Justice v Transport Accident Commission
[2013] VCC 639
•11 June 2013
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-00101
| CRAIG JUSTICE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE BOURKE | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 23 May 2013 | |
DATE OF JUDGMENT: | 11 June 2013 | |
CASE MAY BE CITED AS: | Justice v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 639 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – impairment of the left upper extremity
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited: Richards v Wylie (2000) 1 VR 79; Humphries v Poljak [1992] 2 VR 129; Stone v Jarvis [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Company Pty Ltd [2007] VSCA 267; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr J Goldberg | Slater & Gordon |
| For the Defendant | Mr J Batten with Mr A Saunders | Solicitor for the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by Originating Motion by which 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 injuries suffered by him arising out of a transport accident (“the accident”) which occurred on 5 February 2010 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3
The definition of “serious injury” relied upon by the plaintiff is under
s93(17)(a) – “a serious long term impairment or loss of a body function”.
4 The body function pursuant to subparagraph (a) relied upon by the plaintiff is the left upper extremity.
5 The enquiry under subparagraph (a) of the definition 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.
6 The serious injury defined by subparagraph (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 the impairment of a body function: see Richards v Wylie.[1]
[1](2000) 1 VR 79
7 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more that “significant” or “marked”? – see Humphries v Poljak.[2]
[2](1992) 2 VR 129 at 140-1
8 The plaintiff relied on three affidavits and gave viva voce evidence. He was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material
The Plaintiff’s evidence
9 The plaintiff is presently aged thirty eight, having been born in August 1974. He lives alone and has a son, Joshua, who is aged two.
10 The plaintiff left school in Year 10 and commenced an apprenticeship in modular moulding. He then worked as a second class insulation lagger, installing air conditioning ducting. He moved to Queensland for about ten years and worked as a builder’s labourer and then returned to lagging work.
11 The plaintiff moved to Karratha in Western Australia, where he worked for Oz Clad for six months as a lagger doing insulation pipe work and ductwork.
12 When the plaintiff’s partner was pregnant in about 2004, she committed suicide, having struggled with a heroin addiction.
13 Thereafter, the plaintiff was treated for depression and ongoing mood disorder, sleep disturbance and substance abuse, and was prescribed Temazepam, Lexapro, Zoloft and later, Xanax.
14 The plaintiff returned to Victoria, where he found seasonal work at the Poowong Abattoirs in the gut room and on the floor. The work was also physically demanding, involving strength, forceful movements and flexing, twisting and turning his wrist and hand. When the abattoir job finished, the plaintiff went onto Centrelink disability support payments and has not worked since that time.
15 During 2006, the plaintiff spent nine months in gaol.
16 In the past, the plaintiff suffered from marijuana and morphine addiction and had Methadone treatment.
17 Prior to the said date, things seemed to be getting better for the plaintiff. He met his partner, Melanie Jackson, about six months earlier. Their relationship was progressing well and the plaintiff felt they had a future.
The accident
18 On the said date, the plaintiff was involved in a transport accident when driving along Clyde Road, Berwick. The driver of another vehicle turned right in front of his vehicle without giving way, causing the plaintiff’s vehicle to T‑bone the offending vehicle (“the accident”).
19 As a result of the accident, the plaintiff sustained a comminuted fracture of the left distal radius, a fractured nose, fractured sternum, fractured T3 vertebra, a laceration to the forehead resulting in scarring, lacerations to the neck and left knee, surgical scarring of his left forearm and psychological injuries.
20 Following the accident, the plaintiff was taken by ambulance to The Alfred Hospital where he required left wrist surgery, undergoing an open reduction and internal fixation. His forehead lacerations were also surgically repaired.
21 The plaintiff discharged himself from hospital on 8 February 2010 and consulted Dr Hall at the Moe-Newborough Health Clinic the following day.
22 The plaintiff continued to experience pain and discomfort in his left wrist, and on 19 August 2010, had further surgery to remove one of the pins. Following that surgery, he had a session of physiotherapy at Latrobe Regional Hospital and was advised to do strength training at home, which he continued. He was also seeing Dr Terry Norwood at Dr Hall’s clinic.
23 At the time of the accident, the plaintiff was not having any treatment for drug addiction. After the accident, he was reluctant to take painkillers or other medications for accident related injuries due to his prior history of addiction.
24 When he swore his first affidavit on 30 August 2011, the plaintiff’s medication was then 50 milligrams of OxyContin a day and sometimes he took Seroquel, Lexapro or Valium when prescribed by Dr Norwood. At that stage, the plaintiff was restricted in social, domestic and recreational activities. He continued to experience restricted movement, reduced strength and pain in his left wrist and hand.
25 The plaintiff owned a four-wheel drive vehicle and prior to the accident did a lot of work on it, including replacing the motor. Following the accident, he struggled to tighten screws and grip tools when working on the vehicle. He sometimes felt pain when driving a manual vehicle and changing gears.
26 The plaintiff felt pain and pins and needles if pressure was applied to his left wrist or if someone grabbed it and he was conscious to avoid knocking it. The plaintiff was self conscious of the scarring on his wrist and was worried people would think he had tried to commit suicide.
27 After riding his motorbike, the plaintiff felt pain and aching in his left wrist and hand and upper back. He experienced that pain especially at night when trying to sleep. In attempts to minimise his pain, the plaintiff did not ride his bike as much as he wanted to.
28 When doing heavy work like mowing the lawn, the plaintiff avoided using his left arm and over compensated with his right. He felt back pain after doing heavy work. It ached when he tried to sleep.
29 The plaintiff cared for his son, Joshua, as much as he could. After carrying him, the plaintiff felt pain, especially at night. The plaintiff’s sternum also cracked and caused discomfort when he rolled over when sleeping.
30 The plaintiff had a deviated septum and that reduced his airway capacity in his nose. He woke up in the morning with a dry mouth and throat. The scar on his forehead had numb spots and other parts of it were sensitive to touch and he was conscious to avoid bumping it.
31 Following the accident, the plaintiff suffered from stress and anxiety and felt more frustrated and irritable in himself. He suffered from dreams of the accident and flashbacks. He focussed on the accident. He was reluctant to drive in traffic and was very vigilant when a passenger.
32 At times, the plaintiff suffered from interrupted sleep due to physical and psychological symptoms. He felt pain and aches at night when trying to sleep after overexerting himself, and his sleep was disturbed by dreams and flashbacks of the accident.
33 The plaintiff swore a further affidavit on 9 April 2013 in which he confirmed he continued to experience ongoing problems from the accident. His biggest problem is the injury and loss of function of his left wrist and hand and he remains very conscious of and embarrassed by his forehead and left wrist scarring.
34 In his third affidavit sworn 3 May 2013, the plaintiff deposed he has experienced ongoing fluctuating problems with his left wrist and hand since the accident and has never recovered from the injuries.
35 In re-examination, the plaintiff described his wrist is getting worse, if anything.[3] He does not have pain all of the time but most of the time. If he has been using his wrist during the day, such activity usually brings pain on. He has pain at night if he has been using his wrist during the day.
[3]Transcript (“T”) 16
36 The plaintiff’s function and ability to use his left wrist and hand has been reduced because of the fractures to his left wrist and forearm and he cannot use his left wrist, hand and forearm freely without having discomfort and pain. The plaintiff has fluctuating aching and discomfort which never goes away.
37 The plaintiff’s many tasks and activities involving use of his left wrist, hand and arm make the discomfort and pain worse. Frequently many tasks cause his pain to flare up and that makes it difficult for him to continue and complete them. The strength and power of the left wrist and hand is reduced. His upper limb feels weak. He finds it very difficult to do and to complete tasks which require a sustained grip of his left hand or sustained forceful movements using the left upper limb.
38 The plaintiff’s entire working life has been in unskilled/semiskilled labouring work, mainly as a sheet metal worker. His problem with his left upper limb is a significant ongoing one for him.
39 The plaintiff is no longer capable of doing heavy physical work he did in the past such as installing ducting and lagging, fitting and installing large diameter steel piping and other work such as assembling and dismantling scaffolding. The plaintiff has previously worked on large construction sites doing installation work involving installing exhaust systems, steel piping, ducting and lagging. Much of that work is done overhead and involves twisting, flexing and strong gripping of both hands.
40 Also, the work involves the use of a variety of handheld power equipment such as rattle guns, hammer drills and electric cutters. The plaintiff is no longer capable of using equipment of that type over sustained or long periods because of the continuing symptoms and weakness in his left hand and wrist and the general weakness in his left forearm. His upper limb condition would not allow him to do this type of work.
41 The plaintiff agreed he would like to work in Western Australia as a truck driver because of the money but he does not have a truck licence.[4]
[4]T12
Domestic situation
42 The accident and the plaintiff’s injuries upset his plans with Melanie and since then they have not lived together despite her having the plaintiff’s son, Joshua.
43 As much as possible, the plaintiff helps Melanie care for Joshua and supports her with day-to-day things. The plaintiff takes Melanie and Joshua out shopping.
44 In cross-examination, the plaintiff agreed he told Mr Ireland he thought he was capable of going back to work but he had not looked for work at the moment and he was pretty much a carer for Joshua.[5] Every night the plaintiff bathes and feeds Joshua because Melanie does not have a bath. The plaintiff then drops Joshua off at home. Joshua usually stays with the plaintiff from Friday to Monday.
[5]T10
Hobbies
45 Until six months ago,[6] the plaintiff continued to ride his Honda XR650 motorbike most weekends, usually around the Thompson Dam, Walhalla, Noojee areas, at times off-road on fire tracks. The general jolting, jarring and knocking when riding causes his left wrist and hand to become painful and often causes acute flare ups of pain, which he struggles to tolerate.
[6]T 6
46 The plaintiff enjoys riding motorbikes and it has been an important recreational activity for him for a long time. However, he has been forced to scale back the distances he can ride and the length of time, so he can tolerate the impact it has on his left wrist, forearm and hand. The Honda is presently unregistered and the plaintiff is unlicensed.[7] The plaintiff cannot get the bike to a venue to ride.
[7]T7
47 The plaintiff agreed he told Mr Ireland that his wrist ached after riding his motorbike for half a day. He rode on a friend’s track. He agreed he got his bike airborne from time to time and “that [he] sort of screamed up a hill and flew”. The plaintiff had all the safety gear and agreed his trailbike riding could be a highly dangerous activity.[8]
[8]T9
48 In re-examination, the plaintiff said that prior to the accident, he had no problems riding his bike and did for the whole of the day if he wanted to.[9] Now if he rides for too long, he has pains up his thumb and a constant niggle and pain in his wrist. He is now only able to ride for a couple of hours in the bush.[10]
[9]T15
[10]T15
49 The plaintiff enjoys doing mechanical repairs and maintenance to bikes and cars in his shed at home with tools, doing a bit of refit or rebuild and a bit of panel beating. He is a self taught motor handyman type mechanic.
50 The plaintiff rebuilt his four-wheel drive from the ground up and got it registered. There is always more work to do on it;[11] however, since the accident, many such tasks are difficult for the plaintiff.
[11]T12
51 Dismantling and replacing parts on the four-wheel drive is very difficult because those tasks frequently involve twisting, flexing the left wrist and hand, often in an awkward, confined space and when trying to apply force and strength, for example undoing nuts and bolts. Also, the plaintiff’s ability to use his hand tools requiring use of both hands is reduced because of the restricted movement and pain in his left wrist and hand.
52 The plaintiff confirmed that he has problems working on his vehicle tightening the screws. He had back pain doing things like moving a power steering box which weighed approximately ten to twenty kilograms.[12]
[12]T12
53 In re-examination, the plaintiff said he was able to work on his car for a couple of hours. He still works on it but it is a slow ongoing project.[13] He stops so he just does not have to put up with the pain at night and, because he is not employed, he has got a bit of time. Whether he can work on the cars for any more than two hours all depends on what he is doing.[14] If he is doing work that involves both hands or his left hand, he usually had pain at night.[15]
[13]T 7
[14]T14
[15]T13
Medication
54 The plaintiff continues to use medications prescribed by Dr Norwood, namely OxyContin daily to control pain, Seroquel at night, and Valium. At times, he has taken Mobic. He has tried to get by without using medication but that has only resulted in pain in his left wrist and hand becoming much worse.
55 The plaintiff has been prescribed OxyContin SR repeatedly by Dr Norwood since the accident and has been provided by him with advice and warnings regarding its use and side effects.
56 In cross-examination, the plaintiff confirmed he is taking 50 milligrams of OxyContin prescribed by Dr Norwood, whom he last saw the week before the hearing.
57 The plaintiff agreed Dr Norwood had referred him to Dr Monheit, a pain specialist and drug and alcohol specialist practising in Elwood, whom he saw in January last year for addiction to OxyContin. The plaintiff agreed he told Dr Monheit that he wanted to detox off OxyContin after the Transport Accident Commission payout, which he expected soon.[16]
[16]T6
58 The plaintiff eventually wants to get off OxyContin because it is not doing much for him at the moment anyway. He is not doing anything at the moment to wean off and the only action in that regard was to see Dr Monheit.
Claim documentation
59 In a Transport Accident Commission Claim Form signed by the plaintiff on 18 February 2010, he set out accident injuries to his back, neck and arm.
Medical evidence
60 The plaintiff attended The Alfred Hospital on the said date. His injuries consisted of a comminuted fracture of the distal left radius treated by open reduction and internal fixation; forehead laceration; nasal fracture, managed conservatively; fractured sternum, managed conservatively; fracture of the endplate of T3 vertebra, managed conservatively; and abrasions to the knee.
61 Post operatively, the plaintiff’s progress was satisfactory and he was able to commence physiotherapy and OT and discharged himself on 8 February against medical advice.
62 The plaintiff was seen in the fracture review clinic on 22 February 2010 where his wounds were satisfactory and x‑rays were ordered. On 6 March 2010, it was noted x‑rays showed the fracture to be healing and the plaintiff had occasional pains in the wrist, which was stiff, and he was to receive physiotherapy. On 23 April 2010, the plaintiff reported discomfort from a prominent metal screw.
63 On 23 July 2010, it was noted that x‑rays demonstrated union of the fracture and the plaintiff again reported a painful prominent left radial styloid screw and his name was placed on the waiting list for removal.
64 The plaintiff was admitted as a day case for removal of the screw on 19 August 2010. On 2 September 2010, it was noted the wound was good. The plaintiff had an area of hyperalgesia and some neuropathic pain symptoms which were not new, and he was taking OxyContin for pain.
65 On 7 October 2010, wrist movements were measured as palmar flexion 50 degrees, dorsiflexion 50-60 degrees, ulnar deviation 25 degrees, and radial deviation 15 degrees. It was noted the plaintiff was to continue gentle exercises.
66 The plaintiff was last seen on 18 November 2010 when it was noted he was doing well and he had a good range of wrist movement and good grip strength. He was to be seen again in a year with new x‑rays.
Treating doctors
67 Dr Norwood from Moe Newborough Health (“the clinic”) reported in March 2011 that the plaintiff had been a long term patient of his and had a past history of poly drug use and dependence.
68 Dr Norwood noted the plaintiff was first seen by Dr Hall on 9 February 2011 after signing himself out of The Alfred. Since then he had been seen very regularly at the clinic and a few times at The Alfred. The plaintiff’s main problem had been with his left wrist, which continued. He had been reviewed at The Alfred the previous August/September and Dr Norwood believed a screw which had been causing trouble was removed. The plaintiff still had a plate and other screws in situ.
69 The plaintiff’s left wrist pain had continued despite that surgery. Dr Norwood noted, unfortunately, the plaintiff was left handed. He thought the plaintiff appeared to be stable on his current medication but the accident had reactivated his opiate dependency as well. He considered it appeared the plaintiff was likely to have some degree of wrist pain indefinitely.
70 Dr Norwood thought the plaintiff’s injury had stabilised.
71 From a work point of view, Dr Norwood thought the plaintiff was probably unfit for heavy duties but could probably manage lighter work with no heavy lifting or repetitive use of his left hand.
Medico legal evidence
72 Mr Stanley O’Loughlin, consultant orthopaedic surgeon, examined the plaintiff in May 2011.
73 Mr O’Loughlin noted the plaintiff’s main problem was pain and limited movement in the left wrist with increased sensitivity over the radial styloid area. When he used his wrist and hand, the plaintiff had pain over the radial side of the wrist extending into the thumb and index finger. There was no numbness. The plaintiff had some problems with manipulative work and had difficulty doing up screws and nuts. The plaintiff’s back was then not causing him any trouble but he got the occasional twinge of pain in the inferior sternal area.
74 The plaintiff told Mr O’Loughlin he wanted to return to work but he then had a problem with his dependency on medication, taking OxyContin, 30 milligrams in the morning and 20 milligrams at night, and also a sleeping tablet.
75 Mr O’Loughlin noted the plaintiff’s general health in the past had been good and he had not had any major illnesses or injury.
76 Examination of the left wrist revealed a scar over the volar aspect of the lower forearm, deviating across the radial side of the wrist approximately 13 centimetres in length. The scar was well healed and only tender at the point where it crossed the radial styloid area.
77 There was local tenderness over the radial styloid and a shooting sensation suggestive of an irritable nerve. There was no numbness. There was reduced dorsiflexion, extension, palmar flexion, radial deviation and ulnar deviation on the left and the right. There was some limitation of pronation, which presumably had its basis stiffness in the inferior radio ulnar joint. Pronation was limited to 50 degrees but supination was normal.
78 Mr O’Loughlin noted x‑rays of 2 March 2010 demonstrated a comminuted fracture which had been well reduced and held with a plate and screws including a long radial styloid screw. The CT scan of February 2010 showed a comminuted fracture involving the distal radius and the articular surfaces.
79 Mr O’Loughlin noted the plaintiff had sustained multiple injuries in the accident which had largely settled. He had no adverse symptoms affecting his back or chest but still had problems with his left wrist.
80 Mr O’Loughlin reported the plaintiff sustained a comminuted fracture involving the lower left radius which was internally fixed and had left the plaintiff with some permanent stiffness and some irritability and pain due to a probable neuroma in the region of the superficial branch of the radial nerve.
81 Mr O’Loughlin thought the plaintiff could work as a sheet metal worker and could do most domestic and social activities.
82 Mr O’Loughlin noted a problem with pain management with a dependency on OxyContin. The plaintiff told him he was reducing the dosage and it was hoped with further management he would be able to do so and return to work. Mr O’Loughlin thought the plaintiff’s condition had stabilised.
83 Mr Murray Stapleton, plastic and hand surgeon, examined the plaintiff on 15 June 2011, 30 August 2012 and in March 2013.
84 On all three examinations, Mr Stapleton commented upon and examined the plaintiff’s deviated septum and his forehead scarring, in addition to the injury to his left upper limb.
85 On the initial examination, Mr Stapleton noted the scar on the front of the left wrist was very tender and the plaintiff was careful not to bump it. The plaintiff was aware when people looked at it that there was a suggestion he may have in the past attempted suicide. The tenderness of the scar caused the plaintiff’s left hand to be more awkward, which certainly affected activities of daily living.
86 From a functional point of view, Mr Stapleton noted the plaintiff’s left wrist had a reduced range of motion and there was a diminishment of grip strength on the left.
87 Mr Stapleton thought the disfigurement and left wrist function had stabilised.
88 Mr Stapleton noted the flexor surface scar on the left forearm had a vertical component running from the mid forearm to the wrist and extended for 8 centimetres and there was 2 centimetre deviation to the outer aspect of the wrist.
89 Left wrist joint movements were as follows: flexion 20 degrees; extension 70 degrees; radial deviation 5 degrees and ulnar deviation 20 degrees.
90 In a supplementary report of 12 December 2011, Mr Stapleton advised that as a result of his left wrist injury, the plaintiff is almost certain to develop osteoarthritis. What treatment he will then require will depend, of course, on the severity of the arthritis and the symptoms that are produced, and he may ultimately require a left wrist fusion.
91 On re-examination on 30 August 2012, Mr Stapleton described the left wrist scar as a 10 centimetre scar over the flexor surface of the left wrist. It had an 8 centimetre longitudinal component in the upper part and then the scar deviated out towards the thumb side to the extent of 2 centimetres.
92 The level of left wrist movement was similar to that on the previous examination.
93 Mr Stapleton confirmed his previous comments as to the certainty of degeneration, given that the fractures impacted on the articular surface of the left wrist. He also noted the plaintiff’s scarring and symptoms and signs associated with the scars, together with the fracture of his left wrist, had reduced quite significantly his capacity for employment, social and leisure activities.
94 There was a further examination by Mr Stapleton in March 2013.
95 Mr Stapleton noted the scar on the flexor surface of the left wrist, through which a compound fracture was treated with open reduction and internal fixation, was tender. The plaintiff was careful not to bump it and had difficulty wearing a watch because that caused the scar to be irritated.
96 From a functional point of view, Mr Stapleton thought the plaintiff had a reduced range of left wrist movement. The power of his grip was diminished and he was much more awkward when he attempted to manipulate small objects.
97 Mr Stapleton confirmed earlier findings as to the scarring and noted left wrist movements were then: flexion 20 degrees; extension 60 degrees; radial deviation 10 degrees; and ulnar deviation 15 degrees.
98 Mr Stapleton advised that the plaintiff’s condition had reached maximum medical improvement. No further surgery was warranted and the injuries related totally to the accident.
99 Mr Stapleton provided a supplementary report on 2 May 2013, having been forwarded Mr Ireland’s reports of February and April 2013, and the x‑ray of the plaintiff’s left wrist dated 20 February 2013.
100 Mr Stapleton advised the x‑ray disclosed evidence of osteoarthritis of the wrist joint. He noted the hardware needed to remain in the wrist joint because of the comminuted fracture.
101 Mr Stapleton questioned whether it could be stated with confidence that the plaintiff would not require surgical treatment or whether one could be confident that the osteoarthritis would not progress, as Mr Ireland had stated.
102 Mr Stapleton thought it likely, given the nature of the plaintiff’s fractured wrist, that the osteoarthritis might continue as the years go by, and if it becomes intolerable for the plaintiff insofar as the pain is concerned, then it would be conceivable that at some stage in the future he might be a candidate for a wrist joint fusion.
103 Mr Stapleton noted the x‑ray showed evidence of arthritic destruction of the wrist joint articulations as he suggested would be the case in his report of September 2011.
104 Dr Nathan Serry, psychiatrist, examined the plaintiff in June 2011.
105 The plaintiff was then taking 50 milligram of OxyContin a day, 5 milligrams of Valium BD and 100 milligrams of Seroquel at night.
106 The plaintiff told Dr Serry that at the time of the accident he was a disability support pensioner and had been depressed for a number of years.
107 Dr Serry noted the plaintiff managed reasonably at home since the accident as fortunately, he was right handed.
108 The plaintiff told Dr Serry of a reduction in social activities and finding motorbike riding painful after the accident.
109 Dr Serry noted the plaintiff’s psychiatric reaction to the accident needed to be seen in the context of his pre-existing psychiatric issues. The plaintiff gave a history of becoming depressed about five or six years ago in 2005 as a result of a number of factors including the suicide of his partner, who was then pregnant with his child. The suicide occurred in the context of substance abuse. At around about the same time, the plaintiff quit work and he was abusing marijuana and morphine. He stated he became particularly depressed and it appeared as though his depression was ongoing.
110 Dr Serry noted that in March 2008, it appeared as though the plaintiff had developed a drug-induced psychosis as a result of poly substance abuse. He was admitted to Latrobe Regional Hospital and appeared to have been particularly unwell for a few days but did recover.
111 Dr Serry noted the reference by Dr Norwood to schizophrenia in 2008 was a mistaken reference to a drug-induced psychosis. Further, in his view, the Latrobe Regional Hospital report in March 2008 suggested there was no evidence of a major psychiatric condition.
112 The plaintiff advised Dr Serry that he was still depressed before the accident but he mentioned his general practitioner had suggested a possible diagnosis of Bipolar Disorder.
113 On examination, the plaintiff described brief periods of mood elevation with the sense of things all going well. There was not, however, a history of erratic behaviour, racing thoughts or reduced need for sleep. Similarly, there had not been a history of boundless energy.
114 Taking all of that into account, the plaintiff stated that as the accident was occurring he felt quite shocked. Ever since, he had reported ongoing fluctuating levels of depression, although it was not worse than prior to the accident. He was motivated and interested but somewhat restricted and could enjoy himself at times. The plaintiff’s energy level was reasonably well maintained and he felt he could concentrate adequately, although his mother volunteered he had long term difficulties with concentration and cognitive organisation.
115 The plaintiff described good and bad nights of sleep and a fluctuating appetite. He stated he had had suicidal thoughts before and after the accident, but no attempts after the accident. The plaintiff advised he had been stressed, anxious and worried and quite apprehensive about his health and the future and had become somewhat more irritable and frustrated since the accident.
116 The plaintiff had occasional accident related dreams and experienced flashbacks when driving. He was more aware and alert as a passenger.
117 Dr Serry noted the plaintiff was diagnosed with a learning disorder at fifteen and left school and then did an apprenticeship, which he did not complete.
118 In terms of past psychiatric history, the plaintiff had been under the care of a treating psychiatrist for issues in relation to depression and substance abuse over the last five to six years and his general practitioner had suggested a possible bipolar diagnosis.
119 The plaintiff told Dr Serry he used two grams of marijuana a day and last used unprescribed morphine about a year ago. There was a forensic history of traffic offences and incarceration.
120 On mental state examination, the plaintiff demonstrated a normal affective range but with some mild underlying depressive themes. He was anxious, apprehensive and frustrated by his physical circumstances and there were residual post-traumatic anxiety features.
121 There was no abnormality of thought stream or form, but content revealed an ongoing preoccupation with the accident and its impact. There were some negative themes but no psychotic features. Cognitive assessment was essentially unremarkable but for a suggestion of low average intellect. Insight was reasonably well maintained.
122 Noting the plaintiff’s complex past psychiatric history, Dr Serry was not convinced about the veracity of a pre-existing bipolar diagnosis. He thought it appeared as though the plaintiff had had recurrent symptoms of depression and anxiety, as well as history of considerable substance abuse.
123 Dr Serry considered the most appropriate pre-accident diagnosis would be a mood disorder, not otherwise specified, together with substance abuse. There may well have been a separate drug induced psychosis during 2008.
124 Dr Serry stated that the psychiatric illness resulting from the subject accident would best be conceptualised as a Chronic Adjustment Disorder with Anxious and Depressed Mood and with features of traumatisation consistent with a partial Post-Traumatic Stress Disorder.
125 Dr Serry noted the plaintiff’s background revealed a reasonable childhood, an extremely strong family history of psychiatric illness and substance abuse, a past history of significant and incompletely resolved depression before the accident, as well as a significant substance abuse history. As such, he thought the plaintiff would be considered to have a significant element of pre-morbid vulnerability.
126 Dr Serry noted personal relationships had changed since the accident, with the plaintiff not being as social as he was before. Domestic activities were relatively unrestricted but leisure activities had changed to an extent.
127 Dr Serry thought the prognosis was mixed. Whilst the plaintiff was superficially positive, Dr Serry noted he did have a significant element of pre-morbid vulnerability, now further compounded by the combined physical and psychiatric injuries suffered in the accident.
128 Dr Serry thought the plaintiff could potentially benefit from the supervisory involvement of the consultant psychiatrist, particularly one locally.
The Defendant’s medico legal evidence
129 Mr Damian Ireland, hand surgeon, examined the plaintiff on 20 February 2013.
130 On examination, the plaintiff complained of shooting pain in the left thumb when his wrist was squeezed. He complained of aching in the left wrist after riding his motorbike for half a day. He also complained of decreased function with his left non dominant hand, causing him difficulty with nuts and bolts when working on his four-wheel drive.
131 On direct questioning, the plaintiff believed he would be capable of returning to work and had aspirations of returning to Western Australia as a truck driver.
132 On examination, there was a healed surgical scar on the distal and volar aspect of the forearm, extending to the wrist crease. There was a transverse extension from that distally.
133 The scar itself was non-hypertrophic and non-adherent. It was exquisitely tender on the transverse aspect distally and percussion there caused a positive Tinel’s sign to extend onto the dorsal aspect of the thumb as far as the metacarpophalangeal joint, indicating an underlying neuroma.
134 There was a full range of active movement of the elbow.
135 Forearm rotation was restricted to 70 degrees of supination and 40 degrees of pronation. At the wrist, active range of motion was measured by goniometer at 50 degrees extension, 45 degrees flexion, 15 degrees radial deviation and 30 degrees ulnar deviation.
136 On examination of the hand, there was no obvious swelling or deformity. There was no wasting of the intrinsic muscles and no trophic skin changes. The palms of both hands were soft and devoid of work stains and calluses. There was no evidence of sudomotor or vasomotor activity and there were no dystrophic skin changes.
137 Mr Ireland ordered radiographs of the left forearm and wrist, as none had been done since the screw was removed. Those radiographs revealed a healed fracture of the distal radius in anatomical position. Mr Ireland noted there was no evidence of traumatic arthritis and there was normal ulnar variance. He noted the device remained in situ.
138 Mr Ireland diagnosed minor restriction of motion, left wrist and forearm following distal radius fracture and a neuroma formation at branch of the radial nerve at left wrist. That diagnosis, in his view, was solely due to the accident.
139 Mr Ireland thought the plaintiff had substantially recovered from the fracture of the distal radius. He noted the plaintiff had a moderately symptomatic neuroma following his second surgical procedure involving a branch of the radial nerve.
140 Mr Ireland thought the prognosis for continuing relative freedom from symptoms was excellent and the plaintiff’s condition had stabilised.
141 Mr Ireland considered the plaintiff did not require any additional treatment. He noted the plaintiff had a narcotic dependence and had been prescribed narcotics since his injury. In Mr Ireland’s view, treatment for drug dependence would be appropriate.
142 Mr Ireland did not believe there was any impediment to the plaintiff returning to gainful employment of the type he was doing eight years ago based on physical considerations.
143 Mr Ireland was unable to detect any significant effect on the plaintiff’s social, recreational, hobby and sporting activities. He noted the plaintiff still rode a motorbike, went fishing with his father once a month and continued to work on maintaining his motorbike and his four-wheel drive.
144 In a supplementary report of 10 April 2013, Mr Ireland noted that the defendant had queried a discrepancy between the radiologist’s report versus his interpretation.
145 Mr Ireland advised he had had the opportunity to review the radiographs. He noted there was indeed some degenerative change at both the radiocarpal joint and at the distal radioulnar joint, which he overlooked initially.
146 Mr Ireland advised osteophytosis is a description of arthritic osteophytes which develops bony projections as part of the onset of arthritis.
147 Mr Ireland noted there was evidence of traumatic osteophytes developing on the volar aspect of the radiocarpal joint, as well as the distal radioulnar joint, as referred to by Dr Pianta. However, Mr Ireland noted the radiocarpal joint, had been almost anatomically restored. The restricted motion at both the wrist and forearm attested to that early degenerative change and those changes were in keeping with the plaintiff’s symptoms.
148 Mr Ireland advised there was no indication that that would require surgical treatment in the near future or would significantly progressively deteriorate.
Overview
149 It is not disputed that in the accident the plaintiff suffered a left distal radius fracture to his non dominant arm which was internally fixated.
150 In August 2010, the plaintiff underwent a second surgical procedure to remove the screw from his left distal forearm, and subsequent to that surgery, there was a neuroma formation branch of the radial nerve at the left wrist.
151 Counsel for the defendant accepted that the plaintiff would have some pain from time to time and that he did have signs of early degeneration.[17] It was submitted the issue however, clearly was one of range.[18]
[17]T18
[18]T17
Credit
152 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[19]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[19](2010) 31 VR 1 at paragraph 12
153 In my view, the plaintiff was a credible witness who did not overstate the extent of his pain and disability. There was no surveillance film or other evidence challenging his level of complaint. Further, no doctor considered there were inconsistencies on examination or any embellishment by the plaintiff.
154 Although the fracture has adequately healed, I accept the plaintiff has ongoing pain most of the time, activated by just about everything he does and not just by significant activity.[20]
[20]T23
155 As Mr Ireland found, the plaintiff had a neuroma and a positive Tinel’s sign.
156 There is exquisite tenderness in the area of the wrist scar, about which the plaintiff is self-conscious and is careful not to knock it. That tenderness is such that it prevents him wearing a watch.
157 The plaintiff tends to avoid using his left arm and over-compensates with his right arm doing things. His strength and power in his left wrist and hand is reduced. There is restricted movement in his wrist and forearm which Mr Dooley noted attested to early degenerative change shown on x-ray.
158 The plaintiff has an ongoing requirement for very strong painkilling medication in the form of OxyContin, the prescription of which, post accident, had reactivated the plaintiff’s opiate dependency as Dr Norwood described.
159 As Dodds-Street JA noted in Kelso v Tatiara Meat Company Pty Ltd,[21] where chronic pain was a prominent feature of the appellant’s case, the endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.
[21][2007] VSCA 267 at paragraph 199
160 The plaintiff, presently aged thirty seven, is a still a relatively young man.
161 In Stijepic v One Force Group Aust Pty Ltd,[22] Ashley JA and Beach AJA discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[22][2009] VSCA 181 at paragraph 43
162 The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it was relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
163 Leaving aside range, Senior Counsel for the plaintiff submitted the only real significant issue between the parties was that of the chances of future deterioration and the need for surgery.
164 In 2011, hand and plastic surgeon, Mr Stapleton, predicted that the plaintiff almost certainly was going to develop osteoarthritis in the future. This was confirmed on recent x-ray.
165 Whilst having initially said there was no traumatic arthritis present, having viewed the same x-ray, Mr Ireland later conceded there was indeed some degenerative change which he had overlooked.
166 Mr Ireland was of the view that there was no indication that this would require surgical treatment in the near future or would significantly progressively deteriorate. He did not rule out surgery altogether and was simply saying it will not be a significant deterioration in the near future.
167 Mr Stapleton was more pessimistic, stating it was more likely, given the nature of the fractured wrist, which he described as severe, osteoarthritis might continue, and if the pain in relation thereto became intolerable, it would be conceivable that the plaintiff might be a candidate for fusion surgery.
168 The fact of further deterioration and the chance of surgery in the future is a relevant consideration when considering the seriousness of the plaintiff’s impairment.[23]
[23]See Stone v Jarvis (one of the five cases making up Humphries v Poljak (supra)
169 In my view, it is more than speculative that the osteoarthritis will progress and may require surgical intervention. Obvious changes are present on x-ray only some three years after the accident, with osteoarthritis having already manifested itself.
170 Counsel for the defendant relied on the plaintiff’s current level of trailbike riding, his ability to work on his cars and look after his son and what was said to be the absence of interference with any other specific activity in his submission that any impairment relating to the left arm was not serious.
171 As Ashley JA stated in Dwyer v Calco Timbers Pty Ltd No 2:[24]
“… in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”
[24][2008] VSCA 260 at paragraph 27
172 The plaintiff is a relatively simple man whose limited recreational pursuits are of a physical nature.[25] Whilst he can ride his trailbike over rough terrain for a couple of hours up to half a day, he does so in pain and was previously able to ride for a day, unrestricted in any way.
[25]T20
173 The plaintiff can still work on his four-wheel drive but his arm pain carrying out fine hand movements limits the time he can enjoy this activity and he suffers pain later that night. As Mr Stapleton described, having taken a more detailed history than Mr Ireland, the plaintiff, from a functional point of view, has a reduced range of movement of his left wrist. The power of his grip is diminished and he is more awkward when attempting to manipulate small objects.
174 This restriction would extend to the plaintiff’s use of tools in a work context if he was ever able to re enter the workforce.
175 I accept the submission by Senior Counsel for the plaintiff in evaluating the issue, that it would be wrong to look at what the plaintiff is achieving at the moment to determine whether or not he satisfies the test of “seriousness”.[26]
[26]T25
176 I accept the plaintiff will become increasingly limited in his ability to engage in these activities in the future when his osteoarthritic condition further progresses.
177 I am also entitled to take into account the expected emotional consequences of the plaintiff’s physical injury when considering its seriousness – see Winneke P in Richards v Wylie.[27]
[27]Supra
178 Although the plaintiff clearly had a vulnerable personality pre-accident and had psychiatric treatment and medication, he has experienced additional frustration and irritability as a result of his pain and accident restrictions. As Dr Sherry described, the plaintiff’s premorbid vulnerability was further compounded by the combined physical and psychiatric injuries (Adjustment Disorder with Depressed and Anxious Mood and features of a partial Post-Traumatic Stress Disorder) suffered in the accident.
179 Taking into account all the evidence, I am satisfied that the consequences of the plaintiff’s left arm impairment are “serious”.
180 As the plaintiff’s condition has continued for a number of years without improvement, I accept that his impairment is long term.
181 Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to the accident.
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