Collett v Transport Accident Commission
[2016] VCC 1551
•25 October 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-03110
| Terry James Collett | Plaintiff |
| v | |
| Transport Accident Commission | Defendant |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 October 2016 | |
DATE OF JUDGMENT: | 25 October 2016 | |
CASE MAY BE CITED AS: | Collett v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1551 | |
REASONS FOR JUDGMENT
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Subject: Common law
Catchwords: Serious injury application
Legislation Cited: Transport Accident Act 1986 (Vic)
Cases Cited:Humphries v Poljak [1992] 2 VR 129; Mobilio v Balliotis & Ors [1998] 3 VR 833; TAC v Dennis [1998] 1 VR 702, 703; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Aburrow v Network Personnel Pty Ltd & Anor [2013] VSCA 46; Mazevska v TAC [2014] VSCA 178; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260; Richards v Wylie (2000) 1 VR 79; Rodda v TAC [2008] VSCA 276.
Judgment: Leave is granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V Morfuni QC with Mr A Newman | Slater & Gordon Lawyers |
| For the Defendant | Mr P Scanlon QC with Ms A Ryan | Wisewould Mahony Lawyers |
HER HONOUR:
1 This application was conducted before me as one for leave under section 93(17)(a) of the Transport Accident Act 1986 (Vic) (“the Act”) to issue proceedings for the recovery of damages in respect of a soft tissue injury to the right shoulder sustained in a transport accident on 7 December 2011 and the subsequent psychological reaction in the form of an Adjustment Disorder with Mixed Anxiety and Depressed Mood.
2 The plaintiff is 38 years old. He writes left-handed but in all other respects is right-hand dominant, using his right hand to operate mechanical equipment, sports equipment, fishing rods, and to reach for objects. He has two young daughters who live with their mother and he sees them about 4 days per fortnight. He completed Year 9 at school, started but did not complete a plasterer’s apprenticeship, and then worked as a trades assistant in the construction industry, mostly as a sub-contractor. His duties included preparation of building sites, installing roofs and fences, cupboards and cabinets, tiling and driving a forklift at times.
3 Prior to the transport accident, he had not suffered any injuries to his right shoulder. He was able to work full time undertaking heavy manual work without restrictions in the construction industry. He enjoyed fishing, camping and dirt bike riding, which he did regularly and enjoyed greatly. He had been stabbed as a teenage and become addicted to pain relieving medications until the age of 18. During that period he committed some criminal offences which resulted in convictions in the Children’s Court for burglary and assault. As an adult he has lost his licence for drink-driving and for driving while unlicensed.
4 On 7 December 2011 he was crossing the road when he was struck by a car. He mounted the bonnet of the car and fell to the ground. He sustained injuries to his chin, nose, right eye socket, right cheek, right hand and right shoulder. He spent two days in the Royal Melbourne Hospital, discharged himself, then was admitted to Dandenong Hospital overnight. He returned to hospital in mid-December for surgery to repair his nose fractures and the cut to his chin.
5 In his affidavits, the plaintiff described the problem with the right shoulder as follows. He has pain, stiffness and discomfort in his right shoulder. These symptoms are aggravated by heavy lifting or repetitive use of his right arm. He struggles to lift heavy shopping bags. He has not had ongoing treatment or medication for his right shoulder. As at October 2012 he was avoiding taking regular painkillers because of a fear of becoming addicted to such medication, and was only using Deep Heat or taking Nurofen when the pain was particularly bad.[1] As at April 2016 he stated that he was taking Nurofen 3-4 times per week and applying Voltaren and Deep Heat gels to his right shoulder.[2] Since August 2014 he had also been taking cortisone tablets, Solone, as prescribed by his general practitioner, but found these made him very drowsy. He would only take them for very severe pain. He had also been prescribed Celebrex, Endone and Panadeine Forte. He did not find Celebrex helpful. He took Panadeine Forte and Endone rarely, when his shoulder pain was severe. Partly to manage his right shoulder pain and anxiety and depression, he was drinking heavily. However, he had completed an alcohol abuse course and was taking Campral to assist him reduce his drinking.
[1] PCB p.4
[2] PCB p.16
6 As at 3 October 2016, the plaintiff stated that he would take Panadeine Forte at night about three times per week, and Endone only when the right shoulder pain was very severe. He was taking Nurofen 3-4 times per week, and applying Voltaren Gel and Deep Heat regularly.[3] He was no longer taking cortisone tablets (Solone) or Celebrex. He had reduced his drinking to social occasions or on the weekend.
[3] PCB p.20D
7 At the hearing, the plaintiff said that up until he stopped working, in June of this year, he was taking Panadeine Forte and Nurofen every day, and Endone twice per week. Since he stopped working, he has been taking Panadeine Forte 3-4 times per week, and Endone for severe pain in the right shoulder.[4]
[4] Transcript p.51
8 After the transport accident, the plaintiff said he was unable to return to work as a Trades Assistant because of his right shoulder injury. He was not certain that he could hold a drill. He obtained a short-term contract stripping cars and refrigerators of their metal. In 2014, he tried to do some cabinet making work with a builder for two weeks but was very slow at the work, which included dragging cupboards down tracks and which aggravated his right shoulder pain. He told the builder that he was unable to continue working for him because of the nature of the work and his restrictions. He was listed with several employment agencies and had applied for numerous jobs but was not hired. He felt this was because he declared his transport accident related injuries on his application forms.
9 From mid-December 2015 until June 2016 the plaintiff worked for EEZ Creations as a labourer 4-5 hours per day, 4-5 days per week with restrictions preventing work involving repetitive lifting with his right shoulder of items weighing more than 5 kgs and limiting the use of vibrating machinery. The work involved putting up decks, retaining wall and lifting and carrying building supplies. He tried to avoid the heavier aspects of the work, and worked more slowly than before the transport accident.[5] The work involved using a sledge and chip hammer, pinch bar and drill, moving materials with a wheelbarrow and overhead lifting. His employer would often ask him to do up to 8 or 10 hours per day but he could not manage those longer hours due to his right shoulder and arm pain. In June 2016 his employer told him that he had run out of work for him to do.
[5] PCB p.20E
10 As at 3 October 2016, the plaintiff was unemployed. He had been receiving New Start benefits since June. He had applied for a number of jobs as a forklift driver but been unsuccessful.
11 At the hearing, the plaintiff said that he had applied for about 70 jobs as a forklift driver, without success.[6] He also applied for labouring jobs and jobs as a factory hand, but believed that his restrictions prevented him from obtaining those positions. He said he believed he could work as a forklift driver provided that he did not have to lift boxes above shoulder height.[7] His father died two months ago and the plaintiff was currently living with his mother and looking after her after her recent hip surgery. He has applied for carer benefits but would still be keen to work part-time in a job that did not involve heavy lifting.
[6] Transcript p.40
[7] In his affidavit dated 3 October 2016, the Plaintiff stated that he had “applied for a couple of forklift jobs, but I’ve been unsuccessful. I worry about the vibration associated with driving.” PCB p.20D
12 The impact of the right shoulder injury on his daily activities and enjoyment of life can be summarised as follows. He can manage his own self-care, but when drying himself he does not raise his right arm above waist level.[8] He sleeps poorly, and uses a triangular pressure under his right shoulder. If he rolls onto his right shoulder he wakes in pain. His concentration is much worse since the transport accident. He is very distracted by pain and constantly thinks about his loss of strength. He suffers daily throbbing pain in the right shoulder which is aggravated by movement of the shoulder including pushing, pulling, heavy lifting, performing tasks above shoulder height or away from his body. The range of movement in his right shoulder is limited by pain. There is reduced strength in the right shoulder. He has modified the height of the clothesline to accommodate his right shoulder restrictions. Mowing the lawn, using the whipper snipper and a chainsaw all aggravate his right shoulder pain. He continues to garden but pushes the mower with his left hand. He cannot perform any activity requiring ongoing or repetitive strenuous use of his right shoulder and arm. He can no longer swing an axe or use any vibrating machinery.[9]
[8] PCB p.20G
[9] PCB p.20F
13 He does the shopping and cleaning and other household chores while his mother does the cooking. He has recently returned to driving on a learner’s permit, but feels anxious on the road. Dirt bike riding aggravates his right shoulder pain and he has only ridden on a few occasions, sometimes as a passenger. He sold his motorbike in mid-2014. He still enjoys fishing but now only goes out in his boat river fishing with friends for whiting and flathead. He can no longer use his 25 kg rod and reel and can no longer fish in the bay for snapper.
14 The plaintiff agreed that he had not lodged any taxation returns since 2011, but said he had tried to lodge returns but had difficulty with the Taxation Office. He was certain that he earned more than $1200 in the year ending 30 June 2011, and more than $6500 in the two years before that.
15 The plaintiff agreed that a specialist told him he could have a cortisone injection into his shoulder, but he was waiting for TAC approval and never received notification that such approval had been given. In any event, he said that he had taken the cortisone tablets prescribed by his doctor, Dr Scobie, in 2014 and found they were of no benefit. The plaintiff agreed that he first saw Dr Scobie in early May 2014 and that up to then he had not received any prescription medication for his right shoulder, but said that he had been taking over the counter analgesics and self-medicating with alcohol.
16 The plaintiff agreed that he had never received any psychological treatment or taken medication directed for his psychological symptoms which developed in response to his transport accident related injuries, including the right shoulder injury.
Medical evidence
Right shoulder
17 X-Ray of the right shoulder on 18 January 2012[10] was reported as showing no fractures. MRI of the right shoulder on 26 June 2014 was reported as showing “bone marrow oedema at the anterior aspect of the acromiom consistent with bone bruising”.[11]
[10] PCB p.29
[11] PCB p.30
18 The plaintiff saw his then general practitioner, Dr Gunawardana, on 20 December 2011[12] complaining, inter alia, of right shoulder muscular strain sustained in the transport accident. He was referred to specialists in relation to his injuries. Mr Stapleton noted on 20 August 2012[13] a complaint of reduced range of shoulder movement in the right shoulder, tenderness in the shoulder joint, and discomfort lying on the right side in bed. He diagnosed soft tissue injuries to the right shoulder.
[12] PCB p.43
[13] PCB p.84
19 A number of other specialists have reached the same conclusion. Mr Simm opined on 29 August 2012[14] that the plaintiff suffered from an “unresolved non-specific soft tissue injury” to the right shoulder, with residual right shoulder pain and associated restriction of movement. Mr Simm did not expect the plaintiff to require further active treatment for the right shoulder but felt that over time there might be some improvement in movement.
[14] PCB p.57
20 On 4 March 2014, Mr Ian Jones, orthopaedic surgeon, made the same diagnosis[15] and concluded that the plaintiff would not be fit to undertake his pre-injury work which required sustained overhead use of his right shoulder. Mr Jones imposed a lifting limit of 5 kgs using the right arm and avoidance of use of vibrating tools.
[15] DCB p.7
21 By mid-2014, Mr Simm considered[16] that there was no prospect of further improvement or significant deterioration and that the plaintiff remained incapacitated for his pre-injury employment or alternative physically demanding work with his right arm, particularly at or above shoulder height. The plaintiff’s general practitioner, reached a similar conclusion in July 2014,[17] and referred him to an orthopaedic surgeon, Mr Price, who recommended a cortisone injection to the shoulder.[18]
[16] PCB p.65
[17] PCB p.46
[18] PCB p.51G
22 On 4 August 2015, Mr Jones noted[19] that the plaintiff continued to have pain and restriction of movement in the right shoulder and that he had the capacity to undertake full time employment excluding heavy or overhead use of his right shoulder. Mr Stapleton noted one week later[20] that the plaintiff’s right shoulder condition was unlikely to improve, that it “will very much impair his earning capacity”, and that, given his occupation as a labourer, his employment options “are to be regarded as bleak”. Dr Scobie opined on 6 December 2015[21] that the right shoulder continued to cause pain and limited the plaintiff’s ability to perform heavy manual tasks, that the plaintiff retained a capacity for pre-injury work not involving repetitive lifting of more than 5 kg with the right arm and not above shoulder height, and not involving more than limited use of powered machinery.
[19] DCB p.9d
[20] PCB p.99
[21] PCB p.48
23 On 3 March 2016, Mr Stapleton repeated his earlier opinion.[22] Mr Simm opined on 6 April 2016 that the plaintiff suffered “residual signs of shoulder dysfunction”[23] and could not return to employment using right arm to lift heavy objects above shoulder height. On 8 August 2016, Mr Jones noted[24] that there were no functional symptoms or signs in the plaintiff’s presentation. On 23 September 2016, Mr Simm noted[25] that the plaintiff did not require active treatment apart from ongoing pain medication. He also noted that the plaintiff had been unable to manage the demands of working more than 4-5 hours per day as a labourer, and was unsuited to work that involved repeated and heavy lifting with his right arm, particularly away from his body or in the overhead position. In addition, he would have difficulty with recreational activities that involved throwing or bowling.
Psychological sequelae
[22] PCB p.101
[23] PCB p.83A
[24] DCB p.9k
[25] PCB p.83d-f
24 Dr David Weissman, psychiatrist, first assessed the plaintiff in March 2013. In his first report dated 7 March 2013,[26] he noted that prior to the transport accident the plaintiff had good mental and emotional health.[27] He diagnosed a chronic Adjustment Disorder with mixed disturbance of emotions of at least mild to moderate intensity or severity,[28] but felt that his psychiatric condition may not be fully stabilised. He noted that the plaintiff had not received any psychological treatment.
[26] PCB p.143
[27] PCB p.151
[28] PCB p.152
25 On 14 August 2014, Dr Weissman provided a further impairment assessment[29] in which the plaintiff told him he was frustrated and depressed at not working, was drinking heavily, sleeping badly because of his right shoulder pain and nose problem, had poor self-esteem, energy and motivation. Dr Weissman felt that the plaintiff’s mixed, reactive depressive and anxiety syndrome had slightly deteriorated since the previous consultation, and concluded that his chronic Adjustment Disorder with Depressed and Anxious Mood was of moderate intensity or severity.[30] In early September 2014, Dr Weissmann provided a brief supplementary report[31] in which he noted that he had read the report of Dr Shan and agreed with him that the plaintiff had no psychiatric incapacity for work but indicated that he found the plaintiff’s Adjustment Disorder to be slightly more severe than that assessed by Dr Shan.
[29] PCB p.158
[30] PCB p.168
[31] PCB p.173
26 On 26 January 2016, Dr Weissman provided a further impairment assessment[32] in which he noted the plaintiff reported some improvement in his psychiatric state compared with the last consultation. He concluded that the plaintiff continued to suffer from a mild to moderate, “but closer to mild”, chronic Adjustment Disorder.[33] In a supplementary report dated 21 March 2016,[34] Dr Weissman reaffirmed the conclusions he had expressed earlier.
[32] PCB p.176
[33] PCB p.183
[34] PCB p.187A
27 Dr Dush Shan, psychiatrist, provided 3 reports to the defendant’s solicitors. In his first report dated 25 March 2014,[35] he diagnosed a mild Adjustment Disorder with mixed anxiety and depressed mood that was partly related to the consequences of the physical injuries. He felt that no psychological treatment was required and that he was fit from a psychological viewpoint for any duties that were within his physical limitations. In his second report and third reports dated 16 June 2015[36] and 16 August 2016[37] he expressed the same conclusions.
[35] DCB p.10
[36] DCB p.17a
[37] DCB p.17h
Legal principles
28 In order to satisfy sub-paragraph (a) of the definition of serious injury in section 93(17) of the Act, the plaintiff must establish that he has suffered a serious long-term impairment or loss of a body function.
29 In determining an application under section 93(17)(a) of the Act, the Court must be satisfied that the consequences of the long-term impairment of the particular body function, in terms of pecuniary disadvantage and/or pain and suffering, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described at least as “very considerable” and certainly more than “significant” or “marked”.[38] Some weight must be given, in considering that the pain and suffering consequences of the plaintiff's impairment are at least very considerable, to the adverb “very”.[39]
[38]Humphries v Poljak [1992] 2 VR 129; Mobilio v Balliotis & Ors [1998] 3 VR 833.
[39]TAC v Dennis [1998] 1 VR 702, 703.
30 Ordinarily, the endurance of permanent daily pain requiring frequent medication “must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence”.[40]
[40]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267, [199].
31 Apart from the capacity for work, assessing the extent to which pain interferes with the ordinary activities of life will generally involve consideration of its effect on the plaintiff's sleep, mobility, capacity for self-care, performance of household and family duties, recreational activities, social activities, sexual activities and enjoyment of life.[41] Any evidence of pecuniary disadvantage must be considered by the court regardless of whether any submissions were made on the issue.[42] Each case has to be determined in the light of its own facts.[43] The court is entitled to consider the plaintiff’s age.[44]
[41]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, [16]; Sutton v Laminex Group Pty Ltd [2011]
VSCA 52; Aburrow v Network Personnel Pty Ltd & Anor [2013] VSCA 46.
[42]Mazevska v TAC [2014] VSCA 178.
[43]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
[44]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 [44].
32 In determining the application the whole of the evidence is to be considered. The Court must consider what the plaintiff has lost by virtue of the injury and what has been retained. The significance of what he or she has lost, which bears upon the seriousness of consequences, may be informed to an extent by what is retained.[45] A return to work by a stoic worker is not determinative against a worker on the issue of pain and suffering, particularly where the alternative employment found by a worker has not had the effect of reducing his symptoms.[46] What matters is the extent to which an area of work which the plaintiff enjoyed has been closed off to him.
[45]Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260, [27]; Sutton v Laminex Group Pty Ltd [2011] VSCA
52, [95].
[46] Sutton v Laminex Group Pty Ltd [2011] VSCA 52, 79 (Tate JA); Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
33 In an application under section 93(17)(a) of the Act, where a plaintiff who has suffered a significant physical injury has also developed a psychiatric response to that physical injury, it is permissible and appropriate for the court to take into account the development of any psychiatric condition in response to the physical injury when deciding whether the consequences of the impairment of the relevant body function meet the narrative test.[47]
[47]Richards v Wylie (2000) 1 VR 79, 87; Rodda v TAC [2008] VSCA 276.
Submissions
34 The defendant says that leave should not be granted for a number of reasons, including: that the plaintiff did not see doctors for his right shoulder problem until over two years after the transport accident; that he failed to have the recommended ultrasound guided cortisone injection recommended by Dr Price and so his right should impairment cannot be regarded as permanent; that he has retained the capacity to go fishing and camping, to look after his mother, and to work full-time; that there is a dearth of material as to exactly what he was earning at the time of the transport accident so he cannot prove the pecuniary disadvantage of which he complains; and that even allowing for psychological sequelae of the right shoulder injury, for which he has had no treatment, the plaintiff has not established a serious injury.
Findings and reasons
35 I found the plaintiff to be a straightforward witness who gave his evidence without embellishment. It is clear from the evidence that prior to the transport accident he was able to work full time without restrictions in heavy employment. He was otherwise in good health and had no mental health conditions. I accept his evidence that he has been troubled by pain and restricted movement in the right shoulder since the transport accident. On the medical evidence of both plaintiff and defendant examining orthopaedic surgeons, he does not require further active treatment but is permanently incapacitated for unrestricted pre-injury employment or for heavy work requiring use of vibrating machinery, overhead lifting or repetitive heavy lifting with the right shoulder. He continues to suffer ongoing right shoulder pain requiring ingestion of prescription medication. His sleep is interrupted. His ability to do gardening and household maintenance has been adversely affected. He can no longer ride dirt bikes or use his heavy fishing rod. Importantly, he has tried to do pre-injury duties but suffered greater pain and was too slow in the work to sustain his position. He has made many attempts to return to work in alternative employment as a forklift driver, without success. He has a limited educational and occupational background. He has suffered a psychological reaction to his physical injuries, including his right shoulder injury, which is likely to persist indefinitely. He is a relatively young man and will suffer these consequences for the rest of his life.
36 In all the circumstances, I consider that the consequences of the plaintiff’s long term impairment of the right shoulder are, in terms of pain and suffering and pecuniary disadvantage, more than considerable when compared with other cases in the range of long term impairments.
Conclusion
37 Leave is granted to the plaintiff to issue proceedings for the recovery of damages in respect of the injury to the right shoulder sustained in the transport accident on 7 December 2011. I reserve the question of costs.
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