Hooley v Transport Accident Commission
[2019] VCC 150
•21 February 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-18-03167
| BLAKE HOOLEY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 February 2019 | |
DATE OF JUDGMENT: | 21 February 2019 | |
CASE MAY BE CITED AS: | Hooley v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 150 | |
REASONS FOR JUDGMENT
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Subject: Serious Injury Application
Catchwords: Transport accident - Application for leave to commence proceedings for pain and suffering including pecuniary disadvantage damages – paragraph (a) and (b) of the definition of ‘serious injury’ – injury to left upper limb – disfigurement involving deformity and scarring of left upper limb
Legislation Cited: Transport Accident Act 1986 (Vic); Accident Compensation Act 1985 (Vic)
Cases Cited:Humphries v Poljak (1992) 2 VR 129; Taveres v Taveres (2003) 6 VR 577; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Mazevska v Transport Accident Commission [2014] VSCA 178; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Ingram v Ingram & Anor (1996) 2 VR 435; Baker v Transport Accident Commission & Anor (1997) 1 VR 662; Transport Accident Commission v Garcia [2015] VSCA 225; Richards & Anor v Wylie (2000) 1 VR 79; WilliamSalisnee Richards v Transport Accident Commission [2017] VCC 620
Judgment: Application for leave dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Brett QC with Ms C. Kusiak | Arnold Thomas & Becker |
| For the Defendant | Mr P. Jens QC with Ms A. Wood | Transport Accident Commission |
HER HONOUR:
Introduction
1 I propose to dismiss the application of the plaintiff, Blake Hooley to commence proceedings pursuant to section 93(4)(d) of the Transport Accident Act 1986 (Vic) (the Act) to recover damages for injury sustained to his left upper limb when a passenger in a motor vehicle involved in a collision on 5 October 2013 (the transport accident).
2 The plaintiff is 27 years of age. He completed his formal education to Year 11. When injured the plaintiff was in his final year of a plumbing apprenticeship with a heating and cooling contractor. He went on to complete his qualification to become a plumber following the transport accident. The plaintiff has been employed full-time by a plumbing and drainage contractor since 2015. He currently works mainly in drainage as a crew leader in charge of two crew members.
3 Before and since the transport accident the plaintiff regularly worked out at a gymnasium. He and his partner of three and a half years met at a gymnasium. They are in the throes of finalising plans for construction of their new home.
4 Leave was sought under paragraphs (a) and (b) of the definition of ‘serious injury’ in respect to impairment and disfigurement respectively involving the left upper limb.
5 Paragraph (a) of section 93(17) of the Act defines ‘serious injury’ as: ‘serious long-term impairment or loss of body a function’, whereas paragraph (b) defines ‘serious injury’ as: ‘permanent serious disfigurement’.
6 Judgments delivered since the majority of the Full Court in Humphries v Poljak,[1] observed that interpretation of the expression ‘long-term’ under paragraph (a) of the definition was unlikely to cause difficulty, have concluded that “far reaching” represented an appropriate synonym for long-term.[2] I proceeded on this basis for the purpose of the application under paragraph (a). Whereas for paragraph (b), in the absence of any authoritative interpretation of the expression ‘permanent’ specific to the Act, I relied on the meaning ascribed to ‘permanent’ by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[3] –an injury that will persist “through the foreseeable future” - in the context of the definition of a work-related serious injury under the Accident Compensation Act 1985 (Vic).[4]
[1] (1992) 2 VR 129, 140.
[2]Taveres v Taveres (2003) 6 VR 577, [71].
[3] (2005) 14 VR 622, [111].
[4]Section 134AB(37).
7 The seriousness of an impairment or disfigurement is determined by whether the pain and suffering and loss of enjoyment of life consequence, including any pecuniary disadvantage consequence, “when judged by comparison with other cases in the range of possible impairments or losses, (can) be fairly described at least as “very considerable” and certainly more than “significant” or “marked””.[5]
[5]Humphries v Poljak (1992) 2 VR 129, 140.
8 The plaintiff also relied on evidence of his mental response to impairment or disfigurement in the assessment of the seriousness of the impairment injury and the disfigurement injury respectively.[6]
[6]RichardsvWylie (2000) 1 VR 79, [17].
9 Extracts comprising reports from treating orthopaedic and medico-legal orthopaedic, plastic and occupational specialists were tendered from the Plaintiff’s Court Book.[7] The plaintiff also tendered and adopted the content of two affidavits sworn on 23 August 2018 and 29 January 2019 respectively.[8] He gave additional evidence-in-chief and was cross-examined and re-examined.
[7] Exhibit P1, Plaintiff's Court Book (PCB) 30 to 35, 42 to 44, 47 to 51, 54 to 57 and 64 to 68.
[8] PCB 8-12 and 71-74.
10 The Transport Accident Commission (the TAC) tendered from the Plaintiff’s Court Book a report dated 1 September 2016, prepared for the TAC by general practitioner Dr Paul Williams whom the plaintiff last consulted in August 2014.[9] The TAC also tendered extracts from the Defendant’s Court Book comprising two reports from its medico-legal orthopaedic specialist and two photographs taken on 21 January 2019 depicting the plaintiff’s left arm and scar.[10]
[9] Exhibit D1, PCB 52 to 53.
[10] Exhibit D2 and D3 respectively.
11 The plaintiff’s credit was not challenged. He impressed as a straight forward witness.
The injuries
12 Transport accident-related injury to the plaintiff’s non-dominant left upper limb involved complete rupture of the biceps tendon at the musculo-tendinous junction of the proximal biceps muscle with distal migration of the muscle.[11] On 22 October 2013, a specialist in shoulder surgery, orthopaedic surgeon Mr Russell Miller, repaired and reconstructed the ruptured tendon using a LARS synthetic ligament.
[11] PCB 43.
13 In the second of two reports tendered, Mr Miller indicated that, when last reviewed in November 2013, he believed his patient had made satisfactory progress since surgery and anticipated the injury would stabilise by approximately mid-2014.[12] General practitioner Dr Williams’ report that in late August 2014 he provided the plaintiff with a further referral to the surgeon (albeit one the plaintiff never acted on) nonetheless indicated some ongoing concern about the progress of the injury.[13]
[12] PCB 50.
[13] Exhibit D1, PCB 52
14 The plaintiff deposed that he was off work for about six months after the transport accident. It had, however, taken much longer for him to regain strength in his left arm, which came with physiotherapy treatment and gym work, and for him to return to full-time work during the last year of his apprenticeship.[14]
[14] PCB 9.
15 Recent medico-legal assessment in December 2018 by orthopaedic surgeons, Mr Ash Chehata (on behalf of the plaintiff) and Mr Graeme Doig (on behalf of the TAC) and by specialist in occupational medicine, Dr David (also on behalf of the TAC), have indicated that the reconstruction surgery had not achieved the desired outcome. They each found the ligament readily palpable and commented on the “Popeye” appearance of the muscle.[15] That said, no doctor has suggested that further surgery would improve the appearance or function of the left upper limb.[16]
[15]PCB 66, Defendant’s Court Book (DCB) 13 and PCB 33 respectively.
[16] PCB 67, DCB 14 and PCB 33 respectively.
16 Additional to the “Popeye” appearance of the muscle, the operation has resulted in disfigurement in the form of an approximately 16 cm scar that runs lengthwise along the upper inner aspect of the left arm.
17 The plaintiff’s medico-legal specialist, plastic and hand specialist Mr Murray Stapleton, wrote in his only report dated 30 August 2017 that his examination had revealed a 16 cm scar, which Mr Stapleton believed was clearly visible when viewed from across the room and the upper part of which appeared to Mr Stapleton to be stretched and reddened. The plastic surgeon did not specifically address the question of surgical scar revision. However, I think it clear from his report in 2017, which included advice that the plaintiff’s left arm injury required no further assessment and was stabilised, that the plastic surgeon had not considered surgical revision an option in this case.[17]
[17] PCB 56.
18 The TAC did not dispute that the plaintiff suffered injury involving rupture of the biceps tendon of the left upper limb resulting in long-term impairment of the left upper limb (the impairment injury) and permanent disfigurement involving the “Popeye” appearance of the muscle and scarring (the disfigurement injury). As I understood the case advanced by the TAC at hearing the contest was confined to whether the consequences of the impairment injury or of the disfigurement injury, in each instance, could be fairly described as a serious injury under the Act.
The impairment injury under paragraph (a)
19 The plaintiff is clearly an individual who, before and since the transport accident, has enjoyed outdoor activities as well as regular gym work outs. He said that pre-injury his life had been focused on completing his apprenticeship, attending the gym and socialising.
20 Doctors have generally accepted, as I have, that the plaintiff likely suffered from a range of symptoms secondary to and likely long-term consequences of the left arm injury. These symptoms involved cramping, muscle fatigue and loss of strength in association with the use of tools, particularly the range of tools and equipment specific to the work of a plumber.
21 The plaintiff’s affidavit and oral evidence relating to the consequences of the impairment injury was to the following effect.
Pre-injury as compared with post-injury lifestyle and activities
22 Prior to the transport accident the plaintiff had been in his words: “into the gym work”, which had resulted in “pretty good muscle tone” and he “was quite fit”.[18] The plaintiff was, he said, fully recovered from arthroscopic surgery to both knees - to the left knee some years earlier and to the right knee three months prior to the accident.[19] He has since returned to his pre-accident regime of attending the gym 3 to 5 times per week (and now sometimes 5 days per week[20]).
[18] PCB 9-10.
[19] PCB 9.
[20] Transcript (TN) 32.
23 The plaintiff’s complaint was confined to the impact of long-term impairment of the left arm on his sporting/recreational activities and his employment options in the future should he lose or change his current job. He did not, for instance, also rely on limitations on domestic or self-care activities.
24 I have accepted the plaintiff’s evidence to the effect that he continued to try to improve the function of his left arm through strength building exercises and his gym work.[21]
[21]PCB 72.
25 One consequence of the left arm injury to which the plaintiff deposed was a reduction in his capacity to lift weights. He estimated a 10 to 15 kg difference in lifting capacity between his left and right arm.[22] Under cross-examination, the plaintiff said he normally performed 8 bench presses at the gym, lifting a total weight of about 40 kgs each time. The plaintiff agreed the bar probably accounted for about 2 kgs of the total weight with each of the weights at either end of the bar weighing 20kgs.[23]
[22] PCB 10.
[23] TN 31.
26 The plaintiff has not played football since he was 19 years of age ostensibly because of a decision to focus on completing his apprenticeship. Apparently this came about because his boss had been unhappy with the plaintiff taking a couple of days off work during the second year of his apprenticeship due to a minor football injury.[24]
[24] PCB 11 and 72.
27 The plaintiff, who described himself as: “a pretty good footballer”, said he had planned to return to football, a game his mates still played, once he qualified as a plumber. The plaintiff described an inability to return to football as: “a big loss”.[25]
[25] PCB 11.
28 As I understood the evidence, in the interval between giving up football and the transport accident, the plaintiff had commenced working on Saturdays because he could not play football.[26] This state of affairs continued even after the plaintiff completed his apprenticeship and changed employer in September 2015 without making any attempt since then to play football. The plaintiff was not, he explained, prepared to take the risk of further injury to the arm were he tackled during a football match or take the risk any further injury posed to his capacity to work as a plumber.
[26] TN 20-22.
29 Accordingly, some allowance has been made for the loss of an opportunity to return to football, albeit some years after plaintiff had ceased playing for reasons unrelated to the injury and had established an alternative regime of working on Saturdays.
30 Pre-injury hobbies had included water sports during summer, mainly water skiing, an activity the plaintiff said he had been “pretty good at” and loved.[27] However, the plaintiff’s last attempt to water ski 2 to 3 years prior to swearing his first affidavit had not been, the plaintiff said, “fun” due to muscle tightening and cramping.[28] The plaintiff also described having to give up water skiing as “a big loss”.[29] The plaintiff said, and I have accepted that, he missed this activity and, but for left-sided gripping and cramping problems, he would still be water skiing.[30]
[27] PCB 9.
[28] PCB 10.
[29] PCB 11.
[30] TN 54 to 55 and PCB 72.
31 The plaintiff has, nonetheless, retained a high level of physical fitness, no doubt due to his ongoing interest in maintaining, through regular gym work, the well-developed physique with which he presented at hearing.
32 The plaintiff retained a capacity to engage in and enjoy other sporting and recreational/social/leisure activities. These included:
· Camping, swimming in the river, at beaches (“… That’s like one of my hobbies, ...”[31]) or in pools;
· Travelling to destinations in Europe, where he went paragliding in either June or July 2016 in Austria as part of a ConTiki tour, or in Australia, where he went skydiving at Barwon Heads in January 2017,[32] or in Asia where, in keeping with his tanned appearance, the plaintiff recalled holidaying at a villa in Bali over the New Year period.[33]
· Participating in activities such as attending a nightclub, AFL football matches, weddings and birthday parties. [34]
[31] TN 29.
[32] PCB 72, TN 42 to 43 and 49.
[33] TN 49.
[34] TN 50.
33 Neither the paragliding nor skydiving activities had, the plaintiff said, placed any strain on the left arm because on both occasions he had been strapped to another person.[35]
Treatment, medication and level and frequency of pain
[35] TN 42-43.
34 In his further affidavit the plaintiff cited working with a shovel or jackhammering as activities he avoided because they involved the use of force, adding:[36]
4. ….. The cramping becomes intense and I believe that over the course of the past 6 months, I have suffered from increased fatigue and cramping in my left arm and bicep. The pain with the use of my arm generally feels the same, I just feel that my arm cramps and fatigues sooner than it used to and this is a concern for me. I am able to control it by asking other members of my crew to do the labour-intensive work.
[36]PCB 72.
35 Doctors have agreed that the left arm injury has stabilised. Whilst I have accepted that gripping activities involving the use of force were likely activities the plaintiff now avoided due to his injury, I was unable to otherwise discern, particularly from the medical evidence, any physical explanation for the plaintiff’s further claim that fatigue and cramping of the left arm and bicep had increased in the six months prior to swearing the second affidavit in January 2019.[37]
[37] Ibid.
36 As to the plaintiff’s use of painkilling medication, there was some conflict between his most recent affidavit evidence and the earlier affidavit evidence. The plaintiff has not undergone or sought treatment in the several years since he obtained the further referral to Mr Miller in late August 2014. In paragraph 19 of the first affidavit the plaintiff deposed he did not suffer from constant pain, take painkillers or undergo any form of treatment (“I just put up with it”[38]). Rather, the plaintiff described discomfort, pain and cramping when using his left arm, especially when undertaking jobs that required more forceful use of the left arm.[39] Whereas, in his recent further affidavit evidence, the plaintiff deposed as follows:[40]
6. Further to paragraph 19, medication use remains rare. I would estimate that I have taken painkilling medication no more than 3-4 times for the past 6 months. I don’t like taking painkillers, I don’t have any prescriptions for painkillers and I just put up with the pain.
[38] PCB 11.
[39]Ibid.
[40] Ibid.
37 Whilst I have accepted the plaintiff’s evidence about recent use of painkilling medications, I was not satisfied that, rather than being an indicator of the frequency and intensity of the plaintiff’s experience of activity-related pain, stoicism coupled with a professed disinclination to use medication adequately explained the plaintiff’s admittedly very limited use of medication. In rejecting the submission made on the plaintiff’s behalf to this effect, I allowed for the medical evidence and for other evidence such as the plaintiff’s evidence that he bench pressed weights up to 5 days each week, which involved repetitive lifting of 20 to 21 kg weights with each arm.[41]
[41] TN 31-32.
38 As to the medical evidence, the TAC’s orthopaedic specialist, Dr Doig, recorded in December 2018 that the plaintiff was not “currently” taking any medication and he was not “requiring any analgesics”.[42] The doctor’s further observation that the plaintiff did not experience enough pain to justify the use of analgesics likely indicated the doctor’s professional assessment of the degree of activity-related pain reported by the plaintiff.[43]
[42] DCB 12.
[43] DCB 14.
39 Another of the TAC’s specialists, Dr David Elder, apparently understood from the plaintiff, also in December 2018, that the plaintiff was not using any over-the-counter medications, gels or creams.[44]
[44] PCB 32.
40 The evidence of the plaintiff’s specialists was not particularly helpful in this regard. For instance, in the ‘HISTORY’ section of a report dated 15 January 2019, the plaintiff’s orthopaedic specialist Mr Chehata wrote that the plaintiff experienced fatigue style pain in the biceps that had not been improved with physiotherapy or gym work and, without further explanation of the basis of this statement, also wrote that the plaintiff required “ongoing analgesics”.[45]
[45] PCB 66.
41 Mr Stapleton, whose earlier report dated 30 August 2017 was principally directed to the assessment of the scarring injury, made no mention of medication. He relevantly wrote:[46]
[46] PCB 55.
THE CURRENT STATUS
His left arm cramps from time to time, particularly if he is required to hold a vibrating tool. His left arm aches after a hard day’s work.
He has not lost any range of movement of his left shoulder, nor of his left elbow.
He has a long scar on the inner aspect of his left upper limb, which is tender. He is careful not to bump that scar. Contact sports are out of the question, such that he is unable to play football, which once he enjoyed.
42 Whilst there was no mention in the affidavit or oral evidence of tenderness or sensitivity to touch, I have accepted that the plaintiff likely gave Mr Stapleton to understand that the scar was tender.
43 My overall impression was that from time to time the plaintiff probably had experienced some level of pain/discomfort/aching specifically caused by gripping and forceful use of the left arm, particularly if and when this activity was necessitated by his work which currently mainly involved driving an excavator. Yet, as a general rule, the frequency and the degree to which the plaintiff experienced pain/discomfort/aching had not been such as to require over-the-counter medications or to prevent the plaintiff from completing his apprenticeship or fulfilling the requirements of his current job.
Pecuniary disadvantage
44 The plaintiff’s capacity to perform the full range of tasks required of a plumber has nonetheless been impacted in several ways due to impairment of the left arm. The plaintiff did not rely on actual loss of income.
45 My interpretation of the pecuniary disadvantage consequence, as articulated both in the materials and in the course of the hearing, was that due to a reduction in his manual handling capacity, the plaintiff had suffered a loss of flexibility in the kinds of work he could perform should he lose or change his employment in the future.
46 For instance, I have accepted that tasks performed by a plumber generally require the use of both hands. The plaintiff described left arm symptoms that involved cramping, muscle fatigue and loss of strength when using tools such as drills, monkey wrenches, shovels or a jackhammer or when performing work calling for a significant increase in grip strength or force.[47]
[47] Ibid and PCB 10 and 72-73.
47 I have accepted that in this case, injury-related loss of strength and cramping, which mainly impacted his ability to grip or hold or lift weights, has compromised the plaintiff’s manual handling capacity. His previous job when he was apprenticed to the heating and cooling contractor was unsuitable in the longer term because, as the plaintiff deposed, “it would be very difficult” for him to install heating and cooling units, where this would have required him to hold heavy heating and cooling units both at shoulder height and overhead.[48]
[48] PCB 10.
48 As mentioned, the plaintiff’s current employment as a plumber mainly involves working in drainage, with most of his time spent driving an excavator.[49] He drives to the employer’s premises at Truganina by 6.30am. He then drives the employer’s manual tray truck to, and at the end of the working day at about 3pm from, various locations that can include Ballarat, Cranbourne Geelong or closer.[50]
[49] PCB 11.
[50] TN 33-34.
49 The plaintiff conceded several matters in his oral evidence, including that since changing jobs in 2015 he had received substantial increases in salary; that he was a trusted and highly valued employee; and that he drove the employer’s manual truck without any physical problems.[51]
[51] TN 34-36.
50 The plaintiff’s position as crew leader had apparently allowed him to delegate more labour-intensive jobs to his crew, although the plaintiff indicated, and I have accepted, that he still found himself performing tasks that gave rise to symptoms when, for instance, he was required to demonstrate jobs to his crew members.[52]
[52] PCB 10-11 and TN 54.
51 Some doctors appear to have accepted that use of the plaintiff’s left arm in more forceful activities may also generate some degree of pain/discomfort/aching. Doctors have either recommended, or by implication have accepted the plaintiff’s account of, restrictions that continue to apply to the plaintiff’s employment. For instance:
· As already mentioned, Mr Stapleton recorded complaint of left arm cramps from time to time in association with a task such as holding a vibrating tool, and aching after a hard day’s work.[53]
[53] PCB 55.
· On examination, Dr Elder thought elbow flexion was “slightly weak at 4+/5 as was supination”.[54] He recorded complaint of fatigue in association with pulling/gripping at work, especially if the plaintiff was holding and using an industrial drill.[55] Dr Elder noted residual dysfunction. He predicted “ongoing symptomatology” and observed that the plaintiff now mostly works as an excavator operator due to his reduced manual handling capability.[56]
· On re-examination in December 2018 Dr Doig found “obvious weakness on restricted supination. ... good power in flexion. … no restrictions in movement at any of the joints of the upper limb and … no neurological deficit”.[57] He recorded complaint of cramping in the upper arm while performing repetitive, heavy tasks, with the plaintiff “working through the pain” and accepted that, as reported, the plaintiff was now performing less physical work as a machine operator.[58] In Dr Doig’s opinion the plaintiff should avoid lifting, pushing and pulling more than 10 kg with the left arm on a repetitive basis.[59] Of course the regular gym work routine described by the plaintiff at hearing indicated a retained capacity in the left arm for safely lifting and pushing weights (albeit with the support of a bench) that likely exceed 10 kg.
· As already mentioned, Mr Chehata recorded complaint of fatigue style pain and cramping. In Mr Chehata’s opinion manual handling and fatigue style pain had compromised the plaintiff’s ability to perform repetitive tasks using his dominant arm.[60] Of course, in this case, the left arm is in fact the non-dominant arm.
[54] PCB 33.
[55] PCB 31.
[56] PCB 33.
[57] DCB 13.
[58] DCB 14.
[59] DCB 15.
[60] PCB 66-67.
52 As I understood the submission made on behalf of the TAC, despite injury-related restrictions on manual handling, less weight should be afforded the pecuniary disadvantage component of the claim made under paragraph (a) of the definition, given that: on completion of his apprenticeship the plaintiff had successfully transitioned to a different area of employment in plumbing, which included driving his employer’s manual vehicle long distances to and from work sites without any problems; he was highly valued by the current employer; he had taken on increased responsibilities; and in the several years since changing to drainage plumbing work the plaintiff had received significant salary increases.[61]
[61] TN 82-83 and 85-87.
53 The TAC further submitted, and I have accepted, that the evidence that the plaintiff and his partner have borrowed money and were financially committed to construction of a new home, was evidence of the level of confidence this plaintiff had in his future.[62]
[62] TN 85-87.
54 In this case, so the submission went, the loss of an opportunity to work across the full spectrum of plumbing jobs and any risk to employment in the future was not of itself significant.[63]
[63] TN 86.
55 In the circumstances described, when evaluating the consequences of the left arm injury I was not satisfied that the pecuniary disadvantage consequence of that injury amounted to a serious injury under the Act.[64]
[64]MazevskavTransport Accident Commission [2014] VSCA 178 [21].
56 I nonetheless made some allowance for a loss of flexibility in the kinds of work the plaintiff could perform should he lose or change his employment in the future due to a reduction in his manual handling capacity.
Conclusion
57 At a comparatively young age, the plaintiff has a long-term injury to his left arm which has reduced his manual handling capacity. The injury as such likely causes a level of pain/discomfort/aching from time to time particularly in the context of activity that requires forceful gripping with the left hand and arm. There may also be some tenderness to touch at the site of the scar.
58 The impairment consequences of the injury to the left arm have been summarised above. The Act requires the Court to compare the pain and suffering consequence, of which pecuniary disadvantage and a plaintiff’s mental response to the physical injury are components, with other cases in the range of possible impairments or losses of a body function to determine whether the consequences are fairly described as more than significant or marked and at least as very considerable.
59 In my view, the pain and suffering and loss of enjoyment of life consequence of the left arm injury cannot reasonably be viewed as ‘certainly more than significant or marked’ or ‘at least as “very considerable”’, when the evidence in the present case is contrasted with evidence in other cases in the range of possible impairments or losses of a body function.
60 Two earlier cases help illustrate the last mentioned point. The first is the decision of the Court of Appeal in DwyervCalco TimbersPty Ltd(No 2).[65]
[65] [2008] VSCA 260.
61 In Dwyer (No 2), the plaintiff, who was then in his 30s, suffered injury after a crane he was unloading fell and crushed his dominant right arm. The plaintiff sought leave under the Accident Compensation Act 1985(Vic) under paragraphs (a) and (b) of the definition of serious injury.[66]
[66] Section 134AB(37).
62 The application under paragraph (b) relied on disfigurement consequences of the injury, about which I’ll say more in due course. For present purposes in summarising the basis upon which the Court of Appeal found permanent serious impairment of the right arm, His Honour Ashley JA made the following relevant observations:[67]
[67]Dwyer (No 2), op. cit. at [25] to [28].
25 I turn to the circumstance that, at the time when his application was heard, the appellant had been working in his own business for a few years. He did not say that he could not undertake the work, and the videotape showed that he could perform it. I do not agree that what he was shown to do involved heavy work. So I reject the respondent’s submission that the appellant’s ability to work had only been reduced from an ability to engage in very heavy work to an ability to undertake heavy work. In any event, so far as the pain and suffering consequences of the impairment were concerned, the appellant was simply asserting that an area of work which he had enjoyed had been closed off to him; and it was not in debate that such an area of work had been closed off to him.
26 I next agree with the submission for the respondent that, in assessing the extent of the present and prospective consequences of injury, the prospect that the appellant may develop arthritis in the elbow should not be overstated. I have not accounted it a matter of much significance in assessing whether or not the impairment consequences are serious for the appellant.
27 Finally, I agree with the submission for the respondent that in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.
28 Notwithstanding that I have accepted some of the submissions made on behalf of the respondent, I consider that the pain and suffering consequences of the appellant’s injury – consequences which are unquestionably permanent – satisfy the permanent injury test with respect to his impairment. The burden of the evidence is that his right arm is permanently fixed with a substantial flexion deformity at the elbow; but that he cannot fully flex his forearm at the elbow. The movements of his forearm and wrist are significantly reduced. There is muscle wasting of the forearm, and significant loss of the power of grip. There are areas of numbness in the vicinity of the scars. He is at some increased risk of the development of arthritis in the elbow joint. He suffers pain and ache, in the mornings and after work. He has had to desist from work which he enjoyed. Several recreational pursuits are denied to him. He is limited in undertaking another recreational pursuit. He has some difficulty with personal toileting. The respondent’s catalogue of symptoms of which the appellant does not complain, and of activities which are not denied to him, is a part of the story; but a part only. In this case, I am not at all persuaded that it tells against an affirmative conclusion in the appellant’s favour.
63 The second case is the often quoted decision of the Court of Appeal in Haden Engineering Pty Ltd v McKinnon.[68] There the plaintiff, who was in his 50s, fractured his left ankle in a workplace accident. The pain and suffering consequence assessment included evidence that an area of work which the plaintiff had enjoyed had been closed off to him, and evidence that the plaintiff experienced constant pain that woke him 3 to 5 times each night; pain was present when he woke each morning, and pain progressively worsened during the day.
[68] [2010] VSCA 69.
64 Having made the comparison required by the Act, I formed the view that in the present case, on balance, the pain and suffering and loss of enjoyment of life consequence was not indicative of a serious injury for the purpose of the Act.
65 I propose to dismiss the application for leave as it relates to paragraph (a) of the definition of ‘serious injury’.
The disfigurement injury under paragraph (b)
66 As earlier mentioned, there were two components to this claim – the “Popeye” appearance of the damaged muscle and, more significantly, the 16 cm scar post operatively.
67 In the case to hand, it was accepted that the disfigurement of which the plaintiff complained was a permanent legacy of the transport accident. Accordingly, the issue to be determined was whether or not the Court could be satisfied that the consequences to the plaintiff could be described at least as “very considerable”.
68 Several authorities have commented on the approach to determining this issue under the Act.
69 For instance, in Ingramv Ingram,[69] Callaway JA cautioned against assessing permanent serious disfigurement under paragraph (b) in isolation. It must, he said, bear comparison with such injuries as serious long-term impairment of bodily function, severe long-term mental illness and the loss of an unborn child.[70]
[69] (1996) 2 VR 435.
[70] Ibid at 438.
70 In Ingram, the Court of Appeal dismissed an appeal from an appellant who had suffered post-operative abdominal scarring following a transport accident. The evidence of the appellant in that case had been to the effect that she had become very conscious of the scar, had lost self-esteem and had become very insecure.
71 In Bakerv Transport Accident Commission & Anor,[71] another of the earlier scarring cases, the Court of Appeal relevantly stated that in assessing the disfigurement claim, regard should be had to the number of scars, the location, the size and the degree of obviousness.[72]
[71] (1997) 1 VR 662.
[72] Ibid at 664-665.
72 These authorities relevantly discussed but did not decide to what extent the impact of disfigurement on a plaintiff could be taken into account.
73 For instance, in Ingram each Appeal Justice discussed the appropriateness of accepting evidence of subjective response to disfigurement. Callaway JA stated:[73]
… there is much to be said for the view that the psychological dimension of an injury, or at least the part that can be described as mental or behavioural, is primarily to be considered by reference to para (c) of the definition and that it would be an unusual case where it was appropriate to lead evidence of subjective response to disfigurement. ...
[73]Ingram at 438.
74 His Honour did not consider it necessary to resolve that particular issue in circumstances where the scarring and its consequences in that case had not met the requisite standard.
75 In his concurring judgment Brooking, JA also found it unnecessary to express an opinion about the relevance of the plaintiff’s evidence about her consciousness of the scar, insecurity and the resultant loss of self-esteem and the evidence of a doctor on the effects of the scar on that plaintiff as regards such matters as stress and self-esteem.[74]
[74]Ingram at page 439.
76 However, Charles, JA stated that:[75]
… the authorities for good reason dictate the conclusion that a determination whether a disfigurement amounts to 'serious injury' requires consideration of the impact of such disfigurement upon the particular person". His Honour specifically rejected the primary Judge's approach in assessing the seriousness of the appellant's scarring simply by looking at photographs or by mere physical examination and went on to say:
In all these cases - I think in every case other than a clear case of a 'serious injury' - plainly a subjective element is involved in the assessment. However, to say that evidence of the victim's occupation may be relevant is not necessarily to say that the victim of scarring should be permitted to give evidence of reactions or mental responses to an injury, in assessing whether the injury is 'serious' for these purposes. ...
[75] Ibid at page 440.
77 In Baker, the Court of Appeal consisting of Brooking and Phillips JJA substituted their view for that of the Judge at first instance. Relevantly, Brooking JA (with whom Phillips JA agreed) stated:[76]
On the most extreme of the submissions made by Mr Dowling the Judge was, and we are, confined in considering whether the disfigurement is 'serious' to what I might call the physical characteristics of the scars, and, as Mr Dowling put it, to the age and possibly the sex of the applicant. Even if this submission were to be upheld, in my opinion, giving appropriate weight to the view taken by Her Honour, we should differ from Her Honour's view and determine that this admittedly permanent disfigurement is 'serious'. I say that having regard to the number of scars, their location, their size and their degree of obviousness. This view makes it unnecessary to consider whether as Mr Gorton, Senior Counsel for the appellant, contends, and Mr Dowling denies, regard may be had to the lay and expert evidence put forward in this case in considering whether the disfigurement has been shown to be 'serious'.
[76]Baker at page 664.
78 In Baker, the lay and expert evidence to which His Honour referred consisted of evidence from the appellant, her family and friends, and expert evidence from two psychiatrists. The evidence particularly from the lay witnesses apparently went in considerable detail into the embarrassment felt by the appellant about the scars, her view that they were ugly, her attempts to conceal them and generally their effect on her state of mind, behaviour and relations with others.
79 More recently, in Transport Accident Commissionv Garcia,[77] another scarring case, in a joint judgment the Court of Appeal expressed the Court’s approval of the earlier authorities, noting further that, consistent with the decision in Richards v Wylie,[78] a court could have regard to a plaintiff’s mental response to disfigurement.[79]
[77] [2015] VSCA 225.
[78] Op. cit.
[79] Garcia op. cit. at [27].
80 In Garcia the Court of Appeal also noted that the trial judge had had the benefit of inspecting the scar which was described as large, unsightly and in a prominent position. The Court further noted that the trial judge then combined those factors with the consequences about which the plaintiff had given evidence. On that occasion the appeal was dismissed on the basis that the trial judge had not made any specific error in his reasoning, such that the Court of Appeal did not consider the decision to be plainly wrong.[80]
The medical evidence
[80] Ibid. at [36].
81 The evidence of treating doctors Dr Williams and Mr Miller did not record matters relating to the appearance of the arm or scarring post operatively or any complaint to these practitioners about those matters.
82 Whilst the medico-legal evidence contained some references to the appearance of the arm and scarring post operatively, doctors did not record direct complaint of embarrassment or of the plaintiff’s concerns about the look of the scar other than the impact of the scar on the tattoo.
83 As earlier mentioned, Mr Stapleton had noted a long 16 cm scar on the upper inner aspect of the left arm, the upper part of which he said appeared stretched and reddened. He considered the scar clearly visible from across the room. As earlier mentioned, the plaintiff apparently reported tenderness and being careful not to bump the scar.[81]
[81] PCB 55-56.
84 Dr Elder noted the residual “Popeye” appearance and the fact that the plaintiff had complained about the difference between the right side and “the region of repair”, which the plaintiff thought was “becoming more noticeable and palpable through the skin”.[82]
[82] PCB 31-32.
85 Dr Elder’s comment that the “scarring itself does not bother” [83] the plaintiff was rejected as untrue by the plaintiff (“That’s not true at all; of course it does”[84]).
[83] PCB 32 and TN 53.
[84] TN 53.
86 In December 2016 in the first of his two reports Dr Doig assessed a further 2% Permanent Impairment of the Whole Person based on “a prominent broad scar crossing the shoulder crease at the shoulder”, which he said was not causing the plaintiff any restrictions.[85] On review in December 2018, Dr Doig relevantly spoke of:[86]
… a persistent scar over the flexor aspect of his upper arm, used for his tendon reconstruction. The graft was now easily palpable and there was a suggestion of a Popeye sign consistent with graft and repair failure…
[85] DCB 7.
[86] DCB 13.
87 Whereas in January 2019, Mr Chehata observed as follows:[87]
As a young man he has a significant and long scar from the superior portion of the interval of the biceps, all the way down to the muscle belly, all of which has compromised his confidence, especially wearing singlets and T-shirts and he has attempted to discuss a tattoo over the significant scarring, although ultimately he does not feel that any surgical procedure will improve his ongoing scar.
[87] PCB 66.
88 As my discussion of the plaintiff’s affidavit and oral evidence shows in due course, there was no suggestion of any loss of confidence in wearing singlets or T-shirts. On the contrary, to the plaintiff’s credit, save for expressing his concern about, the look and colour of the scar; the likely permanent spoiling of the tattoo; and a need to protect the scar with sunblock, the plaintiff has not adjusted his attire or the activities of daily living by reason of the disfigurement.
Inspection of the deformity and scarring
89 At the commencement of the evidence, the plaintiff removed his shirt to allow close inspection by the Court and counsel of particularly the scar.
90 At the time, I observed the bulging appearance of the muscle at the site of the repair and the scar. I noted the following:
· The Popeye appearance was not noticeable until the left arm was outstretched. Even then it was difficult to distinguish this feature from the surrounding, very well-developed and toned upper arm musculature.
· A full sleeve tattoo depicting an image on the upper outer aspect of the left arm of the head and face of a young man wearing a cap surrounded by artwork on either side of and below the main image.
· The body artwork needed to be observed from several angles and in close proximity in order to gain some understanding of what was depicted. As such, the narrative of the tattoo was not apparent without close inspection of the arm at different angles and without some further explanation from the plaintiff.
· A long, pink (to my eye) in colour scar was evident on closer inspection. It was not visible from a side view. Front on the scar, which ran along the inner aspect of the upper arm and shoulder, was not immediately noticeable. It became visible once the arm was extended outwards from the plaintiff’s body, more so when the outstretched arm and hand was flexed slightly upwards as depicted at close range in the only photograph taken by Mr Stapleton.
· Unlike Mr Stapleton I did not find the scar clearly visible when first viewed, in my case, initially from some metres away. Rather, the prominence of a scar that might have otherwise been properly described as unsightly, in this instance, was substantially lessened by a combination of factors: the scar’s location on the inner aspect of the arm and within a large body of artwork; the fact that the scar passed through the surrounding background artwork, not the main images; and the visual distraction caused by the colour and density of the surrounding background artwork.
91 As was apparent from the photographs included in the materials tendered, on which some elaboration was provided during the course of the hearing, an image of the plaintiff’s deceased father was central to the body art narrative. The date of birth and date of death were recorded beneath the father’s image with hands cupped in prayer positioned below this image and on either side of the upper arm. Rosary beads running down the inner arm and ending in a crucifix were entwined in one prayerful hand on the inner arm, whereas the lower arm carried images of the gates of heaven and a winged angel. Tattoo artwork completed the areas between these images. The scar transects some of this fill-in artwork but none of the main images referred to above.
The plaintiff’s affidavit and oral evidence
92 In the first affidavit the plaintiff described and explained his response to the scar in the following words:[88]
[88] PCB 11-12.
20. I have also been left with a quite (sic) a large, ugly and obvious scar on the bicep of my left arm. It feels different and more particularly it looks scabby, stretched and reddened. My left arm has a sleeve tattoo and I completed that tattoo in memory of my deceased father in early 2013. I liked my tattoo and it meant something to me.
21. The accident caused me to suffer the bicep rupture and the necessity for the operation has damaged the look of my arm as well as the tattoo. It looks particularly ugly starting right in the middle of the bicep and it goes all the way to my pectoral muscle. I have been told that it is 16 centimetres long, I think it looks quite bad and I really don’t like the stretchiness of it and the fact that it is red and obvious.
22. It’s interesting that I got my tattoo and other than from my friends I rarely was asked questions about my tattoo. I have been asked about the scar from friends, family, from clients and from trade suppliers, especially when it is exposed, either during work or in the summertime. I’ve noticed the scar gets irritated by the sun quicker and feel as though it gets burned quicker and I put sunscreen on it even if I expose it for a short period for further protection.
23. I have spoken with a tattoo artist in an effort to do some more work to get it covered, just so that it can look better than what it is, but he was reluctant to draw on the stretched skin and he told me that it would probably look worse than what it is. I now have an arm/shoulder that has an awful looking scar and my tattoo also looks ordinary with the scar taking up a gap where the tattoo was.
24. ... I don’t hide my tattoo, however the scar is obvious when I wear a singlet or when I take my top off.….
93 In the context of the disfigurement claim the Popeye appearance of the muscle following surgical repair was first addressed in the further affidavit. The focus of the disfigurement claim was nonetheless on the scar and the damage to body art completed only months before the transport accident from the last photograph taken of the plaintiff’s father with the plaintiff and the plaintiff’s brother, as a memorial to a parent who died many years earlier when the plaintiff was about four years of age.[89] The plaintiff further deposed as follows:[90]
9. As for the look of the disfigurement including the scarring and the bulging, it looks basically the same as it looked when I swore my first affidavit. I have spoken with another tattoo artist about doing something about getting rid of the stretched red look which has impacted badly on the look of my arm and of the tattoo. He told me that scar tissue would probably be twice as painful to draw on and that no guarantee (sic) that it would look any better so I’m left with an ugly looking scar and the actual look of the tattoo has been affected. The tattoo means a lot to me due to the dedication to my father who passed away and the scar has impacted on the way it looks pretty badly. I would describe the tattoo as now appearing as though it’s in two pieces.
10. There’s nothing I can do and nothing that can be done as I have been advised about the way the arm looks where the scar and the bulging graft have been left (sic).…
[89] TN 16.
[90] PCB 72-73.
94 The plaintiff gave evidence to the following effect:
· He regularly wore T-shirts and sleeveless singlets during the warmer months and wore shorts and enjoyed himself at beaches such as Jan Juc beach which he had attended on the Australia Day holiday in the week of the hearing. The plaintiff agreed with the proposition that he wore “the type of clothing that any young person is seen to be wearing these days”.[91]
[91] TN 29 and 38.
· When standing with his arms positioned next to his body, the scar was on the inner side of the left arm close to his body. The plaintiff appeared to accept the proposition that it would be very difficult to see the scar when he stood with his arms by his side (“It could be, yeah”[92]).
· The function of his arm had been his principal concern when he swore the first affidavit.
· The tattoo on his arm was a whole pattern/piece devoted to a memorial to his father.[93]
[92] TN 39.
[93] TN 54.
95 Having regard to the affidavit and oral evidence as a whole, without more, I was unable to ascribe the plaintiff’s negative response to counsel for the TAC’s proposition that there would be photographs of him in bathers at the beach to embarrassment or a reluctance to be photographed due to scarring/deformity of the left arm (“Ah, oh, I don’t know. I don’t know if there’s any – I’m not very confident, so I don’t know if there’d be photos of me at the beach”[94]).
[94] TN 29-30.
96 Clearly there was some discrepancy between my assessment of the prominence and appearance of the disfigurement on inspection and the plaintiff’s subjective view of these factors. This is not to deny that the view held by the plaintiff about the prominence of the scar and the damage to the appearance of his arm was likely genuine.
97 The TAC contrasted the plaintiff’s evidence of the impact of the disfigurement injury on him with the evidence in Garcia to which the Court of Appeal had regard:[95]
[95]Garcia, op.cit [6] – [11].
6. In his first affidavit, the respondent described his scarring in the following terms:
I have been left with an obvious keloid scar over the anterior aspect of my left upper arm at approximately the level of the mid shaft of the humerus. The scar is keloid and very prominent. It is very sensitive to touch. It itches from time to time. I need to be careful not to bump the scar and I try to wear clothing to cover the scar from exposure to sunlight. I have been told that the scar measures 15 centimetres in length. It is very red.
I am embarrassed by the scarring. I consider it very obvious and people often ask or comment about it.
7. In his second affidavit, the respondent said:
The scar continues to be tender and sensitive. It is thick and discoloured. At times, it can be itchy. It is also sensitive to heat. Recently, when I visited my local leisure centre, I attended the steam room but the heat aggravated my scar and caused it to be painful and uncomfortable for some time afterwards.
I remain self-conscious and embarrassed about the appearance of my scar. I attempt to conceal the scarring on my left upper arm from the public gaze.
8. The respondent was examined by a plastic surgeon, Mr Murray Stapleton, …. After his first examination, Mr Stapleton reported as follows:
Confining my comments to the scarring, and I do so in my capacity as a plastic surgeon, the long scar is red and thickened. It is tender in spots and itches from time to time. He [the respondent] is careful not to bump the scar which remains quite tender and he dresses to cover the scar from exposure to sunlight and also to prevent the passerby (sic) asking questions as to how the scar was there in the first place.
…
The prognosis is that he has reached maximum medical improvement.
…
His capacity for employment, domestic, social and leisure activities, ie his activities of daily living, are all affected because of the scarring for reasons stated.
9. Following his second examination, Mr Stapleton expressed views consistent with those expressed following the first examination, saying that the prognosis was that the respondent’s condition had now reached maximum medical improvement.
10. On 14 November 2013, the respondent was seen by a psychiatrist, Dr Paul Kornan. Dr Kornan diagnosed an adjustment disorder with mixed anxiety and depressed mood. He said that initially this condition was quite marked, but that it had improved to the point where it was now at the ‘upper level of chronic mild severity’. Dr Kornan described this disorder as being caused by ‘pains, discomfort and fears’ caused by the accident. Dr Kornan did not specify what, if any, part of the disorder might be attributable only to the scarring.
11. At the hearing of the application before the judge, counsel for the Commission conceded that no challenge was made to any of the respondent’s evidence.
98 In Dwyer (No 2) the Court of Appeal adopted my description at first instance of that plaintiff’s permanent disfigurement.[96] The disfigurement involved both flexion deformity of the right arm and two scars on the plaintiff’s right forearm. In summary, it was accepted that permanent disfigurement involved:[97]
[96]Dwyer (No2) op. cit. [17].
[97]Dwyerv Calco TimbersPtyLtd [2005] VCC 1132 [34].
· Two long, deep scars on the plaintiff’s right forearm.
· The scars were not raised, and they appeared well healed, although there was evidence of “rutting” on the surface.
· The colour of the scars was consistent with the rest of the plaintiff’s lightly tanned forearm.
· The scars were obvious and unsightly because of the length, width and location on a part of the body regularly exposed.
· Deformity of the appearance of the right upper limb caused by a combination of the fixed elbow position and the comparative wasting, flabbiness and loss of tone in the limb.
99 The pain and suffering consequences found at first instance took into account that the plaintiff had been left with a permanent and unsightly disfigurement; he was embarrassed and distressed by and tended to cover up disfigurement located in an exposed and prominent position on his body; and made further allowance for evidence that in the past the plaintiff had prided himself on his appearance.[98]
[98] Ibid.
100 Whilst on appeal it had not been necessary for the Court of Appeal to decide whether the plaintiff had also made good his claim of serious injury arising under paragraph (b) of the definition of ‘serious injury’ under the Accident Compensation Act 1985, Ashley JA nonetheless doubted that the disfigurement in that case would satisfy the necessary threshold:[99]
The scarring, though extensive, is now very well healed and not very noticeable. The flexion deformity at the elbow, though constituting a disfigurement, in my view has a more significant impact in the context of impairment.
[99] Op. cit. [29].
101 More recently, in WilliamSalisnee Richards v Transport Accident Commission Her Honour Judge Tsalamandris granted the plaintiff leave under paragraph (b) of the Act.[100] In Salis the consequences accepted by Her Honour included:[101]
[100] [2017] VCC 620.
[101] Ibid. at [21].
· Permanent scarring of the plaintiff’s left leg extending 17 cm across and 7 cm up from the front of the left thigh and over the knee.
· The scar was depressed and tender; it was sensitive to sunlight and tans differently to the rest of his skin; it felt tight and uncomfortable when the plaintiff attempted to kneel; and there was a loss of feeling over the front of the thigh in the vicinity of the scar.
· The plaintiff reported he hated his scar, he found it ugly and its presence made him feel self-conscious.
· The plaintiff avoided wearing clothes in public that exposed the scar particularly because he hated being asked about and having to explain the circumstances in which he suffered the injury.
· The plaintiff wore shorts that covered the scar, he wore a wetsuit whilst surfing to cover and provide support to the scar and he rarely uncovered the scar no matter how hot the weather was.
102 Her Honour also took into account affidavit evidence from Mr Salis’ partner in which she corroborated the plaintiff’s evidence that he wore a style of shorts that sat below knee level. The partner’s affidavit evidence was also to the effect that the sensitivity of the scar interfered with their physical relationship in that, she avoided putting a hand on his left knee due to complaint from him that this created an uncomfortable sensation; and she was conscious of the scar during intimacy.[102]
[102] Ibid. at [23].
103 Her Honour also noted that on close inspection she had observed two scars, both of which she found to be significantly more obvious and unsightly than had been depicted in copies of photographs contained in the report of medico-legal specialist, Mr Stapleton.
104 As required, in assessing the pain and suffering and loss of enjoyment consequence of the injury, I have had regard to factors that included my assessment of the location, size and degree of obviousness of the scar and of the deformity attributable to the damaged muscle. I have also had regard to the plaintiff’s mental response to the disfigurement as a whole, central to which was the plaintiff’s concern that the appearance of a tattoo that memorialised his deceased father was spoiled and likely irreparably so. And, I have taken into account the fact that the 27 year old plaintiff will live with the disfigurement consequences so assessed, for the balance of his predicted life expectancy.
105 In the present case, whilst I assessed the combined results of my inspection with the disfigurement consequences of the injury to the left arm about which the plaintiff gave evidence, as significant, I was not, however, affirmatively satisfied that, as required, when judged in comparison with other cases in the range of possible impairments or losses the consequences could ‘be fairly described at least as “very considerable”…’.[103]
[103]Humphries op.cit at page 140.
106 I propose to dismiss the further application for leave made under paragraph (b) of the definition of serious injury.
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