Garcia v Transport Accident Commission

[2015] VCC 140

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-14-04326

EMMANUEL GARCIA	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	19 February 2015
DATE OF JUDGMENT:	20 February 2015 (Revised)
CASE MAY BE CITED AS:	Garcia v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2015] VCC 140

REASONS FOR JUDGMENT
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Subject:  TRANSPORT ACCIDENT             

Catchwords:             Transport accident – disfigurement – scarring over the left upper arm –  whether the disfigurement is “serious”            

Legislation Cited:     Transport Accident Act 1986, s93(4)(d)

Cases Cited:Ingram v Ingram & Anor [1996] 2 VR 435; Hollis v Transport Accident Commission [2011] VCC 502; Richards v Wylie (2000) 1 VR 79

Judgment:               Leave granted to the plaintiff to bring a proceeding at common law to recover damages for injuries suffered in a transport accident on 29 September 2012.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Sidebottom	Slater & Gordon Ltd
For the Defendant	Mr J Valiotis	Solicitor to the Transport Accident Commission

HIS HONOUR:

Introduction

1 By an Originating Motion filed on 4 September 2014, the plaintiff seeks the leave of the Court to bring a proceeding pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) for injuries he sustained in a transport accident which occurred on 29 September 2012.

2       The plaintiff's claim is brought under paragraph (b) of the definition of “serious injury”; that is, he has suffered a serious long-term disfigurement in the form of scarring on his left upper arm.

3       Mr C Sidebottom of counsel appeared for the plaintiff.  Mr J Valiotis of counsel appeared for the defendant.

4       The plaintiff gave evidence, but was not cross-examined.  In the course of his evidence, the photographs in his Court Book (“JCB”) were given to him, which he identified as photographs of scarring on his left upper arm.

5       The plaintiff tendered pages 6-27 and 30-45 of the JCB, which were marked as Exhibit A.

The transport accident

6       On 29 September 2012, the plaintiff was involved in a transport accident.  He was transported to the Royal Melbourne Hospital by ambulance.  Treating medical practitioners at the hospital diagnosed that he had suffered a fracture of the midshaft of his left humerus.

The Plaintiff’s medical treatment

7       The fracture was of such gravity that the treating medical practitioners undertook an open reduction and internal fixation of the left humerus.  The surgery necessarily involved an incision being made down the front of the plaintiff's left humerus.  The scarring which resulted from the incision is the scarring which the plaintiff contends is serious.

The Plaintiff’s evidence

8       I was invited to view the scarring during the plaintiff’s evidence-in-chief.  What I observed was a scar running from just under the shoulder joint and extending down the front of the plaintiff’s left bicep.  The scar is very obvious.  It was 3 or 4 millimetres wide, as best I could estimate.  The scar was reddish in colour.

9       The plaintiff adopted the contents of two affidavits, which he swore on 1 May 2014 and 30 January 2015.  In summary, he described the consequences of the scarring as follows:

·        He has been left with an obvious keloid scar over his left upper arm and humerus.  It is 15 centimetres in length.

·        It is reddish in colour.

·        The scar is thick and very prominent.

·        It is tender and sensitive to touch.

·        It is sensitive to heat.

·        It becomes itchy from time to time.

·        He needs to be careful not to bump the scar.

·        He wears clothing to cover the scar to avoid its exposure to sunlight.

·        He is embarrassed by the look of the scar.  He has suffered observations by people of the scar or comments from people about it.

·        He is self-conscious and embarrassed by its appearance.  He makes attempts to conceal it from public gaze.

·        He tends to wear T-shirts with sleeves which are long enough to cover the scar.  He avoids wearing singlets.

·        He wears loose-fitting clothing to avoid close contact with the scar.

10      Mr Stapleton, plastic and hand surgeon, examined the plaintiff on 17 December 2013.  He obtained the following history from the plaintiff:

“Confining my comments to the scarring, and I do sign my capacity as a Plastic Surgeon, the long scar is red and thickened.  It is tender in spot and itchy from time to time.  He is careful not to bump the scar which remains quite tender and he dresses to cover the scar from exposure to sunlight and also to prevent the passer by asking questions as to how the scar was there in the first instance.”

11      On examination, Mr Stapleton found the following:

“The scar that he has is a reddened, thick scar positioned over the front of his left arm.  That scar is 15 cm in length.”

12      In a response to questions put to him, Mr Stapleton said the following:

“ … The diagnosis is fracture of his left humerus requiring open reduction and internal fixation.

The prognosis is that he has reached maximum medical improvement.

The scar is not regarded as degenerative and it is unlikely his elbow or shoulder joint will degenerate as there is no effect being noted at this stage on those two joints placed on either end of his scarring.

His capacity for employment, domestic, social and leisure activities, i.e.  his activities of daily living, are all affected because of the scarring for reasons stated.

He needs no further medical treatment for his scarring.”

13      Mr Stapleton saw the plaintiff on a second occasion on 29 September 2012.  He obtained the following history from the plaintiff:

“The scar over the front of his left arm is quite obvious.  It is tender.  It is of social embarrassment to him.  He dresses to prevent the scar being exposed to sunlight and he is careful not to bump or abrade that scar.

In his job as a storeman, to which he has now returned, he has to be very careful lifting objects, that those objects do not abrade the scar.

His condition has reached maximum medical improvement.”

14      The opinion expressed by Mr Stapleton on this occasion is essentially consistent with what he said in his previous report.

15      The plaintiff was also examined by Mr O’Brien, orthopaedic surgeon, on 29 January 2014.  It is clear that his interest was the orthopaedic injury suffered by the plaintiff, and not so much the scarring.  On examination, he noted:

“There was an obvious scar over the anterior aspect of the left arm, at approximately the level of the midshaft of the humerus.  The proximal half of this was keloid and very prominent.  There was reported very mild tenderness in this area … .”

16      The plaintiff was also examined by Dr Horsley, occupational physician, on 30 January 2014.  Like Mr O’Brien, she was rather more concerned with the orthopaedic injury and the plaintiff’s capacity to return to work.  On examination, she noted:

“…  He has a 15 cm scar, vertically placed over the left humerus where the open reduction internal fixation has proceeded.  The scar is mildly keloid.  There is dysesthesia around the scar.  There is no specific pain on palpation … .”

17      The plaintiff was also examined by Dr Kornan, psychiatrist, on 14 November 2013.  The content of his report and his opinion are of little relevance because Dr Kornan provided an opinion relevant to the plaintiff’s injuries as a whole, and not just the scarring.  He concluded that the plaintiff was suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood.

18      Mr Valiotis very fairly conceded that no challenge was made to any of the plaintiff’s evidence.  What challenge was made was based upon whether the disfigurement was serious.

19      Mr Sidebottom submitted that the disfigurement constituted by the scarring is serious.  He made a series of submissions which were based upon the plaintiff’s evidence, and the observations made by Mr Stapleton.  I have summarised the plaintiff’s evidence and the observations made by Mr Stapleton above.

20      Both Mr Sidebottom and Mr Valiotis made submissions based upon what evidence I can and cannot take into account when dealing with serious injury applications brought under paragraph (b).

21      Mr Sidebottom submitted that the scarring, as it is observable, is serious without anything more.  Furthermore, he submitted that if I accepted the plaintiff’s evidence then the inherent features of the scarring’s tenderness, sensitivity to touch, sensitivity to heat, and itchiness, as well as the need to avoid bumping, abrasion, exposure to sunlight, and the necessity to wear loose clothing to avoid other contact with it, are features which it is permissible to take into account when determining the seriousness of the scarring.  Mr Valiotis did not argue to the contrary.

22      Furthermore, Mr Sidebottom submitted that the plaintiff’s emotional reaction to the scarring is an inherent feature which can also be taken into account.  He referred me to Ingram v Ingram & Anor[1] and Hollis v Transport Accident Commission.[2]  The Court of Appeal in Ingram left open the question of whether a subjective element is involved in the assessment of whether the scarring is serious.

[1][1996] 2 VR 435

[2][2011] VCC 502

23      In Richards v Wylie,[3] Winneke P considered that the seriousness of an application for serious injury, brought under paragraph (a), can be measured in part by mental response to the physical impairment.  In Hollis, Judge Saccardo referred to Richards and concluded that the psychological dimension of disfigurement is admissible if it is appropriately characterised as being an expected consequence of that disfigurement, rather than arising by reason of a discrete mental disorder which, by itself, produces an impairment of body function.[4]

[3] (2000) 1 VR 79

[4](Supra) paragraph [9]

24      The difficulty I face in applying his Honour’s observation, is that it is difficult to equate disfigurement with, for example an operated back resulting in an impairment which is serious.  Most often, or so I think, disfigurement will not cause pain and disablement.  Scarring will heal, and may cause some physical problems, but often not many.  So making a comparison between scarring and the consequences of a physical injury is very difficult.  For my own part, I find it difficult to comprehend how it is possible to compare scarring with other impairments or losses except with other disfigurements.

25      In the end, what I make of this application is based upon my value judgment.  I have had the opportunity to observe the scarring at close range.  I have read the plaintiff’s affidavits and the medical reports, and I have had regard to the authorities to which both Mr Sidebottom and Mr Valiotis took me.  I should add that there were other authorities which Mr Valiotis referred me to which I do not propose to refer to because I do not consider they are relevant to this application.

26      Mr Valiotis was very critical of the plaintiff’s affidavits.  He said there were serious shortcomings in the plaintiff’s reference to “the consequences” of the disfigurement.  It occurred to me that Mr Valiotis was conflating the basis of a claim under paragraph (a) and paragraph (b).  It occurs to me that paragraph (b) is limited to disfigurement and not the sort of consequences which are most often the subject of an examination of a claim brought under paragraph (a), where the enquiry is whether the pain and suffering consequences are serious.  I do not accept that his criticisms are valid, given the confined nature of the enquiry under paragraph (b).

27      In conclusion, I consider that the scarring constitutes disfigurement which is serious.  The plaintiff is a fifty-year-old man.  My immediate reaction to the scarring, made as objectively as I was able to, was that it is a nasty and obvious scar blighting the whole of the plaintiff's upper arm between his shoulder and his elbow.  It is not only 15 centimetres long, but it is wide, reddish in colour, and observable from distance.  It is not the type of scarring which is easily disguised because of its position on the plaintiff’s upper arm.  Additionally, the emotional reaction of the plaintiff, as I have described above, adds an element to the seriousness of the scarring.

28      Therefore, I grant the plaintiff leave to bring a proceeding at common law to recover damages for the injuries he suffered in the transport accident.

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