Gray v Transport Accident Commission
[2013] VCC 966
•5 August 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-12-03284
| NEIL GRAY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 June 2013 | |
DATE OF JUDGMENT: | 5 August 2013 | |
CASE MAY BE CITED AS: | Gray v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 966 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – impairment of left forearm – whether the consequences of the left arm injury meet the statutory test of “serious injury”
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Richards v Wylie (2000) 1 VR 79; Humphries v Poljak [1992] 2 VR 129; O’Donnell v Reichard (1975) VR 916; ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd [2011] VSCA 52
Judgment:Leave granted to the plaintiff to bring a claim for damages arising from a serious injury to his left forearm from a transport accident on 16 July 2008.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell SC with Mr A E A Macnab | Slater & Gordon Ltd |
| For the Defendant | Mr D E Curtain QC with Ms M Britbart | Norton Rose Fulbright Australia |
HIS HONOUR:
Introduction
1 This is an application brought by Originating Motion dated 11 July 2012. The plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages from an injury suffered by him in the course of a transport accident which occurred on 16 July 2008 (“the said date”).
2 Section 93(6) of the Act provides a court must not give leave under s93(4)(d) unless it is satisfied that the injury is a “serious injury”.
3 The definition of “serious injury” relied upon by the plaintiff is under s93(17):
“(a)serious long term impairment or loss of body function.”
4 In this application, the plaintiff is relying upon the loss of body function to his left forearm as a result of the injuries in the transport accident.
5 The inquiry under s93(17) of the Act focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then, by reference to the consequences of that impairment, to determine whether it is serious and long term.
6 The serious injury defined by ss(a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of the body function.[1]
[1]Richards v Wylie (2000) 1 VR 79
7 In forming a judgment as to whether the consequences and the injury are “serious”, the question to be asked is: can the injury, when judged by comparison with other cases in a range of possible impairments, be fairly described as at least “very considerable” and “more than significant” or “marked”?[2]
[2]Humphries v Poljak [1992] 2 VR 129
8 In this application, the plaintiff relied upon two affidavits sworn by him on 28 September 2011 and 17 June 2013. The plaintiff gave evidence and was cross-examined.
9 The parties in this application relied upon evidence tendered in this proceeding. The tendered evidence was as follows:
(i) Exhibit A – the Plaintiff’s Court Book (“PCB”), pages 7−76;
(ii) Exhibit 1 – the Defendant’s Court Book (“DCB”), pages 1−17.
I have read all the tendered material and consider them in this decision.
10 The only issue to be determined in this proceeding was whether or not the plaintiff had a serious injury, in the sense that his consequences were very considerable and long term. In short, this proceeding is a “range case”.[3]
[3]Transcript (“T”) 6
The Plaintiff’s background
11 The plaintiff was born in June 1976. He is thirty-seven years old. The plaintiff is a married man and has three children. The younger two children, aged seven and four, live with him and his wife.[4]
[4]PCB 7
12 The plaintiff completed his education to Year 11 at Macquarie Boys’ Technical School in Sydney.[5] The plaintiff originally worked at McDonald’s restaurants and then subsequently, as a security guard.[6] The plaintiff has had some difficulties with substance abuse in his younger days. In 2001, the plaintiff joined the Salvation Army. He is currently a minister in the Salvation Army.
[5]PCB 8
[6]PCB 8
13 The plaintiff is employed as a parole and probation officer with the Northern Territory Corrections Office. He has been employed in that capacity from July 2012.[7] The plaintiff’s employment is full time. The plaintiff states that the injury to his left forearm creates some difficulties for his employment, but does not prevent him from completing his full tasks.
[7]PCB 11a
The transport accident involving the Plaintiff
14 The plaintiff described the accident in his affidavit sworn on 28 September 2011 as follows:
“On 16 July 2008, I was riding my motorbike along Williams Road, Toorak. At the intersection of Williams and Toorak Road, a vehicle that was travelling in the opposite direction, turned right in front of my motorbike, thereby causing a collision. I was thrown from my motorbike over the bonnet of the car.”[8]
[8]PCB 8, paragraph 4
15 As a result of the accident, the plaintiff was taken by ambulance to The Alfred hospital. He was diagnosed with a double compound fracture of the radius and ulna of his left forearm.[9]
[9]PCB 13
16 On 17 July 2008, the plaintiff was operated on by Mr Max Esser, orthopaedic surgeon, and an open reduction and internal fixation of the fracture to the left forearm was performed. The plaintiff returned to theatre on 21 July 2008 for a further washout and debridement of the injury site and for the final closure of the wound to his left forearm.[10]
[10]PCB 13
17 On 23 July 2008, the plaintiff was discharged from The Alfred hospital with his left arm immobilised in a plaster backslab and a sling. In total, the plaintiff had spent eight days in The Alfred hospital.
18 The plaintiff was discharged from The Alfred hospital and was to commence physiotherapy and occupational therapy in respect of his left arm fracture. He attended at the Orthopaedic Outpatients’ Clinic at The Alfred hospital in August and October 2008.
19 In January 2009, the plaintiff was reviewed by Associate Professor Esser, orthopaedic surgeon, at Cabrini Hospital.[11] A CT scan showed that there was non union at the site of the fracture.
[11]PCB 19
20 On 15 March 2009, Professor Esser removed the screws from his left radius and an application of bone graft and bone morphogenic protein was applied to the left radius. A bone graft was applied to the fracture site at that time.[12] On 6 October 2010, a CT scan showed non union of the left radius, despite the surgery which occurred in March 2009. Professor Esser then referred the plaintiff to Mr Steve Csongvay, orthopaedic surgeon.[13]
[12]PCB 20
[13]PCB 20
21 The plaintiff attended Mr Csongvay on 6 October 2009. On 21 December 2009, Mr Csongvay performed surgery on the plaintiff’s left radius at the Masada Private Hospital. At this operation, the plaintiff had a regraft to the radius to restore his bone stock at the fracture site and stimulate bone healing in the radius.[14]
[14]PCB 26
22 The plaintiff then had physiotherapy treatment in Bendigo, where he was then living. He subsequently moved to Darwin in the Northern Territory and received physiotherapy treatment from Deborah Mcglinchey. The plaintiff ceased his physiotherapy treatment of manual therapy and deep-tissue massage and exercise on 2 February 2011. The plaintiff was to continue on with his home and gym exercise program. Ms Mcglinchey was to review the plaintiff’s progress on a monthly basis thereafter.[15] In his evidence, the plaintiff stated that the last time he attended the physiotherapist in the Northern Territory was approximately a year ago.[16] The plaintiff’s evidence was that he continues on with his home and gym exercise program.
[15]PCB 24
[16]T11
23 The plaintiff attended Mr Simon Elix, orthopaedic surgeon, on 18 February 2011. Mr Elix is an orthopaedic surgeon practising in Darwin, Northern Territory.[17] At that time, Mr Elix was of the view that the plaintiff did not require any further surgery or other medical treatment.
[17]PCB 22
24 The plaintiff gave evidence that he currently attends a general practitioner at the Casuarina Square Medical Centre and is prescribed painkilling and anti-inflammatory medications. The medications the plaintiff stated he was prescribed were Panadeine Forte, Mobic and Endep.[18] There was no current medical report tendered on behalf of the plaintiff from his treating general practitioner.
[18]T8
Failing to tender evidence from the Plaintiff’s treating general practitioner
25 Mr Curtain QC, on behalf of the defendant, submitted that the failure by the plaintiff to tender a report from the current treating general practitioner raised the principles in O’Donnell v Reichardt.[19] Mr Curtain submitted that the failure by the plaintiff to tender a medical report from the treating general practitioner in Darwin was the basis for the drawing of an inference against the plaintiff that the evidence from the general practitioner would not have assisted the plaintiff’s case. The principle in O’Donnell v Reichardt does not extend to the drawing of an inference that a fact which is adverse to the interests of the plaintiff is proven.
[19][1975] VR 916
26 I have heard the plaintiff’s evidence in this case and in particular in relation to the prescribed medications of Panadeine Forte, Mobic and Endep, and I accept his evidence in that regard.
Medical opinions
27 The parties relied upon the opinions of the following medical practitioners and treaters:
(a) Dr Renata Rams-Harvey
28 Dr Rams-Harvey prepared a report dated 27 July 2010. In that report she notes that the plaintiff had been a patient at her clinic since 2007. Upon his discharge from The Alfred hospital in July 2008, the plaintiff had been seen by her on many occasions for prescriptions of analgesia and referrals to treating orthopaedic surgeons to assist him in his recovery.[20]
[20]PCB 15
29 At the time of her report, Dr Rams-Harvey noted that the plaintiff had not achieved a full range of motion in his left forearm, and the fracture sites caused him a considerable amount of pain, for which he required regular analgesia and limitations in his work capacity. She noted that the plaintiff had restrictions on his pre-injury, leisure, social and domestic activities.[21]
[21]PCB 16
30 Dr Rams-Harvey’s report is almost three years old. A report form a general practitioner which is outdated is of little assistance to the Court in assessing the plaintiff’s current condition, but gives an appropriate historical perspective to the injury to the plaintiff’s left forearm and the consequences for him. I have previously noted that the current general practitioner did not supply a report in respect of this application.
(b) Associate Professor Max Esser, orthopaedic surgeon
31 Professor Max Esser prepared a report dated 16 October 2010. Professor Esser last saw the plaintiff on 6 October 2010.[22] Professor Esser had referred the plaintiff to Mr Steve Csongbay after his own surgery had not successfully resulted in the repair of the fractures to the plaintiff’s forearm. Professor Esser was of the opinion that the plaintiff may require the removal of the plates and screws in the future. The plates and screws still remain in the plaintiff’s left forearm. At the time of preparing the report in October 2010, Professor Esser was of the opinion that there would not be any particular restrictions upon the plaintiff’s activities in the future.[23]
[22]PCB 20
[23]PCB 20
32 Professor Esser’s report is also somewhat outdated and of little assistance to the Court in determining the plaintiff’s current position.
(c) Mr Simon Elix, orthopaedic surgeon
33 Mr Elix prepared a reported dated 6 May 2011. Mr Elix reported:
“On examination he had limited supination of the right wrist to 45o, compared to the left of 80o. Interestingly the supination improved with flexion of the elbow. His pronation was relatively normal.
…
It appears to me that his prognosis for improved of motion is poor. However, he does have a functional range of motion in his elbow and I would not recommend any further surgery at this time.”[24]
[24]PCB 22
34 It is clear that Mr Elix was referring to the left wrist when describing the limitation of movement to the supination of the wrist to 45 degrees. In the evidence given by the plaintiff, and in the demonstration he was asked to perform by Mr Curtain, QC for the defendant, he demonstrated a limit of approximately of 45 degrees supination. It is clear that the plaintiff’s condition has been stable since May of 2011 until now in relation to the degree of flexibility he has in his left arm.
(d) Mr Steve Csongbay, orthopaedic surgeon
35 Mr Csongbay prepared a report in respect of this application dated 15 September 2011. He also attached the operation record in respect to the second bone grafting operation performed on 21 December 2009. Mr Csongbay noted in that report:
“My final appointment with Neil was on the 8th of June 2010. He had some non-specific ache around the left forearm and wrist with some mild localized hyper-sensitivity around the forearm. He was still taking up to 2 Panadeine Forte per day for pain.”
…
I expect that Neil will continue to maintain good functional range of motion in his forearm and hand. With his type of forearm fracture I would not expect a high likelihood of degenerative arthritis in his arm as his wrist and elbow joints have not been directly injured. He may always have some limitation in rotation in his forearm and the nerve symptoms may persist permanently.”[25]
[25]PCB 26-27
36 Mr Csongbay has clearly identified that the plaintiff will have an ongoing difficulty with the rotation of his left arm.
(f) Mr Damian Ireland, hand surgeon
37 Mr Ireland saw the plaintiff for the purposes of medico-legal reporting. He prepared a report dated 28 July 2010. Mr Ireland took a history of complaints from the plaintiff which was consistent with his evidence in this proceeding. Mr Ireland noted that at that time the plaintiff was taking Panadeine Forte medication, two to four per day, and one anti-inflammatory tablet per day.[26] Mr Ireland noted that there was a reduction in the grip strength in the left side compared to the right when tested.[27]
[26]PCB 30
[27]PCB 31
38 At the time of examination, Mr Ireland measured the plaintiff’s forearm rotation and wrist movement in particular supination at 10 degrees. Mr Ireland noted as follows:
“There were plates and screws in situ. At the ulna there was an eight hole plate and seven screws and at the radius a ten hole plate with eight screws. There was no evidence of loosening of the hardware.
…
The prognosis for any further improvement in range of motion is poor. The prognosis for improving grip strength and freedom from sensory neurological symptoms is good. Further surgery is planned to remove redundant hardware in 2011.”[28]
[28]PCB 32
39 It is clear from Mr Ireland’s report that the plaintiff was displaying a lack of rotation in his left arm in 2010. The proposed surgery to remove the screws and plates from the plaintiff’s arm has not in fact occurred. The plaintiff’s evidence is that he will leave the metal plates in his arm in the foreseeable future.
40 Mr Ireland listed the rateable assessments as follows:
“1 Decreased motion forearm
2 Decreased motion wrist
3 Diminished sensation lateral cutaneous nerve of forearm
4 Weakness of muscle strength due to injury and multiple surgeries in the distribution of the median nerve forearm
5 Tender hypertrophic scar left forearm”[29]
[29]PCB 34
I accept this is an appropriate summary of the ongoing physical consequences of the left arm injury to the plaintiff.
(g) Mr Kevin King, orthopaedic surgeon
41 The plaintiff was referred to Mr Kevin King for medico-legal reporting. Mr King prepared a report dated 27 March 2013. Mr King took a history from the plaintiff that he complained of mild persistent aching pain in the left forearm present day and night with fluctuating in intensity and usually mild but occasionally of moderate severity for a few hours a day and the pain the forearm was brought on by the use of left hand for gripping, twisting and straining. The plaintiff complained to Mr King that there was residual stiffness and clumsiness in the forearm and wrist particular in terms of rotation. Mr King noted on examination that there was moderate wasting of the muscle in the left forearm.[30]
[30]PCB 44
42 Mr King’s opinion was:
“… on examination today a good clinical result has been obtained but with some residual weakness, stiffness and pain in the forearm, wrist and hand as a result of the original severity of the injury and the need for two further surgical procedures before bony union was achieved.
Due to residual limitation of movement in the left wrist and rotation of the forearm, unavoidable with such a severe injury with widespread scarring of the muscles of the forearm and capsular ligaments of the wrist, he has been left with approximately 30% loss of function of the left upper limb on general clinical grounds. … He has been advised to retain the plate and screws as, at his age, they will cause him no trouble and it would be a major procedure to remove them at this stage.[31]
[31]PCB 46
(h) Ms Deborah Mcglinchey, physiotherapist
43 Ms Mcglinchey prepared a report dated 15 May 2011. Ms Mcglinchey’s last treatment of the plaintiff was on 2 February 2011. Ms Mcglinchey noted that the plaintiff was complaining of pain on the posterior aspect of his left forearm to the extent of 7 out of 10 on the visual analogue score. It was Ms Mcglinchey’s opinion that the plaintiff’s condition was unlikely to deteriorate but she was unclear whether full function of the left arm would be regained by him.[32]
[32]PCB 24
(i) Mr Michael Epstein, psychiatrist
44 Mr Epstein prepared a report dated 28 October 2010 for the purposes of medico-legal reporting. Mr Epstein noted that the plaintiff complained about his inability to do a variety of activities which he had done in the past. This had a significant effect on his self-esteem and self-confidence.[33] Mr Epstein accepts that this is a proper description by the plaintiff. I accept that there has been a minor psychological impact on the plaintiff as a result of his inability to cope with the physical limitations he now suffers.
[33]PCB 40
(j) Mr Robert Dickens, orthopaedic surgeon
45 The plaintiff was examined by Mr Robert Dickens on 24 April 2012 for the purposes of medico-legal reporting. Mr Dickens obtained a history from the plaintiff that he had had serious low-back pain as a result of the postural modifications to do with his arm injury.[34] Mr Dickens noted that the plaintiff was attending his general practitioner once every three months for medication. The plaintiff also attended his physiotherapist once every three months for assessment and improvement of range of movement in his left arm. The medication noted was Panadeine Forte, two to four per day for arm pain, and also Mobic for arm pain.[35] I note that this issue is consistent with the plaintiff’s evidence in this proceeding, both in his affidavit and in his evidence given in Court. Mr Dickens’s opinion was follows:
“I believe that the orthopaedic injuries are now stable. It was gone on to a sound union. He apparently has ongoing pain which is difficult to explain in the presence of satisfactory union. He has some limitation of forearm rotation but good function in the elbow and the wrist. There is some hypersensitivity in the scar which is likely to improve with time.
I do not believe that the range of movement is going to be in any way altered by him undertaking a further course of physiotherapy or other activities and the range of movement now is the range of movement that will exist in the long term.”[36]
[34]DCB 3
[35]DCB 4
[36]DCB 6
(k) Dr Lester Walton, consultant psychologist
46 The defendant referred the plaintiff for medico-legal assessment by Dr Lester Walton. Dr Walton prepared a report dated 7 May 2012. Dr Walton took a full and consistent history from the plaintiff. He diagnosed the plaintiff with an Adjustment Disorder with Mixed Anxiety and Depression.[37] Dr Walton noted:
“The ongoing pain and weakness do impact upon this man’s recreational pursuits but there is no compromise at home or in relation to leisure activities specifically attributable to psychiatric factors.”[38]
[37]DCB 14
[38]DCB 15
47 In summary, Dr Walton acknowledges that there is some psychiatric/ psychological impact upon the plaintiff as a result of the transport accident but does not consider this of any great significance.
48 The preponderance of the medical evidence is that the plaintiff has ongoing pain and loss of movement and strength in his left arm.
Credit of the Plaintiff
49 The defendant did not show any surveillance film to the plaintiff in the course of this proceeding. The highest that Mr Curtain QC, on behalf of the defendant, put the challenge to the plaintiff’s credibility was:
“I respectfully submit that Mr Gray has, to use a euphemism, put his best foot forward when describing his incapacities to Your Honour.”[39]
[39]T37, L21-23
50 I accept that the plaintiff was not stoical or reluctant to describe the consequences of the injury to his left arm which occurred in the transport accident. I do accept that the plaintiff was giving an honest and truthful description of the consequences as they were perceived by him. The description given by the plaintiff has been consistent to the medical treaters and/or examiners referred to earlier in these reasons.
Consequences of the injury to the Plaintiff
51 The plaintiff swore two affidavits dated 28 September 2011 and 17 June 2013. The plaintiff adopted these affidavits in his evidence and was cross-examined and re-examined in the course of this hearing. The plaintiff deposed to the following consequences as a result of the injury to his left forearm:
Sleep
52 The plaintiff gave a history to Mr Epstein that he sleeps reasonably well with occasional initial insomnia.[40] The plaintiff has not, in his affidavits, deposed that his sleep has been materially interrupted or affected by the injury to his left forearm. I do not consider that the injury has caused the plaintiff any very considerable consequences in relation to his sleep or sleep patterns.
[40]PCB 38
Pain
53 The plaintiff described his pain to Mr Ireland in the following manner:
“He complains of pain which he describes as a diffuse constant ache over the volar aspect of the forearm. This pain extends to the radial side of the wrist. This pain is aggravated by gripping with the left hand especially with the elbow extended.”[41]
[41]PCB 36
54 In his affidavit, the plaintiff refers to numbness and hypersensitivity in the forearm region just above his wrist.[42]
[42]PCB 10, paragraph 16
55 In his evidence, the plaintiff stated that he was never free of pain in his left forearm.[43] The plaintiff stated that the pain increased or became worse when there was significant activity, unplanned quick movement or long periods of inactivity, and when he was required to use the arm in ways in which it no longer moves.[44] In relation to the manner of movement, he referred to when the arm was required to ______ [?] excessive supination of the wrist. In terms of the level of pain, the plaintiff described the worst level of pain as being:
“… it’s quite debilitating in the sense that the type of pain that I feel is very sharp and feels like someone’s cutting bone with scissors or a knife. And it’s that kind of pain that, you know, really causes me to stop doing what I’m doing and try to reduce it. It’s not the dull ache that’s normally there – the pain changes.”[45]
[43]T6
[44]T6
[45]T7, L11-17
56 The plaintiff was describing how he has this cracking experience when required to excessively use his left arm. The plaintiff stated that when this occurs, that “the pain makes its way through two Panadeine Forte”.[46]
[46]T21, L7-8
57 I accept the plaintiff’s evidence in relation to his description of the pain that he experiences as a result of the injury to his left forearm. The experience of pain by him has been properly described to the doctors and he has sought treatment for the amelioration of those symptoms. I accept his evidence that when the pain it at its worst, he ceases the activity he is then undergoing and has to wait until the pain subsides. In conclusion, I accept that the experience of pain for the plaintiff is properly described in a range of consequences as “very considerable”.
Medication
58 The plaintiff, in his evidence, stated that he was taking Panadeine Forte, Mobic and Endep to assist with his pain relief.[47] In cross-examination, the amount of Panadeine Forte was explored. The plaintiff stated that his normal process was to have three to four Panadeine Forte tablets per day. At this point in time, he is not claiming from the Transport Accident Commission in respect of payment for that medication.
[47]T7
59 The plaintiff stated:
Q: “How often do you have – do you purchase Panadeine Forte?---
A: I get monthly prescriptions.
Q: How many in a packet?---
A: There’s 120, I believe in a packet.
Q: In Panadeine Forte?---
A: That’s correct. That lasts me one month.
Q: Doesn’t Panadeine Forte come in a packet of 20?---
A: I get five boxes of that, sorry.
Q: So you get five boxes?---
A: Yes.
Q: Is that 100 or 120?---
A: I believe it’s 120 that I’m prescribed.”[48]
[48]T8, L16-23
60 The plaintiff’s evidence in respect of the medication ingested by him is consistent with his affidavit.[49] In the report of Mr Steven Csongbay, it was noted that the plaintiff was taking two Panadeine Forte per day for pain.[50] Mr Ireland had taken a history from the plaintiff in July 2010 that he was taking two to four Panadeine Forte per day and one anti-inflammatory tablet per day.[51] Mr Dickens noted in his report dated 24 April 2012, that the plaintiff was seeing his general practitioner every three months for medication. Mr Dickens took a history that the medication consisted of Panadeine Forte, two to four times per day for arm, and also Mobic, one daily for arm pain.[52]
[49]PCB 11a, paragraph 2
[50]PCB 26
[51]PCB 30
[52]DCB 4
61 I conclude that the plaintiff is taking substantial amounts of pain-relieving medication to deal with the symptoms arising from his left forearm injury. I accept that the requirement for the plaintiff to consistently take relatively large amounts of pain-relieving medication to deal with his symptoms is a significant consequence for him. In the recent case of ACN 005 565 926 Pty Ltd v Snibson,[53] Kyrou AJA stated:
“The endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.”[54]
[53][2012] VSCA 31
[54](supra) at paragraph 71
62 I conclude that the necessity for the plaintiff to take the medications referred to above amounts to a very considerable consequence for the plaintiff.
Lack of mobility
63 The plaintiff has given evidence and has demonstrated in Court that he has a loss of rotation of his left arm of 45 degrees supination. The loss of mobility in his left arm limits the activities he can engage in without causing considerable pain. The loss of mobility has been referred to earlier in the various medical treaters and assessors’ opinions. The plaintiff has given evidence, and I accept, that he has limitations in his ability to pick up his children in his left arm[55] and is limited in his ability to play with his two young daughters and assist them in dressing and undressing their Barbie dolls or dealing with their Lego blocks. His evidence is, and I accept, that he lacks the dexterity in his hand movements to be able to do that due to the injury to his left forearm. In the course of evidence, the plaintiff was challenged by Mr Curtain QC, for the defendant, that he was able to manipulate and use cufflinks in order to demonstrate the scars to his forearm. I accept the plaintiff’s evidence that there is a difference for him in being able to use cufflinks on his own shirts compared to being able to partake of the finer detailed hand manipulations required by the activities of dressing the Barbie dolls and/or using the Lego blocks.
[55]PCB 11c
64 The plaintiff also stated that, because of his lack of ability to fully rotate his left arm, he was unable to continue playing tennis. The plaintiff fairly conceded that he had not tried to play tennis since the accident. He stated that the lack of mobility of his arm meant that he could not do the ball toss required to serve in tennis. The impact on his life as a tennis player is not a significant consequence for the plaintiff but is an indicator of the often minor inconveniences that he experiences every day as a result of the injury to his left forearm.
65 The plaintiff still engages in a form of Korean martial arts which does not require any physical contact. His evidence in this regard was that he had purchased an armguard to protect his left forearm in case there was accidental contact when performing the martial arts.[56]
[56]PCB 11b
66 The plaintiff gave evidence that his ability to play musical instruments has been considerably impacted upon by the effect of his left arm injury. The plaintiff still performs the role of lead guitarist in the Salvation Army services every Sunday. I accept that the plaintiff was a very accomplished musician prior to the injury. The plaintiff had played the guitar since the age of nine or ten. In his evidence, he stated:
“… Since the accident, I can’t play as long, I’ve had to modify my position that I play the guitar with, which causes other issues such as speed of movement and, you know, lack of playability for the instrument. I also don’t have the same skill level that I had prior to the accident.”[57]
[57]T29, L26-31
67 The plaintiff also stated that he had previously played the piano, drums, flute, base guitar and trumpet. His evidence was that he can still play those instruments but does not do it for very long because of the injury to his left arm. I accept the plaintiff’s evidence that the injury to his left arm has had a significant impact upon his ability to play musical instruments and in particular the guitar. I accept that for a person who has been playing the guitar since the age of nine or ten, that an impediment to him to continue in his broad musical practice and appreciation is a very considerable consequence for him.
Scarring
68 The plaintiff, in his application for serious injury certification, had put forward the scarring to his left forearm as a permanent serious disfigurement under s93(17)(b) of the Act. This was not actively pursued by the plaintiff in the course of this proceeding. I have had the advantage of viewing the two scars left by the surgery as a result of the injury to the plaintiff. The photographs of various stages of the scarring were tendered by the plaintiff in the Court Book between pages 56 and 76. The scars are readily apparent to any casual observation. Mr Ireland took a history from the plaintiff that he was not concerned about the scarring on the plaintiff’s forearm or his pelvis (the donor site for his grafting). The real issue for the plaintiff is that his wife does not like the scarring on his left arm.
69 I conclude that the scarring is significant but not in the very considerable class of consequence as required under the Act.
Conclusion
70 I am required to assess the consequences in terms of pain and suffering which the plaintiff’s injury to his left forearm has occasioned him. I am required to determine where the facts of this particular case sit in a broad spectrum of cases. The test to be applied is whether the plaintiff’s pain and suffering consequences, when judged by a comparison with other cases in the range of possible impairments or losses of body function may be fairly described as being more than significant or marked and as being at least very considerable.
71 I have taken into account in assessing the level of consequences to the plaintiff in respect of his injury by also examining what capabilities he has retained despite his injury. The plaintiff in this case has been able to remain employed in a full-time capacity.
72 I have taken into account the considerations set out in the cases of Haden Engineering Pty Ltd v McKinnon[58] and Sutton v Laminex Group Pty Ltd[59] to determine the impact of pain and the extent of it on the plaintiff in this case. Ultimately the decision I am required to take is a value judgment in which matters of fact and degree are to be taken into account when making the assessment of the total consequences to the plaintiff arising from his injury to his left forearm.
[58][2010] VSCA 69
[59][2011] VSCA 52
73 I conclude that, taking into account the consequences as I have found them to be, that they are of such a level to be properly described as being “very considerable” in some cases where separately considered and certainly when collectively considered. I find that these consequences are for the foreseeable future, in a sense that they are now permanent for the plaintiff.
74 I am satisfied that the plaintiff’s impairment as a result of the injury to his left forearm is “more than significant or marked” and properly described as being “at least very considerable”. The application for serious injury certification by the plaintiff is granted.
75 I will hear the parties on the question of costs.
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