Johnstone v Transport Accident Commission
[2013] VCC 131
•8 March 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-02762
| LAUREN JOHNSTONE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 and 19 February 2013 | |
DATE OF JUDGMENT: | 8 March 2013 | |
CASE MAY BE CITED AS: | Johnstone v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 131 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – disfigurement and scarring to the lower right leg and ankle – impairment of the right ankle – whether the consequences are “serious”
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Richards v Wylie (2000) 1 VR 79; Humphries v Poljak [1992] 2 VR 129; Ingram v Ingram [1996] 2 VR 435; Baker v Transport Accident Commission & Anor [1997] 1 VR 662; Mobilio v Balliotis (1998) 3 VR 833
Judgment: Leave granted in respect of the disfigurement and right ankle injury. Leave granted for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P A Jewell SC with Ms M Pilipasidis | Slater & Gordon Ltd |
| For the Defendant | Mr J P Gorton SC with Ms M Britbart | Solicitor for the Transport Accident Commission |
HIS HONOUR:
1 This is an application brought by Originating Motion dated 19 September 2011. The plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injury suffered by her arising from a transport accident which occurred on 20 June 2009 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The definition of “serious injury” relied upon by the plaintiff in this application is under s93(17):
“(a) Serious long-term impairment or loss of a body function; and
(b) permanent serious disfigurement.”
4 In this application, the plaintiff, in effect, has two separate applications for serious injury.
5 Under ss93(17) of the Act, the plaintiff seeks serious injury certification by the Court for:
(i) loss of the body function to the right ankle; and
(ii) permanent serious disfigurement to the right ankle in the form of scarring.
6 The inquiry under s93(17)(a) of the Act focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function and then, by reference to the consequences of that impairment, to determine whether it is serious and long-term. The same inquiry is made in respect of the application for serious injury certification under the heading of “permanent serious disfigurement”.
7 The serious injury defined in ss(a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of an impairment of the body function.[1]
[1]Richards v Wylie (2000) 1 VR 79
8 In this application, Mr Jewell SC, on behalf of the plaintiff, stated that the plaintiff did not rely on any mental response to either the physical impairment to her right ankle or the disfigurement in the form of scarring to her right ankle.
9 In forming a judgment as to whether the consequences and the injury are “serious”, the question to be asked is:
“… can the injury [or disfigurement], when judged by comparison with other cases in the range of possible impairments … be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”[2]
[2] Humphries & Anor v Poljak [1992] 2 VR 129
10 The plaintiff has sworn and relied upon two affidavits, dated 19 September 2011 and 15 February 2013. The plaintiff also relied upon an affidavit of Jaana Johnstone, dated 23 January 2012. The plaintiff gave evidence and was cross-examined.
11 In addition to the sworn affidavits and sworn evidence, both parties relied on medical reports and other materials which were tendered during the course of the proceeding. I have read all of the tendered material. In the course of the hearing, none of the medical practitioners were called for cross-examination by the defendant.
12 The tendered evidence in this proceeding was as follows:
· Exhibit A – the plaintiff’s Court Book (“PCB”) pages 6 to 67 inclusive
· Exhibit B – Facsimile letter of instruction and addendum report dated 18 February 2013
· Exhibit C, Defendant’s Court Book (“DCB”) 266 – Report of Gerard Powell dated 7 May 2009
· Exhibit 1 – DCB pages 10 to 19 inclusive
· Exhibit 2 – DCB 62 and DCB 162.
13 The issues in this application are as follows:
(a)Whether the plaintiff’s impairment to the right ankle is properly described as a serious injury under the Act? In effect, this was a “range case”;
(b)Whether the impairments or restrictions the plaintiff suffered as result of her pre-existing right knee injury overlapped with the impairments claimed to be a result of the injury to the left ankle;
(c)The defendant conceded that the right ankle was injured in the transport accident and that the injury is accepted as a long-term injury.
The Plaintiff’s Background
14 The plaintiff was born on 24 December 1988 and is currently aged twenty-four years.[3]
[3]PCB 6
15 The plaintiff lives with her parents, and at the time of the application was in the process of changing her employment from Hertz at Melbourne Airport to Hertz Truck Rentals at Preston. She is currently in full-time employment.
16 The plaintiff was educated to Year 12 at Whittlesea Secondary College. Upon leaving school, she attended at the NMIT in Collingwood and obtained a Certificate III in International Retail Travel Sales. This enabled her to work as a travel agent.[4]
[4]PCB 8
17 The plaintiff commenced work with her father in a solar desalination business in September 2010. Her role there was one of an administrative assistant. She ceased that employment in March of 2011 due to the difficulties of working and living with her father and the family business all the time.[5]
[5]PCB 9
18 The plaintiff was currently employed as a customer service officer at Hertz at Melbourne Airport. She has maintained that employment since March of 2012.[6] In her evidence, the plaintiff stated that she had recently obtained a job at Hertz Truck Rentals based in Preston. This is a full-time position and the plaintiff is looking forward to pursuing it. In the course of her evidence, the plaintiff stated “I love my job”.[7]
[6]PCB 9B
[7]Transcript (“T”) 37, L9
The transport accident involving the Plaintiff
19 The plaintiff described the transport accident in her affidavit sworn on 19 September 2011 in the following terms:
“On 20 June 2009, I was involved in a transport accident (‘the accident’) when I was a front seat passenger in a vehicle driven by Ashlie Sabelberg on Plenty Road, Mernda. The vehicle spun out of control and went into an embankment on the opposite side of the road.”[8]
[8]PCB 6
20 The plaintiff was taken from the scene of the accident by ambulance to The Royal Melbourne Hospital.
Permanent serious disfigurement to the Plaintiff’s right ankle
21 The plaintiff seeks a serious injury certificate for permanent serious disfigurement pursuant to ss(b) of the definition of “serious injury” as set out in s93(17) of the Act. The test for serious injury is the same as the other categories of serious injury set out in the definition of “serious injury” in the Act.
22 In Ingram v Ingram,[9] Callaway JA stated:
“Quite apart from authority, it is important not to read para(b) in isolation. ‘Permanent serious disfigurement’ within the intendment of the statute must be such disfigurement as bears comparison with such injuries as serious long-term impairment of a bodily function, severe long-term mental illness and loss of an unborn child.”[10]
[9][1996] 2 VR 435
[10]at page 438
23 In Baker v Transport Accident Commission & Anor,[11] Brooking JA referred to the decision in Ingram v Ingram[12] and added the following comments in his judgment:
“Satisfactory descriptions of the scars on the appellant's body are not easily provided. This is so, I suppose, in cases of scarring generally. The scarring is to her left lower leg, right lower leg, right foot, right buttock and abdomen. As regards the left lower leg, there is quite an obvious 20 centimetre scar on the inside of the leg but close to the front of the leg. As a result of a puncture wound there is on the left lower leg also a very noticeable scarred depression evidently about three centimetres long near the front of the leg. It is the depression which makes this scar very noticeable. The appellant, not without some justification, described it as a hole. … .
… I say that having regard to the number of scars, their location, their size and their degree of obviousness. … .”
[11][1997] 1 VR 662
[12](supra) at page 664
24 In Baker, Brooking JA was setting out the parameters for assessing a permanent serious disfigurement.
25 The plaintiff in this case is a young, single woman. The scarring is on both sides of her right ankle.
26 Mr Murray Stapleton, plastic and hand surgeon, described the scarring as follows:
“… On the outer aspect of her right ankle she has a 9 cm scar and a 6 cm reddened scar exists on the inside of the right ankle. She has two reddened puncture scars on the front of her right ankle through which the arthroscopy procedure was carried out.”[13]
[13]PCB 53
27 Mr Stapleton’s opinion was that the scars did not require any further revision and that the disfigurement had now stabilised.[14]
[14]PCB 54
28 Photographs of the scarring and disfigurement to the plaintiff’s right ankle appear at pages 55 and 56 of the PCB. These photographs were taken on 21 April 2011. I have had the opportunity of viewing the scars during the course of the application in this case. To my observation the scars are more prominent and noticeable than they appear on the photographs. The scarring on the inside of the plaintiff’s ankle has the appearance of a bump. The scars are obvious and ugly in appearance.
29 The plaintiff gave evidence that she cannot wear certain footwear; for example, dress boots, because the scarred area rubs and is uncomfortable. The reason for this is confirmed in the report of Dr Claudia Bosch, general practitioner, dated 14 March 2011. Dr Bosch notes that an x-ray shows and confirms that the protuberance that the plaintiff was feeling was the malleolus itself.[15] This is part of the disfigurement as a result of the injury to the plaintiff’s right ankle suffered in the transport accident.
[15]PCB 24
30 I find that the scarring by number, size and degree of obviousness make the disfigurement to the plaintiff’s ankle very noticeable. The scars are on both sides of the plaintiff’s ankle. The location of the respective scars means that they are visible to any observer from any angle. In short, the plaintiff cannot hide them without fully covering them. I find that having regard to the number of scars, the location of the scars and their size, combined with the obviousness of them in real life, that the plaintiff has suffered a serious disfigurement to her right ankle which is permanent.
31 I grant leave to the plaintiff to bring proceedings for pain and suffering damages as a result of the permanent serious disfigurement to her right ankle which she received as a result of the transport accident on 20 June 2009.
The right ankle injury
32 In the transport accident on 20 June 2009, the plaintiff suffered an injury to her right ankle. The plaintiff was taken to The Royal Melbourne Hospital by ambulance and admitted through the Emergency Department. The plaintiff had suffered injuries to her liver and other injuries to her head which are not part of this application.
33 At The Royal Melbourne Hospital, the plaintiff’s right ankle was x-rayed. The x-ray report was as follows:
“… Complete transverse fracture seen [in] the distal fibular shaft with overlapping and significant fracture displacement. Transversed and complete in type fracture to the medial malleolus also demonstrated. Ankle mortise is disrupted.”[16]
[16]PCB 22
34 The plaintiff remained in hospital and was discharged on 24 June 2009 after her ankle had been manipulated under sedation and a backslab had been applied to it.
35 On 9 July 2009, the plaintiff attended her general practitioner complaining of tingling in the right toes. The general practitioner, Dr Bosch, referred the plaintiff to The Royal Melbourne Hospital where a deep vein thrombosis (“DVT”) was diagnosed. The plaintiff was placed on Warfarin and Clexane injections and was discharged home the following day. She was required to continue the use of Warfarin for a period of three months to control the DVT.[17]
[17]PCB 6-7
36 In September 2009, the plaintiff returned to The Royal Melbourne Hospital for an operation to take some of the metalware out of her right ankle. This operation passed without incident.[18]
[18]PCB 7, paragraph 9
37 In November 2009, Mr Gerard Powell, orthopaedic surgeon, operated on the plaintiff’s right knee. The plaintiff had previously injured her right knee in May of 2009. The injury to the plaintiff’s right knee preceded the injury to her right ankle in the transport accident.[19]
[19]PCB 9C
38 The plaintiff underwent intensive physiotherapy in order to mobilise her right ankle. The detail of the physiotherapy treatment is set out in the report of Mr Robert Elhage, physiotherapist, dated 1 May 2011.[20]
[20]PCB 28
39 In September 2010, the plaintiff changed her employment from working as a travel agent to commence work with her father as an administrative assistant in the family business of solar desalination. The plaintiff remained in that employment until March of 2011. She ceased that employment because she found that working in the family business and living at home with her parents was simply “too much”.
40 On 26 October 2010, the plaintiff was operated on by Mr Harvinder Bedi, orthopaedic surgeon. The purpose of this operation was to remove the screws from her right ankle and to debride the scar tissue within the ankle.[21]
[21]PCB 7
41 In March 2012, the plaintiff commenced work at Melbourne Airport for Hertz Rent-a-Car. Her role at this employment was as a customer service officer.
42 In her evidence, the plaintiff stated “I love my job”.[22] The plaintiff stated that, at times whilst working at the Airport, she would be required to be out in the car park area of Hertz Rent-a-Car, parking and attending to vehicles. She said that after she had spent a whole day on her feet walking around in the car park, that she was in a great deal of pain and her right ankle would be stiff. She stated that after a day or two the pain would dissipate and that she would be back to normal.
[22]T37
43 At the time of the hearing, the plaintiff had organised to change her employment from Hertz at the Airport to Hertz Truck Rentals in Preston. She stated that the new job would require her to spend less time on her feet. She was looking forward to the change of employment and to continue in her role as a customer service officer. It is clear from her evidence that the plaintiff is a person who enjoys her work and endures pain and stiffness in her right ankle but continues to perform her work duties in as cheery a manner as she is able. The upshot of her approach in this regard is that there is no claim or loss for her in respect of loss of earning capacity as a result of the transport accident.
44 The plaintiff was cross-examined about the impact of the right ankle injury on her work capacity. The evidence was at follows:
“Q:You don’t say to His Honour then that your ankle injury prevents you doing this job, do you?---
A:It doesn’t prevent me doing what I’m employed as. I do have shifts when I’ve been at the airport where I am out in the carpark, which is working in the instant return where the cars pull in and you check them in. You could do an eight-hour shift out there on our feet for the whole shift.
Q:If you had a shift like that, your ankle would cause some difficulty for you?---
A:It would, yes.
Q:Not enough to stop you continuing on with your work, though?---
A:I would still do it. I would just deal with the consequences.
Q:No enough to stop you enjoying that job?---
A:I don’t really enjoy that part of the job, but I enjoy the rest of it.”[23]
[23]T19, L29 – T20, L12
45 This evidence from the plaintiff is but one example of the “no nonsense” and stoical approach that she has to the difficulties she faces with her right ankle injury. These responses from the plaintiff were clearly consistent with the statement made by her counsel prior to the proceeding commencing, that the plaintiff was not relying on any psychological or psychiatric consequences when assessing her application.
46 Another example of this approach by the plaintiff was in her evidence when she was being cross-examined about the instability in her right ankle and whether it gives way. The evidence was as follows:
“Q:You said in your affidavit – this is p.7, paragraph 14 – that occasionally your ankle gives way. You’ve just said to His Honour that your ankle in fact does not give way?---
A:It has a feeling of giving way.
Q:So it feels like it gives way?----
A:It has a feeling of, like, instability.
Q:But it doesn’t in fact give way?---
A:It doesn’t completely. I thought we changed that. It doesn’t give way.
Q:Yes?---
A:No, not completely. It doesn’t give way, but it has a feeling of giving way.”[24]
[24]T34, L27 – T35, L5
47 This evidence is a clear example of the honesty and fortitude shown by the plaintiff during the course of this application.
The right knee injury
48 The plaintiff had injured her right knee in May of 2009. This was approximately six weeks prior to the transport accident relevant to this application. The plaintiff’s evidence was that she is awaiting surgery by Mr Julian Feller in order to fix the right knee problem. The plaintiff conceded in her evidence that the right knee injury was currently of more significance to her than the right ankle injury. She said that the right knee impacted on her ability to run or walk. She stated that the right knee would stop her from snow skiing or water skiing and that it would also stop her from horse riding.[25] Those concessions made by the plaintiff were on the premise that she no longer had a right ankle injury. The questions by Mr Gorton, for the defendant, were prefaced by:
[25]T30-31
“Q:I mean, let’s wave a magic wand and fix your ankle. Pretend we could fix your ankle with a magic wand but not your knee, you would still have this trouble with your knee giving way obviously enough?---
A: Yes.”[26]
[26]T30, L22-25
49 The plaintiff is clearly waiting for the reconstruction to be done on her right knee. She stated that she was nursing her right knee at the present time and was simply awaiting the period for her health insurance to kick in so that the operation to her right knee could be performed.[27]
[27]T31
50 The outcome of the right knee surgery is unknown at this time. The assessment I am required to make is based on the symptoms and consequences as they are at the time of the application for serious injury. I am required to separate out the consequences in relation to the knee injury from the right ankle injury in assessing the consequences for serious injury.
The consequences of the right ankle injury
51 The plaintiff, in her evidence and in her affidavits, has set out the consequences of the right ankle injury as follows:
(a) ache and discomfort in the right ankle
52 The plaintiff describes the ache and discomfort in her right ankle which is aggravated by activity, be it standing, walking or a long day in the car park as previously referred to in these reasons. The plaintiff stated in her evidence:
“Q:That’s still the position?---
A:If I over-exert the ankle, if I do a day in a carpark or if I’m doing prolonged standing or if basically I've done a lot of work walking, the next day or that day it will swell.
Q:Then that swelling goes away in 24 hours or so?---
A:Yes, the operation that Dr Bedi did helped a lot with the swelling.
Q:So the current position is that if you were to be on your feet for eight hours a day - say you were on your feet for an eight-hour shift in the carpark, at the end of the day, your ankle will be swollen and sore?---
A:Yes.
Q:Or the next day it would be swollen and sore. Correct?---
A:Correct.”[28]
[28]T33, L9-23
53 The plaintiff stated that the ankle swelled up in the morning. She said that she noticed the swelling most after the ankle had been rested. When the ankle swelled it was at its most stiff.[29]
[29]T35
54 The plaintiff is continually faced with the prospect that every morning after being asleep she awakes to swelling and stiffness in her right ankle. The plaintiff stated that after the last operation by Mr Bedi the swelling was not as significant a problem as it had been prior to that operation. The plaintiff stated that the swelling was a result of a long day at work or, if she did a lot of exercise, for example, walking the dog or walking with friends or going to a gymnasium. She stated that something as simple as walking around a shopping centre would give her problems in the right ankle. The plaintiff also stated that on occasion when her ankle is stiff, that it would crack after movement.[30]
[30]CB 9B
(b) pain in the right ankle
55 The plaintiff stated that she did not have any real pain in the right ankle unless she overexerted it.[31] She referred to examples of walking the dog and a long day at work as prompting pain to her ankle. This was a different complaint from the swelling. The plaintiff stated that she would get pain in her ankle if she wore stiletto or high-heeled shoes. She stated that she had ceased wearing them and now only wears slight heels or wedge heels. The reason for changing her footwear in this manner was to avoid the possibility of creating pain within the ankle by walking on higher-heeled shoes.
[31]T33
56 The plaintiff stated that her sleep was not interrupted by pain in her right ankle. She stated that she did not have what she described as “serious pain”.[32] On the issue of pain, the plaintiff gave evidence as follows:
“Q:Have you had episodes that you'd classify as pain as opposed to discomfort?---
A:Yes.
Q:In what circumstances?---
A:When I over exert the ankle when it’s – it’s hard because I have learnt to deal with - I have a lot stronger pain threshold than what I did prior to the accident and I’ve learnt to live with the ankle and how it feels and how it does change, and how it could feel different one day and good the next and et cetera. But I have had - experienced pain and nothing like what it was prior to having the accident, prior to having the ‑ ‑ ‑ .”[33]
[32]T38
[33]T38, L20-29
(c) sporting activities
57 The plaintiff stated that the injury to her right ankle has impacted upon her ability to involve herself in horse riding. She gave a description of the method of using her ankle and the pain and difficulty that it created whilst horse riding.[34] The plaintiff also gave evidence that dismounting from the horse and proper operation of the stirrups is also a problem for her now that she has an injury to her right ankle. The plaintiff readily conceded that the right knee injury was also impacting on her ability to ride the horse.
[34]PCB 9C
58 The plaintiff’s ability to snow ski and to water ski or be involved in water sports generally is now limited due to her right ankle injury. I accept that her right ankle injury is an inhibitor to the plaintiff, a young person, from engaging in water sports and snow skiing. Her evidence that she was a person brought up snow skiing as a young child indicates that she is someone who would always return to that sport.
(d) activities of daily living
59 The plaintiff gave evidence that she had difficulty kneeling or squatting as a result of her right ankle injury. I accept that evidence. She stated that it impacted on her ability to perform cleaning and other activities in the home. She readily conceded that whilst living in the family home her mother did the bulk of the house duties. Her concern was that when she moved out of home she would have this ongoing problem of performing the cleaning activities and ability to kneel and squat.
60 The plaintiff gave evidence that she did not take any medication to deal with her levels of pain. This is consistent with her general approach to basically trying to deal with the difficulties as she experienced them. She simply adjusts her activity levels to manage the problem she has with her right ankle.
(e) post-traumatic arthritis in the right ankle
61 The most significant consequence for the plaintiff is the future problem she will face with arthritis in her right ankle. On the balance of probabilities, I find that the plaintiff will suffer from early post-traumatic degenerative change to her right ankle and, as a result of that, it is a serious and long-term consequence to the plaintiff.
The medical evidence
62 I have previously dealt with the immediate medical treatment in respect of the plaintiff as a result of the injury to her right ankle. A review of the medical opinions submitted in this application is done on the basis of the medical reports. None of the medical witnesses were cross-examined.
(a) Dr Claudia Bosch
63 Dr Claudia Bosch, general practitioner, prepared two reports in respect of this application. The first report was dated 14 March 2011 and the second report was dated 12 February 2013. In her first report, Dr Bosch gave the following opinion:
“I expect that she will have some ongoing ankle pain and stiffness, but I do not feel able to give a more detailed prognosis, particularly in view of the proposed surgery still to come.
…
… I think that it is likely that there may be subsequent degenerative changes in the ankle which would cause further pain in the future, and might limit her activities in the long term.
…
… I gather that she is able to walk for up to an hour on the flat without much trouble, but I believe that at present she would be unable to engage in most sporting activities, and is likely to be limited in her capacity to perform housework.”[35]
[35]PCB 25
64 Dr Bosch is referring in those opinions to the right ankle injury only.
65 Dr Bosch, in her later report, stated that she had last seen the plaintiff in respect of her right ankle on 14 April 2011. The history taken by Dr Bosch at that time was that the right ankle still ached badly at night and that Panadol did not relieve the pain.
66 Dr Bosch went on to give the following opinion:
“I believe that the condition (right ankle fracture and its aftermath) has settled, although it is not unlikely that in the future she may develop secondary degenerative change (arthritis) in the ankle. … .”[36]
[36]PCB 25A
(b) Mr Harvinder Bedi
67 Mr Bedi, orthopaedic surgeon, prepared a report dated 23 December 2011. Mr Bedi operated on the plaintiff on 26 October 2010. Mr Bedi reported on the operation as follows:
“… The medial sided screws were removed through the old scar. The arthroscopy revealed significant scarring and moderate synovitis involving the anterior portion of the ankle. There was also Grade 2 chondral damage debrided from both the anterolateral and anteromedial portions of the talar dome. There was additional minor scarring at the junction of the medial malleolus and plafond that was also resected.”[37]
[37]PCB 34
68 In his report, Mr Bedi went on to describe the diagnosis as follows:
“The diagnosis of this lady’s condition is of early post-traumatic degenerative change and capsular scarring. This diagnosis is based on review of the Xrays that were presented to me as well as the arthroscopy that was performed on 26th October 2010.”[38]
[38]PCB 34
69 Mr Bedi described the prognosis as follows:
“This lady’s prognosis is that she should have recovered from the surgery and returned to her normal activities. Given the chondral damage that was noted at the arthroscopy, she is more prone to developing degenerative changes than an individual who has never injured her ankle. However, the damage is not marked and this is not an inevitable outcome. Furthermore, I would not expect any such changes to occur within the next five years and it may take up to twenty years before any such changes become evident.”[39]
[39]PCB 34-35
70 It is to be noted that Mr Bedi last saw the plaintiff on 22 December 2010.
(c) Professor Mark Cook
71 Professor Mark Cook, neurologist and epileptologist, has examined the plaintiff and prepared two reports dated 9 April 2011 and 19 January 2013. Professor Cook has diagnosed the plaintiff as suffering from a peripheral nerve injury involving the left sural nerve in the right ankle. The injury to the sural nerve has caused sensory disturbance with dysaesthesia to the right ankle.[40]
[40]PCB 40-41
(d) Dr Clayton Thomas
72 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, prepared two reports after examining the plaintiff. The two reports are dated 18 April 2011 and 24 October 2012. In his first report, Dr Thomas gave the following opinion:
“The primary issue is more the long term. The issue is not the short to medium term. She has had a significant injury to her right ankle. She is at risk of developing post traumatic degenerative problems over the longer term, but not the short to medium term.
…
The big issue here is the long term prognosis. She certainly is at risk of developing these degenerative problems, but as indicated these are not likely to take place in the short to medium term, but given her age would take place over the longer making the development of arthritis to her right ankle more likely than not, an issue which will become increasingly evident in middle age.”[41]
[41]PCB 48
73 In his later report, Dr Thomas, having reviewed all the then available medical evidence, stated as follows:
“She has done very well in the short-to-medium term. She is, however, at risk of developing posttraumatic degenerative changes over the longer term. She is only 23 years of age. This is unlikely to be a problem until very much the longer term. Therefore 20 years plus.[42]
…
As far as her prognosis is concerned, the need for increasing pain relief is likely to be an issue for her over the longer term, not the short to medium term.”[43]
[42]PCB 50
[43]PCB 51
74 It is clear from Dr Thomas’ opinion that he expects that in the medium to long-term, the plaintiff will suffer much more significant consequences in her right ankle as a result of the injury in the transport accident.
(e) Mr Russell Miller
75 Mr Russell Miller, orthopaedic surgeon, examined the plaintiff on 10 November 2012 for the purpose of medico-legal assessment.
76 Mr Miller examined the plaintiff and made the following comments:
“Examination of the right ankle revealed some minor swelling and well healed medial and lateral scars. There were well healed arthroscopic portals. The range of motion was:
Dorsi Flexion 0o
Plantar Flexion 30o
Inversion 20o
Eversion 5o
There was some irritability during ankle and sub-talar movement. She could not hop comfortably on the right leg and had discomfort when attempting to kneel and squat.”[44]
[44]PCB 60
77 Mr Miller then diagnosed the plaintiff as having suffered a bimalleolar ankle fracture. He then described the injury as follows:
“She has therefore suffered a significant injury to the right ankle. There is significant chondral damage to the right ankle. I believe she will have ongoing symptoms at approximately the current level. Prognosis for this is only fair.”[45]
[45]PCB 61
78 Mr Miller saw the future for the plaintiff in the following terms:
“… From the point of view of the right ankle, she will require analgesics and anti-inflammatory agents from time to time and may require repeat arthroscopic debridement of the ankle during her lifetime and may require use of an ankle brace. She is at slightly increased risk of developing arthritic disease in the right ankle, but is unlikely to do so to the point where she would require major intervention. … .”[46]
[46]PCB 62
79 For the sake of completeness, I note that Mr Miller prepared a further report dated 18 February 2013. Predominantly that report related to the probabilities in respect of the repair to the right knee injury rather than any further opinion about the right ankle.
(f) Dr Peter Blombery
80 Dr Peter Blombery, consultant physician (vascular diseases), prepared a report in relation to this application, dated 4 February 2013. Dr Blombery examined the plaintiff and made the following findings:
“… There was a loss in sensation, which was partial, over the medial distal calf and posterior to the scar on the medial malleolus. This loss of sensation was over a distance of 20 cms from the foot to the mid calf. … .”[47]
[47]PCB 66
81 Dr Blombery described the right ankle injury as a severe fracture. He stated that the fracture had healed and she was left with ongoing pain and stiffness in the area, particularly on weight bearing.[48]
[48]PCB 66
82 Dr Blombery’s prognosis was as follows:
“In regard to prognosis, it is my opinion that she is going to be left in the long term with a significant disability affecting the right ankle where there is pain and stiffness and this is going to limit her in terms of both employment and leisure activities as she is not able to do jobs which involve a lot of weight bearing.
She is also going to be predisposed in the future to the development of degenerative changes in the ankle with arthritis and this may require further surgical intervention to the ankle in the future.”[49]
[49]PCB 67
83 It is clear from this opinion that Dr Blombery is the most pessimistic medical practitioner in respect of the future for the plaintiff.
(g) Mr John F O’Brien
84 Mr John F O’Brien, orthopaedic surgeon, examined the plaintiff and prepared a report dated 13 May 2012 on behalf of the defendant. In the course of his examination of the plaintiff, he noted that there was a sharp bony spur directly over the medial malleolus, which was mildly tender.[50]
[50]DCB 16
85 Mr O’Brien noted:
“Current examination reveals some persistent restriction of extension of the ankle and inversion of the hind foot. There remains some mild tenderness, which I would suggest indicates the presence of some mild post-traumatic arthritis within the ankle joint. The fractures are soundly united.”[51]
[51]DCB 17
86 Mr O’Brien stated his prognosis as follows:
“I would suggest the prognosis is satisfactory. Although I think there is some evidence of mild post-traumatic arthritis within the joint I would anticipate this will not be a significantly progressive problem. Thus I do not anticipate any substantial change in the current symptoms in the foreseeable future.”[52]
[52]DCB 18
87 I conclude that based on all the medical evidence, that given the very young age of the plaintiff and the descriptions given by experienced medical practitioners of the severity of the injury to the plaintiff’s right ankle, that the plaintiff is facing the very real prospect of early arthritic changes in her right ankle which will cause her significant difficulties in the medium to long-term.
Conclusion
88 After a consideration of all of the evidence, I am of the view that this is a finely balanced case, but ultimately, taking into account all of the consequences suffered by the plaintiff as a result to her lower right limb injury, in particular the right ankle, I am satisfied that such consequences, when judged by a comparison with other cases in the range of possible impairments, can be fairly described as being more than “significant” or “marked” and as being at least “very considerable”. The condition of the plaintiff is for the foreseeable future.
89 I conclude that the application for serious injury certification in respect of the right ankle and the serious disfigurement of the right ankle are made out.
90 Accordingly, pursuant to s93 of the Act, I grant leave to the plaintiff to bring common-law proceedings for pain and suffering damages in respect of the lower right limb and serious disfigurement suffered by her in the transport accident on 20 June 2009.
91 I will hear the parties on the issue of costs.
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