Cooke v Transport Accident Commission

[2014] VCC 395

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-13-02733

SHERYLE ANN COOKE	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	1 and 2 April 2014
DATE OF JUDGMENT:	4 April 2014
CASE MAY BE CITED AS:	Cooke v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2014] VCC 395

REASONS FOR JUDGMENT
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Subject:  TRANSPORT ACCIDENT
Catchwords:            Serious injury – right leg injury and impairment thereof
Legislation Cited:     Transport Accident Act 1986, s93(4)

Cases Cited:Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; State of Victoria v Glover [1998] VSCA 93; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230; Acir v Frosster Pty Ltd [2009] VSC 454; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; HawkinsvDHL Express Aust [2013] VSCA 26

Judgment:                 Leave granted to the plaintiff to bring proceedings for the recovery of damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R McGarvie SC with Mr B Anderson	Shine Lawyers
For the Defendant	Mr G Lewis SC with Ms R Boyce	Hall & Wilcox

HIS HONOUR:

1       The plaintiff is forty-nine years of age.  She was a passenger in a high speed head-on collision on 13 July 2011.  She sustained many injuries.  These included multiple rib fractures, fractures to her right leg, injury to her back, neck and the right side of her body.  She had to be cut out of the car.[1]

[1]Plaintiff’s Court Book (“PCB”) pages 2-3

2 Leave is sought pursuant to s93(4) of the Transport Accident Act 1986 (“the Act”) and the plaintiff relies on the right leg injury and the impairment thereof.

3       The consequences are said to be impairment of earning capacity as well as loss of enjoyment of life.

4       The discrete issue for determination is whether the consequences are “serious”.  That is, it must be judged whether they are “at least very considerable” when judged by a comparison with other cases in the range of impairments or losses of the body function of the leg.

5       The plaintiff is married with two adult daughters.  She worked 18 to 20 hours in the meat packing section at Coles supermarket before the transport accident.  By May 2013, she had returned to work, but on less physical duties and gradually increasing her hours over time.

6       Her treatment has been very extensive indeed.  At The Alfred hospital, she was diagnosed with eight to ten rib fractures and was an inpatient for five days.  She underwent surgery, with a pin or nail and screws placed in her right leg.  She had two large screws inserted in her ankle joint and two others below the knee joint.  These are readily apparent on the x-rays that were tendered[2] and part of one protrudes well beyond the bone.

[2]Exhibit A

7       The plaintiff could not weight bear for some six weeks and has undergone extensive physiotherapy treatment.[3]  Chiropractic treatment however seems to have been centred on the low back problems and they are not part of the paragraph (a) injury relied on.

[3]PCB 3

8       The notes indicate her physiotherapy visits to date have totalled no less than 195 consultations with Mr Lee Creswell for her leg. 

9       Medication has included strong drugs that have been required for her constant pain and are still required.  At the present time, she relies on over-the-counter medication by way of Panadol and Panadol Osteo.  She needs Panadol Osteo some three or four days per week.  She finds the more she works, the more of this medication she needs.[4]  I accept that her strong pain warrants usage of stronger medication but she avoids it as it affects her mentally.[5]

[4]PCB 12

[5]PCB 4

10      Apart from taking painkillers, the treatment for her leg is effectively finished unless the formidable hardware is to be removed in the future from her leg.  This will be dependent on future surgical advice, and differing views have been expressed.

11      The plaintiff was the only witness called.  She gave oral evidence and was cross-examined.  It would be difficult to find a more compliant witness.  She took virtually no issue with anything counsel for the defendant put to her.  She is obviously an extremely well motivated person.  The psychiatrist, Dr N Serry, very accurately described her in 2012 as straightforward and without embellishment.[6]  In 2014, he was also correct when he said she was a determined and uncomplaining individual.[7]

[6]PCB 52

[7]PCB 77

12      I accept the plaintiff as a person who tended to understate her pain and difficulties.  When she said she was “… in a lot of pain” working the hours she does, I accept this is very severe pain indeed.[8]

[8]T25

13      The plaintiff returned to work with the help of Konekt Australia Pty Ltd, who were vocational providers that the Transport Accident Commission engaged.[9]  Her determined preference was to get back into the meat department where she had worked for years.  She has succeeded in getting back there.[10]  She loved that job and loved working with “the boys”.[11]  She wanted to increase her hours and she has done so.  When asked about the hours she has worked over the last two months or so, they average out at a little over 20 hours per week.  Prior to the transport accident, she was doing 18 to 20 hours per week, so she has got back to that sort of level each week.[12]  Effectively, she works whatever hours are offered to her in her casual position.

[9]Defendant’s Court Book (“DCB”) page 7 and 41

[10]PCB 12-13

[11]T14

[12]PCB 6

14      While the defendant relies on her return to work as pointing to a lack of “serious” consequences, the full story needs to be told.[13]  Many compromises have taken place for her to get back into her old meat department.  She needs medication to do the work and takes two Panadol Osteo in the morning and two in the afternoon.  Assistance from other workers is needed.  Reliance on “the boys” in the department to carry out some of her previous tasks is necessary.[14]  Kneeling and squatting are now beyond her.  She finds some tasks at work giving particular trouble.[15]  Repetitive heavy lifting is no longer within her capacity.[16]

[13]Sumbul vMelbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; State of Victoria vGlover [1998] VSCA 93 at paragraph 30; Ellis Management Services Pty Ltdv Taylor [2013] VSCA 326 at paragraphs 35, 38 and 43

[14]PCB 13

[15]T22-23

[16]PCB 13

15      Importantly, while she needs painkillers to get by at work, at the end of her shift she is tired and her leg painful.  Swelling and pain progressively worsen as the day goes on.[17]  I accept everything the plaintiff says about her symptoms and difficulties and the brave way she just pushes through them and keeps working.

[17]PCB 13-14

16      The plaintiff is able to work because of her determination and capacity to put up with leg swelling, tiredness and pain that are due to the transport accident.  She is not to be penalised by adopting a rather stoical attitude to her disability and symptoms.[18]

[18]Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 at paragraphs 80-81

17      Perhaps even more importantly, her work has been underpinned in the following way:

“I have been very lucky in that my employer has been willing to accommodate my ongoing work restrictions.  The boys out back are really good and they do lots of things to help me out.”[19]

[19]PCB 13

18      No doubt she has proved to be a valuable Coles’ employee over the fifteen years at its Townsville premises and the three years at its Berwick premises prior to the transport accident.  The goodwill is apparently being repaid but it does not get away from the fact that her earning capacity is very considerably impaired.  Perhaps even more to the point is that she has only got back to her old job by some fortunate coincidences:

“… the meat manager wasn’t too keen of having me back in the department but he has since left and they were very short-staffed so they asked me to go back in, and I was keen to get back there anyway.”[20]

[20]T26

19      Her impaired earning capacity is also relevant to pain and suffering consequences.  She does not enjoy her old job as she used to.  She finds this frustrating.[21]  She is a plaintiff who is now working in a “narrower paddock” in the sense that she now has limitations and circumstances that would preclude her from her old job save for the sympathy of the present management.[22]

[21]T14

[22]Ellis Management Services Pty Ltdv Taylor (supra) at paragraph 48

20      The simple fact of her return to the meat department and the type of hours she worked is not reflective of her true residual earning capacity.  The realities of the employment market place are to be remembered in these applications.[23]

[23]Smorgon Steel Tube Mills Pty LtdvMajkic [2008] VSCA 230 at paragraph 11; Acir v Frosster Pty Ltd [2009] VSCA 454 at paragraphs 186 and 188

21      The plaintiff is only back at her job because of a number of factors aligned, a new manager, helpful co workers, short-staffing and her determination.  The long-term impairment of her pre-accident earning capacity is very considerable when all the circumstances are examined.

22      I accept her evidence about pain when weighing the defendant’s argument about the significance of the fact she has returned to work.

“The pain in my right leg and lower back always gets worse as the day progresses.  The swelling around my knee and ankle areas will also increase as the day goes on.  This is regardless of whether I am at work or at home.  At work I am on my feet for most of my shift, so I am often very sore and tired by the end of the working day.  The prolonged standing causes extra pain through my ankle and knee areas, and also my lower back on the right hand side.”[24]

[24]PCB 13-14

23      Similarly, she restated in oral evidence the context in which her continuing to work should be viewed:

“At the end of the day I was very tired and in a lot of pain”.[25]

[25]T25

24      The hours she has worked recently do not come easily for her.[26]

[26]T25

25      I find her impairment of earning capacity is very considerable for an unskilled worker involved in manual labour that requires her to stand and rely on the function of her legs in order to carry out her duties.

26      Observing the plaintiff in the witness box, she presented as an unsophisticated and simple lady who was patently honest and reliable.  She has no skills other than manual work.  Her x-rays show the very large metallic implants holding her leg in place.  If she was on the open market and even had to present for a pre-employment medical, I accept her fears are well founded when she said:

“Due to my ongoing pain and restrictions I am very worried about my ability to keep working into the future.”[27]

[27]PCB 14

27      Her general practitioner, Dr F Shahbaz, optimistically viewed her return to work in 2012.[28]  His last word in 2014 saw that optimism repeated, both with respect to work and her daily life in terms of domestic and social activities.[29]  However, he has not seen her for twelve months.[30]  So his views are now somewhat out of date.  She sensibly does not go back to the doctor just for the sake of it and manages her symptoms largely on her own with her medication.  There is really no other treatment open to her at present.

[28]PCB 34

[29]PCB 36

[30]T16

28      The Berwick physiotherapist, Mr L Cresswell, provided short letters rather than reports in regard to the 195 visits she has had to him for her right leg treatment.  He noted her inability to squat and kneel, as well as problems standing and walking for up to an hour limit.[31]  In his last very short letter in February 2013, he recorded good progress and her capacity to do three and four-hour shifts on the register.  He pointed to changing registers to “… help prevent repetitive strain or avoid overloading issues”[32] but said little else.

[31]PCB 44-45

[32]PCB 46

29      I read his very brief letters as supporting the plaintiff’s evidence about limitations with standing, kneeling squatting and posture.  The letters also point to a patient who seemed motivated to return to her old work.  This was consistent with what I found.

30      The medico-legal surgeons commenced with Mr M Stapleton, plastic and hand surgeon, in April 2013.  He essentially commented on her scars and their effects on both work and daily living.  While paragraph (b) is not relied on in the disfigurement sense, his opinion about stability supported ongoing problems.  Consequences were not really dealt with.

31      Mr T Kossmann, orthopaedic surgeon, saw the plaintiff in May 2013.  He thought she had recovered reasonably well and the prognosis was generally good.  She may opt to have the nail removed and may require further conservative treatment also, such as medication and anti-inflammatories, physiotherapy and hydrotherapy.[33]

[33]PCB 66

32      He thought there was a moderate chance of the need to remove the intramedullary nail or rod and have a knee arthroscopy.  She may develop signs of osteoarthritis he thought.[34]

[34]PCB 67

33      He noted about her return to work that:

“Time will tell if Ms Cooke is able to continue with her work at the supermarket.  She still has ongoing issues in terms of pain and movement restriction of her right knee particularly if she has to walk stairs.”[35]

[35]PCB 68

34      Mr Kossmann also recorded the impact on her social, domestic and recreational activities and the need for help at home.  His report reads as though he accepted these limitations without any reservation.

35      Mr R Miller, orthopaedic surgeon, saw the plaintiff in January 2014.  He reported on the right leg and the low back.  This report is very up to date and comprehensive.  I accept his opinion that she suffered a right knee injury with evidence of minor post-traumatic chondromalacia patellae and probable patellar tendonitis in relation to insertion of the tibial rod.  The knee prognosis was only fair.  Regarding the lower leg, he thought union had been satisfactory but with some malalignment.  The ongoing symptoms were consistent with soft tissue and bony injury.  The prognosis was only fair.[36]

[36]PCB 83

36      Mr Miller stated rather pessimistically that her return to work was with symptoms and she would have difficulty with work that involved large amounts of kneeling, squatting, twisting and turning.  He noted she may benefit from further surgery but her condition was essentially stable.  He commented that the injury impacted on her employment capacity as well as her domestic, gardening and leisure activities.[37]  He also noted crepitus in the patellofemoral joint on examination.[38]

[37]PCB 85-86

[38]PCB 82

37      For the defendant, Mr S Doig, orthopaedic surgeon, saw the plaintiff back in 2012, so it is a little out of date.  He noted crepitus also.[39]  He thought that she had done quite well, and disagreed with surgical advice to leave the metal in her leg.

[39]DCB 4B

38      Under the heading “Lifestyle Evaluation”, he quoted:

“She says this has affected her quite markedly.  She says that she finds it hard to kneel and squat except when she is in the pool.  She says that she cannot run.  She finds it more difficult to do stairs.  She finds it hard to do the gardening.”[40]

I read his report as him finding nothing unreasonable about these complaints the plaintiff made to him.  He provided AMA percentage whole person permanent impairments with respect to both the ankle and knee.

[40]PCB 4C

39      Mr M Dooley, orthopaedic surgeon, examined the plaintiff in January 2014 on behalf of the defendant.  As with Mr Miller, his opinion is recent.  He recorded crepitus in the patellofemoral joint.[41]

[41]DCB 3

40      He accepted she would have –

“… aching of the leg, knee etc. with prolonged standing.”[42]   

[42]DCB 4

41      As to work, he reported:

“Mrs Cooke would be unable to carry out regular heavy physical work or work that involved regular kneeling and squatting on the right knee as a consequence of the injury sustained in the motor vehicle accident.”[43]

[43]DCB 4

42      Together with the symptoms on standing, which he accepted, this surgeon supported a finding of impaired earning capacity for this unskilled manual worker.

43      I prefer the views of theses two recent orthopaedic surgeons in regard to earning capacity to the optimism of the general practitioner who has not seen her for twelve months.  Both surgeons described limitations that clearly impact on a job in a supermarket meat department where standing is required, together with a number of troublesome physical tasks such as stacking displays and meat trolleys.[44]

[44]T22-23

44      Apart from her work, I accept the evidence about her impaired capacity to walk and to stand for prolonged periods impacting on daily life.  These impairments amount to very considerable consequences in terms of enjoyment of life.[45]

[45]PCB 4-5, 13, 16-17

45      Looking beyond just recreational walking, the everyday ability to walk, negotiate stairs and walk on uneven ground is so pivotal to enjoying day-to-day life for an active middle-aged lady that it should not be taken for granted.  To have those restrictions for a life expectancy of some thirty five years meets the definition of “serious”.[46]  This is the timeframe in which she will have to put up with her now stable condition with all its symptoms.  That length of time is a relevant consideration in judging consequences.[47]

[46]T51

[47]Stijepicv One Force Group [2009] VSCA 181 at paragraph 43 and Hawkinsv DHL Express Aust [2013] VSCA 26 at paragraph 74

46      The loss of the capacity to run and kneel and squat is also sufficient to be fairly judged as a very considerable consequence.  Her interest in gardening, to take but one example, is compromised by an inability to stand for prolonged periods and bend and kneel.[48]

[48]PCB 4

47      For the reasons mentioned, I grant leave to the plaintiff to bring proceedings for the recovery of damages.  

48      I will hear the parties as to costs.

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