Jenkin v Transport Accident Commission
[2020] VCC 129
•20 February 2020
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-19-02756
| JAYDE JENKIN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 and 24 January 2020 | |
DATE OF JUDGMENT: | 20 February 2020 | |
CASE MAY BE CITED AS: | Jenkin v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC | |
REASONS FOR JUDGMENT
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Subject:
Catchwords:
Legislation Cited: Transport Accident Act 1986; Accident Compensation Act 1985
Cases Cited: Humphries v Poljak [1992] 2 VR 129; Transport Accident Commission v Katanas [2017] HCA 32; Cardoso v Staff Australia Payroll Services Pty Ltd [2019] VSCA 139; Transport Accident Commission v Garcia [2015] VSCA 225; Ingram v Ingram [1996] 2 VR 435;
Judgment:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F Ryan and Ms S Gold | Robinson Gill Lawyers |
| For the Defendant | Ms S Manova | Solicitor for the Transport Accident Commission |
HIS HONOUR:
Introduction
1 This is an unusual case for Jayde Jenkin applies for leave to bring a proceeding for damages pursuant to s 93(4)(d) of the Transport Accident Act 1986 (“the Act”) for injury suffered in a transport accident occurring as long ago as 12 December 2011 when she was eighteen. Ms Jenkin says she suffered a “serious injury” within the meaning of paragraphs (a) and (b) of the definition of that expression in s 93(17). The body function in (a) is the left knee. The permanent serious disfigurement is the scar on the outer part of her left thigh.
Circumstances
2 Ms Jenkin is now twenty-six. On 12 December 2011, she was in the front seat of a car driven by a friend. It was about 8.15 pm. The car had been travelling along Reservoir Road in the Bendigo suburb of Strathdale. Her friend started to turn the car to the right into McIvor Road when a larger car entered the intersection from their left and struck Ms Jenkin’s car adjacent to where she was sitting.
3 The impact was large. Her car spun on impact. It took time and effort to remove Ms Jenkin from the car. The collision caused Ms Jenkin’s left knee to strike the glove box. By feeling her left leg, she realised it was badly fractured. She was taken to the Bendigo Base Hospital by ambulance.
4 At the hospital, an x-ray confirmed a mid-shaft fracture of her left femur with posterior displacement of two centimetres and medial angulation. An operation was performed the following day. It proved more complicated than expected because of Ms Jenkin’s weight. There was an open reduction, bone grafting and the insertion of an intramedullary nail. The nail fixed the fracture fragments in proper alignment. The operation left a scar, which I will discuss later.
5 After the operation, Ms Jenkin underwent physiotherapy and hydrotherapy. By 16 December, she could walk for about 10 metres using a Zimmer frame. On 20 December, she could walk for about twenty metres using crutches instead of a frame and on the next day she was discharged.
6 Ms Jenkin used crutches for about eight months. She did not seek treatment from her general practitioner or even from the hospital. She believed nothing could be done about her symptoms or the scar.
7 When the accident occurred, Ms Jenkin was a student at a high school in Bendigo. During part of her last year at high school, 2013, she went to school by taxi because her injuries prevented her driving or using public transport.
8 Ms Jenkin then studied nursing at La Trobe University in Bendigo. She took five, rather than three, years to complete the course due to the illness of her father which led to his death. While studying, she worked as a disability support worker at Scope.
9 After completing her degree in 2017, Ms Jenkin travelled briefly. She is now working casually as a nurse with Bendigo Health. She works in the general ward and in aged care. Naturally, she seeks permanency but there are few such positions. On average, she works sixty hours each fortnight.
Current position
10 Ms Jenkin lives with her mother. She was living with her partner but they separated.
11 The fractured femur has united well and causes no problems.
12 She experiences a “sore aching pain” or ache behind her left knee cap. That is her description of the pain. It is constant. On a scale of severity up to ten, it is one or two but worsens after long walks and after a shift at work. She could not say what distance constituted a “long walk” for her. I daresay she walks a considerable distance during a shift as a nurse. On long walks she needs frequent rests. Even on shorter walks she experiences pain. After long walks she develops a limp.
13 On busy days, at work and elsewhere, she sometimes takes Ibuprofen to reduce the swelling in her knee. She cannot jump because of her knee. She ascends or descends stairs cautiously. On long car trips, she needs to stop every hour or so because her leg hurt and she needed to stretch it.
14 Ms Jenkin avoids pain relieving medicines through her fear of side effects. She has not taken these medicines for years except for Ibuprofen (Nurofen) on occasions for severe pain.
15 She experiences “acute” pain in the knee when asleep due to pressure or her leg being in an awkward position. When the pain is “unbearable”, she will apply ice to her knee. At times during the week, the pain from her scar and hips wakes her. However, her knee pain does not but causes her to dream of pain and, on waking, finds there is actual pain. The combination of knee pain and the stiffness of her scar makes kneeling and bending difficult. It limits her exercising. She does not like activities which stretch the scar.
16 Her knee has given way on several occasions over the years; once causing her to fall to the ground. Coupled with the sound and feel of crepitus, she feels her left leg is weak and unreliable even though the knee has the same degree of movement as her uninjured right knee. She fears it may collapse and favours her other leg.
17 During her course, she deferred a placement because of an unrelated ankle injury which is something she did not do with her knee. She works casually at present. Her hours vary and can be as little as 30 a week. She strives for more hours and, ultimately, full-time permanency. This is so despite the condition of her knee.
18 She copes with her household activities except for mopping and vacuuming. When much younger, she danced and did callisthenics but not at the time of the accident. Now, she avoids dancing and attending concerts. She finds driving a car difficult over prolonged periods due to the flexed position of her knee. She has difficulty using stairs, squatting and kneeling.
19 The scar is sensitive and stiff. She avoids touching it. She is careful to prevent others from bumping into her or touching it. At night, she wakes in agony from a “burning” pain from the scar. The sensation is either “red hot” or “ice cold”. This occurs whether something is pressing on the scar or not. This happens at least twice a week and the sensation lasts from a few minutes to thirty minutes. While experiencing this sensation, even the lightest touch on the scar (e.g. clothes or bed sheets) will cause much pain. About once a week during the day, the scar feels numb and painful. She does not know what triggers the numbness and pain. Resting her leg or putting ice on the scar does not remove the numbness or pain. She ensures nothing is touching the scar and the pain will ultimately go. However, walking or bending does not cause pain in the scar.
20 Along with counsel, I viewed the scar. Adopting the description of counsel, it starts above the region of the hip and travels down to a point about ten centimetres above the knee[1].
[1]Transcript at p 42.
21 Ms Jenkin is acutely conscious of the appearance of the scar. She hates it for she sees it as ugly and raised. While she was co-habiting with her partner, Jason Bickford, she would not let him see or touch it. She likes swimming during the summer. When she goes to her friend’s swimming pool or a public pool, she does not wear a swimsuit but wears shorts. She covers as much of her thigh as she can. She usually wears clothes which cover the scar.
22 Ms Jenkin sees her left thigh differently from the right. In cross-examination, she said[2]:
“Like, looking from the front it seems like it pulls in at different areas and the other leg is sort of smoother, I guess, and that – that areas pull tight that they don’t on the other side.”
[2]Transcript at p 43.
23 In February, Ms Jenkin will undergo some kind of weight loss surgery. She believes it is called a “mini by-pass”. Her surgeon suggested options and she chose this one. She realises a sizeable loss of weight would reduce the pain she suffers in her knee and slow the progress of the deterioration present there. Her surgeon told her a reduction to 80 kilograms would be a good result. However, for her height, a normal weight would be 60 or 65 kilograms, so she has been told.
Medical evidence
24 For many years, Ms Jenkin has attended the Sandhurst Medical Practice in Bendigo. A copy of its clinical notes about her were admitted into evidence.
25 Ms Jenkin did not visit the practice shortly after the accident. Her next visit was on 5 February 2013. Thereafter, she visited the practice on 36 occasions. Of those 37 visits, nine were for a vaccination or immunisation, 24 for treatment of one sort or another, two for combined immunisation and treatment; and no reason was recorded for another two. At no stage, did she tell a doctor in the practice about her left knee or, even, the burning sensation she experiences. This was so even though she sought help for her feet. Her reason was the pain in the feet was “really severe” while the pain of the knee was a “constant uncomfortable” pain. To her, all treatment for her current condition had finished and she had to live with the ache or pain until her knee was “completely ruined”.
26 Pausing there, Ms Jenkin’s mother, Karen, said of herself and her daughter[3]:
“I have not advised Jayde to go to the doctor about her knee and scar pain. Jayde and I are both from a medical background. We are both of the understanding that there is little that can be done for either.”
[3]Affidavit sworn on 9 January 2020 at [5].
27 Her mother deposed to the family’s reluctance to seek medical help, citing the example of her husband and herself and their conditions.
Stapleton
28 Murray Stapleton is a plastic surgeon. He examined Ms Jenkin on 3 October 2018[4]. Possibly owing to his status as a specialist, Mr Stapleton examined her at the joint request of the parties.
[4]Report dated 3 October 2018.
29 Mr Stapleton saw a scar the full length of the left thigh, measuring 38 centimetres. Ms Jenkin told him of the tenderness of the scar over its full length, her inability to lie on it, her care to avoid bumping or abrading it and her occasional experience of an agonising burning pain in its vicinity. Interestingly, she told of no improvement in its quality in the years since the accident.
30 On examination, he noted the mid-section of the scar had almost completely settled and the remainder of the scar had reached maximum medical improvement. A photograph was taken of the scar with a copy attached to his report. The copy was of poor quality. At my request, the original was obtained, which I have seen. To Mr Stapleton, the scar was not ulcerated, depressed or elevated. It was soft and smooth and not attached to underlying deeper tissue or bone.
31 Finally, Mr Stapleton assessed the whole person impairment of the scar. Using Table 2 at p 13/280 of the AMA Guides to the Evaluation of Permanent Impairment, 4th edition, he placed her impairment in the lowest of the five classes of impairment. The commentary behind the classes is informative[5].
[5]Section 13.5 at pp 13/279 and 13/280.
Paoletti
32 Nick Paoletti is a psychiatrist who interviewed Ms Jenkin on 1 November 2018[6].
[6] Report dated 1 November 2018.
33 His examination of her mental state revealed two areas of abnormality: an anxious affect; and anxious ideation coupled with a fear of being bumped in crowds and a high awareness of her scars which she covers with clothes and a high self-awareness. He did not explain the last point but, on the next page, he referred to thighs of different sizes.
34 Associate Professor Paoletti diagnosed an Unspecified Anxiety Disorder with little remnant of post-traumatic type and with anxiety mostly about the appearance of her scars and fear of being bumped in public. Judging from his findings in his mental state examination, the severity of this disorder is mild if one thinks in terms of mild, moderate or severe. It will remain so for the foreseeable future. It may benefit from psychological counselling to enable her to cope better with self-awareness issues. But his prognosis was static for the foreseeable future.
35 Ms Jenkin told him her weight at the time of the accident was 120 kilograms and estimated her current weight at 160 kilograms or a little less. He felt the chronically high level of eating may attract a diagnosis of Unspecified Feeding or Eating Disorder which appears to have been aggravated by the accident.
Kossmann
36 Thomas Kossmann is an orthopaedic surgeon. Again, the parties asked him to examine Ms Jenkin, which he did on 8 November 2018[7].
[7] Report dated 8 November 2018.
37 On examination, Mr Kossmann saw two scars, one over the pelvis and proximal femur of 22 centimetres, the other on the femur’s outside of 16 centimetres. Using a goniometer, h measured movements of the thoracolumbar spine, hips, knees, ankles and toes. Flexion and extension of the knees were the same. For both knees, he noted stability in the medial, lateral and anterior cruciate ligaments. The only difference was what he described as “patellofemoral friction”. He diagnosed a fracture of the left femur shaft and patellofemoral friction of the left knee. Elsewhere in his report, he says she suffered a “dashboard injury” to her knee.
38 An idea of what he meant by “patellofemoral friction” appears at p 5 of his report, where Dr Kossmann assigns whole person impairments using the 4th edition of the Guides to the Evaluation of Permanent Impairment[8]. With the knee, he refers to the footnote to Table 62 on p 5/83, which says:
“In a patient with a history of direct trauma, a complaint of patellofemoral pain, and crepitus on physical examination, but without joint space narrowing on roentgenograms, a 2% whole-person or 5% lower-extremity impairment is given”.
[8]Published by the American Medical Association.
39 Whether there is joint space narrowing is unknown because there had been no x-rays or scans taken since her admission to hospital following the accident. Since the x-rays taken then focussed on the femur, nothing may have been shown about the knee anyway. Absent evidence of narrowing, the expression is descriptive of symptoms following direct trauma.
40 He linked the retropatellar or patellofemoral pain to the accident with the possibility of developing advancing osteoarthritis, as he put it. His interest in x-rays and a MRI scan related to further treatment. He recommended a neurological examination for the numbness and burning sensation along the scar.
41 Dr Kossmann noted Ms Jenkin’s employment as a nurse and recommended she limit walking long distances, on uneven ground, up and down stairs, inclines and declines, climbing up and down ladders, kneeling or squatting or carrying weights more than two to five kilograms. These restrictions were needed for the foreseeable future.
42 Dr Kossmann saw stability in the injuries.
Flynn
43 Jennifer Flynn is an orthopaedic surgeon. She examined Ms Jenkin on 26 September 2019, noting, initially, a normal, but slow, gait and normal movements and actions (dressing and undressing) in the her rooms[9]. Ms Jenkin’s height was 161 centimetres while her weight was 135 kilograms.
[9]Report dated 26 September 2019.
44 On examination, Dr Flynn saw three scars on the outside of the left thigh, one, 18 centimetres long, the other, 21 centimetres and the third, described as a small distal scar consistent with cross bolt insertion for femoral nail. Owing to a positive result for Tinel’s test, she suggested a neurogenic component to the leg pain. She noted tenderness of the short external rotator muscles and a trochanteric bursa.
45 Using a goniometer, Dr Flynn measured the range of movement for the left hip and left knee, with the latter being normal or nearly normal. On extension of the knee, she noted crepitus, lateral tenderness with the patellofemoral joint with normal patella tracking and no effusion. There was no other abnormality.
46 Dr Flynn diagnosed the fracture of the left femur, mild left gluteal tendinopathy and crepitus and pain in the left patellofemoral joint. The crepitus and pain was due to degeneration. The fracture was united. The gluteal tendinopathy was associated with the nail. It is mild and required no treatment.
47 The femur was now of no concern with the fracture united. However, her prognosis for the left knee was guarded with continuing symptoms. Reduction of Ms Jenkin’s weight to a normal height to weight ratio would significantly impact the knee symptoms. Moreover, Dr Jenkins wanted MRI scans of the left knee to confirm or not her clinical finding of the existence of degeneration in the patellofemoral joint[10]. Since none has been taken, I am left with her clinical finding.
[10] There is no such MRI scan.
48 Dr Flynn anticipated significant deterioration in the left knee over the medium to long term. She also thought the gluteal tendinopathy would deteriorate over the same period but not significantly. It was possible Ms Jenkin would need surgery in the future, either arthroscopy or, more seriously, arthroplasty. As a nurse, her capacity for unrestricted employment is likely to deteriorate.
49 Unlike Dr Kossmann, Dr Flynn placed no specific restrictions on her employment as a nurse. Although with the deterioration of the knee her capacity for unrestricted employment is likely to deteriorate.
Menz
50 On 3 December 2019, Ms Jenkin was examined by an orthopaedic surgeon, Anthony Menz. He took a comprehensive history, stated succinctly. He noted only occasional home exercises as treatment and no medicines.
51 Dr Menz noted her height as 160 centimetres and weight at 141 kilograms with a body mass index of 54, placing her in the morbidly obese range.
52 His examination revealed a scar on the lateral aspect of her thigh, which was very painful and tender and measured about 45 centimetres. With the left knee, there was some mild patellofemoral crepitus. The range of movement of that knee was to 120 degrees and the limitation was due to obesity. He noted a positive apprehension test for patellofemoral dysfunction. He was unaware of any radiological investigations since the initial fractured femur.
53 Dr Menz concluded the fractured femur had healed within six or seven months. He supposed the patellofemoral pain and dysfunction was due to Ms Jenkin’s knee striking the dashboard at the time of impact and causing articular cartilage damage to her patella.
54 As to prognosis, Dr Menz said[11]:
“The prognosis for her patello-femoral pain must be poor at this stage. She is morbidly obese with a BMI of 54 and certainly needs to lose weight as this will significantly improve with (sic.) symptoms of her patello-femoral joint.”
[11]Plaintiff’s court book at p 71.
55 He thought she should have a MRI scan of the joint to determine the extent of the damage and ongoing degeneration in the knee joint.
56 Although the knee did not prevent her working, it did aggravate its condition at the end of a shift.
Legal principles
57 A court cannot give leave to bring for the recovery of damages in respect of an injury unless the injury is a serious injury. Relevantly, a serious injury means:
(a)serious long-term impairment or loss of a body function; or
(b)permanent serious disfigurement.
58 In Humphries v Poljak[12], the Full Court set out the test whether an injury is serious:
“To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”
[12][1992] 2 VR 129 at 140.
59 In Transport Accident Commission v Katanas[13], the Court said of the test set out in Humphries v Poljak:
“As appears from Humphries v Poljak, the application of the narrative test entails a two-stage process:
(1) an assessment of whether the nature and symptoms of the injury and the consequences of the injury are, subjectively for the applicant, ‘serious’ or, in the case of mental or behavioural disturbance or disorder, ‘severe’; and
(2) a determination of whether the injury as thus assessed is objectively ‘serious’ or, in the case of mental or behavioural disturbance or disorder, ‘severe’ when compared with the range or ‘spectrum’ of comparable cases.”
[13][2017] HCA 32 at [6]
60 Unlike the Accident Compensation Act 1985, the Transport Accident Act 1986 uses the expression “long-term” in one instance and the word “permanent” in another. The meaning of “permanent” in s 134AB(37) of the Accident Compensation Act 1985 is “likely to last for the foreseeable future” with the elaboration that it conveys the probability that the impairment or other condition will last and not mend or repair or, at least, not to any significant extent[14].
[14]Cardoso v Staff Australia Payroll Services Pty Ltd [2019] VSCA 139 at [45] citing from Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622 at 638-9.
61 Even though it appears in a different Act, I see no reason to adopt a different meaning for “permanent” in the Transport Accident Act where used in relation to disfigurement.
62 The expression “long-term” is not defined in the Act and has not been judicially defined. Putting aside the duration, the comments by way of elaboration of the Court in Barwon Spinners would apply to cases involving the “long-term” – the probability of lasting and not mending or repairing or, at least, not to any significant degree.
63 The test in Humphries v Poljak applies to permanent serious disfigurement.
64 In Transport Accident Commission v Garcia[15], the Court said[16]:
“Richards was decided after Ingram and Baker. Since Richards, there has been no doubt that in serious injury applications under s 93 of the Act, where paragraph (a) of the definition of ‘serious injury’ is relied upon, a psychological consequence of the relevant injury may be taken into account when assessing seriousness. By the same reasoning process as applies in paragraph (a) cases, a psychological consequence of permanent disfigurement may also be taken into account when assessing seriousness in a paragraph (b) case.”
[15][2015] VSCA 225.
[16]At [27].
65 Plaintiff’s counsel submitted I should consider the physical consequences of the scar, relying on an example given by Charles JA in Ingram v Ingram[17]. The example concerned employment. Scarring may prevent or inhibit an athlete’s performance. In any event, a reading of the judgment in Garcia makes clear the physical symptoms and consequence are relevant to paragraph (b). Accordingly, the physical consequence and the psychological consequence are taken into account as well as the characteristics of the scar itself: number; location and degree of obviousness[18].
[17][1996] 2 VR 435 at 440: “Scarring to the foot of an athlete could well be catastrophic; to a lawyer of small consequence”.
[18]Baker v TAC [1997] 1 VR 662 at 664.
Discussion
Left leg
66 The respondent accepts Ms Jenkin is a creditable witness, which she is. She is a matter of fact person. She believes nothing more can be done for her left knee. She does not take pain relieving medicines or seek any type of treatment even though she has sought treatment for other complaints in the past. She does that when it is necessary. Part of her approach is informed by the reluctance of her parents to seek medical treatment.
67 Although the record of her attendances at her clinic show 37 between 2011 and 2019, a sizeable number related to vaccinations. The rest do not contradict her evidence of attending for acute problems and a belief there is nothing which can be done for knee and scar.
68 Generally, she rates the level of pain in her knee at one or two out of ten, which is low. However, this can increase at night and she experiences pain with her scar. She occasionally takes Nurofen and puts ice on her knee about once a week.
69 Despite the injury to her left leg, Ms Jenkin studied and became a nurse, which involves extensive use of her legs. The injury did not prevent her studying to become a nurse or working as one. She has not taken time off work through her leg even though she could not undertake a placement in February 2019 because of plantar fasciitis. Owing to her casual employment, her hours of work are variable, often less than 40. She strives for more hours as well as permanency. She is a hard worker and is young. Less than 40 hours is unsatisfactory to her. The condition of her leg does not cause her to retreat from that desire. Nor has the nature of her work changed for she is unrestricted in her duties.
70 The injury to her leg has not seen her giving up any sport or recreational activity. Her relationship has ceased recently but no one suggests that that was due to her injuries.
71 Each of the specialists diagnose an injury to Ms Jenkin’s patellofemoral joint due to the accident. Dr Menz alone was more precise, nominating articular cartilage damage of the patella as the nature of the injury. It may be Dr Kossmann and Dr Flynn said much the same when he spoke of patellofemoral friction and she of patellofemoral crepitation and pain. Each foresaw deterioration in the condition of the injury. The deterioration will cause a lessening of her ability to do all of the duties of a nurse with Dr Kossmann recommending current limitations on her walking, climbing, descending, kneeling, squatting and even carrying light weights. Even though there is a “no lifting” policy in her work, these limitations are severe, if she observed them, bearing in mind the physical nature of her job.
72 The impact on her domestic and social life is not great.
73 Ms Jenkin will undergo some kind of bariatric surgery shortly. I do not know what it involves. Ms Jenkin used the expression “mini-press”. I do not know that procedure involves. To Dr Flynn, a loss of weight to attain a normal height to weight ratio is likely to significantly impact the symptoms associated with the left knee joint. She did not say what the result of a lesser weight loss would achieve. Dr Menz did not qualify his opinion. Literally, any weight loss would have a significant effect. However, he could not mean that a small loss would have that effect. Understandably both opinions are loosely stated: Dr Flynn speaking of normal BMI; while Dr Menz of, presumably a notable but uncertain loss.
74 Ms Jenkin was told of the resulting weight from a ”good result”. She was told of her weight if she had a normal height to weight ratio. The good result is well above the normal ratio. At best, I would say the surgery raises a possibility of improvement in the symptoms in her knee and a slowing of the process of deterioration. A sizeable weight loss will not stop the process of deterioration. The future still remains poor. Conscious that Ms Jenkin bears the onus of proof, I am satisfied her impairment or loss is long-term. Whatever is the result of surgery in terms of weight loss, Ms Jenkin can expect a painful knee for the foreseeable future.
75 She was determined to be a nurse and is determined to remain one. The nursing conducted by Ms Jenkin is physically demanding. Her future as a nurse is uncertain even if she is able to follow the restrictions recommended by Dr Kossmann.
76 In traditional terms, this injury to the knee, when judged by comparison with other cases in the range of possible impairments or losses, is fairly described at least as very considerable and certainly more than significant or marked.
Disfigurement
77 This scar is plainly a disfigurement.
78 Along with counsel, I viewed the scar in the courtroom. At my request, I was given the original photograph of the scar taken on 3 October 2018. Nothing has changed between then and now. Adopting Mr Stapleton’s opinion, the disfigurement is permanent.
79 The scar is very long, narrow and faint. On close inspection, it is noticeable. It would not be noticeable at a distance. It is not ulcerated, depressed or elevated. It is soft and smooth and not attached to underlying deeper tissue or bone. Because of its position on the thigh, in most instances, it can be hidden through the covering of clothing.
80 Ms Jenkin sees a difference between her legs due to the scar. She struggled to describe what she meant: “it seems like it pulls in at different areas”. The defendant’s counsel described what Ms Jenkin said as “bumpiness”, which is reasonable. This bumpiness is not obvious. Mr Stapleton did not mention it. I accept Ms Jenkin’s perception of its existence and it affects her psychologically.
81 While she was living with Jason Bickford, it affected their relationship to the extent of not wanting him to see it. Presumably, she will react the same way in any future relationship.
82 The scar remains tender along its length. Ms Jenkin cannot lie on it. She takes care to avoid bumping or abrading it. Occasionally, she experiences an agonising burning pain.
83 Ms Jenkin likes swimming during the summer, wearing swimsuits or shorts. Since the accident, she wears shorts and usually clothing to cover the scar. Mainly due to her awareness of the appearance of the scar, she has developed a recognised psychiatric disorder. She has not sought counselling regarding the symptoms of the disorder. Although the severity of the disorder is mild and may benefit from counselling, nonetheless, it is significant to develop a recognised psychiatric disorder or illness as a reaction compared with a lesser form of reaction not amounting to a disorder or illness.
84 Although several practitioners thought a neuropathic assessment should be undertaken, in light of Mr Stapleton’s view of the scar reaching maximum medical improvement, I do not consider that is warranted.
85 Associate Professor Paoletti’s diagnosis of a pre-existing Eating Disorder aggravated by the accident is tentative. I would not find she suffers from such a disorder in an aggravated state. The evidence of her weight at the time of the accident varies widely so much so that I cannot accept her oral evidence of her weight at the time of the accident as accurate even though I accept she has put on weight since the accident.
86 The test in Humphries v Poljak applies to paragraph (b). Although long, the scar is not obvious to the casual observer. It has created a mild psychiatric condition, which may be helped by counselling. The scar is sensitive to touch. It is painful at night with the pain lasting up to thirty minutes. Frequently, it is numb and painful without apparent cause. Combining the actual disfigurement with its physical and psychological consequences, I consider Ms Jenkin has suffered a permanent serious disfigurement.
Conclusion
87 I will grant leave to Ms Jenkin to commence a proceeding for damages.
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