Griffiths v Transport Accident Commission
[2022] VCC 454
•12 April 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-03900
| GLENN GRIFFITHS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 April 2022 | |
DATE OF JUDGMENT: | 12 April 2022 | |
CASE MAY BE CITED AS: | Griffiths v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 454 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to the brain – scarring and disfigurement – psychiatric injury
Legislation Cited: Transport Accident Act 1986
Cases Cited:Transport Accident Commission v Garcia [2015] VSCA 225
Judgment: Leave granted to the plaintiff to bring a proceeding at common law
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett QC with Mr E Makowski | Arnold Thomas & Becker |
| For the Defendant | Mr W R Middleton QC with Mr S Pinkstone | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction and background
1The plaintiff in this proceeding, Glenn Griffiths, is now thirty-eight years of age. He was involved in a transport accident on 4 October 2008 (“the accident”). The circumstances of the accident perhaps reflect the plaintiff’s upbringing and background and are a salient reminder of the need to wear a seatbelt.
2At the time of the accident, the plaintiff was a passenger in a vehicle driven by his ex-partner. Apparently, the plaintiff and his ex-partner had both used heroin on the day of the accident.[1] The accident occurred when the vehicle left the road at speed and struck a pole. The plaintiff was not wearing a seatbelt and his head went through the windscreen. He was transported to the Royal Melbourne Hospital and underwent surgery repair to facial lacerations.
[1] See the history to Professor Stephen Davis, neurologist, at Plaintiff’s Court Book (“PCB”) 42
3Returning to the plaintiff’s upbringing, in an affidavit sworn by him on 8 July 2021,[2] he described his upbringing as difficult. His mother used heroin. He commenced using heroin when a teenager. His upbringing can be described as chaotic. He has several half-siblings from various relationships in which his mother was involved. For a period, he was a Ward of the State. Over the years, he has been in and out of jail, seemingly associated with offending related to his drug use. In addition, the plaintiff was born with Poland Syndrome, causing right-sided deformity, including to his right hand and right upper chest. He had a limited schooling, affected not only by his family situation, but also by reason of bullying.
[2]PCB 6
4After the accident, the plaintiff had relapses into drug use and further periods in jail. There was a significant drug overdose and loss of consciousness in 2016. He continues to be on a methadone program and continues to use marijuana. To his credit, he has abstained from heroin for several years.
5The plaintiff has a very limited work history. There is no documented evidence of any earnings, but at the time of the accident it is accepted that he was working in a labouring-type job with Aaron’s Outdoor Creations (“Aaron’s”), assisting to construct items such as wooden cubby houses. According to his Transport Accident Commission (“TAC”) Claim form,[3] he commenced at Aaron’s in October 2007 and was paid $540 gross per week. For many years now, he has been in receipt of Centrelink benefits. He ceased work at Aaron’s sometime in about 2009 or 2010 and has not worked since then.
[3] PCB 98
6This is a “serious injury” proceeding brought pursuant to s93 of the Transport Accident Act 1986 (“the Act”). The plaintiff claims to have suffered a “serious injury” because of either:
(a) a physical injury by way of an acquired brain injury; and/or
(b) permanent scarring and disfigurement; and/or
(c) a severe long-term mental or behavioural disturbance or disorder.
7Senior counsel for the plaintiff appropriately acknowledged that the assessment of the claimed acquired brain injury and claimed psychiatric condition referable to the accident was made difficult because of the plaintiff’s background. In other words, it was conceded that the plaintiff either had a low level of base cognitive function,[4] or that his cognitive function had been impacted by his polysubstance abuse. It was also conceded that the plaintiff had a history of psychiatric/psychological symptoms. Issues arise as to the extent of any additional impairment and whether such additional impairment is “serious” in respect to the claimed acquired brain injury and claimed psychiatric injury.
[4] Transcript (“T”) 85, Line (“L”) 29
8However, in contrast, in respect to the claim based on “permanent serious disfigurement”, it was submitted that the claim for “serious injury” based on scarring was in a different category, as the scars were discretely related to the accident.
9In response to how the plaintiff put his claim for serious injury, senior counsel for the defendant raised as a relevant issue the extent of the plaintiff’s pre-existing and unrelated cognitive deficits and his pre-existing psychiatric/psychological problems. On behalf of the defendant, it was submitted the plaintiff could not identify impairment consequences from either of those claimed injuries that were “serious”. In respect to the claim for “serious injury” based on scarring, the defendant submitted succinctly that the scars were not serious and were not permanent because of the prospect of revision surgery to improve the cosmetic appearance of the scars.
Credit
10This is not a case in which the defendant raised the plaintiff’s credit in the primary sense but, as conceded by his counsel, there is a real issue as to the reliability of the plaintiff.[5] That arises, perhaps due to the passage of time, but also because the plaintiff has documented problems with memory, concentration, and cognition. During his oral evidence, he readily conceded a poor memory. Aspects of his evidence, such as in respect to his heroin use since the accident, were proven to be unreliable, considering the objective evidence in clinical records.
[5] T 88, L23-25
11Therefore, while this is not a “credit case” as such, the unreliability of the plaintiff’s evidence does mean that a degree of caution needs to be exercised in accepting his evidence. This is even more so as there is no objective evidence at all as to the plaintiff’s level of function before the accident. For example, to assess the extent of the plaintiff’s cognitive deficits referable to the accident, it would be useful to have some objective evidence as to what his level of function was before the accident, bearing in mind his long history of drug use, but there simply is no such evidence.
12There is, however, medical evidence dealing with the likely impact of the plaintiff’s long-term drug abuse. Dr Matt Treeby, neuropsychologist, provided a report to the plaintiff’s solicitors dated 7 May 2021, in which he opined that “much of the plaintiff’s cognitive deficits can be explained by his past history of substance abuse and drug overdose”.[6]
[6] PCB 40
13Dr Treeby’s opinion highlights the evidentiary difficulty caused by the lack of reliable ‘before and after’ evidence. In the absence of objective evidence, it is difficult to determine how much additional impairment has been caused by the accident. The lack of objective evidence regarding the plaintiff’s cognitive function (and psychiatric health) before the accident cannot be overcome by the plaintiff’s own evidence, as his own evidence is unreliable.
The evidence of the plaintiff
14The plaintiff swore two affidavits in support of this proceeding. In his first affidavit, he set out the circumstances of the accident. As mentioned, he also described his upbringing and some of the issues he faced before and after the accident. In respect to his pre-existing Poland Syndrome, he described how it had caused right-sided deformity and added to his difficult childhood and teenage years. He said it had caused him some depression, but he was much happier prior to the accident, which had caused a deterioration in his anxiety and depression. He noted his employment at the time of the accident. He noted the surgery to his face and said that, since the accident, he had extensive consequences, including:
“• Decreased cognitive function, including with respect to memory.
• I rarely leave my house and I have panic attacks and agoraphobia.
• I struggle with new learning and I believe the accident has accelerated my rate of forgetting.
• I have visible permanent facial scarring which embarrasses me because it is located on my face. It has affected the pigmentation on my face too. I understand I may need scar revision surgery.
• I have regular headaches and migraines and I do not recall having these prior to the accident. These occur about twice a week. They are debilitating.
• I have an acquired brain injury”.[7]
[7]PCB 8
15Next, in his second affidavit,[8] the plaintiff expanded upon some of the matters canvassed in his first affidavit and said in that:
[8]Sworn 25 March 2022 at PCB 10
“I was self-conscious of my appearance due to my Poland Syndrome prior to the accident.
But to have my face smashed and left with permanent scarring was devastating to me. Prior to the accident I would often put my hand affected by Poland Syndrome in my pocket, but I was not embarrassed and upset about people seeing my face.
I believe my facial scarring has had a big effect on me because I was already very sensitive in relation to my appearance due to my Poland Syndrome.
To have further scarring on my face has caused me to feel more anxious than I was prior to the accident. I believe people look at me differently because of my scarred face.
Even though wearing a mask at the moment is not mandatory, I often will put one on to try and hide some of my scarring.
If I could afford it I would seek surgery to improve my facial appearance. I would start with surgery to the scar that runs off my nose to the left as it is most noticeable to me. But that scar in combination with the others makes me look and feel ugly. I feel sad and negative looking at my face. This was not the case prior to the accident.
In terms of my other consequences I say as follows:
a. My increased anxiety continues. I do not like seeing people and I spend a lot of my time in my apartment. I live alone and do some supermarket shopping.
b. I remain in receipt of the disability support pension.
c.I continue with treatment from North Richmond Community Health. I remain on methadone. I have reduced my cannabis use. I have been clean from heroin for some years with not many relapses.
d. In terms of my brain injury, prior to the accident I do not believe I had the memory problems and poor concentration at the level that I experience now.
e. I am forgetful.
f. Now and then I have nightmares and flashbacks in relation to the transport accident, in particular of waking up just before I hit a pole.
g. l also get banging headaches I believe due to my traumatic injury about 2 or 3 times a month. When they occur they are intensively painful.”[9]
[9]PCB 11
16The plaintiff gave oral evidence. He gave his oral evidence in a manner that was consistent with someone with a low level of cognitive function. At times he was agitated and argumentative. Broadly, my assessment is that he gave evidence in a manner that was consistent with him doing his best, but there were aspects of his evidence that was unreliable.
17The plaintiff readily conceded a poor memory, describing it as “stuffed, since the car accident”.[10] When confronted with what was recorded in clinical records, he mostly accepted what was recorded because he had no independent memory, although at times he wished to take issue with what doctors had recorded. It was in that regard that aspects of his evidence were unreliable, together with some of his evidence about his return to work after the accident, and his drug use since the accident.
[10] T 44, L 1
The claim based on scarring and disfigurement
18At the request of the parties, and after the plaintiff had been sworn in, I approached the witness box to observe the plaintiff’s scars. I observed that he has several scars to his face.
19The plaintiff was seen for medico-legal purposes by Dr Damon Thomas, a plastic and reconstructive surgeon. In a report dated 11 March 2022,[11] Dr Thomas documented the scars as follows:
[11]PCB 84
“2 Findings of examination
I examined Mr Griffiths scars which are documented as follows:
1 Left forehead
50 mm by 10 mm scar. The scar is hypopigmented with a concavity and depression present and some surrounding hypersensitivity. There is some altered forehead animation.
2 Glabella
Two separate scars measuring 60 mm by 8 mm and 35 mm by 8 mm in dimensions. These are concave with some altered animation and slight loss of eyebrows over the right side. The scars are hypersensitive to touch.
3 Nasal dorsum
15 mm by 8 mm scar which is hypopigmented.
4 Left nasolabial 40 mm by 8 mm scar which is hypopigmented and concave. There is no sensory change.
5 Left cheek
30 mm by 8 mm scar which is hypopigmented and has a concavity present.
6 Right forehead
35 mm by 6 mm scar which is hypopigmented and has a concavity present.
Mr Griffiths also has significant nasal deviation to the right. There are no signs of a facial nerve palsy or any sensory loss of the trigeminal branches only a slight altered sensation within the scar itself.”[12]
[12]PCB 85-86
20Dr Thomas attached photographs of the plaintiff’s scarring.[13] Having viewed the plaintiff in the witness box, I consider that the tendered photographs accurately depict the scarring.
[13] PCB 88- 96 (inclusive)
21In addition, the plaintiff was seen for medico-legal purposes by Associate Professor Felix Behan, a plastic, reconstructive and hand surgeon. In a report dated 30 June 2021,[14] Associate Professor Behan also described the plaintiff’s facial scarring and attached photographs.
[14]PCB 49
22There is no dispute that, in the accident, the plaintiff suffered lacerations which have resulted in the scars to his face as seen in Court and as depicted in the photographs. The dispute is whether there is surgery that could improve the cosmetic appearance and whether there are any “pain and suffering” consequences from the scarring, such as embarrassment, an unwillingness to socialise, and the like, which are probably referable to the scarring, as opposed to the pre-existing Poland Syndrome, or other events that have afflicted the plaintiff during his life. Of course, overall, the defendant also disputes whether the scars are “serious”.
23Having observed the scarring as depicted in the photographs and firsthand in Court, in my view, they are prominent and obvious. The scarring to the plaintiff’s left cheek and the left side of his nose, was especially prominent and obvious.
24In discussion with counsel, I raised the way the scarring is to be assessed in light of what the Court of Appeal said in Transport Accident Commission v Garcia.[15] Garcia is the most recent Court of Appeal authority dealing with scarring and brings together a discussion of several earlier Court of Appeal decisions. What arises is that cases involving scarring do not permit the sort of discussion and analysis that occurs, say, in a case involving physical injury. Consideration must be given to the location, size, and degree of obviousness of the scarring, as well as any relevant consequences, as set out in the plaintiff’s evidence.
[15][2015] VSCA 225
25As stated, in my view, the scarring to the plaintiff’s face is prominent and obvious, because of the size and location of those scars.
26Pausing here, accepting that there is an objective and subjective element to the assessment as to whether the plaintiff has “permanent scarring and disfigurement”, the several prominent and obvious scars to the plaintiff’s face would, in my view, be enough to conclude that the plaintiff has a “very considerable” consequence from the scarring.
27But if the size, location and obviousness of the plaintiff’s facial scarring alone is not enough, I accept his evidence that the facial scarring has had a big effect on him, because he was already very sensitive in relation to his appearance due to the Poland Syndrome.[16] During his oral evidence, he conceded that he had a concern about his appearance due to the Poland Syndrome and that it had caused him to be the subject of terrible bullying, and that had caused him anxiety during his life. But, despite concerns about his reliability in the general sense, I was impressed by his evidence that he had been able to disguise, to some extent, the deformity from the Poland Syndrome by hiding his disfigured right hand in his pocket, whereas it was more difficult for him to hide his face.[17]
[16]PCB 11
[17] T 55, L2-9
28I accept that the cross-examination of the plaintiff revealed that there have been periods of time in his life when he has led an isolated existence, and so there must be some caution exercised in accepting his evidence that he has become a recluse, at least to some extent, because of the facial scarring. But that does not detract, in my view, from the understandable psychological upset to him, caused by having such prominent scarring which, of course, is a matter that may be considered.[18]
[18]Garcia (supra) at paragraph [87]
Is the scarring and disfigurement permanent?
29The defendant raised the issue of whether the plaintiff’s scarring was permanent. This issue arises from the opinion of Dr Thomas that:
“The prognosis with regards to the scars is that these will be permanent. I would not expect any change with regards to deterioration or improvement moving forward. These are of a cosmetic nature only.
…
Treatment requirements with regards to the scars would be only if Mr Griffiths chooses to from a cosmetic point of view. Scar revisions to several of the areas could be undertaken. I think there would be some likelihood of improvement with regards to the appearance. They could be more concealed and made less visible. There would be no functional gain. If this was undertaken, he would require postoperative dressings and scar management with products such as vitamin E and silicone gel.”[19]
[19]PCB 86
30During his oral evidence, the plaintiff readily agreed that he had the option of revision surgery to improve the cosmetic appearance of the scarring. He readily agreed that he will have such surgery.[20] But, in my view, that evidence needs to be weighed carefully considering his overall reliability. I have doubts as to whether he has the capacity to ever arrange a specialist assessment and to have the revision surgery. It is self-evident that, in the fourteen years or so since the accident, he has made no effort to seek a referral to a plastic surgeon for revision surgery. When, where or how such referral will occur and what will flow from it is, at best, uncertain. Dr Thomas opined that the scars “could be more concealed and made less visible”, but he does not suggest a “cure”. He notes that the plaintiff would require post-operative care after such surgery and again, for my own part, I doubt the plaintiff has sufficient insight to understand the consequences of surgery and such post-operative care.
[20]T18, L9
31In any event, the question that arises is whether the plaintiff can in fact have revision surgery. This was discussed by Associate Professor Behan. In his report dated 30 June 2021,[21] he said that the scars warranted revisional surgery. However, he expressed reservations about ongoing treatment given that the past history of substance abuse, and the plaintiff’s criminal history, created a background where, in his opinion, any clinician “would be reserved about offering any improvement by scar revisional surgery”.[22] Associate Professor Behan is the only doctor to deal with these reservations regarding future surgery and I accept his opinion.
[21] PCB 49
[22]PCB 63
32The evidence about future surgery, taken as a whole, is such to conclude that the prospect of it happening is remote and, in those circumstances, the scarring can properly be described as permanent. In my view, it can also properly be described as causing “very considerable” “permanent scarring and disfigurement”. Therefore, leave is granted to the plaintiff to commence a common law proceeding for damages for injuries arising out of the accident.
The acquired brain injury and the claimed psychiatric injury
33As I have determined that the scarring is “serious”, that is enough to dispose of the proceeding. But, for completeness and considering the evidence and the submissions made in respect to the acquired brain injury and the psychiatric condition, I shall briefly deal with the claim for “serious injury” based on those injuries.
34Similar evidentiary issues arise both in respect to the claim based on an acquired brain injury and the claim based on a psychiatric injury. Essentially, issues arise as to whether the plaintiff can demonstrate impairment consequences from either of these injuries that are “very considerable”.
35Dealing, firstly, with the acquired brain injury, the defendant accepted, albeit with some reluctance, that the evidence from Professor Stephen Davis supported a conclusion that the plaintiff suffered an acquired brain injury in the accident. That acquired brain injury was described by Professor Davis as of a “mild to moderate degree”.[23]
[23]PCB 46
36But, the difficulty, as already alluded to, is the lack of any objective evidence as to how the plaintiff was before the accident. Obviously, his unreliability is relevant here. Despite such objective evidence of his pre-accident level of functioning, Professor Davis opined that the plaintiff’s most profound disability related to his psychiatric state. He said he would agree with Dr Treeby that “substance abuse, overdoses and other psychiatric factors would contribute to his cognitive impairment”.[24]
[24]PCB 46
37Therefore, while I accept that the plaintiff suffered an acquired brain injury as described by Professor Davis and that, ordinarily, an acquired brain injury in a young person might be thought to be “serious”, on the facts of this proceeding, there is simply a gap in the evidence to make such a conclusion. Indeed, Dr Treeby, having conducted an extensive neurological examination of the plaintiff, went further, and said that his impression was that the majority of the plaintiff’s cognitive impairment “can be explained by his past history of substance misuse and drug overdose”.[25] In the broad sense, neither the reports from Dr Treeby nor Professor Davis identify sufficient impairment consequences from the accident so as to satisfy the test of “serious injury”
[25]PCB 40
38Next, the same issue arises in respect to the claimed psychiatric injury. During his oral evidence, the plaintiff conceded the accuracy of the history as given by him to Dr Gregor Schutz, consultant psychiatrist. Dr Schutz examined the plaintiff at the request of the defendant and was provided with as comprehensive a history as is possible based on the available evidence.[26] He said that Mr Griffiths is diagnostically complex.[27] He opined that the most significant factors in Mr Griffiths’ psychiatric presentation are unrelated to the transport accident. Dr Schutz sets out those factors, including the plaintiff’s developmental history; history of substance abuse; and his self-consciousness due to his congenital defect.[28]
[26] Being essentially what is contained in such clinical records as are available
[27]Defendant’s Court Book (“DCB”) 9
[28]DCB 10
39So, while I accept there has been a contribution to the plaintiff’s overall level of anxiety because of his facial scarring, I cannot accept the plaintiff has suffered a discrete psychiatric injury which can fairly be described as “severe”, as the objective evidence does not enable me to do so.
40For completeness, I note the plaintiff relied on a report from Associate Professor Abdul Khalid, consultant psychiatrist, dated 22 May 2021.[29] I have taken that report into account, but on this issue, I prefer the evidence from Dr Schutz. I do not accept Associate Professor Khalid’s opinion that the plaintiff’s panic disorder and agoraphobia can be related to the accident[30] considering the plaintiff’s own evidence. Further, that conclusion must be seen in the light of the plaintiff’s pre-existing social difficulties and his oral evidence about that. But, even if I was to accept Associate Professor Khalid’s opinion, it would not be enough to support a finding of a “severe” psychiatric condition referable to the accident.
[29]PCB 21
[30]PCB 28
Conclusion
41Therefore, for the reasons given, I conclude that the plaintiff has suffered a “serious injury” and is given leave to commence a common law proceeding by reason of the “permanent scarring and disfigurement”, but I do not accept the plaintiff has suffered a “serious injury” from either the acquired brain injury or the psychiatric injury.
42I shall hear from the parties as to the question of costs and consequential orders.
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