Hollis v Transport Accident Commission

[2011] VCC 502

IN THE COUNTY COURT OF VICTORIA Revised

Unrestricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-09-04865

VAUGHAN HOLLIS	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	21 and 22 March 2011
DATE OF JUDGMENT:	5 April 2011
CASE MAY BE CITED AS:	Hollis v TAC
MEDIUM NEUTRAL CITATION:	[2011] VCC 502

REASONS FOR JUDGMENT

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Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986 – serious injury – permanent serious disfigurement – scar on inner aspect of left leg – ambit of evidence upon which the Plaintiff is entitled to rely.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J H Mighell SC and	Salter & Gordon Ltd
Mr N D Horner
For the Defendant	Mr P B Jens with	Solicitor for the Transport
Mr R H Stanley	Accident Commission
HIS HONOUR:

1 In this proceeding, the plaintiff brings an application pursuant to the provisions of s.93 of the Transport Accident Act (“the Act”) for leave to commence proceedings seeking damages in respect of injuries sustained by him in a transport accident which occurred on 26 May 2004.

2 The application is made under sub-paragraph (b) of the definition of “serious injury” set out in s.93 (17) of the Act, namely permanent serious disfigurement. The disfigurement the subject of the application involves that associated with a scar located on the inner thigh of the plaintiff’s left leg.

The Ambit of the Application

3          An issue which arises for my determination in this application involves the ambit of the evidence upon which the plaintiff is entitled to rely in the course of this application.

4          Whilst it is clear that the plaintiff in an application of this type is entitled to adduce evidence additional to that necessary for the purpose of establishing the nature of and permanence of a scar,[1] it is equally clear that the purpose of the Act is to differentiate between three categories of injury and that it is inappropriate, in an application brought under paragraph (b) of the definition of “serious injury” in s.93 (17), to take into account evidence which is relevant to the consequences associated with an injury appropriately categorised under either paragraph (a) or paragraph (c) of that definition .

[1]             See Ingram v Ingram [1996] 2 VR [427]

5          It was, I think, with this in mind that the Court of Appeal in Ingram v Ingram[2] stated that whilst evidence of the “psychological dimension” of a disfigurement is to be taken into account when determining the question as to whether the disfigurement is appropriately described as being “serious” within the meaning of the Act, it is equally clear that mental or behavioural disturbances are primarily to be considered by reference to paragraph (c) of the definition of “serious injury” in s.93(17) rather than by reference to paragraph (b) of that definition.

[2]             supra

6          In my opinion, the approach which I should take in this application is guided to some extent by the decision of the Court of Appeal in Richards v Wylie,[3] in which the Court accepted that evidence as to the emotional reaction associated with an organic injury may be taken into account in assessing the consequences associated with that organic injury.

[3] [2000] VSCA 50

7          In the course of his reasons for judgment in that matter, Winneke P commented:

“If, as a result of an injury, a person loses a limb, it will, no doubt, often occur that one of the consequences of such a loss or impairment will be the development of a mental response to that impairment or loss. That is one of the consequences which, along with others, the Court will need to evaluate in determining whether the loss or impairment of a body function, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as ‘serious’ … Such a response, as I see it, would be an expected consequence of an impairment or loss of a body function of the sort to which I have referred. … Thus, the ‘serious injury’ defined by sub-paragraph (a) of sub-s.(17) can, I think, have its seriousness measured in part by a mental response to a physical impairment. What it will not recognize is that the mental disorder can itself constitute or be the producer of the impairment of a body function.”

8          In my opinion, the approach taken in Richards v Wylie provides guidance as to the ambit of the evidence upon which the plaintiff is entitled to rely in the present application in demonstrating the consequences to him of his disfigurement.

9          I am satisfied that, insofar as the plaintiff wishes to adduce evidence of the psychological dimension of his disfigurement, such evidence is admissible if it is appropriately characterised as being an expected consequence of that disfigurement, rather than arising by reason of a discrete mental disorder which, by itself, produces an impairment of body function.

10        Equally, I am of the opinion that organic symptoms experienced by the plaintiff in association with the presence of his disfigurement may be taken into account if they are appropriately characterised as being an expected consequence of the disfigurement but not if they are a product of a physical injury which, by itself, produces an impairment of body function.

11        In this application I am therefore satisfied:

(i)

Insofar as the plaintiff seeks to rely upon evidence as to the sensitivity associated with the surface of the scar itself, he is entitled to do so;

(ii)

Insofar, however, as the plaintiff wishes to rely upon symptoms which arise by reason of the lesion which has been occasioned to the obturator nerve of his left thigh which results in dysaesthesia in the distribution of the medial part of the nerve, I am of the opinion that this injury is appropriately characterised as falling within the category of organic injuries, the consequences of which are required to be assessed pursuant to the provisions of sub-s.(a) of the definition of “serious Injury” in s.93(17), rather than being appropriately categorised as a consequence of the plaintiff’s disfigurement. For this reason, I am of the opinion that in deciding this matter I should exclude any evidence as to the consequences associated with that injury.

The Evidence in the Application

12        In the application, the plaintiff relies upon two affidavits sworn by him, the first sworn 1 January 2009 and the second sworn 15 March 2011. In addition, the plaintiff attended for cross-examination. Otherwise, the parties rely on medical reports tendered by them.

13        In his first affidavit, the plaintiff deposed that between November 1987 and March 2001 he had been involved in a number of motorcycle accidents of varying severity and that he had suffered injuries in those accidents which included fractures to bones; internal injuries; injuries to his spine; a head injury; and scarring to various parts of his body. He described the injuries sustained in the transport accident the subject of this application as having aggravated his previous injuries and in addition, as having caused the scar which is now present on his left thigh. With respect to this scar, the plaintiff deposed as follows:

“The scar is approximately 8-centimetres long and is discoloured. I am embarrassed about my scar to my left thigh. I am very self-conscious and embarrassed about the appearance of the scar. I used to be a keen surfer, but now I avoid swimming and wear knee-length shorts to cover the scar on my left thigh. The scar is extremely tender and I cannot tolerate any light touch in the area. As a consequence, I wear particular clothing to avoid contact with the scar. I found that riding motorcycles is difficult as the scars (sic) in my inner left thigh rubs against the motorcycle’s petrol tank causing pain and discomfort.”

14        In his second affidavit sworn 14 March 2011, the plaintiff deposed that:

•  the scar to his inner left thigh continued to be tender and sensitive and that he remained self-conscious and embarrassed about the appearance of the scar;

•  he attempted to conceal the scar by wearing long shorts or trousers wherever possible and that he was required to wear loose fitting clothing which would avoid contact with the scar;

•  any contact with the scar, including being bumped in the scar area, caused him to experience sharp pain;

•  by reason of both increased anxiety and the discomfort which he experienced in association with the scar, he had limited his motorcycle riding;

•  notwithstanding he had scarring from his previous accidents:

“… the disfigurement to my left inner thigh is the most noticeable and prominent. I am most embarrassed about this scar and as a result it has continued to affect my activities of daily living.”

15        In the course of the application, the plaintiff gave the following evidence:

•  the sensitivity of his scar affected his sleep pattern, particularly in hot weather when he was woken up by either his legs rubbing together or contact between his inner thigh and his sheet;[4]

•  he avoids wearing tight clothing as his scar is very sensitive to accidental contact;[5]

•  the appearance of the scar is more vivid in warmer weather. The plaintiff described it as being:

[4]             T 11

[5]             T 12

“… pinky red – a lot more vivid. There’s a few little veins around it that

are very pronounced”.[6]

[6]             T 13

• the presence of the scar adversely affected his confidence and the plaintiff considered this to be relevant in his not having a partner at the present time;[7]

• the presence of the scar made him feel self-conscious and awkward;[8]

• he had derived great enjoyment from riding motorcycles and, although he owned three motorcycles, he had hardly ridden them for the last few years. In explaining his position in this regard, he said:

[7]             T 13

[8]             T 14

“I get irritation from the leg; can’t seem to find a comfortable
position on the bike, so just put it to one side”.

16        In cross-examination, the plaintiff described the presence of extensive scarring in association with his 2001 accident. He accepted that whilst five years ago he considered the scarring associated with his previous accident to be adversely affecting his personal relationships, he was presently of the opinion that the scar to his inner thigh was a more significant problem in that regard.[9]

[9]             T 24-25

17        He accepted that, following the 2004 accident:

“He was frightened of undertaking motorcycle courier work, and suffering

further injuries.”[10]

[10]           T 40

18        However, he maintained that a continuing factor which prevented him from riding a motorcycle was the sensitivity which was present at the scar site which was exacerbated by the scar site coming into contact with the motorcycle tank.[11]

[11]           T 41

19        He said that the problem he experienced in riding his road bike, was that the road bike had a bigger tank, that his leg:

“… sits against that tank, so that presses on the wound, that’s why the

dirt bike’s more favourable, you stand up – stand up the whole time.”

and that whilst he continued to occasionally ride his dirt bike, he was riding his dirt bike a lot less than before and probably had not ridden it all through 2010.[12]

[12]           T 49

20        He described the frequency with which he rode a motorcycle in the following terms:

“A: My riding has cut down, if you look over the last 20 years, to virtually non-existent now, and only on a dirt bike occasionally in which I would say in the last three years has been three times.

Q:	And you’re quite comfortable on the dirt bike?---
A:	I used to be. I used to really like it. I wouldn’t give it – that now, because you’ve got (indistinct) to stay in tune, so I haven’t done that, so I. ---

Q: You didn’t stop because the injury to your left thigh riding a dirt

bike?---

A: Yes.

Q:	I suggest you didn’t?---
A:	No, it was – it was one of the main factors for sure.”

21        He accepted that as a result of the 2004 motor vehicle accident, he had soreness in his left knee which, in addition to his thigh, caused him problems in gripping his motorcycle[13] and that he had told the psychiatrist, Dr Glazener, in 2006 that his reluctance to ride a motorcycle was “a mental thing”.[14]

[13]           T 56

[14]           T 56

22        He agreed that following his accident in 2001, he had not been surfing, nor had he had a personal relationship.

23        He said that the impact of the scarring associated with his 2001 accident was less than that associated with the scarring the subject of the present application. He said that it had always been his habit to wear a T-shirt and board shorts when he was on the beach and that this clothing effectively covered the scarring caused by his 2001 accident. He said, however, that the scar on his inner thigh was more of a problem for him when he went to the beach as it was sometimes visible when his board shorts rode up, and this made him feel uncomfortable.[15]

[15]           T 58 – 61

24 Whilst knee pain and pelvis pain had affected his enjoyment of motorcycle riding some six years ago, those factors were not as significant at the present time,[16] and he maintained that:

“Most recently it has definitely been the scarring, the – it hasn’t enabled – allowed – you know, gripping the seat. The knee has just by time going by got a little bit more movement and so has the ankle.”[17]

[16]           T 64

[17]           T 66

The Medical Evidence

25        Mr John Anstee, plastic and reconstructive surgeon, in a report dated 5 October 2006, described the scar present on the plaintiff’s inner left thigh as measuring 80 millimetres x 50 millimetres as involving a contour defect of 5 millimetres. He described the scar as being stable, and expressed the opinion that he had no reason to doubt the plaintiff’s statement that the presence of the scar made riding on his motorcycle more difficult.

26        In a report dated 5 March 2011, Professor Mark Cook, neurologist and epileptologist, opined that the plaintiff suffered from painful dysaesthesia involving the medial thigh on the left which was “unpleasant to light touch”[18] in the distribution of the medial part of the femoral nerve. He described this as being present around and below the scar to his left thigh and as extending down to the level of his knee.

[18]           PCB 48-50

27        In a report dated 17 July 2006, Dr Bruce Hocking, a specialist in occupational medicine, took no issue with a statement made by him by the plaintiff that the plaintiff felt he was unable to return to work as a courier rider due to the sensitivity and pain in his thigh.[19] I note, however, that the plaintiff deposed in his first affidavit that he had returned to work after his 2001 accident with ongoing difficulty and that:

“… although the injury sustained in the transport accident in 2004 rendered me incapacitated for employment and had done so for some time, the injury sustained in the transport accident in 2001 would have rendered me incapacitated for employment in any event. Therefore I believe that I am entitled to ongoing loss of earning capacity benefits from the TAC as the result of the transport accident in 2001.”[20]

[19]           PCB 73

[20]           PCB 12

28        In a report dated 18 July 2006, Dr William Glaser, consultant psychiatrist, obtained a history from the plaintiff that after the 2004 motor vehicle accident, he had not been able to resume his motorcycle courier duties as, due to the soreness of his left knee and thigh, he was unable to grip the motorcycle firmly enough with his legs, but that, quite apart from these restrictions, his reluctance to ride a motorcycle was more than likely a mental thing.[21]

[21]           PCB 83, 84

29        In a report dated 9 February 2007, Associate Professor Donald Marshall, a plastic and reconstructive surgeon, described the scar which was present on the medial aspect of the plaintiff’s left thigh as being 9 centimetres long and 4 centimetres wide and involving a loss of underlying subcutaneous tissue so that the scar was attached to the deeper tissue. He described the scar as being stable but fragile and accepted that the plaintiff would be required to wear particular clothing to avoid contact with the thin skin associated with the scar.[22]

[22]           PCB 138-139

30        Other than with respect to these reports, the balance of the medical material tendered by the parties is largely irrelevant having regard to the ruling which I have made as to the breadth of the material which may be relied upon by the plaintiff in the course of this application.

Findings

31        In the course of the trial, I viewed the scar the subject of this application. The dimensions of the scar are as described by both Mr Anstee and Associate Professor Marshall. The effect of the puckering of the skin of the scar and the defect in the contour of the thigh caused by the scar, associated with what Associate Professor Marshall described as the loss of underlying subcutaneous tissue, in my opinion, makes the scar obvious and unsightly. Whilst a photograph of the scar taken by Mr Anstee appears at PCB 44, this photograph does not, in my opinion, appropriately depict the actual appearance of the scar. The photograph fails to depict the difference between the colour of the scar and its adjacent skin. This difference, in my opinion, is significant and draws attention to the scar. Neither does the photograph adequately illustrate the effect of the difference in contour between the scar and its skin. This difference, in my opinion, also highlights the presence of the scar and adds to the cosmetic deformity associated with the scar.

32        Further, I accept the plaintiff’s evidence that the scar is more prominent in warm weather.

33        The location of the scar on the inner aspect of the plaintiff’s left thigh is such that the presence of the scar is not detectable when the plaintiff is clothed. In this sense, the effect of the disfigurement is considerably reduced in the course of day-to-day life.

34        It is the defendant’s position that the plaintiff’s decision to no longer ride his road-based motorcycle and the discomfort he feels as to the appearance of his body is contributed to, not only by the scar associated with this accident, but also the scarring associated with the plaintiff’s previous accidents. In a similar way, the defendant submits that the evidence given by the plaintiff that the tenderness caused by the scar has influenced him to effectively abandon riding his motorcycles, is largely caused by the injury occasioned to the plaintiff’s obturator nerve and the plaintiff’s emotional reaction to the accident rather than the sensitivity which is present at the scar site.

35        In making findings as to the consequences associated with the plaintiff’s disfigurement, I am satisfied that I should adopt the approach espoused by Ashley JA in Dressing v Porter[23] in which his Honour observed:

“In concluding that the appellant had not established that his then inability to work, and his daily restrictions and limitations, were due to his neck injury, it may be, I put the matter no higher, the judge approached the matter from an incorrect standpoint. What his Honour had to do was to decide what symptoms afflicted the appellant in consequence of his compensable injury, and with what effect. If, by reason of pain and suffering consequences the compensable injury met the serious injury test, it was beside the point that some other condition might also have satisfied the test by reason of its pain and suffering consequences. His Honour’s reasons rather suggest that he approached the matter on the footing that there must only be one condition which could satisfy the test.”

[23] [2006] VSCA 215 (17 October 2006)

36        Applying this approach to the evidence, I am satisfied that the plaintiff has established that:

(i)  The sensitivity which is present in his scar is a cause of:

• the plaintiff’s decision to effectively abandon riding his road-based motorcycle and to significantly reduce his riding of motorcycles altogether, notwithstanding the fact that the emotional factors also play a role in this decision. Further, I am satisfied given the plaintiff’s long history of motorcycle riding, that this was an activity from which he derived considerable pleasure.

• the plaintiff being generally precluded from wearing tight clothing so as to avoid contact between the scar and his clothing;

(ii)     The appearance of the scar is a cause of:

• the plaintiff choosing clothing which hides the scar in hot weather and generally;

• the plaintiff feeling self-conscious about the appearance of his scar which in turn impacts upon his attitude towards entering personal relationships, having regard to the position of the scar. In this respect however, I take into account the fact that the scarring associated with the plaintiff’s previous accident also had a similar effect, and that the plaintiff has not had a personal relationship since his 2001 accident.

37        The determination of the issue as to whether a scar involves a permanent serious disfigurement is a process which is, by its nature, one in respect of which little guidance can be gained from other cases. As in all cases of this type, I am cognisant of the fact that the task which I am required to undertake is one which involves a value judgment in which matters of fact, degree and impression are operative.

38        I accept the position put by Mr Mighell SC, on behalf of the plaintiff, that the scar is an unsightly disfigurement and that it has affected the plaintiff in the manner in which I have described.

39        When I take into account the fact:

(i)	that the scar has not impacted upon the plaintiff’s ability to earn income and, more relevantly,
(ii)	that in day-to-day life the scar can be completely concealed by the choice of appropriate clothing with the result that the scar is only visible when the plaintiff is disrobed;

I am of the opinion, notwithstanding the considerable consequences associated with the plaintiff’s disfigurement; that whilst it is appropriate to describe the consequences of the disfigurement associated as being significant and marked, it is not appropriate to describe them as being more than “significant” or “marked” and as being “at least very considerable”.

40        In these circumstances, I am not satisfied that the plaintiff has established his entitlement to the leave he seeks.

41        I will hear the parties as to any application for costs.

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