Haidar v Transport Accident Commission
[2016] VCC 489
•29 April 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | (Un) Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-13-05937
| SUSANNE HAIDAR | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 and 12 April 2016 | |
DATE OF JUDGMENT: | 29 April 2016 | |
CASE MAY BE CITED AS: | Haidar v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 489 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the right wrist
Legislation Cited: Transport Accident Act 1986, s93(17)(a)
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; R J Gilbertsons Pty Ltd v Skorsis [2000] VSCA 51; Philippiadis v Transport Accident Commission [2016] VSCA 1
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with Ms J Frederico | Zaparas Lawyers |
| For the Defendant | Mr J Gorton QC with Mr P Gates | Solicitor to the Transport Accident Commission |
HER HONOUR:
Preliminary
1 On 20 March 2010, the plaintiff was driving to McDonald’s during her lunchtime when another car made a right-hand turn in front of her car, colliding with it (“the March 2010 accident”). The plaintiff claims to have suffered multiple injuries in this accident, including to her right wrist, right hip, lower back and a psychological condition.
2 This is an application for leave to bring proceedings pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”). The application is brought pursuant to sub-section (a) of the definition of “serious injury” contained in s93(17) of the Act.
3 The plaintiff claims a right wrist injury, with medial triangular fibrocartilage (“TFC”) sprain and extensor carpi ulnaris (“ECU”) tendonitis. The body function said to be lost or impaired is the functioning of the right hand.
4 Mr T Tobin SC appeared with Ms Frederico for the plaintiff and Mr J Gorton QC appeared with Mr Gates for the defendant.
5 Only the plaintiff was called to give evidence and she was cross-examined for most of the first day of the hearing. In addition, numerous medical reports and other documents were tendered. I have read these tendered documents, together with the transcript of the proceedings.
Relevant background
6 The plaintiff is 38 years of age. She is a single mother of two children, a son born in 2013 and a daughter born in 2014.
7 The plaintiff was born in Lebanon but moved to Australia as a baby. She left school at the end of Year 10 and then completed a hairdressing apprenticeship. Since that time, she worked as a hairdresser in a number of salons in Melbourne. In 2004,[1] she returned to Lebanon for a period of six to seven months (or possibly as long as a year) during which time she set up her own hair salon.
[1]This year is inferred as she told Dr Kozminsky in May 2005 that she had been in Beirut for the year before
8 When the plaintiff returned to Australia, she worked as a hair model for a short period, before returning to work as a hairdresser with Hair House Warehouse. In about 2005, she set up her own hairdressing salon in Coburg. She ran that salon for about one year, but then sold it when her marriage broke up. At the time she attempted suicide by cutting her wrist.
9 She was then off work for a few months, before obtaining a position with Hair World. She joined this franchise business in April 2007.[2] She worked with Hair World at different stores and for different franchise owners, up until the time of the March 2010 accident. In the financial year ending 30 June 2010, she earned $32,226 in this employment.
[2]Transcript (“T”) 102, L17-20
10 The plaintiff was involved in several transport accidents prior to and subsequent to March 2010.
11 On 29 July 1999, the plaintiff was involved in a single vehicle collision. She was driving in the rain and ran into a power pole. She suffered injuries to her scapula, left knee, neck and right wrist and was off work for about a month.[3] When she returned to work she started to wear a brace on her right wrist as she experienced pain when using a hairdryer or brush, and when twisting and cutting.[4]
[3]Plaintiff’s (“PCB”) Court Book 14
[4]T25, L16-21
12 On 29 April 2001, the plaintiff was involved in another transport accident. On this occasion, she was a passenger in a car when it clipped a gutter and ran into a power pole. In this accident, she suffered a fractured nose, aggravation of the left knee injury, aggravation of the left scapular injury, right scapular injury, loss of consciousness and aggravation of her right wrist.
13 At that time, the plaintiff was on Newstart sickness benefits.[5] The plaintiff could not recall why she was on such benefits, but thought it was probably due to depression that she was suffering at the time.[6]
[5]PCB 21
[6]T159, L1-3
14 In addition to these accidents which occurred before the March 2010 accident, the plaintiff was involved in two subsequent transport accidents.
15 On 4 October 2010, the plaintiff was driving a car when she swerved and ran into a tree.[7] She suffered injuries to her back, ribs and left knee.[8] She was due to return to her employment with Hair World, on light duties, the following day.
[7]DCB 28
[8]DCB 31
16 The plaintiff was also involved in a transport accident on 16 April 2012. It was a minor accident, and she suffered no injuries.[9]
[9]T76, L23-31, T77, L1-2
The injury and its consequences
17 The transport accident the subject of this claim occurred on 20 March 2010 in Heatherton Road, Noble Park. Another car made a right-hand turn in front of the plaintiff’s car, and she could not avoid the collision.
18 The plaintiff was taken to Dandenong Hospital where she was examined and x-rays were taken. The plaintiff conceded that she did not mention right wrist pain at the hospital.[10] After a few hours, the plaintiff was then discharged home.
[10]T53, L6-9
19 The plaintiff was unable to work at this time. She lodged a WorkCover claim for the March 2010 accident, as it occurred during an authorised recess. She received statutory benefits for this claim including weekly payments.
20 The plaintiff’s general practitioner, Dr Salo Grokop, first saw the plaintiff in relation to the injuries she suffered in the March 2010 accident on 17 May 2010.[11] He stated that her principal injuries were to the right lower back, right hip and torso. She also complained of a painful right wrist.
[11]PCB 27
21 Dr Grokop arranged for x-rays to be taken. The right wrist injury was reported as showing no fractures or dislocations.[12]
[12]PCB 50
22 During this time the plaintiff also consulted Dr Michael Kozminsky, general practitioner. On 13 April 2010, the plaintiff attended him and reported the injuries she had suffered in the accident, including broken ribs, sore wrists and tenderness in the right hip.
23 In cross-examination the plaintiff admitted that she hurt the same part of her wrist in the March 2010 accident as had been hurt in the 1999 accident.[13] However, she said that the pain was “ a bit different, I think, bit more”.[14]
[13]T26, L5-7
[14]T25, L30-31
24 Dr Grokop provided the plaintiff with Certificates of Incapacity which stated she had no capacity for work. These continued to be issued through to October 2010, when it was intended that the plaintiff return to work on light duties and reduced hours.
25 Two hours before the subsequent transport accident on 4 October 2010, the plaintiff saw Dr Kozminsky, at which time she reported to him that her wrist was still sore.[15] This accident then temporarily delayed the plaintiff’s return to work until March 2011.
[15]Exhibit 4, page 44
26 The plaintiff said that her right wrist and hip injuries were aggravated by the October 2010 accident. She said the aggravation lasted only two or three months and then the wrist pain was back to how it was before the accident.[16]
[16]T103, L7-12
27 The plaintiff was referred for physiotherapy in relation to her right wrist, and she attended three or four sessions. However, she felt the physiotherapy did not help and made her wrist “more sore”.[17]
[17]T53, L22-25
28 The plaintiff’s right wrist pain worsened sometime in early 2011 when she attempted to resume walking her dog. At that time she attended Dr Grokop and complained that her wrist was sore, clicking and loose.[18]
[18]T60, L 29-31, T61, L1-2
29 Dr Grokop referred the plaintiff to Mr Simon Holland, orthopaedic surgeon, in March 2011. She was seen instead by Mr Holland’s locum, orthopaedic surgeon, Mr Shane Blackmore. She complained to him of a right wrist problem which she had first occurred 10 years ago after a motor vehicle accident. He noted that she re-injured her wrist in a motor vehicle accident in April 2010. She further complained she had ongoing wrist symptoms, but could not be specific as to the precise location in her wrist:
“Just general soreness and she said that [t]he wrist had been improving over the last few months. Examination of her wrist showed no swelling with normal range of motion in flexion, extension, supination and pronation and ulnar and radial deviation. She was tender over the distal radial ulnar joint over the TFCC over the ECU and FCU. The pain was mainly restricted to the ulnar side of the wrist. She also had pain on resisted flexion.”[19]
[19]PCB 37
30 An MRI scan was performed on 21 April 2011.[20] Mr Blackmore considered the MRI findings were suggestive of a “medial TFC attachment sprain with localised ECU tendonosis”. [21] There was no evidence of cartilage tear of the TFC.
[20]PCB 51
[21]PCB 37
31 Mr Blackmore considered that the ECU tendonosis is “commonly seen in overuse injuries but may also be a result of some sort of motor vehicle trauma”.[22] He considered her prognosis was quite good and recommended a steroid injection to help settle the tendonosis down.
[22]PCB 37-39
32 On 1 July 2011 Mr Blackmore gave the plaintiff an ultrasound-guided corticosteroid injection.
33 Mr Blackmore reviewed the plaintiff again on 18 July 2011, and she complained of ongoing “wobbliness”[23] since the steroid injection in her wrist.[24] On examination, he noted minimal tenderness around the ECU tendon. He found she had a normal range of motion. He recommended some physiotherapy for strengthening. She did not see Mr Blackmore again.
[23]PCB 39
[24]PCB 39
34 In May 2011, Dr Grokop referred the plaintiff to consultant physician, Dr Peter Blombery. The plaintiff first saw Dr Blombery on 23 May 2011. She complained to him of right wrist pain and said she found it difficult to carry heavy objects. She told him that her right hand occasionally felt hot and cold, or swelled, but there had been no colour change. She also reported that it occasionally sweated excessively. Upon examination, Dr Blombery noted that she had a good range of movement in the wrist and it was not really tender.[25] Dr Blombery considered that she had features of Chronic Regional Pain Syndrome Type 1 and he recommended a short course of oral prednisolone.
[25]PCB 40
35 The plaintiff did not return to Dr Blombery for any further treatment, but rather, was re-examined by him for the purpose of a medico‑legal assessment. I will come to his subsequent reports later in this Judgment.
36 At one stage, it was suggested that the plaintiff may benefit from platelet rich plasma (“PRP”) injections,[26] but she has not undergone such treatment.[27]
[26]PCB 29
[27]T15, L 9
37 When the plaintiff returned to work in March 2011, she initially worked two days a week, four hours per day. She then increased to three days a week, three hours per day and then increased to four days, three hours per day. She ultimately stopped work around 22 December 2011 due to “increasing right hip and right wrist pain”.[28]
[28]PCB 9
38 In her most recent affidavit affirmed on 1 April 2016, the plaintiff said that she has permanent pain inside the right wrist. She stated the pain worsens when she uses her right hand and is exacerbated when she moves her wrist or carries a heavy object. She complained of a clicking in her wrist when she moves it up and down. She claimed to have decreased strength in her grip and stated that the movement in her wrist is slightly limited. She claimed the wrist pain can interfere with her sleep.[29]
[29]PCB 17
The plaintiff’s credibility
39 The plaintiff’s credibility was one of the key issues in the case. A significant part of the cross-examination focused on her long standing drug dependency.
40 The plaintiff first began illicit drug use at approximately 19 years of age. She tried ecstasy and cocaine.[30] She initially denied ever trying cocaine,[31] but later accepted that she had tried it “once ... or [not] more than three or one time …”.[32]
[30]Exhibit 4, page 176
[31]T16, L22-23
[32]T18, L14-16
41 In her affidavit the plaintiff stated that she also started using heroin when she was aged 19.[33] She said that she had used drugs on and off since that age,[34] but that opiates did not become a problem for her until after the 1999 transport accident.[35]
[33]Plaintiff’s Court Book (“PCB”) 9
[34]T24, L5
[35]T22, L12-15
42 Since that time, the plaintiff has used heroin on many occasions. She sought medical treatment to assist with her addiction, initially receiving Naltrexone implants. These were prescribed by Dr Michael Kozminsky at the Genesis Medical Centre. These were given on 29 November 2005, 16 March 2006, 5 March 2007, 3 October 2007, 10 June 2008, 22 December 2008, 16 November 2009 and 7 December 2010. During this period she had several relapses. The last implant became infected and she had it removed on 10 January 2011 after which she did not receive any further Naltrexone implants.
43 The plaintiff relapsed again in approximately September 2011.[36] In November 2011, she began seeing Dr Ernie Andrada at the Mediclinic in Clayton and later, Dr James Churchman. She commenced on Methadone on 12 December 2011.[37]
[36](ibid) page 36
[37]Exhibit 5, Mediclinic records, page 609
44 In August 2012, she relapsed again.[38]
[38](ibid) page 610
45 The plaintiff found out that she was pregnant in late 2012.[39] She continued taking heroin up until the month her son was born.[40] She initially said in cross-examination that she stopped taking heroin before her children were born. The transcript is as follows:
[39]T79, L13-14
[40]T79, L30-31, T81, L20-22
Q: “When did you stop taking heroin?---
A: I don’t remember now it’s so long ago.
Q:But before your children were born or after your children were born?---
A:After - sorry, before, sorry, before.
Q:I want you to think about it and be accurate?---
A:Before, yes.
Q:You stopped taking heroin before your first child was born?---
A:Yes.
46 The plaintiff soon after retracted this answer when presented with the records of Dr Andrada which recorded ongoing drug use from October 2013, through until June 2014.[41]
[41]T83, L1-13
47 The plaintiff stated that she has not used heroin since then, and has continued on the Methadone Program, under the care of Dr Churchman.[42]
[42]T83, L26-28
48 The defendant sought to discredit the plaintiff by challenging the honesty of the answers she gave in Court, as well as the honesty of information she had given to doctors and the Transport Accident Commission.
49 Mr Tobin sought to excuse the plaintiff, describing her as a witness of truth, but not of accuracy. I do not accept this. There were numerous occasions in which the plaintiff would provide an answer to a direct question, only to retract or change that answer when referred to a document that contradicted her. At other times, her answers were vague and she was unwilling to provide an answer which would not assist her case. There were many examples of this throughout her evidence and the documents tendered, but the most critical examples which go to her credit are as follows:
(1) The defendant showed video surveillance of the plaintiff preparing to attend a medical examination on 19 February 2015.[43] The video showed her putting her two children and a pram into a taxi, as well as strapping in a car seat for her youngest child. She was subsequently seen getting out of the taxi at the medical clinic where she was to be examined for a medico‑legal appointment. The video showed that she moved with no apparent restriction.
[43]Exhibit 2
The plaintiff did not wear her hand brace when she was putting her children, the car seat and the pram into the taxi. However, when she alighted from the taxi she was wearing the brace. She was cross-examined on this point and the transcript is as follows:
Q: “And do you agree when you got into the car you didn’t have that bandage on the wrist?---
A: No.
Q: And this was when you were going to see a doctor to be assessed for the case?---
A: Yes.
Q: And by the time you got to the doctor’s you had put the wrist brace on?---
A: There were a lot of things I did in in the taxi, I had a shower before the appointment, Sienna didn’t have shoes on yes, so-
Q: So you didn’t need the brace when you were loading everyone into the car?---
A: I had help inside, yes.
Q: I’m sorry?---
A: No, I didn’t need it.
Q: Are you sure you didn’t put the brace on because you thought I’m going to see a doctor, I had better put a bandage on so it looks worse?---
A: No.
Q: So - - -?---
A: I think you can see my hair’s wet in the video.
Q: But why didn’t you put in brace on before you left the house carrying everything to go into the taxi? How often did you wear the brace at that time?---
A: Back then often but not as often as when I was working.
Q: So why did you put it on when you got to the doctor’s surgery?---
A: Because I will probably be doing more outside the taxi, it was probably sore but not as sore, I don’t know, it’s so long ago no.”[44]
[44]T86, L14 – T87, L5
Her failure to provide a credible answer for putting the brace on just prior to the medico-legal examination leads me to infer she intended to convey to the doctor that her wrist injury was worse than it actually was.
(2) In completing her claim forms for the transport accidents which occurred in July 1999, April 2001, March 2010 and October 2010, the plaintiff did not disclose her drug dependency.
In relation to the July 1999 claim form, she said she did not disclose it as she did not think she had a drug problem at that time, as she had only been using drugs on and off.[45]
[45]T24, L4-6
In relation to the April 2001 claim form, her explanation for not disclosing her drug dependency was that she considered it a private part of her life.[46] She gave the same explanation for not disclosing it in the subsequent claim forms for the March and October 2010 accidents.
[46]T30, L12-13
If this was the only issue going to her credit, it is not something which I would attach major significance to. I accept she was, in part, motivated by a desire to protect her privacy. Nonetheless, I find it reflective of the plaintiff’s willingness to answer questions dishonestly, where she considers an honest answer will not be helpful to her interests.
The plaintiff also failed to advise several of the doctors about her drug dependency. This may be more readily excused when seeing orthopaedic doctors, but not when being examined by psychiatrists. She was examined by psychiatrist, Dr Stephen Stern, on 29 September 2011. She did not give him a history of her drug dependency and she expressly denied using illicit drugs.[47] According to Dr Kozminsky’s records, the plaintiff was using heroin around this time.[48]
[47]DCB 126-133
[48]Exhibit 4, page 36
The plaintiff was examined by Dr Hilloi Das, psychiatrist, on two occasions in May 2012 and January 2013. She gave him an extensive history of her psychiatric state, including her suicide attempt in 2005, but did not tell him of her drug dependency.
When asked about her failure to tell these psychiatrists about her drug dependency, she said she thought the examinations were about the transport accident and that the drug dependency was not relevant.[49] She denied she was trying to hide it.[50]
[49]T81, L7-12
[50]T81, L13-15
(3) In her first affidavit the plaintiff stated she had started using heroin again after the accident “as it numbed the pain I was in.”[51] However in cross-examination, the plaintiff conceded she had never taken heroin because of the wrist pain.[52]
[51]PCB 10
[52]T89, L8-14
(4) The defendant arranged for the plaintiff to be examined by Associate Professor Michael McDonough, a specialist in addiction medicine and toxicology. She saw him on 8 December 2015.
Associate Professor McDonough requested the plaintiff provide a urine specimen for drug testing. She was provided with drinks and for a period of two-and-a-half hours she was unable to provide a urine sample.[53] Dr McDonough was of the opinion that “it is highly unusual for patients without significant renal disease to be unable to provide a urine sample”.[54]
[53]Defendant’s Court Book (“DCB”) 65
[54]Ibid
The plaintiff was asked in cross-examination why she could not provide the urine sample and she answered: “No, I couldn’t, I was there with my dad.” [55] She denied it was because she was worried a urine sample might show that she had relapsed again.[56] In answering these questions, the plaintiff seemed to be somewhat evasive and I was not satisfied as to the honesty of her responses.
[55]T90, L31 – T91, L1
[56]T91, L10-11
(5) The defendant relied upon a report from Dr John Wilson, occupational physician, who examined the plaintiff in June 2012. In his report, he noted the plaintiff informed him she does not take pain medication “as she does not believe in taking tablets”.[57] In cross-examination, it was put to her that this was a dishonest history in the circumstances, given she had a long history of taking heroin and was on the Methadone Program at that time. She did not directly answer this question, and commented to Mr Gorton that it was his opinion that this was “nonsense”.[58]
[57]DCB 93
[58]T78, L17-18
Further, in relation to this report, Dr Wilson asked the plaintiff to complete a diagram of the body, and to mark the places where she was experiencing pain. The plaintiff marked her lower back and right hip area, but did not mark the right wrist.[59] When questioned about this, the plaintiff agreed that if she had wrist pain of significance, you would expect to see it marked on the chart.[60] Although this does not go directly to her credit, it is an example of inconsistent complaints of pain regarding the wrist injury.
[59]DCB 101
[60]T77, L30-31
(6) In cross-examination, the plaintiff initially admitted that her wrist injury does not stop her taking her children to the pool.[61] However, she was then referred to her affidavit in which she stated she found it difficult taking her children to the pool, as it involved catching a bus and “it was too much for me with my wrist, managing the two children, and getting in and out of the bus with the pram”.
[61]T97, L4-7
After being reminded of this, the plaintiff then changed her evidence to say:
“It only stops because it hurts more so the next day, it’s not that you can’t take them, you can take them but then you’re going to feel the pain more the next day, or even that night, along with everything else.”[62]
The plaintiff denied she changed her answer to this question as she did not want to contradict her affidavit.[63]
[62]T96, L2-24
[63]T97, L1
50 When considered separately, these matters would not, in my view, be sufficient to tarnish the plaintiff’s credibility. However, when considered collectively, I conclude that the plaintiff was not always honest in the evidence that she gave. In such circumstances, I have therefore only accepted her evidence where she gave concessions against her interest or where her evidence was corroborated by contemporaneous documents.
The plaintiff’s medical material
51 The plaintiff relied upon reports from her general practitioner Dr Grokop, who treated her for the injuries she suffered in the March 2010 accident. In his report dated 25 January 2013, he stated that he treated her for the right wrist, right hip and lower back pain.[64] He considered her to have some work capacity, but not in hairdressing. He commented that her injured wrist would prevent her doing jobs involving repetition or heavy tasks, and that due to her hip injury, she should avoid prolonged standing and bending.
[64]PCB 29
52 In his next report dated 26 November 2014, Dr Grokop said there was a causal link between her physical injuries and her accidents.[65] He did not identify which accidents he was referring to. He also stated that “the degree of disability due to pain appears to be out of keeping with the severity of her injuries”.[66]
[65]PCB 31
[66]Ibid
53 Although the plaintiff originally saw Dr Blombery for treatment, she was subsequently referred back to him by her solicitors for medico-legal purposes. He examined her on 9 October 2014 and 11 March 2016. On each occasion, Dr Blombery found no objective signs of Complex Regional Pain Syndrome Type 1.[67] He found a full range of movement, with tenderness on the ulnar side of the wrist. The right hand was stronger than the left. He considered it had merged into a non-specific Pain Syndrome with sensitisation of pain nerve pathways.[68]
[67]PCB 44-49
[68]PCB 45
54 In a supplementary report, Dr Blombery was asked to comment whether the plaintiff’s right wrist injury incapacitated her from returning to her pre-injury duties as a hairdresser.[69] He thought she was incapacitated, but did not explain why.
[69]PCB 49A
55 The plaintiff’s solicitor arranged for her to be examined by Mr Thomas Kossmann, orthopaedic surgeon, on 26 November 2013 and 4 October 2014. She complained to him about her right wrist, lower back and right hip injuries. In relation to the wrist injury, at his first appointment he obtained a history of right wrist problems related to a transport accident 10 years prior to this accident. He noted that she was treated with a brace for approximately 12 months and that she had “ongoing mild right wrist pain with activity that persisted up until ...” the March 2010 accident.[70]
[70]PCB 57
56 Mr Kossmann diagnosed a medial TFC sprain and ECU tendonosis. He also diagnosed injuries in respect of the lower back and right hip. He concluded that her condition is consistent with the March 2010 accident as “her symptoms appeared following this accident”.[71] That comment may be correct in respect of the lower back and hip injuries, but it cannot apply to her wrist injury. In the body of his report Mr Kossmann referred to her complaint of ongoing mild wrist pain for 10 years prior. Yet her overlooked this history when making this comment on causation. I consider this a significant omission by Mr Kossmann. His failure to distinguish between her pre-existing condition and any aggravation, means his opinion does not assist me in determining the injury and impairment arising from the March 2010 accident.
[71]PCB 63
57 The plaintiff’s solicitors also arranged for her to be examined by another orthopaedic surgeon, Mr Ash Chehata, on 15 February 2016. It is significant to note that he obtained no history of prior wrist problems. On examination, he found that while she was tender in the wrist, she had a full range of movement. The ECU tendon was not swollen, nor was it painful. He stated that she has a TFC tear and ECU tendonosis. However, given he did not have the history of the prior wrist problems, like Mr Kossmann, his opinion does not assist me in determining the injury and impairment arising from the March 2010 accident.
The defendant’s medical material
58 The defendant arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Damian Ireland. He is a specialist hand surgeon. He examined the plaintiff on two occasions. In November 2013, he reported a full range of movement in the wrist, no tenderness and no crepitus.[72] He considered she suffered a soft tissue injury to the distal radioulnar joint.
[72]DCB 79
59 In August 2015, Mr Ireland recorded that the plaintiff complained of intermittent right wrist pain that occurred approximately once a week and lasted for one to two days. On examination he noted some minor restriction in the extension of the wrist. He noted no wasting. He diagnosed a chronic soft tissue injury to the distal radioulnar joint.
Conclusion
60 As this is an aggravation case, there must be a comparison between the plaintiff’s pre-existing condition, with the aggravated state. Pursuant to the well-known principles enunciated in Petkovski v Galletti,[73] I must consider only the consequences arising from the aggravation.
[73][1994] 1 VR 436
61 In R J Gilbertson v Skorsis,[74] Chernov JA summarised the task before me:
[74][2000] VSCA 51 at paragraph [40]
“In determining whether an injury which is an aggravation of a pre-existing injury is a “serious injury”, it is necessary first to make a comparison between the applicant’s condition before the accident that gave rise to the second injury and to his or her condition after that incident and thereby ascertain the degree of additional impairment that has been brought about by the second injury. It is then necessary to make an assessment of whether the additional impairment is serious and long term.”
62 In Philippiadis v Transport Accident Commission,[75] it was noted that:
“Where a transport accident is said to cause an aggravation of an existing injury, the aggravation must satisfy the definition of ‘serious injury’ in the sense of producing a serious long-term impairment or loss of a body function. In assessing whether the definition is satisfied it is impermissible to take into account the cumulative effect of the pre-existing injury and the aggravation. Rather, an analysis must be made of the extent of impairment of the relevant body function before and after the relevant injury to determine the extent of the additional impairment that was caused by the injury. Where, as in the present case, there is more than one accident which is said to aggravate an existing injury, the aggravation resulting from each accident must be considered separately to determine whether it satisfies the definition of ‘serious injury’.”[76]
[75][2016] VSCA 1
[76](ibid) at paragraph [27]
63 The plaintiff has suffered right wrist pain since 1999. She used an elastic hand brace “on and off” since that time,[77] but does not currently wear a brace. [78] She cannot recall when she last wore one.[79] When asked why she does not wear it anymore she answered “I don’t know, I just don’t”.[80]
[77]T84, L17-24
[78]T84, L15
[79]T85, L1
[80]T84, L30-31
64 This is a significant concession to me and I consider it an indication that the wrist injury is not as significant now as it had been previously.
65 There have been inconsistent complaints of pain in the wrist since the March 2010 accident. She did not refer to her wrist injury when she completed the claim form for the October 2010 accident. She was asked about her prior injuries, and she listed the neck, knee, back and hip injury.[81] There is no reference to a right wrist injury. The plaintiff said the form was filled out by a person at the Transport Accident Commission, based on her instructions.[82] The form is signed by the plaintiff on 20 July 2011.[83] I consider this an indication that her wrist injury was not causing her significant pain at that time.
[81]DCB 33
[82]T57, L7-17
[83]DCB 38
66 When the plaintiff attended Dr Wilson in June 2012, she did not refer to right wrist pain when asked to mark sites of pain on a body chart.[84] Again, I consider this an indication that her wrist injury was not causing her significant pain at that time.
[84]DCB 101
67 The plaintiff admits that her hand no longer has changes in color or temperature.[85] This is consistent with Dr Blombery’s opinion in October 2014 and March 2016 that she no longer has symptoms consistent with Complex Regional Pain Syndrome Type 1.
[85]T 92, L9-12
68 The plaintiff’s right hand is stronger than the left hand.[86]
[86]T92, L4-8 and PCB 48
69 The plaintiff commenced on Methadone in December 2011.[87] She derives some pain relief from it. However, there is no evidence to suggest that, if not for her wrist injury, the plaintiff could reduce her Methadone levels. Dr Churchman stated in his reports that he has not treated the plaintiff for her wrist injury. He acknowledged that Methadone can have an analgesic effect, but that he had never discussed that with the plaintiff.[88] The plaintiff said that she discussed with Dr Churchman not wanting to reduce her Methadone levels as it gave her some pain relief for her wrist and back pain.[89] The records tendered from Dr Churchman only go to 17 January 2015. However, given he stated in his report of 16 February 2016 that she had not complained specifically of the transport accident injuries whilst he treated her, I do not accept the plaintiff’s evidence on this. Therefore, I conclude that the plaintiff obtains indirect analgesic benefits from being on Methadone, but that her need to take such medication, at the level prescribed, is not related to her wrist injury.
[87]Exhibit 6, page 600
[88]PCB 32
[89]T93, L21-26
70 Overall, the medical material showed a relatively mild organic injury to the wrist. Mr Kossmann and Mr Chehata did not recognise the pre-existing wrist pain in commenting on the cause of her current wrist injury. Therefore their opinions do not assist me to identify what injury, and which impairments, arose from the March 2010 accident. Mr Ireland does not distinguish this either. However, the onus is on the plaintiff to prove the relevant injury and impairment arising from the aggravation of the pre-existing injury. There are no medical opinions that enable me to do this.
71 Further, at the highpoint of the plaintiff’s claim, she suffered a TFC sprain and tendonosis of the ECU. There are no objective signs to support this being an ongoing condition. Her complaints of wrist pain have not been consistent. Given the misgivings I have regarding her credit, I believe any wrist pain she now suffers from the March 2010 accident is modest.
72 In relation to the impact the injury had upon her capacity to work, Dr Churchman was of the view that her drug dependence and anxiety rendered her unfit for all full-time work. In his report of 13 April 2015 he said that :
“Increased stress places a person with the disease of addiction at more risk of relapse into drug use. Ms Haidar is dealing with significant stress in her life currently, caring for two young children a 21 month old and a 9 month old and dealing with a partner who also has the disease of addiction and is, by her report, using illicit drugs intermittently. The further requirement to seek work would, I feel, put her at significant risk of relapse and I do not regard her as fit to return to work at this time.” [90]
[90]PCB 33
73 In his report dated 16 February 2016 he confirmed his view that she was completely disabled for work.[91] He commented that it was not apparent to him that her disability for work was a result of the transport accident. He considered her incapacity to be permanent.
[91]PCB 35
74 Dr Churchman’s opinion is fundamental to the plaintiff’s claim for pecuniary disadvantage. He is probably the doctor who knows her best, having treated her regularly for the last two years. The plaintiff agreed his opinion would be guided by what she had told him.[92]
[92]T89, L19-31, T90, L1-14
75 I accept the opinion of Dr Churchman that the plaintiff is indefinitely incapacitated for work due to her drug dependence. Both counsel agreed that if I made such a finding, then I did not need to look at the impact her wrist injury had on her capacity to work.[93] Whilst urging me against such a finding, Mr Tobin accepted that if I found this, the plaintiff could not establish pecuniary loss arising from the wrist injury.[94]
[93]Mr Gorton at T144, L20-31 and Mr Tobin at T148, L27-31; T149, L1-28; T150, L16-25
[94]T150, L16-25
76 Even setting aside the loss of earning capacity as a result of her drug dependency, I am not satisfied, given the modest nature of her injury, that the March 2010 accident significantly impairs her capacity for employment.
77 In my opinion the plaintiff has failed to satisfy me that she suffers a serious injury as a consequence of the March 2010 accident and when judged in comparison with other cases in the range of possible impairments or losses, I am not satisfied that the consequences for the plaintiff are very considerable.
78 The application is dismissed.
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