Fisher v Transport Accident Commission
[2014] VCC 402
•10 April 2014
| IN THE COUNTY COURT OF VICTORIA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-01489
| ROBERT KEITH FISHER | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 March and 1 April 2014 | |
DATE OF JUDGMENT: | 10 April 2014 | |
CASE MAY BE CITED AS: | Fisher v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 402 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Impairment of the function of the right upper limb – identification of the injury resulting in the impairment – other medical conditions resulting in consequences – whether the transport accident consequences were “serious”
Legislation Cited: Transport Accident Act 1986, s93(4)(b)
Cases Cited:Humphries v Poljak [1992] 2 VR 129; Transport Accident Commission v Kamel [2011] VSCA 110
Judgment: The plaintiff is granted leave to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Keely | Constable Connor & Co Pty Ltd |
| For the Defendant | Mr R Gorton QC with Mr C O'Sullivan | Wisewould Mahoney |
HIS HONOUR:
Introduction
1 By an Originating Motion filed 3 April 2012, the plaintiff seeks the leave of the Court, pursuant to s93(4)(b) of the Transport Accident Act 1986, to bring a proceeding at common law to recover damages for injuries which he suffered in a transport accident which occurred on 8 September 2008.
2 The plaintiff submits that he has suffered a serious long-term impairment or the loss of the function of his right upper limb.
3 Mr T Keely of Counsel appeared for the plaintiff. Mr R Gorton, QC, appeared with Mr C O'Sullivan of Counsel for the defendant.
4 The following is the evidence which was adduced at the trial:
· The plaintiff gave evidence and was cross-examined
· The plaintiff’s father, Robert James Fisher, gave evidence and was cross-examined
· The plaintiff tendered his Court Book (“PCB”) pages 12-165 and 175-176: Exhibit A
· The defendant tendered its Court Book (“DCB”) pages 1-9(g): Exhibit 1
· The defendant tendered a report of Dr Keenan, general practitioner, dated 28 March 2014: Exhibit 2.
The transport accident
5 On 8 September 2008, the plaintiff was travelling down Sullivan Street, Inglewood on a motorcycle. He was carrying a pillion passenger. Another motorcyclist came up behind the plaintiff. He clipped the motorcycle driven by the plaintiff, with the result that the handlebars of the plaintiff’s motorcycle were wrenched to the left. The plaintiff believes that it was as a consequence of that wrenching that he suffered the injury to his right upper limb.
6 What followed was that the plaintiff and his pillion passenger were thrown off the plaintiff’s motorcycle. He retrieved his motorcycle, and, as he was attempting to do so, he experienced a strong shooting pain in his right shoulder area.
The Plaintiff’s background
7 The plaintiff was born in January 1970. He is now forty-four years of age. He is the father of five children. Two of the children are from one relationship, and three of the children are from another relationship. Some of his children have children of their own. The plaintiff’s former partners and their children refuse to have any interaction with the plaintiff. It was my strong impression that he has not seen any of his children nor his grandchildren for some time, and perhaps for years.
8 The plaintiff has an unfortunate and a ragged history of poor education and serious ill-health. He left school at the end of Year 8. He was probably about fourteen years of age at that time which, on my reckoning, is the approximate age of a student in Year 8. He believes that he suffered from dyslexia. He described his capacity to learn at school as being hopeless. He fell into trouble with teachers, and was bullied by other students. He describes his reading and writing skills as a problem for him.
9 The plaintiff developed Crohn’s disease. He described the pain which he has experienced as like having a knife stabbed into his stomach and having it twisted. He has had five operations on his bowel between 1993 and 2004. The surgery has resulted in portions of his bowel being removed. He continues to experience symptoms of pain, constipation and diarrhoea. He described the need to have a diet which assists him in controlling those symptoms.
10 The plaintiff was about twenty years of age when he was gripped by the symptoms of Crohn’s disease. He has not worked in any employment since that time. It would appear that after he left school, he was involved in basic labouring work. He has been in receipt of a social security pension. His capacity to engage in sporting activities such as swimming and athletics appears to have ceased at about the time of the onset of Crohn’s disease.
11 It would appear that the plaintiff has abused alcohol and cannabis, and it would appear that has been the case for a significant period of time in the past. Whether, as a consequence of his abuse of alcohol and cannabis or for reasons unrelated to that abuse, the plaintiff suffered a dramatic mental breakdown in September 2012.
12 On 4 September 2012, the plaintiff was diagnosed with chronic schizophrenia. He was admitted to the Kerford Psychiatric Unit, North-East Health, Wangaratta, as an involuntary patient on that day. He was subsequently discharged on a Community Treatment Order on 1 October 2012. At the time of his discharge, he was prescribed medication. He was subsequently case managed by the Wangaratta Community Mental Health Service until 15 March 2013, when he refused to have any further case management.[1]
[1]PCB 157
13 The plaintiff denies that he has suffered from a psychiatric illness. The perception he has of what happened in September 2012 is of some misunderstanding which spiralled out of his control and which resulted in the treatment which I have referred to above.
14 The plaintiff has seen Dr Keenan more recently. The last occasion the plaintiff saw Dr Keenan was on 25 March 2014. Dr Keenan considered that the plaintiff showed evidence of symptoms of recurrence of paranoid and delusional ideation which he thought were related to the plaintiff’s cannabis use. The tenor of his opinion in a report dated 28 March 2014 suggests that the plaintiff is at risk of deterioration in his mental condition.[2]
[2]Exhibit 2
15 The plaintiff's father, Robert James Fisher, confirmed that the plaintiff had learning difficulties at school. He described the plaintiff as getting into scraps at school. He described the onset of the plaintiff Crohn’s disease and the very serious effects it has had on him. His description of the plaintiff’s schooling, the onset of Crohn’s disease and the plaintiff’s limited work he did until he was disabled by Crohn’s disease is consistent with the plaintiff’s evidence on each of those matters.
16 The plaintiff now resides in a small rural hamlet known as Eldorado in what he describes as a portable unit. His income is derived from a Disability Support Pension.
17 It would appear that the plaintiff comes from a family of gold prospectors. His grandfather, and his father and mother have pursued that activity for a fairly long period of time. The plaintiff took it up. He became very keen on it. He liked being out in the bush, which he found peaceful and relaxing. His gold prospecting was undertaken around Wedderburn, Dunolly, Inglewood, Maryborough, Bendigo and Tarnagulla, and on a few occasions in Western Australia. The prospecting appears to have an undertaking using a metal detector, and using a sluice, which he manufactured with his father. The sluicing involved shovelling aggregate into the sluice by hand.
18 According to the three affidavits sworn by the plaintiff on 28 June 2011,[3] 23 May 2013[4] and March 2014,[5] his main, if not exclusive, social and recreational activity has been prospecting. His father described the plaintiff as being a person who loved prospecting and who was very knowledgeable about it, and indeed, he described the plaintiff’s application to prospecting as “his greatest love, apart from his family”. That appears to accord with the plaintiff’s own descriptions of his application to prospecting. He described the plaintiff’s acumen as a gold prospector as having such skill that “Rob would find gold in Bourke Street if there was any there”.[6]
[3]PCB 12-16
[4]PCB 143-146
[5]PCB 146a-146e
[6]Transcript 63
19 After the transport accident occurred, the plaintiff began propagating cacti. The plaintiff developed an interest in propagating cacti about three-and-a-half to four years ago. It involved not only propagating, but attending markets where he set up a stall and made efforts to sell the cacti.[7] He stopped that activity about twelve months ago because, as the plants grew, so did his need to put them into larger pots, which he says became difficult for him to undertake because of the injury to his right upper limb.
[7]Transcript 26-28
20 I should add, before proceeding to examine the medical evidence, that the plaintiff suffered from some moderate to serious problems with his left knee. The plaintiff admitted that he has experienced problems with his left knee, including bouts of locking, swelling and pain.[8] He said that he has seen some medical practitioners about his left knee. Otherwise, there is no evidence from any medical practitioner relevant to the nature and extent of any disabling condition caused by the plaintiff’s left knee.
[8]Transcript 30
The issues
21 Mr Keely commenced his final address by characterising the plaintiff as essentially someone who has had a rather ragged and unfortunate social and domestic life due to the circumstances which I have summarised above. Not only ill-health, but an inability to maintain a relationship with his partners and children, and therefore, prospecting became very much central to his life, and was almost all that he had as a social and recreational outlet. He submitted that it was important to look at the consequences to the plaintiff through that prism.
22 Mr Keely also submitted that the plaintiff has suffered the impairment of function of his right upper arm to such a degree that the pain, limitation of movement and interference with his limited social and recreational outlets meets the statutory test.
23 Mr Gorton submitted that the first issue I needed to deal with was the identification of the injury. He submitted that I should prefer the opinion of Mr Jones, orthopaedic surgeon, who considered that there was little or no impairment of function resulting from the plaintiff’s injury. Otherwise, Mr Gorton submitted that the Crohn’s disease and the plaintiff’s left knee injury at least contribute to the plaintiff’s inability to engage in prospecting, and even if I found that there was merit in the case proposed by Mr Keely, that it otherwise did not meet the statutory test.
The Plaintiff’s injury
24 The plaintiff was removed from the scene of the transport accident by ambulance. He was transferred from the Inglewood Hospital to the Bendigo Hospital. The hospital records suggest that the plaintiff suffered multiple injuries. One of the injuries was a rupture of the long-head of the right biceps muscle. There appears to be little doubt in the opinion of the medical practitioners who have examined the plaintiff that he suffered that injury.
25 Both Mr Keely and Mr Gorton referred me to some of the earlier medical examinations which demonstrate a consistent diagnosis of a rupture of the longhead of the right biceps muscle. I see no point in reviewing that the evidence. It was the medico-legal examinations on which they concentrated their addresses. I propose to do the same.
26 Mr Isbister, orthopaedic surgeon, examined the plaintiff on 14 May 2010. The plaintiff told him that he had pain and a restricted range of movement in his right shoulder, and bunching of the longhead of the right biceps muscle above the elbow. He also told him that he had a clicking and aching in the right elbow and wrist, and had a loss of strength in his right dominant arm. Mr Isbister examined the plaintiff’s shoulder and elbow movements and found a significant loss of shoulder movement on adduction, abduction and internal rotation.
27 Mr Isbister was of the opinion that the plaintiff’s shoulder[9] symptoms were likely to result in ongoing intermittent pain and stiffness, and that his shoulder movements were restricted and weakened by the injury to the right biceps muscle, which works on the shoulder and elbow.[10]
[9]Mr Isbister referred to the plaintiff’s “back” symptoms. Mr Keely submitted that was an obvious mistake and the reference to the “back” should be read as the “shoulder”. I agree that contextually the sentence to which I have made reference from his report should be interpreted that way.
[10]PCB 33-40
28 Mr Leitl, orthopaedic surgeon, examined the plaintiff on 10 October 2011. The plaintiff told him that he had constant pain and discomfort extending from the right side of his neck to the right shoulder which was made worse by general use of the arm and was worse in cold weather. He also told him that he noticed a loss of movement in the right shoulder and had pain at night if he is laying on it. On examination, he found an obvious rupture of a longhead of the right biceps muscle, but good biceps strength remained. He found that the plaintiff’s range of movement of his right shoulder was reduced, as was the range of movement of his right elbow.
29 Mr Leitl was of the opinion that the plaintiff had persisting dysfunction of the right shoulder following the traumatic rupture of the longhead of the biceps, with referred pain to the right side of his neck. The prognosis for an unrepaired longhead of the biceps rupture in the plaintiff’s age group was the long-term persistence of weakness and pain in the shoulder and elbow. He considered that only symptomatic treatment was appropriate, that being the use of analgesics and anti-inflammatory medication. He added that given the plaintiff’s lack of education, past work record and Crohn’s disease, that the rupture of the longhead of the right biceps muscle was more serious for the plaintiff that in an otherwise healthy, well educated white-collar worker with a similar injury.[11]
[11]PCB 149-154
30 Mr Kolt, orthopaedic surgeon, examined the plaintiff on 22 October 2013. The plaintiff told him that he had an ongoing problem with aching in the anterior right shoulder and biceps muscle region. He said he could not perform a single biceps curl with a weight of approximately 5 kilograms and was not able to lift a gas cylinder. He believed he could perform four repetitive biceps curls with a weight greater than 1 to 2 kilograms. He could not lift his hand above head level and maintain it there for a prolonged period of time, nor could he lift objects of more than 1 kilogram overhead for a sustained period of time. He said he had a pulling sensation of the anterior right shoulder when he moved his arm from his side to overhead. On examination, it would appear that the plaintiff had a full range of movement, except that he was unable to internally rotate his hand behind his back fully, and in fact 8 centimetres lower than he was able to do with his other hand.
31 Mr Kolt considered that the major findings based upon the plaintiff's history and examination related to a deficiency of his proximal biceps tendon; his inability to perform a static single biceps curl with a heavy object, and his inability to perform repetitive biceps curls with a light object were consistent with the pathology of a rupture of the proximal biceps tendon. Although he considered that the irritability of the shoulder at mid range and slightly overhead was not truly consistent with biceps tendon pathology, he considered that it would be if there was a residual stump of the proximal biceps tendon within the shoulder causing impingement or irritation.
32 Mr Kolt considered that the weak biceps muscle would incapacitate the plaintiff for normal manual work of a sustained nature below shoulder level. He added that he considered that the plaintiff had a permanent impairment for repetitive carrying and lifting activities from waist height to above and from mid range to shoulder height and above shoulder height. He considered that the plaintiff may have an irritation or impingement of the intra-articular portion of his biceps tendon.
33 Mr Keely submitted that Mr Isbister found a diminished range of movement,[12] as did Mr Leitl,[13] as did Mr Kolt.[14] He emphasised that each of them not only found a diminished range of movement, but considered that the rupture of the longhead of the right biceps muscle impaired the function of the plaintiff’s right upper limb. This is in contrast to the opinion of Mr Jones, orthopaedic surgeon.
[12]PCB 36
[13]PCB 152
[14]PCB 155
34 Mr Gorton submitted that I should prefer the opinion of Mr Jones. He examined the plaintiff on 15 August 2013 and on 4 February 2014. I propose to turn only to his last report, which he composed after he examined the plaintiff on 4 February 2014. The plaintiff told him that he continued to experience some aching and occasional catching with movements in his right shoulder, particularly when reaching up above shoulder height. He said that on occasions, the pain extended into the muscles of the right shoulder girdle and the right side of the neck. He said that he found starting a chainsaw difficult and that he had given up prospecting, because of the problems he was experiencing with the shoulder due to the demands of using a metal detector and a shovel. He also told him that he had ceased propagating and selling cacti. On examination, he found little diminished range of movement. He did find signs of bunching of the biceps muscle consistent with a rupture of the longhead of the right biceps muscle.
35 Mr Jones considered that there was some basis for the plaintiff to have mild pain in the right shoulder, reflecting some early wear and tear affecting the rotator cuff tendon. He did not believe that the rupture of the right biceps tendon was a source of any pain. He was unable to clinically detect any evidence of weakness flexion in the plaintiff’s right elbow or forearm rotation. He was unable to detect any evidence of muscle wasting of the right deltoid muscle compared with the left side, which he considered was usually a feature of impaired function in the shoulder joint. In the end, he considered that the rupture of the longhead of the right biceps muscle was causing minimal disability for the plaintiff. He added that he considered that the minor symptoms described by the plaintiff in the right shoulder and the possibility of some early degenerative disease affecting the tendons of his right rotator cuff might impact upon the function of the plaintiff’s right shoulder when engaging in heavy pushing or extremely heavy lifting above shoulder height.[15]
[15]DCB 9(d) - 9(g)
36 A comparison between the opinions of Mr Isbister, Mr Leitl and Mr Kolt demonstrate a consistency in findings of diminished range of movement and significant deficit in the function of the plaintiff’s right upper limb. When their opinions are compared with the opinions of Mr Jones, and in particular the opinion he expressed after examining the plaintiff on 4 February 2014, there is a very marked difference between their opinions.
37 I propose to turn to the plaintiff’s evidence and determine what I accept and reject in his evidence regarding the consequences which he contends have arisen as a result of the impairment of the function of his right upper limb.
The Plaintiff’s evidence
38 Essentially, the consequences contended for by the plaintiff can be summarised as follows:
· The plaintiff is right arm dominant.
· Pain in the right upper limb. The pain is located on the inside of his right arm above the elbow. It is also located near the point of his right shoulder, extending across into his neck. Activity worsens the pain.[16]
[16]PCB 146d
· His sleep is sometimes disturbed by pain in his right shoulder.[17] He can wake up in the morning with stiffness in his right shoulder and feeling tired because he has slept on his right shoulder.
[17]PCB 146d
· An inability to undertake prospecting for up to 10 hours a day, and in particular an inability to swing a metal detector over many hours, use a shovel and a pick, handle a gold pan and operate a sluice used in gold prospecting. Four hours of prospecting results in the plaintiff's right shoulder becoming extremely painful.[18]
[18]PCB 13, 144-145, 146c and Transcript 24-25 and 46
· Despite the problems the plaintiff has had with Crohn’s disease and his left knee, he was capable of using a sluice all day. Now he might be able to last an hour using a sluice before his right upper limb starts to ache.[19]
[19]Transcript 45-46
· If he had not suffered the injury to his right upper limb, he would probably be travelling around Australia prospecting.[20]
[20]Transcript 47
· Difficulty driving a car without power steering, and especially parking and turning the steering wheel of the car.[21]
[21] PCB 13 and 144
· Weakness in the right upper limb, making propagating plants difficult, and lifting and carrying pot plants.[22]
[22]PCB 14 and Transcript 27-28
· Difficulty undertaking the gardening at his home in Eldorado. It now takes longer because of the difficulties he has with his right upper limb.[23]
[23]PCB 14 and 145
· His right shoulder becomes more painful in cold weather, and that problem is worsening.[24]
[24]PCB 14 and 145
· Difficulty lifting weighty objects, such as, lifting an 8.5-kilogram gas bottle which resulted in shooting pain on the inside of his right elbow and up his right bicep into his right shoulder.[25] If he picks up something like a gas bottle without thinking about it, he can hurt his right upper limb.[26]
[25]PCB 143
[26]Transcript 37 -38
· Restriction in being able to ride a motorcycle. Riding one for an hour results in soreness.[27] Before the transport accident he used to ride a motorcycle “a fair bit” into Bendigo, to friends’ homes and out into the bush.[28]
[27]PCB 144 and 146c
[28]Transcript 47-48
· His attempt at undertaking some gym work was unsuccessful because his right shoulder became sore.[29]
[29]PCB 146
· He can throw a dart in playing a game of darts, but cannot do it repeatedly with his right upper limb.[30]
[30]PCB 146
· Working on his car results in aching in his right upper arm, and sometimes it feels like a dead weight.[31]
[31]PCB 146c
· He has difficulty starting to operate a chainsaw and collecting firewood. He “pays for it” when he engages in collecting firewood.[32]
· The pain which he suffers in his right upper limb and neck causes him to be very stressed.[33]
[32]Transcript 38
[33]Transcript 44
39 The plaintiff gave his evidence in a relatively straightforward manner. I thought he was responsive to the questions asked of him. Sometimes he was non-responsive, but that was not due to any artfulness on his part, it was more just the manner in which he tended to respond. On a handful of occasions he referred to people who were “after [him]”. Whether there is any truth in that or not, or whether it is the product of some paranoia or delusion, is not clear to me.
40 I have examined the plaintiff's evidence in his affidavits, in the transcript and the histories recorded by the medical practitioners who have examined him. It appears to me that there is a consistency in the complaints he has made of the consequences to him of the impairment of the function of his right upper limb. However, I am fortified in accepting the plaintiff’s evidence in whole because of the evidence of his father. I consider that his father’s affidavit is a fair statement of his observations of his son, and I considered that he gave his evidence in a fair manner. His corroboration of the consequences referred to by the plaintiff lead me to be far more comfortable in accepting the plaintiff’s evidence.
41 Mr Keely emphasised that that it is the effect of the impairment of a body function on the particular applicant which must be considered. He referred me to Humphries v Poljak[34] and to the judgment of Crockett and Southwell JJ,[35] and Transport Accident Commission v Kamel[36] in which that statement was approved by the Court of Appeal.[37] That statement demonstrates that I must understand the position the plaintiff was in prior to the impairment of the function of his right upper limb. He was quite obviously a person suffering the ravages of Crohn’s disease, and also had an actively symptomatic left knee which interfered with his mobility to some extent, but not so much as to interfere significantly with his capacity to engage in the activities which were part of his life prior to the occurrence of the transport accident.
[34][1992] 2 VR 129
[35]at 137
[36][2011] VSCA 110
[37]at paragraph [64]
42 The plaintiff was someone who was clearly incapacitated for work largely by reason of his Crohn’s disease. He was a person who had abused alcohol and cannabis. He was a person who may well have had some level of personality disorder due to a vulnerability to the onset of a mental disorder. His social, recreational and domestic activities were limited to prospecting, travelling, riding a motorcycle, propagating plants and engaging in other pleasurable activities like riding his motorcycle to see friends and playing what appeared to me to be occasional games of darts with friends.
43 The foregoing were the major activities which made up the plaintiff’s life. Being true to the principle that I must judge the effects of the impairment of the function of the plaintiff’s right upper limb on him, it seems to me that there are very few aspects of the plaintiff’s capacity to function physically which are not affected by the impairment of function of his right upper limb. In addition to the activities of a recreational and domestic type, he suffers pain, interference with sleep and he is stressed because of the impact upon him of the losses which he has suffered as a result of the impairment of the function of his right upper limb.
44 The plaintiff has not had very much medical treatment for some time. He was treated early on with medication and physiotherapy. He does not take medication for the pain he experiences in his right upper limb because the medication disagrees with him. He has been prescribed Panadeine Forte in the past.[38] I am not convinced that the fact that the plaintiff is not having medical treatment is of any consequence. I say that, because there is a strong body of evidence which points to the fact that he has suffered a rupture of the longhead of the right biceps muscle or tendon. It is a condition likely to produce pain, limitation of movement and interfere with physical activity. That is certainly what I have taken from the opinions of Mr Isbister, Mr Leitl and Mr Kolt.
[38]Transcript 34
45 I have considered the plaintiff’s evidence, his father’s evidence, and the submissions made by Mr Keely and Mr Gorton. On the basis of that evidence and those submissions, and my analysis of the evidence, the conclusion I have reached is that the losses suffered by the plaintiff, as opposed to what he has retained, are “serious”.
Orders
46 I propose to order that the plaintiff be given leave to bring a proceeding, pursuant to s93(4)(b) of the Transport Accident Act 1986, at common law to recover damages for the injuries he sustained in the transport accident which occurred on 8 September 2008.
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