression. It is a later condition and additional to the organic.
25 The line of doctors at the Monbulk Clinic then moves to Dr K Tan from 29 January 2013 onwards. Again, I infer he sees physically based pain, as although the depression/anxiety was already well documented at his clinic, he refers the plaintiff off to another orthopaedic surgeon, Dr Alison Taylor, specialising in foot and ankle problems.[25] He also sent the plaintiff for orthotics and to another pain specialist.[26] After those referrals for clearly organic problems, Dr Tan refers to re-starting the anti-depressant medication on 29 July 2013.
[25]PCB 71
[26]PCB 72
26 Looking at the whole of the evidence from this local clinic, it is clear that there has been, across three general practitioners, a consistent opinion that the plaintiff has suffered physically based leg pain and loss of mobility problems from 2006 up to the present time. I accept that evidence. These treaters have the great advantage of having seen the plaintiff over many visits, correspondence from referred specialists of their choosing, as well as a body of radiological and other investigations. I contrast this material with the information that the defendant’s doctors had at their disposal, which I will refer to later.
27 No medico-legal doctor has had the same opportunity to evaluate the cause of the plaintiff’s leg pain over the last seven and a half years. While the precise physical diagnosis of the cause of the plaintiff’s leg problems has varied amongst his local practitioners, I accept their views. I find the pain was predominantly a product of an organic condition and that is still the case.
28 Mr Razif was the first orthopaedic surgeon the plaintiff was referred to for treatment and he examined him on 12 May 2006. He thought the cause of the problem was organic and was “…a contused and sprained medial complex of the left ankle” which was then stable. He does not refer to anything other than a physical problem.[27]
[27]PCB 171
29 Mr Bedi was the next orthopaedic surgeon to see the plaintiff. In July 2008, he thought the plaintiff’s symptoms in the leg were probably related to some scarring around the tibial nerve, just behind the ankle, and possibly also due to some damage and scarring around the long flexor tendons. He felt these were neurological signs so he referred the plaintiff off to a neurologist, Dr Tay. Again, there is no suggestion in Mr Bedi’s report of anything other than a physical basis for the symptoms, although the diagnosis was different.[28]
[28]PCB 173
30 Dr Tay then saw the plaintiff on 16 September 2008. Further investigations took place and while the diagnosis was not clear, Dr Tay thought that the plaintiff may have had post-traumatic ankle pain with focal nerve irritation to account for his sensory symptoms. Dr Tay sent the plaintiff off to a rheumatologist, Dr Wong, for further treatment.[29] Clearly, there was a difficulty in precisely diagnosing the cause of the plaintiff’s physical problems but there was no suggestion that it was anything other than an organic problem, though one difficult to nail down by way of precise diagnosis.
[29]PCB 64-65
31 Dr Wong then saw the plaintiff in December 2008. She provided five reports. Treatment consisted of injections in several parts of the right leg but with no positive response. She then organised a bone scan and different medication. The prospect of complex regional pain syndrome arose but the bone scan excluded that diagnosis. She found evidence of arthritis in the foot.[30] Similar to the other specialists, Dr Wong reports some uncertainty regarding a precise diagnosis. However, the only conclusion here is that it was a physically based problem that was being explored along different avenues due to the diagnostic challenge.
[30]PCB 178
32 The only other treating practitioner is a physiotherapist, Mr A Ratnachandra, who reported in November 2011 very briefly and referred to a chronic pain syndrome.[31] It is a very short report and does not really assist. The physiotherapist really just documents potential treatment without any real analysis by way of diagnosis.
[31]PCB 68
33 These non psychiatric treating doctors are the most helpful in terms of analysing whether or not the plaintiff’s ongoing pain and disability is predominantly the product of an organic leg condition. I find that it is and that he suffered a crush injury to the right foot involving diffuse soft tissue damage to the structures in the foot and ankle region.
34 The four reports of the treating psychologist cover the first attendance in October 2010 up to the current time. It is noteworthy that the referral for psychological help to Mr G Troup came some four and a half years after the accident and after a great deal of treatment, referrals and investigations for an organic problem. It is also of importance that throughout the years, Mr Troup makes recommendations for ongoing treatment that always start with physical therapy first.[32]His oral evidence did not depart from this.
[32]PCB 55, 59 and 63
35 Mr Troup’s prognosis had altered over those reports, with some optimism for psychological improvement.[33] It is significant that while other stressors such as financial, family and general health problems warrant more attention as time goes on, he states “… the pain levels have not improved”.[34] His last word is after multiple visits, that the plaintiff needs “… comprehensive multi-disciplinary pain management” and refers to some incremental improvement in his psychological condition.[35]
[33]PCB 63
[34]PCB 63
[35]PCB 63
36 Looking at the totality of treaters’ reports, I conclude the plaintiff is still coping with ongoing physically-based pain that, after a number of years and differing specialist opinions, has led to an expected psychological impact on him. The problem is still predominantly contributed to by the organic injury to his leg. The consequences for him have been very considerable in terms of impaired earning capacity, effects on daily life and his loss of playing competitive sport.
37 In total, this application has seen a tender of almost 50 medical reports, excluding those from radiologists. I have had the advantage of hearing from only two practitioners. I will not go through these reports in any great detail but a conclusion on the relevant issues must be made looking at the whole body of material. The opinions of the treaters assist most in this task.
38 The first of the medico-legal doctors, Mr G Moran, orthopaedic surgeon, thought the diagnosis in 2008 was a soft-tissue foot injury. He gave an AMA impairment which reflects some permanency for this physical injury.
39 Mr Russell Miller, orthopaedic surgeon, had the distinct advantage over all the other medico-legal doctors of having seen the plaintiff on four occasions. These spanned some years from November 2009 to August 2013. He then reported a fifth time, two weeks ago, on specific issues.
40 His reports are thorough and readily understandable. Again, certain diagnoses and the causes of pain are different from other doctors but are essentially organic. He noted “…the secondary development” of chronic pain syndrome.[36] By 2011 he noted anxiety and depression requiring separate assessment.[37]
[36]PCB 81
[37]PCB 86
41 He was cross examined on the meaning of his final comment two weeks ago that from a physical point of view the plaintiff was permanently restricted by pain to about five hours work per week. He explained that he thought the predominant contribution to this was from the organic injury.[38] I accept that opinion.
[38]T90-91
42 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, saw the plaintiff in September 2012 and then in August 2013. He lists a number of enclosed reports. He clearly states there is neuropathic pain following a crush injury and “…the nature of his problem is organic”.[39] Again, diagnoses differ, but he concludes there is only a capacity for the plaintiff to work part time with a real limitation if he was required to be on his feet. This is again a very considerable consequence in terms of a previously unrestricted earning capacity.
[39]PCB 128
43 Dr Amanda Silcock, occupational physician, also saw the plaintiff in 2012 and 2013. She also lists documents sent to her. She thought he was suffering from a chronic pain syndrome secondary to a crush injury to the right ankle and that he was suffering from depression. She thought he was likely to develop arthritis as he ages and she described a limited earning capacity of up to 20 hours a week provided he avoids prolonged standing and walking.[40] Again, her opinion is consistent with a physical problem that is likely to be arthritic into the future with a secondary psychological development. Organic pain continues.
[40]PCB 145
44 The first of two psychiatrists engaged by the plaintiff is Dr A Kaplan, who provided three reports covering 2009 to October 2012. His reports really describe problems that started with a physical injury with also an element of post traumatic stress disorder from the frightening nature of the collision.
45 In his last report, Dr Kaplan makes the comment that:
“… If his physical condition deteriorates with the passage of time and or if he becomes increasingly disabled, his depression is likely to intensify.”[41]
[41]PCB 124
46 A little further on, he states:
“His prognosis will be determined by the outcome of his physical condition and he is likely to remain prone to depression and anxiety as long as his pain persists and as long as he remains disabled by his pain.”[42]
[42]PCB 124
47 This specialist psychiatric opinion is consistent with a conclusion that the physical problems are still ongoing and contribute to his pain and consequences flowing from that.
48 Dr Lester Walton, consultant psychiatrist, examined the plaintiff in January 2013 and in August 2013. He thought the psychiatric symptoms were stable but he really does not assist in determining whether there is still an organic contribution to the plaintiff’s current problems.[43]
[43]PCB 156
49 Turning to the defendant’s medical material, Dr Kevin Fraser rheumatologist, saw the plaintiff in 2011, 2012 and 2013 and provided relatively brief reports. His histories are not comprehensive about the treatments nor the complaints and it is not clear what are the enclosures from other doctors he was given. Nevertheless in his first report he diagnosed ligamentous strain to the ankle that was stable and resulted in ongoing discomfort and limitations.[44]
[44]DCB 2
50 At the second visit he saw no significant change but commented that the symptoms seemed “… to be out of proportion to what one would expect…” although there is no mention of a psychiatric condition.[45]
[45]DCB 3b
51 Finally in 2013, he notes “…an overreaction on physical examination” and “…symptoms are quite out of proportion to what one would expect following a ligamentous injury to the right ankle about seven years previously”.[46] At this stage, he says non-organic factors are probably the reason but he still finds “… there may be ongoing weakness following ligamentous injuries of the ankles…”.[47] He does not really explore the possible diagnosis as thoroughly as a number of the doctors I have already referred to.
[46]DCB 3e
[47]DCB 3e
52 I consider Dr Fraser still concedes there “may” be physical contribution to the plaintiff’s complaints due to a non organic condition that has in time taken over. This is generally consistent with the finding of ongoing physical contribution. Overall I do not find this doctor, with a specialty of rheumatology, explains the causation of present symptoms as thoroughly as others in his short reports and he does not have a comprehensive factual basis.
53 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff in 2011 and October 2012. His opinions are a little out of date compared with the body of recent reports from the plaintiff’s doctors. Again his reports are not particularly comprehensive. There is no critical comment about the plaintiff’s reaction on examination even though he thought “the exact nature of the injury is unclear”.[48] He gives his view about the soft tissue damage and reports the plaintiff “subsequently” developed significant depression.[49] He encouraged the plaintiff to try and play cricket and the plaintiff followed that advice. He thought some pain would still be ongoing and it reads as though it is physically based but with an increased perception of the pain that can be the result of the depression. I take his comments to be more directed to the level of pain the patient experiences than to its cause.
[48]DCB 6
[49]DCB 6
54 The 2012 report goes a little further in describing the psychological reaction but from “…an orthopaedic point of view, I believe that Mr Cleary will continue to note some intermittent pain in the region of the lower leg, medial hindfoot and medial side of the foot”.[50] He indicates:
“ I believe that Mr Cleary will have difficulty carrying out regular heavy physical work or work that involved prolonged standing or prolonged driving. He has the physical capacity to carry out light physical work and clerical duties.”[51]
[50]DCB 10
[51]DCB 10
55 This comment seems directed to physical limitations. However, without hearing from this doctor, who also has not detailed any enclosures he has been sent from other doctors, the opinion is not entirely certain. Interpreting his views in those circumstances, I find the probability is that he still sees some organic contribution to the plaintiff’s pain and symptoms. “Subsequently”[52] the psychiatric condition developed on top of the ongoing physical one that is still there, seems to be his ultimate conclusion. He accepts an impairment of earning capacity and for a man who worked in a business with a good deal of driving and standing, I accept this is a serious impairment.[53]
[52]DCB 6
[53]DCB 10
56 Associate Professor G Mendelson saw the plaintiff on 17 January 2013 and noted documents sent to him “too numerous to list here” which are not identified.[54] He has the disadvantage of only seeing the plaintiff once almost seven years after the transport accident. He found him pleasant and cooperative and his affect largely unremarkable.[55]
[54]DCB 11
[55]DCB 13
57 His opinion was that the plaintiff had no diagnosable mental disorder but there had been a psychological reaction to his situation of chronic ankle pain and restricted activities. On the question of whether there is an organic basis for the pain, he defers to other doctors when it comes to the differing organic diagnoses.[56] Accordingly, he finds no psychiatric incapacity for work and “…the overall prognosis is that of the physical condition.”[57]
[56]DCB 21
[57]DCB 21
58 As he expresses no doubt about the plaintiff’s genuineness or credit, and he finds there is no paragraph (c) basis for the pain and impairments, I conclude he thought the pain consistent with an organic physical injury.
59 It is worth noting several up-to-date examinations by physical doctors’ recorded objective signs of wasting in the right calf. For the defendant, Dr Fraser recorded none in 2011 but one centimetre in 2012[58] and made no record again in 2013. Dr Clayton Thomas found two centimetre wasting in September 2013[59] and Dr Silcock found two centimetres in October 2012[60] and again in August 2013.[61] I find this is consistent with some physical basis for his impairment.
[58]DCB 3b
[59]PCB 128
[60]PCB 137
[61]PCB 144
60 The defendant took the plaintiff to Profit and Loss statements that showed after his accountant took advantage of tax deductions that the plaintiff did not do very well financially. Notwithstanding, the figures show he generated sales that grew from $25,044 in 2000-2001 to $88,146 in 2005-2006, the accident year. This is a man who is active in his work. The impact of the physical injury on simply the hours he can now work, which evidence I accept, is a very considerable consequence in terms of impairment of earning capacity. The fact that with the assistance of his family and friends[62], they could grow the sales is not to the point in analysing what personal capacity to work has been lost. His own capacity is seriously impaired.
[62]PCB 11 and16, T41, T43 and T53-54
61 I do not accept the defendant’s argument that the profit and loss figures showing an increase in sales after the accident amounts to the plaintiff not showing any serious impairment of earning capacity. The business had a five year plan towards being profitable.[63] It was expanding before this injury.[64] Having started in the tax year 2001, the increase in sales is consistent with the plan but it was achieved in spite of the serious impact on his ability to work by having the assistance of the efforts of others to progress. It then took ten years to make a profit on the figures.[65]
[63]T42
[64]T67
[65]DCB 26-38
62 The serious impairment on his earning capacity is not to be measured solely on the plaintiff being sentenced to a life of only working in his own vending business. He had managed a hardware store, 7-Eleven stores and some twenty eight car parks in the past in responsible full time paid employment.[66] Before his injury these fall back alternatives were open to him.[67] I accept now he could not work the hours and have the mobility to hold down such jobs because of the physical limitations of his leg.
[66]PCB 6
[67]PCB 21
63 A man still playing competition cricket, as opposed to a social match, after some 25 years in the sport can be fairly described as has having a great interest in it.[68] To have never missed a game in that time[69] and to be still trying to play it into his mid 50’s is in my view something of a passion. He tried to play on but under duress.[70] He is unable to continue competing as a result of the physical impediment of the leg injury in particular with its effects on mobility. He tried to go back in 2011 on the advice of a doctor he saw for the defendant:
[68]PCB 9
[69]PCB 9
[70]T26
“So I gave it a go but I had to stop because I couldn’t do it.”[71]
I accept he would still be playing if he had not been injured.[72]
[71]T50, PCB 17
[72]T67
64 I reject an argument that to be still involved in junior coaching and attending at the cricket club is any substitute for playing competitively. For this man this loss of itself is a very considerable consequence of the organic injury.
65 Outside of work and sport there are other consequences of the organic injury that are very considerable. For an active man to have to avoid running,[73] being unable to work for extended periods,[74] being troubled walking on certain surfaces,[75] as well as standing for prolonged periods are all serious mobility consequences. Certain footwear has to be accommodated.[76]
[73]PCB 9, T66 and 68
[74]PCB 16
[75]PCB 16
[76]PCB 8 and 16
66 Similarly the inability to enjoy uninterrupted sleep because of the pain in his ankle[77] is a very considerable consequence on its own in relation to enjoyment of life.
[77]PCB 8 and 23
67 The plaintiff has discharged the onus of proving serious consequences by way of impaired earning capacity and in terms of lost enjoyment of life. The impairment is predominantly contributed to by the organic leg injury.
68 In view of the above it is not necessary to consider whether any consequences the product of a paragraph (c) condition meet the test of “severe”.
69 I grant leave to the plaintiff to issue proceedings for the recovery of damages.
70 I will hear the parties as to costs.
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