Horne v Transport Accident Commission
[2021] VCC 876
•7 July 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-05139
| CHRISTOPHER HORNE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne (via Zoom Technology) | |
DATE OF HEARING: | 24 and 25 June 2021 | |
DATE OF JUDGMENT: | 7 July 2021 | |
CASE MAY BE CITED AS: | Horne v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 876 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – pain and suffering consequences – pecuniary loss consequences
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Rowe v Transport Accident Commission [2017] VSCA 377; Johns v Oaktech Pty Ltd [2020] VSCA 10; Hooley v Transport Accident Commission [2019] VSCA 263
Judgment: Leave granted to the plaintiff to commence a common law proceeding
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Winneke QC with Mr S Loftus | Margalit Injury Lawyers |
| For the Defendant | Mr W R Middleton QC with Mr J L Batten | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1Winston Churchill is credited with saying that “golf is a game whose sole aim is to hit a very small ball into an even smaller hole with weapons singularly ill-designed for the purpose”.
2This is a “serious injury” application brought pursuant to s93 of the Transport Accident Act 1986 (“the Act”), in which the game of golf is very much at the “fore”.[1]
[1]No pun intended.
3The principles in respect to “serious injury” applications are well known and are not in dispute in this application. This application is essentially a factual dispute in which the applicant’s ability, ambitions and residual capacity for golf are in play.
4The plaintiff was represented by Mr Winneke QC and Mr Loftus of counsel. The defendant was represented by Mr Middleton QC and Mr Batten of counsel. The parties tendered various medical reports and relevant documents. The plaintiff tendered and relied on four affidavits sworn by him, together with an affidavit of his fiancée. As is par for the course in these types of applications, the plaintiff was cross-examined on the contents of his affidavits and by reference to other materials. I have taken into account the tendered evidence and the transcript of the plaintiff’s oral evidence, together with the submissions of counsel. I shall only refer to the evidence to the extent necessary in these reasons.
5The plaintiff claims to have a suffered a “serious injury” in respect to three injuries relied upon for the purpose of this application.
6Firstly, the plaintiff claims to have suffered serious long-term impairment or loss of body function, being injury to the cervical spine.
7Secondly, the plaintiff also claims to have suffered a serious long-term impairment or loss of a body function by way of an acquired brain injury.
8Thirdly, the plaintiff claims to have suffered a severe long-term mental or severe long-term behavioural disturbance or disorder.
9A significant focus of the evidence was upon the claimed physical injury to the neck (spine). His case was opened as follows:
“… Your Honour will appreciate that a very significant component of the claim in relation to the injury of the spine has been the result that the plaintiff, who was a genuinely-talented golfer who had for a long time harboured ambitions to establish a career in the golfing industry - not, I should say, certainly not now, to a professional (indistinct) as a younger man, like plenty of younger men who were good at golf, that was his goal but it's no longer … .”[2]
[2]Transcript (“T”) 4, Lines (“L”) 3-11
10The defendant submitted that it was incumbent on the plaintiff to demonstrate which of the three claimed injuries in its own right produced a set of consequences that reach the “very considerable” threshold. Secondly, the defendant submitted that none of the claimed injuries in isolation was productive of a “very considerable” consequence so as to meet the test of “serious injury”.
11For the following reasons, I am satisfied that the claimed injury to the neck is a “serious injury”. I am not satisfied that the claimed acquired brain injury or the claimed psychiatric condition are, of themselves “serious”.
Background
12The plaintiff’s background, as set out in the affidavit sworn by him on 27 May 2020,[3] is as follows:
[3]Plaintiff’s Court Book (“PCB”) 13
“| was born in Redding, United Kingdom on 5 February 1987 and am 33 years of age. My parents were Alison and lan Horne. My father works for General Motors as a car mechanic, and parts manager. My mother works for Citizen Watch as an office manager.
I became a permanent resident of Australia, on 21 January 2020.
I am the oldest of four children. I have one brother and two sisters. I attended Forrest School in Wokingham, England. I finished High School at age 16, completing my GCSE, in 2003.
After leaving school, I found work in a golf club, as I was intending to become a professional golfer. I worked at Bearwood Lakes, in Wokingham for approximately 3 years. I then worked for a golf events company, NGA Golf for just under 2 years. The role was helping to organise and run golf events.
I then worked for Taylor Made Adidas Golf, in customer service for approximately 3 years.
I travelled to New Zealand in approximately 2011 on a working holiday visa. I worked at Terrace Downs Golf Resort on the South Island, in a town called Methven. I stayed there for one year. I then moved to Auckland, and worked for Sky Tower in hospitality for one year. My visa ran out and I moved to France for 5 months, staying with a friend.
I then moved to London. I worked in hospitality at The Ivy, an exclusive restaurant/private members club. I started as a waiter and then became a manager. I was there for two years up until around 2015.
While in London, I met my fiancée, Holly Phillips, who is Australian.
We then obtained a holiday working visa for Canada and moved to Vancouver. I was a restaurant manager and we were there for one year. After Vancouver, we returned to London, in 2017. I found work as a restaurant manager.
After approximately a year in London, Holly and I moved to Melbourne, Australia in 2017. I found work with Flight Centre as a travel agent, in the Docklands store. I worked in the back of house team, which is an around the world expert team that deals with people that wish to travel to multiple continents. It was a ‘back of house’ role because we would deal with all of Australia, not just Melbourne, or retail customers of the store.
I started with Flight Centre as an employee. After one year, I was promoted to assistant manager. I was assistant manager up to approximately one month before the 1 March 2019 transport accident. In early 2019, I requested a change to a flexi time arrangement. As a result, I could no longer be an assistant manager. I wanted to move to flexi time as I was intending to practice golf intensively in a renewed effort to become a professional golfer. I made some enquiries in that time. I knew I would need at least 10 months of intense practice to get my game back up to a level where I could apply. The process of becoming a club professional requires a 3 year university course. It is called the P.G.A trainee course. I had not made the application by the time of the accident as I was not then a permanent resident.”[4]
[4]PCB 14
13The plaintiff was then involved in a transport accident (“the accident”) on 1 March 2019 when he was struck by a car whilst riding his bicycle at the intersection of Wallace Avenue and Washington Street, Toorak, Victoria.
The neck injury
14There is no dispute that the accident occurred and equally there is no dispute that it was a nasty accident. The plaintiff was knocked from his bicycle with sufficient force to damage his helmet and probably cause a brief loss of consciousness. He was taken by ambulance to The Alfred hospital where a CT scan of the cervical spine was performed and reported as demonstrating a “minimally displaced oblique fracture through the right C6 and C7 articular processes”.[5] He was discharged from hospital the following day with a halo device in place.[6] He required the use of the brace to stabilise the neck fractures for the next several months.
[5]PCB 84
[6]As demonstrated at PCB 298
15After discharge from hospital he came under the care of his local general practitioner, Dr Chris Sherman. Dr Sherman arranged various referrals to treat the plaintiff’s neck injury, post-head injury and emotional response.[7]
[7]PCB 103
16Dr Sherman provided a report dated 6 August 2020.[8] That report describes the plaintiff post-accident as “being back in good but not perfect physical shape” and that the plaintiff “describes some lingering neck pain which limits his ability to re-engage in playing golf”.[9]
[8]PCB 106
[9]PCB 107
17In December 2020, Dr Sherman referred the plaintiff to Precision Neurosurgery.[10] Then, in a final report dated 2 June 2021, Dr Sherman stated that, in reference to the plaintiff’s neck injury, he would likely require some level of physical therapies lifelong.[11] He said that the plaintiff:
“… should avoid activities that involve repeated or twisting movements of his neck. This would obviously restrict certain types of recreational activities and possibly some domestic and social activities … the reality of fractures is that 100% pre injury function is rarely achieved.”[12]
[10]PCB 109
[11]PCB 112
[12]PCB 113
18The plaintiff has been referred for physiotherapy with Mr David Williams. In a report dated 30 June 2020,[13] Mr Williams noted the treatment provided to that date. He recorded a “Current Cervical spine examination” that was effectively a full range of movement with “[g]ood muscle power, good strength and endurance”.[14] However, Mr Williams did note that:
“… residual stiffness and pain could mildly affect his golf, tennis, soccer and F45[15] in the short term but if he is prepared to tolerate some discomfort, he should be able to participate in the sport but it may depend on his motivation and willingness to persevere”.[16]
[13]PCB 117
[14]PCB 120
[15]A type of gym program
[16]PCB 121
19In a further report of 5 May 2020,[17] Mr Williams effectively repeated his earlier opinion but also said that:
“Regarding his neck, Chris still experiences daily low grade right sided neck pain/ache but no referred arm pain. He suffers occasional headaches on average 2 days per week. His condition is quite stable however I still feel I can improve his function, strength, cervical mobility further and reduce his discomfort should he have some more physiotherapy treatment on a weekly then reducing basis of perhaps on a fortnightly basis for the next 6 to 9 months.”[18]
[17]PCB 123
[18]PCB 125
20Mr Williams provided a recent report dated 24 June 2021,[19] in which he recorded that physiotherapy treatment had continued once every two weeks during 2021. That had comprised deep soft-tissue-work mobilisation, strengthening and exercises. Mr Williams said the plaintiff “was largely stable but did suffer ongoing minor pain and stiffness”.[20]
[19]D2
[20] D2
21The plaintiff attended Dr Hazem Akil, neurosurgeon, pursuant to the referral from Dr Sherman. In a letter back to Dr Sherman dated 1 February 2021,[21] Dr Akil recorded that the plaintiff “is currently having an intermittent right-sided neck pain that is worse when sleeping on his right side or when looking up and when he is practicing sports”.[22] Dr Akil then wrote again to Dr Sherman by letter dated 10 February 2021,[23] following the review of an MRI scan. Dr Akil said that in his opinion:
“… mostly the neck pain that he is complaining of is because of the weakness of his paraspinal muscles following three months of main mobilisation in a halo. Unfortunately, this type of treatment can actually lead to possible degeneration in the future or at least increase the risk of degeneration.
In order to make the likelihood of this happening as little as possible, I have advised him to persevere with the physiotherapy for the time being and to change the ergonomics at his work … .”[24]
[21]PCB 127
[22]PCB 127
[23]PCB 128
[24]PCB 128
22That is the extent of the medical reports from treating practitioners.
23As mentioned, the parties tendered medico-legal reports. For present purposes it is sufficient to note that I take those reports into account, but it is unnecessary to deal with them in detail, because the medico-legal material in this application regarding the neck injury is similar. In short, the examiners note mild ongoing symptoms of stiffness and pain. In respect to the neck injury, the plaintiff obtained medico-legal opinion from Mr Garry Grossbard[25], orthopaedic surgeon, and from Dr Joseph Slesenger[26], occupational physician. The defendant obtained medico-legal opinion from Mr Gary Speck, orthopaedic surgeon.
[25] PCB 223; 228; 231
[26] PCB 232
24In a report dated 1 April 2021,[27] Mr Speck set out his examination findings and opinion in respect to the plaintiff. Under the heading of “SOCIAL” he noted as follows:
“In the past he had exercised regularly with cycling to and from work and had done that both in Melbourne and in London. He had cycled around the Bay and when he lived in Albert Park had cycled along the beach but generally used it as a form of transport to avoid car or public transport.
He had been a serious golfer with a scratch handicap and said he hoped to become a progolfer but had travelled for a significant period and hadn’t progressed that. His current golf handicap was 3 he said but he doesn’t play regular matches and had tried practice, and then had played 18 holes and had pain half way around. He said he had to do stretches to be able to continue and complete 18 holes. He also uses Nurofen in advance and afterwards.”[28]
[27]Defendant’s Court Book (“DCB”) 5
[28]DCB 11
25Mr Speck had available relevant medical reports and having considered those reports, together with the history and examination findings, he said under the heading “SYNOPSIS” that:
“Mr. Horne is a 34 year old right handed golfing enthusiast employed as travel consultant at the time of the transport accident on the 1/3/19 where he was thrown from his bike onto the ground, sustained a fracture of his right C6/7 facet joint without neurologic involvement. This was treated with thoracic halo vest for 3 months with healing. He continues with symptoms which fluctuate in severity on the right side and midline of his neck. No surgical treatment or other active interventions are being undertaken nor intended.”[29]
[29]DCB 17
26Mr Speck then provided his diagnosis, consistent with the other medical opinions as follows:
“1. Your diagnosis of any physical injuries suffered by the Plaintiff as a result of the transport accident on 1 March 2019.
Answer: Fractures of the right C6/7 facet joint through the articular processes, without any involvement of the vertebral artery or neurologic impingement, treated conservatively. He has also had a soft tissue injury to the right hand with residual symptoms in the right index finger metacarpophalangeal joint. Scarring has occurred at his halo pin sites and abraded left ear.”[30]
[30]DCB 18
27Mr Speck recommended that the plaintiff continue to self-manage with the cessation of formal physiotherapy.
28Mr Speck’s opinion is similar to the other medico-legal opinions and so there is no need to say anything else about the medico-legal reports, other than that they all accept the initial diagnosis regarding the fractures to the articular processes at C6/7 and they accept there are some ongoing mild accident related symptoms.
29The plaintiff’s affidavit evidence is detailed regarding his restrictions for day to day activity, and in particular his restriction for golf because of the neck injury. Relevant to the neck and his ability to play and enjoy golf, he said:
“I attempted a return to recreational golf in around October 2019. At the start I played infrequently, perhaps once a fortnight. Sometimes I would play 18 holes. After every 3 holes, I would stretch my neck and back. I would take paracetamol when the pain came. It got very stiff every time I played. I could no longer swing the golf club like I used to because of the lack of mobility in my neck and back. I played through the pain to see if I could return to the point where I could resume professional career. I gave it a try but realised that I would not be able to pursue a career as a professional golfer.
Ever since realising that, it has been life changing. Golf has been really the only passion that I ever wanted to pursue as career. This was particularly upsetting at about the time when my permanent residency came through in January 2020.
I have not played golf since December 2019, when I realised that a professional career was not open to me. Potentially I could attempt to play again. However, it is a strange feeling for me to play golf now, with reduced ability, reduced endurance, the pain that is associated with playing. Also, now that a professional career is no longer open to me, playing golf feels unfulfilling, and hollow.”[31]
[31]PCB 17
30More recently regarding golf, the plaintiff said:
“As far as golf is concerned, I attempted to return to golf only a few times since affirming my first affidavit in May 2020. Every time I played, I would get to the 7th or 8th hole and I would have to stretch and take a tennis ball and massage my neck. I would also have to take 2 Nurofen before playing and then another 2 after I finished. I would also apply deep heat to my neck afterwards. After playing, I would feel pain for some time. After these attempts, I do not feel that it is worth the pain that I experience playing, and the consequences for what I feel afterwards, to just play social golf. As a result, I have not played since.
Prior to my accident I had realistic aspirations that I would play golf in Australia professionally. I was waiting until my permanent residency came through before I was able to enrol in the program. As a result of the transport accident, I must come to terms with the fact that I have lost the ability to play professional golf. This is devastating to me.”[32]
[32]PCB 24
31The plaintiff dealt with the loss of golf again in his most recent affidavit of 18 June 2021.[33] He said:
[33]PCB 29
“Where I refer to my intention to become a ‘professional golfer’ in my first and second affidavits, I wish to clarify that by ‘professional golfer’ I meant a ‘club professional’ being the professional attached to a golf club, who amongst other things provides golf coaching and lessons for members of the particular golf club (and in some cases, depending upon the golf club, the public at large).
I also intended to develop my game so as to compete at the highest professional level that I could achieve. However, I harboured no illusions that at my then age, my prospects of becoming a tour professional golfer were (realistically) quite limited. Moreover, I understood that the pathway to becoming a club professional and/or golf coach were more realistic and, in my view quite achievable.
I understand that in order to become a club professional/ golf coach that I would be required to take a 3 year PGA pathway program which is an traineeship style university course.
The entry requirements included a requirement to hold a handicap of 3 or better in competitions over a 12 month period, Australian residency and good educational grades. I have good educational grades. I know from my previous playing experience that I had the ability to hold a handicap under 4. However, I also knew that achieving and maintaining this standard would require a lot of practice and competition play.
…
I have previously deposed to the fact that approximately a month before the 1 March 2019 transport accident, I changed my work arrangements to enable me to practice golf more intensively. I also intended to participate in high level competitions in an effort to regain and/or improve my playing standard. I had entered the Riversdale Cup golf tournament which had been due to take place on 7 March 2019. I understood this to be one of the biggest amateur golf events on the calendar in Victoria and that golfers from all over Australia travel to play in this. Attached and marked ‘CH 4’ is a true copy of the receipt for entry to this tournament, which is dated 20 January 2019. As a result of my 1 March 2019 transport accident, I did not participate in the 7 March 2019 Riversdale Cup tournament.
…
Shortly prior to the transport accident on 1 March 2019, I was undertaking work with a personal trainer, Ms Vanessa Clampi, who was providing me with a golf specific gym program. I commenced this personal training program with a specific goal of getting my body in shape for intensive golf training and in order to play at the highest level. Attached and marked ‘CH 6’ is a true copy of an email from Ms Clampi regarding the golf specific personal training program that I was undertaking.
The accident has caused restrictions in my golf swing and more importantly, prevented me from playing or practicing for longer than an hour without significant pain in the neck. I would have to stop, stretch and massage the neck along with pain killers just to get through further play.
As a result of the transport accident, I must come to terms with the fact that I am unable to play or practice golf enough to be able to meet the playing standard requirements to be a professional golf coach. This is devastating to me and has closed off a lifelong ambition.”[34]
[34]PCB 31-32
32Broadly, the plaintiff’s affidavit evidence is of him being an elite golfer, perhaps a level below that required to be a tour professional, but certainly at a level that would have enabled him to pursue a career in golf, such as a teacher and club professional. Broadly, his affidavit evidence is of a love of golf, and the fact that his neck injury means he cannot play at the level he had previously achieved is devastating to him.
33Pausing here, I am someone who considers golf to be an excellent way to ruin a walk, perhaps unlike some of the counsel involved in this application who may better understand and share the plaintiff’s passion for golf. What is clear though from the evidence is that he was a very good golfer before the accident.
34But that is not the end of the story, because material that he was taken to in cross-examination would suggest that the plaintiff continued to be a very good golfer post-accident.
35In cross-examination he was taken to GOLF Link records[35] which set out his competition scores post-accident and that he competed in the 2019 summer open at the Flinders Golf Club, finishing runner up in that competition. Mr Middleton QC, during the cross examination demonstrated his familiarity with golf courses on the Mornington Peninsula. He put to the plaintiff in cross-examination as follows:
[35]DCB 68-69
Q: “Then you've got a third day on the hop at Eastern again?---
A: Correct.
Q:You played three full rounds of 18 holes on the 8th, 9th and 10th of November 2019?---
A: Correct.
Q:Surely, Mr Horne, if your neck was a problem for you in terms of your golf, you couldn't have possibly done that?---
A:I had a lot of things that I was doing to get through it so I had, yes, paracetamol, a tennis ball in my golf bag to massage it and also using stretches. Yes, it was a struggle but I was filled with determination to try and still make it work.
HIS HONOUR:
Q: Was this a tournament or was this just - - -?
A:No, just a club, local competition, you play over the weekend sometimes. It's just a members' thing.
MR MIDDLETON:
Q:Well, this is three consecutive days. Would it be Friday, Saturday, Sunday, or what?---
A:I'm not too sure. I’m not too sure.
Q:On one of those days you achieved better than par. You shot 71, which is par, and that translated into 37 Stapleford points?---
A:Well, that - - -
Q:It's just incongruous, I suggest to you, that you could play three days in a row and play 18 holes on those three 7 days, 54 holes?---
A:Well, sorry, that first one on the eighth is a par 3 nine-hole golf course.
HIS HONOUR:
Q:That's nine holes, isn’t it, score of 28. If he shot 28 for 18 holes someone ring a talent scout?---
A:Yes, so that was just a little par 3 course that Eastern Golf Club have.
MR MIDDLETON:
Q:My apology. My error. Then we move from the tenth to the 16th and the 17th. They’re two 18-hole games, are they not?---
A: Yes, correct.
Q:Then we come to 24 November 2019, you play two rounds at Flinders on the same day?---
A:Correct.
Q:In other words, you played 36 holes on 24 November 19 down in Flinders?---
A:Correct, yeah.”[36]
[36]T42, L16-T43, L19
36The cross-examination confirmed that notwithstanding his neck injury, the plaintiff had returned to golf post-accident at a very good level.
37Broadly, the plaintiff’s evidence was that he effectively gave away golf apart from an occasional social game, after competing in the Flinders tournament. Mr Middleton QC asked:
Q: “Why did you stop golf?---
A:I mean, the pain that I got that last week from Flinders and The Dunes, I mean, it might sound like a lot of golf, but you would have to do a lot more of that practice and golf like that to hold a handicap of four and under and I knew that I couldn't sustain that much golf for four years. I could do it for a week and I had methods to try and get me through the days, but I certainly couldn't keep a handicap of four for four years.
Q:Well, you kept a handicap of two or less for the best part of four months following this accident?---
A:Yeah, I think that proves that I have the ability to be a professional golfer but just the injury has - yeah, I can’t practise enough to consistently be under a four handicap. I think there's a handful of competitions there that I'm better than a four handicap and the rest are over.
Q:Have you played golf since 1 December 19?---
A:Here and there, yeah.”[37]
[37]T44, L20-T45, L6
38The focus of the plaintiff’s evidence was on golf, but that was not his only sporting interest. He also enjoyed tennis and riding his bicycle. He is still a young man and the impression I formed was that sport was an important part of his life. He suffered obvious fracture injuries to his neck, but his injuries could not in anyway be suggested to be “catastrophic”. He has required ongoing physiotherapy and the occasional use of painkillers. During cross-examination he described a “mild ache all the time”[38] and a “shooting pain”[39] that he gets at times in his neck. I formed the view that he did not seek to embellish his neck symptoms and that they can be described as mild.
[38]T23, L19
[39]T24, L9
39Pausing here, I accept that the plaintiff suffered injury to his neck. I accept that he has an ongoing dull ache with a shooting pain at times and that it interferes with his ability to participate in sports, and in particular, it interferes with his ability to play golf at a high level.
40To succeed with this aspect of this application, the plaintiff must demonstrate that he has suffered a serious long-term impairment or loss of body function, namely injury to the neck. An impairment shall not be held to be serious unless the pain and suffering consequences and/or the pecuniary loss consequences, or combination of both, when judged by comparison with other cases in the range of possible impairments or losses of a body function, cab be fairly described as being more than “significant” or “marked”, and as being at least “very considerable”.[40]
[40]Humphries and Anor v Poljak [1992] 2 VR 129
41It should be remembered that it is the consequences to the particular applicant that must be “very considerable” and impairment to a body function may be “serious” for one person in circumstances that might be “serious” to another. Mr Winneke QC made this point in closing submission when he likened the plaintiff’s situation somewhat to the concert pianist who, by reason of a relatively minor injury to a finger, might suffer a “very considerable” consequence by way of impairment and loss of ability to play the piano, whereas another person without such musical skill might not suffer a “very considerable” consequence. On that point, Mr Middleton QC accepted, in my view quite appropriately, that the loss of golf at a very high level for the plaintiff could produce a “very considerable” consequence.[41]
[41] T82, L29-31 – T83, L1-6
42The defendant disputes the extent to which the plaintiff has lost the ability of golf. I have already mentioned the cross-examination based on the GOLF Link records. In addition, the defendant challenged the plaintiff on his affidavit evidence of an intention to pursue a career in golf.
43Having heard from the plaintiff, I accept his evidence about golf. As has been said many times before in these types of applications, the evidence of the plaintiff and whether that evidence is accepted (in other words, the credit of the plaintiff) is often critical to the success or otherwise of a serious injury application.[42] In this application, based on my assessment, the plaintiff gave straightforward answers to questions put to him and made appropriate concessions. I am comfortable that I can rely upon his evidence, particularly as it is broadly consistent with the medical evidence.
[42]Rowe vTransport Accident Commission [2017] VSCA 377at paragraph [89]; Johns v Oaktech Pty Ltd [2020] VSCA 10 at paragraph [76]
44I accept that the plaintiff was a very high-level golfer that after the accident he attempted to return to golf at that level. I also accept that, notwithstanding playing at a high level in late 2019, he has succumbed to the restrictions and pain caused by his neck injury and has abandoned a pursuit of golf at a high amateur level or at the level of a professional career.
45As Tate, Beach and Osborn JJA noted in Hooley v Transport Accident Commission:[43]
“The pecuniary disadvantage consequence of having one’s chosen field of employment permanently limited from a very young age is, as we have said, a very significant consequence. It includes but goes well beyond being a pain and suffering or loss of enjoyment of life consequence.”
(Footnote omitted.)
[43][2019] VSCA 263 at paragraph [50]
46I consider what was said in Hooley to be apposite to this application. While the plaintiff’s physical pain and restrictions from his neck injury may be mild, they are sufficient in my assessment to limit his ability to play high level golf, with the resultant loss of a sport that meant a lot to him, but also the loss, at a young age, of potential career options, bearing in mind that the plaintiff had in the past worked in the golf industry. When all of those matters are taken into account, and in combination, the pain and suffering and pecuniary loss consequences from the neck injury are for this particular applicant “very considerable”.
The acquired brain injury
47I am not satisfied that the plaintiff suffered an acquired brain injury that is “serious”. Any loss of consciousness was brief, perhaps for a few minutes at most. The neuropsychological reports from Ms Louise Vernieux dated 31 January 2020[44] and 27 March 2021,[45] are taken into account, but the most compelling opinion is, in my assessment of the evidence, that of Professor Stephen Davis, neurologist. In a report of 5 February 2020,[46] he obtained a history of the accident and the possible acquired brain injury and he also had the benefit of Ms Vernieux’s first neuropsychological assessment. Professor Davis said, under “Diagnosis and Clinical Impressions”:
“He suffered a very mild traumatic brain injury in this accident with possible 1 or 2 min loss of consciousness as indicated by the witnesses (see the neuropsychological rep and certainly an impaired GCS of 14 on 3 serial measurements by the paramedics wi (sic) some confusion. He had a normal CT brain scan and concern about CSF apparently resolved. A minimal acquired brain injury cannot be excluded, noting the neuropsychological findings which would undoubtedly be contributed to also by psychological factors.”[47]
[44]PCB 165
[45]PCB 181
[46]PCB 217
[47]PCB 220
48Professor Davis then said, under the heading “Prognosis”:
“He has an excellent prognosis but does have some mild residual symptoms.”[48]
[48]PCB 221
49Based on the opinions of the neuropsychologist and of Professor Davis, any brain injury is very much at the lower end of the range and on my assessment does not produce a “very considerable” consequence.
The psychiatric injury
50I am also not persuaded that any psychiatric injury suffered is “severe”. I take into account the report of the treating psychologist, Dr Tania de Jong,[49] together with the medico-legal assessments of Dr Nathan Serry.[50] While those reports provide support for the proposition that the plaintiff has an ongoing diagnosed psychological condition, but bearing in mind he is still able to engage in a wide range of day-to-day activity and to maintain employment, I am far from satisfied that any psychological impairment would meet the test of “severe”. For completeness, I note the opinion obtained by the defendant from Associate Professor Doherty, and his opinion supports my conclusion that a “severe” psychological or psychiatric consequence has not been made out.
[49]PCB 129
[50]PCB 136 and PCB 147
Summary
51For the reasons set out, I accept that the plaintiff suffered injury to the neck which has produced ongoing impairment and impairment consequences, particularly in respect to the sport of golf and the loss of a potential career within the golf industry. For this particular applicant, those impairment consequences are, in my opinion, “very considerable”. Accordingly, leave will be granted to the plaintiff to commence a common law proceeding.
52I shall hear to the parties as to the question of costs.
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