Henry v Transport Accident Commission
[2012] VCC 181
•30 January 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-05866
| KAPITI RUA HENRY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 January 2012 | |
DATE OF JUDGMENT: | 30 January 2012 | |
CASE MAY BE CITED AS: | Henry v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 181 | |
REASONS FOR JUDGMENT
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| SUBJECT – TRANSPORT ACCIDENT |
| CATCHWORDS – Serious injury to the neck and right hand – whether the consequences in terms of pecuniary disadvantage and/or pain and suffering were serious – relevance of pre-existing medical conditions: Section 93(4)(d), (6) and (17) |
| LEGISLATION CITED – Transport Accident Act 1986, s.93(4)(d), (6) and (17) |
| CASES CITED – Humphries v Poljak [1992] 2 VR 129; Cropp v Transport Accident Commission [1998] 3 VR 357 |
| JUDGMENT – Leave granted |
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with Mr S McCredie | Henry Carus & Associates |
| For the Defendant | Mr D Masel SC with Mr S Smith | Hall & Wilcox |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed on 15 December 2010 by which the plaintiff applies for leave pursuant to section 93(4)(b) of the Transport Accident Act 1986 (“the Act”) to bring a proceeding to recover damages for injuries suffered by him arising out of a transport accident which occurred on 19 November 1999.
2 The application is brought pursuant to section 93(4)(d) of the Act. Subsection (6) provides that a Court must not grant leave under subsection (4)(d) unless the Court is satisfied that the injury is a “serious injury”.
3 The definition of “serious injury” relied upon by the plaintiff is under subsection (17):
"(a) serious long term impairment or loss of a body function."
4 The injuries suffered by the plaintiff are an injury to the neck and the right hand.
5 The following evidence was adduced at the hearing of the plaintiff's proceeding:
· The plaintiff gave evidence and was cross-examined
· The plaintiff tendered his Court Book (“PCB”), pages 10-22f; 63-77; 94-104a, and 118: Exhibit A
· The defendant tendered its Court Book (“DCB”), pages 1-17, and from the PCB, pages 78-93: Exhibit 1.
6 In addition to the foregoing, Mr Mighell called upon the defendant to make an admission that it had undertaken surveillance of the plaintiff. Mr Masel, on behalf of the defendant, admitted that surveillance had been undertaken, with the plaintiff being sighted on one day. Other attempts were made to sight the plaintiff which were unsuccessful.
7 Mr Masel called upon the plaintiff to admit that he had been served with a Notice to Produce. Mr Mighell, on behalf of the plaintiff, admitted that a Notice to Produce had been served upon the plaintiff’s solicitors.
The Plaintiff's Background
8 The plaintiff was born in New Zealand on 25 August 1974. He is now thirty seven years of age. He was in a domestic relationship with a New Zealand woman. He has one child of the relationship. His domestic partner has three children by a previous relationship.
9 The plaintiff migrated to Australia in 2008. He was accompanied by his domestic partner. They left their children in New Zealand for the purpose of the plaintiff and his domestic partner establishing themselves in Australia before they were reunited with their children.
10 Unhappily for the plaintiff, his domestic and social history up until the time he arrived in Australia was very troubled. He was subjected to violence at the hands of his father, who beat him. The plaintiff's mother showed indifference to him, to the extent that she said to the plaintiff that she wished she had never had him. He was sexually abused when he was very young. The plaintiff's early life was a ragged one littered with criminal conduct, abuse of alcohol and illicit drugs, and domestic violence in his own domestic relationship.
11 Despite having a poor start to life, the plaintiff reached Year 10 at secondary school. He left part of the way through that year. He subsequently obtained work as a labourer with the Hastings District Council in New Zealand, working in road maintenance. He worked in that occupation not long after leaving school up until July/August 2006. He subsequently obtained work with another Council doing similar work. He continued in that work until about the time when the decision was made to migrate to Australia. After settling in Australia, the plaintiff worked as a labourer in the construction industry and also in factory work.
The Transport Accident
12 On 3 July 2009, the plaintiff drove his car into a roundabout. A taxi entered the roundabout at high speed from his left. It failed to give way to the plaintiff and collided into the passenger side of the plaintiff's car.
The Plaintiff's Injuries and Medical Treatment
13 The plaintiff was removed from the scene of the transport accident by ambulance. He was initially admitted to the Dandenong Hospital. He underwent a number of x-ray investigations. He was found to have a fracture of the fourth metacarpal of his right hand, and a fracture of the right C6 articular facet in his neck.
14 His neck was placed in an Aspen collar. A plaster backslab was applied to his right wrist to treat the fracture. On 4 July 2009, he was transferred to The Alfred Hospital. He continued to be treated for the injury to his neck conservatively by the use of the Aspen collar, and later a softer collar.
15 On 20 July 2009, the plaintiff was readmitted to The Alfred Hospital for the purpose of undergoing surgery to treat the fracture to the fourth metacarpal. Screws were inserted which are still in position. I was invited to view the plaintiff's right hand. I saw an obvious scar over the fourth metacarpal which looked to be about 3-4 centimetres in length.
16 The plaintiff subsequently had hand therapy for about two months following surgery. He was reviewed at The Alfred Hospital, which included a CT scan which was taken of his neck on 30 September 2009 which showed that the fracture was healing. It was at that stage that the Aspen collar was replaced by the soft collar.
17 The plaintiff was advised to avoid any contact sports for some time. Otherwise his treatment was conservative. He has had acupuncture and chiropractic treatment for the pain he has experienced in his neck, right shoulder and arm from about September 2009 to about April or May 2011.
18 Following his discharge from The Alfred Hospital, the plaintiff's principal treatment was undertaken by Dr Wang, general practitioner. The plaintiff first saw Dr Wang on 13 July 2009. The plaintiff last saw him on 31 January 2010. At that stage Dr Wang noted some improvement in the pain the plaintiff was experiencing in his neck, but that there was persisting neck pain with stiffness and pain in the plaintiff's right arm. Dr Wang was of the opinion that the plaintiff was unfit for any work at the time he wrote a report dated 3 March 2010,[1] and that he needed to undergo rehabilitation before he could anticipate returning to light duties.
[1]PCB 63-65
19 Since 2011, the plaintiff has lived with his brother in a suburb of Sydney. Since the last having acupuncture or chiropractic treatment he has not had any other medical or paramedical treatment, nor has he resorted to the use of any painkilling or anti-inflammatory medication. I gained the impression that he does not have a family doctor or much of an insight into what treatment he could pursue to rehabilitate himself and to treat himself symptomatically.
The Cross-Examination
20 Mr Masel cross-examined the plaintiff about his early life in New Zealand and the unhappy relationship he had with his mother and father. He admitted that his relationship with his mother and father was unhappy; that he was placed in boys’ homes at various times while in New Zealand, and that he was sexually abused when he was very young. Mr Masel also cross-examined the plaintiff regarding his criminal conduct in New Zealand and in Australia, and his resort to the use of alcohol and illicit drugs.
21 The plaintiff admitted that while working for the Hastings District Council he became part of a drinking culture. I gained the impression that he drank frequently and probably excessively at times. He also admitted resorting to the use of cannabis when he was much younger, and I gained the impression that his use of cannabis persisted beyond those early years and into his later years.
22 The plaintiff admitted that he had been convicted of crimes relating to theft and burglary in New Zealand. He admitted to a number of driving offences which occurred in about February 2009, comprising careless driving; leaving the scene of an accident, and exceeding .05 per centum, for which he was convicted and fined in about October 2009. His licence was cancelled and he was disqualified from obtaining a licence for fifteen months. He is now the holder of a current driver's licence.
23 The plaintiff admitted that during his relationship with his former domestic partner there was domestic violence.
24 Despite allegedly giving Dr Kornan, psychiatrist, a history of excessive use of illicit drugs, including cannabis, amphetamines and ecstasy, he denied that the history he gave was true.[2] He swore a third affidavit in which he explained why he gave that history to Dr Kornan, and in his oral evidence he said that he gave him that history to get out of Dr Kornan’s consulting rooms as quickly as he could.
[2]PCB 86
25 The plaintiff gave histories to Dr Kornan, Dr Epstein, psychiatrist,[3] and to Dr Entwisle, psychiatrist,[4] of many of the matters just referred to. The impression I was left with was that the plaintiff had a shocking domestic history in which the abuse of alcohol and illicit drugs had been a part.
[3]PCB 78-84
[4]DCB 7-12
26 It struck me as extraordinary that the plaintiff gave a history to Dr Kornan that he is presently using a large volume of illicit and dangerous drugs just for the purpose of bringing the consultation to a speedy end. I do not accept the plaintiff's evidence in whole. I think he is someone who has resorted to the use of illicit drugs.
27 It was my impression of the plaintiff that he is a simple, relatively unintelligent and unsophisticated man. I accept his evidence that he does not have a sophisticated working knowledge of serious injury applications. I also accept his evidence that he does not understand how the system operates and the purpose served by attending medico-legal examinations.
28 The purpose served by the cross-examination on all these matters was ultimately revealed by Mr Masel in his submissions. He submitted that the plaintiff had suffered depression due to his unhappy past, and that was playing a part in producing an incapacity for work.
29 Furthermore, Mr Masel submitted that the plaintiff had pre-existing problems with his hips and his lower back which were likewise likely to be playing a part in incapacitating him for work.
30 In the end, he submitted that the major platform upon which the plaintiff put his case that he cannot return to heavy labouring work is without foundation, because the combination of depression and the problems he has with his hips and lower back would prevent him from engaging in heavy labouring work if the transport accident had not occurred.
The Plaintiff's Evidence
31 The plaintiff was previously a fit and active man. He must have been to have been able to sustain labouring work in road maintenance for all those years while in New Zealand, and in labouring and factory work in Australia.
32 The inference which I draw from the plaintiff's history of employment is that whatever the degree of the plaintiff's abuse of alcohol, illicit drugs and depression and problems with his hips and lower back, they were not sufficient, either individually or in combination, to prevent him from working in heavy labouring work.
33 The plaintiff was not challenged regarding his description in his affidavits that he played rugby in amateur competitions in New Zealand. Nor that he engaged in a gym program after he arrived in Australia, attending some three times per week. Nor that he was interested in gardening, going to his local library and socialising with friends and family.[5]
[5]PCB 15-17
34 At present the plaintiff says that he has constant pain in his neck. His ability to move his neck freely is reduced. His ability to get off to sleep and have a reasonable night’s sleep is impaired. He has pain which radiates from his neck into his shoulders. He has headaches intermittently during the day.
35 At present the plaintiff says that he has pain from the time he gets up in the morning in his right hand to the time he goes to bed. It is clear from the medical reports that he has reduced grip strength in his right hand. He says he has pain when he makes a fist and uses tools, such as a shovel and other gardening equipment. Helping his brother in his garden causes more pain in his hand.
36 As a consequence of suffering this degree of neck pain he is unable to engage in the activities which I have summarised above, and likewise in relation to the injury to his right hand. It should be noted that he is left hand dominant.
37 The plaintiff denied that if the transport accident had not occurred that his previous problems with abuse of alcohol and illicit drugs and problems with depression and his hips and lower back would have prevented him from continuing to work in heavy labouring work.
38 I accept the plaintiff's evidence that the consequences which I have summarised above, and which are referred to in greater detail in his affidavits, are consequences which he suffers as a direct result of the injuries to his neck and right hand.
The Medical Evidence
39 There is a fair amount of historical medical evidence in the PCB, none of which is exceptional, and was not the subject of any particular comment by the Mr Masel or Mr Mighell.
40 Both Mr Masel and Mr Mighell concentrated their addresses on the subject of the plaintiff's past history, and the opinions of Professor Myers, vascular surgeon, Mr Stapleton, plastic surgeon, and Mr Dooley, orthopaedic surgeon.
41 I will turn firstly to the opinion of Mr Dooley. He seems to have concentrated largely on the injury to the plaintiff's neck. He examined the plaintiff on 11 January 2012. On examination, he noted the following:
"Flexion is to thirty degrees and extension is to thirty degrees. Lateral flexion to the left and to the right is to twenty degrees. Rotation to the left and to the right is to sixty degrees. Mr Henry notes neck pain with these movements."[6]
[6]DCB 14
42 Mr Dooley must have accepted that the results of his physical examination of the plaintiff were reliable, because he then described the loss of neck function to be “mild to moderate”. He added that he would expect that the plaintiff would have intermittent neck pain and shoulder girdle pain and that he would note some stiffness in his neck.
43 In relation to the plaintiff's capacity for work, he said that the plaintiff would note some difficulty with a lot of heavy physical work. He believed that the plaintiff was fit to return to labouring-type work which he considered should be combined with some supervisory and project management-type work. He put the latter into context when he then said that the plaintiff had the capacity to work as a construction manager and traffic manager; that it would be difficult to be sure whether the plaintiff could work full-time as a heavy machine operator or construction rigger, and that it would be sensible for the plaintiff to pursue work with modifications.[7]
[7]DCB 16-17
44 Professor Myers’ opinion differs from that of Mr Dooley in that he was of the opinion that the plaintiff was unsuited to labouring work. However, that opinion initially appeared to have been based upon an aggregation of what Professor Myers considered to be injuries suffered by the plaintiff in the transport accident; namely, to the neck; to the lower back; specific injury to left shoulder; the right hand, and an injury to both hips.[8]
[8]PCB 98-99
45 In a subsequent report, Professor Myers was asked to consider the injury to the plaintiff's neck alone. He expressed the opinion that the injury to the plaintiff's neck would be sufficient to prevent him from returning to work as a labourer because such work would worsen the pain in his neck and would result in further strains on the degenerative intervertebral discs in his neck.[9]
[9]PCB 104a
46 In relation to the injury to the plaintiff’s right hand, Mr Stapleton found that the disparity in grip strength on the left side was 38 kilograms and on the right side was 26 kilograms. On that basis, and also on the basis of his overall examination of the plaintiff, he did not believe that the plaintiff would be able to engage in heavy labouring work or work of a repetitive kind and that the plaintiff should consider a career change.[10]
[10]PCB 71-72
47 Mr Dooley said remarkably little about the plaintiff's right hand, merely making a passing reference that on examination, the plaintiff had a normal range of motion and that he would expect that he would have occasional right-hand pain. It is clear from that opinion that his opinion regarding the plaintiff’s capacity for work was based upon the injury to the plaintiff's neck.[11]
[11]DCB 15-16
Matters of Principle
48 It is abundantly clear to me from Humphries v Poljak [12] and Cropp v Transport Accident Commission[13] that the oft quoted passage in Humphries v Poljak can mistakenly be applied as if it is a statutory formula, when the test has always been whether the applicant for serious injury has suffered a “serious long term impairment or loss of a body function”. The oft quoted passage must be seen for to what is, and that is, guidance in the interpretation of the narrative test.
[12][1992] 2 VR 129 at 140
[13][1998] 3 VR 357 at 359
49 Part of the guidance which I think is particularly relevant to the plaintiff's case is the observation by the majority that the consequences of the injury must be serious to the particular applicant, and that the consequences will relate to pecuniary disadvantage and/or pain and suffering.
50 Furthermore, Mr Mighell referred me to the observations of Ormiston JA in Cropp[14] regarding the significance of the plaintiff's evidence that he cannot return to his former occupation in heavy labouring work, and acceptance by Professor Myers and Mr Dooley of that fact. Ormiston JA observed that an inability to earn any income or an inability to return to one's former income will more often than not have the effect of characterising an impairment or loss as serious.[15] Mr Mighell submitted that those observations are relevant here because the plaintiff has not been able to return to his former occupation, and therefore, his former income, and is unlikely to.
[14]at 361
[15]at 360-361
51 It seems to me that the observations of Ormiston JA create the proper context in which I should consider the plaintiff's evidence that he cannot return to his former occupation and is now limited to the likelihood of undertaking light labouring or factory work which, I infer, would be work which would not place unreasonable strain on his neck, or require forceful repetitive use of his right hand.
52 Mr Masel submitted that I could not be satisfied that the consequences to the plaintiff in terms of pecuniary disadvantage and/or pain and suffering are long-term. The principal basis upon which he made that submission was directed to the opinions of Dr Wang, Dr Thomas, consultant in rehabilitation, and Mr Dooley, all of whom expressed the opinion that the plaintiff needed rehabilitation and might be in a better position physically to re-enter the workforce after a program of rehabilitation. However, that submission is premised upon the program of rehabilitation being successful. It might not be. There is no evidence which satisfies me with any degree of certainty that with the rehabilitation referred to, that the plaintiff will be any better off.
Findings
53 I am satisfied that the plaintiff suffered a major injury to his neck which required the use of a special neck brace to immobilise it, and subsequently the use of a softer neck brace for some time.
54 I am satisfied that the plaintiff continues to suffer from pain in his neck and the loss of ability to move his neck freely. I am fortified in reaching the latter conclusion by reason of the findings made by Mr Dooley on examination of the plaintiff's neck and the conclusions reached by him that the extent of the loss of plaintiff's neck function is mild to moderate, and also by the similar findings made by Professor Myers.
55 I am satisfied that the plaintiff was a fit healthy man before he suffered injury in the transport accident. I am fortified in reaching that conclusion because he was able to meet the demands of heavy labouring work over a significant period of time prior to the occurrence of the transport accident. As I have already observed, it is difficult to appreciate how he could have done that if he was weighed down by any significant pre-existing disabilities.
56 I am satisfied that the plaintiff is not fit for heavy labouring work. I think that is entirely consistent with the evidence of Mr Dooley and Professor Myers in connection with the injury to the plaintiff's neck.
57 Neither Mr Dooley nor Professor Myers have considered that the plaintiff's lack of medical treatment is of any particular significance. Mr Masel submitted that the lack of medical treatment must point to the plaintiff being able to tolerate the pain and loss of movement in his neck. The plaintiff has not seen a medical practitioner for some time nor is he in receipt of any prescription for painkilling or anti-inflammatory medication. I do not think that the lack of medical treatment of itself militates against a finding that the consequences to the plaintiff are serious.
58 I reject the submission made by Mr Masel that I should assume that if the plaintiff had the rehabilitation, that he would be in a significantly better physical condition with less pain in his neck and greater mobility in his neck.
59 In the end I am satisfied that the plaintiff suffered a major injury to his neck which required a significant degree of treatment for the purpose of stabilising the injury, leaving the plaintiff with a persisting injury which has caused him pain and loss of movement which has impaired his capacity to engage in social, domestic and recreational activities, and has incapacitated him for heavy labouring work.
60 The plaintiff may well be fit for light labouring or factory work, but inevitably that would be significantly different in the physical demands it would make of the plaintiff, and would almost inevitably result in loss of earnings.
61 I am not satisfied that any of the other conditions, whether physical or mental, which were pre-existing are relevant to the task which I must undertake, which is to determine whether the injury to the plaintiff's neck has resulted in an impairment of function with consequences which are serious.
62 In the circumstances, I am satisfied that the plaintiff did suffer an injury to his neck which has resulted in an impairment of the function to his neck which is both long-term and serious. It becomes unnecessary for me to consider whether the injury to the plaintiff's right hand is also serious.
Orders
63 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law to recover damages for the injuries he suffered as a result of the transport accident.
64 After discussion with Counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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