Karaca v Transport Accident Commission
[2013] VCC 1864
•9 December 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-12-02136
| CENGIZ KARACA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 December 2013 | |
DATE OF JUDGMENT: | 9 December 2013 | |
CASE MAY BE CITED AS: | Karaca v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1864 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Transport accident – serious injury – injury to the low back
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited:Phelan v Transport Accident Commission [2013] VSCA 306; Elias v Transport Accident Commission [2013] VSCA 123; Transport Accident Commission v Zepic [2013] VSCA 232; Kalinicv Acron Engineering Pty Ltd & Anor [2013] VSCA 341; Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26
Judgment: Leave granted to the plaintiff to bring proceedings for the recovery of damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett | Arnold Thomas & Becker Pty Ltd |
| For the Defendant | Mr M R Titshall QC with Mr S Martin | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 Leave is sought pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings for the recovery of damages. The injury relied on is to the low back and includes fractures in the lumbar spine, as well as soft tissue damage. The impairment relied on is to the spine. Paragraph I psychiatric injuries have also resulted but the application proceeded relying on paragraph (a) only.[1]
[1]Transcript (“T”) T1
2 The single issue for determination is whether the consequences of the impairment of the spine amount to “serious”. The major consequences the plaintiff relies on are his daily pain and the impact on his earning capacity.
3 As has been said often, these applications involve elements of fact, degree and value judgment.[2] The single discrete issue in this case is whether the impairment has resulted in or materially contributed to consequences that can be fairly described as “at least very considerable” when judged by comparison with other cases in the range of possible impairments.[3] It has been said recently that the exercise involves “… the imprecise and impressionistic criteria in the so called ‘narrative test’”.[4]
[2]Phelan v Transport Accident Commission [2013] VSCA 306 at paragraph 58; Elias v Transport Accident Commission [2013] VSCA 123 at paragraphs 61 and 99
[3]T15
[4]Transport Accident Commission v Zepic [2013] VSCA 232 at paragraph 145
4 It has been stated that judging the extent of the consequences –
“… of pain and suffering and loss of earning capacity involve difficult multi-factorial judgments which are further complicated by the fact that none of the specialist medical reports were amplified by way of oral evidence or clarified by cross-examination.”[5]
[5]Kalinicv Acron Engineering Pty Ltd & Anor [2013] VSCA 341 at paragraph 58
5 The plaintiff is aged forty-three years and was involved in a very major accident on 1 November 2008. He was a passenger in a car that left the Ring Road, rolled over and crashed. He was taken by ambulance to The Royal Melbourne Hospital and had multiple injuries.[6] Fractures in the lumbar spine at several levels were confirmed, along with chest, lung and rib injuries. He has also suffered a mental or psychiatric reaction.
[6]Plaintiff’s Court Book (“PCB”) PCB 6-7
6 The plaintiff was admitted to The Royal Melbourne Hospital for several days and then came under the care of his general practitioner, Dr M Merhi, in Glenroy. He was unable to work for approximately a year.[7]
[7]PCB 9
7 Treatment for the low back has been extensive. It has included, and still does, a great deal of narcotic medication. He has had epidural injection treatment, pain management referral, physiotherapy over several courses, hydrotherapy, a regime of exercises that he does at home, as well as use of a TENS machine. Also he underwent a fluoroscopically-guided L4-5 transforaminal injection.[8] TAC ceased funding physiotherapy and this year the plaintiff had a further six months’ course after he challenged that decision.[9] This is consistent with his evidence of continuous problems with low back pain. He has also needed treatment from a psychologist and from a psychiatrist for his mental reaction to the accident and his pain.
[8]PCB 87
[9]T16-17, T34
8 The plaintiff was born in Turkey but grew up and was educated in Australia. He returned to Turkey from 1991 through to 2006. On his return to Australia in 2006, he took up employment that he had had previously with Crown Casino as a croupier.
9 The medical evidence clearly indicates that the plaintiff had a low back condition in Turkey that still required treatment when he returned to Australia in 2006.[10]
[10]PCB 13
10 He saw a general practitioner, had CT and MRI scanning done and was referred to Mr S Doig, orthopaedic surgeon in February 2006.[11] In September 2007, Mr Doig seemed to give him what reads as a full clearance from the 2006 problems.[12] The Coolaroo Clinic recorded in the progress notes two visits in 2008.[13] The last mention of low back symptoms was on 7 April 2008. It is one of only two notes in 2008 and there is nothing beyond that date. I accept the evidence of the plaintiff that after treatment his back improved and he had no further problems until the transport accident.[14]
[11]Defendant’s Court Book (“DCB”) 56-60
[12]DCB 60
[13]PCB 109-110
[14]PCB 13
11 The cessation of any active treatment between April and 1 November 2008 is consistent with the plaintiff not suffering any symptoms of significance at the time of the subject transport accident. There is no evidence he needed any time off work between 2006 and 1 November 2008.
12 I accept there were no consequences that his previous low back condition was still producing as at 1 November 2008. While his memory of these pre-accident years was not very good in terms of detail,[15] it was nevertheless quite frankly addressed in the plaintiff’s first affidavit.[16]
[15]T17-19, T21-24
[16]PCB 13
13 For these reasons no ‘before’ or ‘after’ analysis is required in this case.[17] It was suggested in the opening that such an analysis was necessary[18] but then it was not urged at the end of the evidence.[19]
[17]Petkovski v Galletti [1994] 1 VR 436
[18]T5
[19]T53
14 In about February 2011, the plaintiff injured his shoulder when he was having a nightmare caused by his psychiatric condition. He jumped out of bed and fell.[20] There has been a good deal of investigation and treatment with respect to the shoulder injury which is a distinct separate injury from his low back condition. While it is clearly, on one view, causatively linked to the accident, no paragraph (a) application was pursued in relation to the left shoulder.[21]
[20]PCB 7
[21]T1
15 Having had the advantage of hearing the plaintiff cross-examined, I find that he was a reliable, honest and accurate witness. He did not in any way exaggerate the level of his symptoms and was very compliant in cross-examination. The defendant very sensibly conceded that it was a case in which there is no issue as to credit or motivation.[22] Accordingly, I accept what the plaintiff says about his low back symptoms and their effect on his capacity to work and daily life generally.
[22]T45
16 Dealing with the question of pain, the principles involved in such an analysis have been set out.[23]
[23]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraphs 10, 11 and 16; Sutton v Laminex Group Pty Ltd [2011] VSCA 52 at paragraph 91; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46 at paragraphs 10 and 11
17 I find that this plaintiff puts up with daily pain which can vary in severity but is effectively always there.[24] It has been said of a plaintiff such as this:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”[25]
[24]PCB 9-11 and 15
[25]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at paragraph 199; Sutton v Laminex Group Pty Ltd (supra) at paragraph 91
18 The plaintiff has taken OxyContin right up to the present time, sufficient for one of the specialists who saw him for the defendant to be concerned about addiction. He recommended that the plaintiff be referred to the Department of Addiction Medicine and Toxicology at the Western Hospital for assessment and management of his opioid dependence.[26]
[26]DCB 20
19 When one looks at what the plaintiff says about pain and what the plaintiff does about pain,[27] I accept that to be taking narcotic medication to this extent speaks volumes about a man injured in his 30’s suffering very severe pain. The need for daily medication to control pain and be able to go off to work and attend to the other demands of daily life, has been commented on often as being relevant to a consideration of whether or not the consequences of an impairment of body function can be fairly described as “very considerable”.[28]
[27]Haden Engineering Pty Ltd v McKinnon (supra) at paragraph 11
[28]Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Kelso v Tatiara Meat Co Pty Ltd (supra) at paragraph 199; Elias v Transport Accident Commission (supra) at paragraphs 88 – 90
20 There is no medical controversy in this case. The medical opinions therefore require only brief mention. However, it is necessary to examine what the doctors say about pain in the context of evaluating consequences.[29] The plaintiff’s application must be judged now, and the general practitioner’s last word was only two weeks ago.[30]
[29]Aburrow v Network Personnel Pty Ltd (supra) at paragraph 11
[30]PCB 58
21 Dr Merhi then said that the plaintiff was still having trouble sleeping and mobilising due to his pain, which included the low back pain. The low back pain in fact was mentioned first, together with the ribs and shoulder symptoms. He stated:
“… Although he has returned to full time work, he is needing to take strong narcotic analgesia to help him through his work shifts. He is able to undertake his normal daily self care and household routines but with pain, and this is still impacting on him negatively … .”[31]
[31]PCB 59
22 He described that the plaintiff:
“… is currently using durogesic 25mcg patches and oxycontin 20mg tablets. … .”[32]
[32]PCB 59
23 Dr Mehri felt the condition was stabilised but that it could improve if the plaintiff could learn to deal with the mental health issues and the chronic pain. He also, with respect to prognosis, thought that the initial physical injuries would predispose the plaintiff to degenerative changes earlier in his life than would otherwise be expected. Future prognosis should be positive if he could learn to manage the mental health issues and his chronic pain.
24 I read his reports as indicating a very severe ongoing level of pain that requires opiate medication. There is really no other treatment that his local doctor points to that would lead to any conclusion other than that the probabilities are that the plaintiff’s current situation will be ongoing in the long term.
25 The treating physiotherapist, Ms K Blazevic, last reported in June 2012.[33] She described how physiotherapy commenced some three weeks post injury. She recorded some of the side effects from medication which included constipation due to the OxyContin. She thought that the plaintiff –
“… was seriously affected by the accident. It affected him socially, at work, at home, and was and is still, very mentally challenging.
Mr Karaca had Physiotherapy until 2010. He was able to return to full-time work. I would describe him as still in chronic pain because he still uses Oxycontin patches for pain management at work. … .”[34]
[33]PCB 23 – 25
[34]PCB 24
26 Ms Blazevic also goes on to refer to the psychological consequences of the accident. In terms of work, her view was that:
“… He does shift work and is currently back to full-time hours alternating night shift and day shift. He is able to do his duties but there is increased pain. He has a rest after 45 minutes at a table, and he is able to sit or stand while working. Generally, he finds it more comfortable to stand. He is reliant on pain medication at the moment to be able to work.
He takes OxyContin daily and takes Panadeine Forte as needed.”[35]
[35]PCB 25
27 Ms Blazevic thought that the plaintiff had a permanent physical injury as well as long-term psychological health issues and that the likelihood of further deterioration was high.[36]
[36]PCB 25
28 Dr M Demetrios, rehabilitation physician, reported some time ago in the context of her assessment at the Pain Management Clinic of The Royal Melbourne Hospital. It is some time since she has seen the plaintiff, although the last date is not clear. Nevertheless, in listing the problems he had, she commenced with noting his persistent lower back pain following fractures of the “L1 to L5 transverse process” together with possible facet joint dysfunction.[37] She noted trials of different medication as well as the physiotherapy, hydrotherapy and education regarding a self-management approach and she recommended occupational therapist assessment to assist with activities of daily living. It is not clear from the material when she last saw him, so her opinion is now dated, but she did confirm the wide extent of his treatment and a serious level of organic pain.
[37]PCB 27
29 Turning to what the medico-legal practitioners say in relation to consequences, again, it is most useful to look at the up to date material.
30 Mr R Miller, orthopaedic surgeon, examined the plaintiff on behalf of his solicitors and provided four reports dated 18 February 2011, 21 January 2013, 13 February 2013 and 18 February 2013.
31 Mr Miller diagnosed a significant injury to the lumbar spine with muscular ligamentous strain as well as the fractures of the multiple transverse processes. He thought symptoms were likely to continue with only a fair prognosis.[38] He noted that the plaintiff had returned to full-time work but he thought, in relation to capacity, that there were real limitations:
“… I remain of the view that he will have long term work restrictions with no repetitive bending, no repetitive lifting and no lifting of weights more than 5 kg. He will have a requirement to shift his posture on a regular basis.
I note he has increased his working hours to approximately 40 hours a week and I am now of the view that he will be able to continue with those working hours.”[39]
[38]PCB 70
[39]PCB 71
32 In essence then, while noting that the plaintiff had returned to pre-injury employment, he recorded that this was –
“… albeit with ongoing symptoms.”[40]
He thought the plaintiff’s condition was stable.
[40]PCB 72
33 Mr Miller was then sent the material which informed him of the 2006 back condition. He had the medical records, including the 2006 CT and MRI scans.[41] It did not really alter his opinion it seemed, as under Diagnosis and Prognosis in his report of February 2013, he recorded:
“… It now remains my view that this man suffered significant injury to the lumbar spine with multiple transverse fractures, musculo-ligamentous strain and disruption of the soft tissues and has significant problems with degenerative disease with disc problems at the L5/S1 level, probably facet joint changes and retrolisthesis, that is, there is significant multi pathology in the lumbar spine. I remain of the view that the prognosis for the lumbar spine is only fair.”[42]
[41]DCB 56 and 59
[42]PCB 76
34 There is nothing in Mr Miller’s reports that would indicate that he has formed any view other than that the transport accident has resulted in or materially contributed to the consequences of the plaintiff’s ongoing pain and reduced mobility.
35 Associate Professor M Goldwasser, orthopaedic surgeon, took a history of the 2006 low back problems that necessitated investigation by Mr Doig, the orthopaedic surgeon.[43] His opinion was that the plaintiff had suffered a residual back condition associated with the multiple fractures in the lumbar spine directly related to the transport accident. He elaborated as follows:
“The causes of Mr Karaca’s current symptoms, restrictions and limitations are the fractures in the lumbar spine and the associated soft tissue injuries and limit his ability to sit for long periods of time. Fortunately, he has been motivated to return to his work and is doing this but only eight sessions a fortnight instead of the 10 that he used to do.”[44]
[43]PCB 33
[44]PCB 37
36 The condition was largely stabilised and he felt, looking at general activities of daily life:
“… He is unlikely to manage activities requiring heavy lifting or repeated bending and stooping.”[45]
[45]PCB 37
37 The final medico-legal opinion for the plaintiff was Professor P Teddy, neurosurgeon. He had a history of the back pain problem in 2006, however, it is only a brief history of that problem.[46] Nevertheless, in relation to the plaintiff, he thought he was a determined character, there was no elaboration of his symptoms and he was fully cooperative throughout his examination.[47] That is consistent with what other doctors have said in relation to this stoical man. The diagnosis was of a mechanical (musculoskeletal) back pain:
“In terms of his back pain, these symptoms were entirely attributable to the injuries derived at the time of his accident”.[48]
[46]PCB 78
[47]PCB 80
[48]PCB 80
38 He had suffered displaced fractures of the transverse processes of multiple lumbar vertebrae and local muscular damage.
39 Professor Teddy stated, in relation to the plaintiff’s capacity for work:
“It is a testament to Mr Karaca’s character that he returned to work in his former employment even though in a somewhat reduced capacity. His work as a croupier does entail short periods of work punctuated by short breaks throughout an 8 or 10-hour shift. While he is able to work standing, he is not able to move about during the work periods and this does limit his working capacity.”[49]
[49]PCB 80
40 He thought that the prognosis was generally good but:
“… in terms of back pain, his condition will probably remain much as it is for the foreseeable future. He will suffer permanent restriction in his working abilities in so far as he will be unable to undertake heavy manual labour or any job that requires lifting weights with his back in positions of mechanical disadvantage, working in confined spaces, or occupations that require repetitive bending, stooping, and twisting.”[50]
He concluded by saying the back condition had stabilised.
[50]PCB 81
41 For the defendant, the plaintiff was examined by Mr R Dickens, orthopaedic surgeon, in February 2010. This is almost four years ago and is really of little or no use in evaluating the plaintiff’s consequences now and whether or not they could be said to be very considerable. Nevertheless, he diagnosed that the plaintiff had sustained fractures of the transverse processes of L1 to L4 as well as soft tissue injuries. He noted there were ongoing symptoms and he thought that the fractures would have united by that stage.[51]
[51]DCB 52
42 Mr Dickens noted that the plaintiff had returned to working 80 per cent essentially of his original employment. He thought that work was therapeutic for him and that he should be able to return to full employment. He did not see any limitations in relation daily living or occupational activities.[52] He does, nevertheless, conclude by saying:
“… The only restrictions or accommodations that may be warranted would be common sense restrictions avoiding those activities that cause him increasing symptoms.”[53]
[52]DCB 53
[53]DCB 53
43 Earlier in his report, he noted that the plaintiff’s limitations included that pain was worse if he stopped medication, sat for longer than 20 minutes or if he did any bending or sharp movements or runs.[54] I read his concluding remark about “common sense restrictions” as referring to those limitations. I accept they impact both on his earning capacity and enjoyment of certain activities in daily life.
[54]DCB 50
44 His final letter in March 2010 is really just directed to the question of ongoing treatment. He thought that physiotherapy with massage and ultrasonic treatment, together with a TENS machine were appropriate.
45 The final opinion for the defendant was from Mr R McArthur, orthopaedic surgeon, who saw the plaintiff in May 2012. This is also somewhat dated, being over eighteen months old. Nevertheless, he diagnosed the low back injuries by way of the fractures, together with associated soft tissue damage. He thought these should have settled by the time he saw the plaintiff, although it was conceivable that the L5 intervertebral disc may have been aggravated by the trauma in the transport accident. If it had had been aggravated, he thought that that aggravation would have ceased by now, save for occasional bouts of back pain related to that disc injury which would occur with lifting or activity.[55] He does not say what activity.
[55]DCB 20
46 I have already described how Dr McArthur was very concerned about the plaintiff’s narcotic dependence which he described as an addiction. He was really critical, it would seem, of the ongoing prescription of this drug when he said:
“The prescription of narcotics was initiated in the Royal Melbourne Hospital and has been continued by his general practitioner for a period of three and a half years. It is my opinion that the prescription of narcotics is not required to treat either the back or left shoulder pain.”[56]
[56]DCB 21
47 The plaintiff has followed compliantly the treatment that has been advised by his local doctor, physiotherapist and others. The concern that Mr McArthur had about narcotic addiction simply reflects the severity of the pain that the plaintiff has had to try and control in order to keep working and cope with daily life. It is a measure of that pain amounting, in my opinion, to a very considerable consequence in the circumstances of this case. A compliant and motivated patient such as this plaintiff can only follow the professional medical advice he is given. He has done that.
48 The plaintiff was only thirty-eight years when injured and his relative youth is relevant when judging consequences of an injury that is stable.[57]
[57]Stijepic v One Force Group Aust [2009] VSCA 181 at paragraph 43; Hawkins v DHL Express (Aust) Pty Ltd [2013] VSCA 26 at paragraphs 74-75
49 Accordingly, in all the circumstances, the plaintiff’s pain and the need for strong medication required to deal with it amount to a very considerable consequence that satisfies the definition of “serious” under paragraph (a).
50 Dealing with the loss of earning capacity, I have been provided with some documentary evidence of the plaintiff’s hours of work and earnings that is really quite inadequate.
51 There were documents tendered regarding the plaintiff’s rostered hours, his hours of work[58] and some payslips.[59] The material is defective in assessing his consequences in December 2013. For example, the details of his rostered and worked hours are over two years old and only go up to 9 October 2011.[60] The payslip evidence is sparse and incomplete. For some reason it covers six fortnightly periods from 5 July 2012 to 13 September 2012.[61] Then it covers five fortnightly periods from 26 September 2012 to 21 November 2013.[62] I agree with counsel for the defendant that these are inadequate samples of payroll evidence. They are too selective and restricted to base sound conclusions on the precise hours he worked before his accident and in the three years since. I accept that this material shows the hours he worked pre accident averaged out at a higher fortnightly figure than in the part of the post accident period shown; however, these post accident pay records end at 9 October 2011 – more than two years ago. The payslips over the last five fortnights are too limited to assist and not properly explained by any evidence about how to read the terms “hours”, “units”, “early out” etc.[63] The evidence of impaired earning capacity is sparse in terms of detail.
[58]PCB 92-97
[59]PCB 98-108
[60]PCB 97
[61]PCB 98-103
[62]PCB 104-108
[63]PCB 105
52 I accept the plaintiff has hidden his back problems from his employer.[64] I also accept his evidence about difficulties at work and that he is doing less work than he would do but for the injury.[65] On the evidence, the impairment of earning capacity cannot be precisely quantified in dollar terms but I do find his capacity at work is limited since the transport accident as a result of the impairment of function of the spine.[66] He has to take Oxycontin and Durogesic patches that he wears while working.[67] He sits at work and sitting causes pain to markedly increase and Oxycontin is needed to overcome the increase. I accept these factors impair his capacity to work as he could previously. He copes with it by taking medication, hiding it from his employer and from putting up with it stoically. Any precise loss in hours or wages is not possible to determine.
[64]PCB 10, T32
[65]PCB 9 and 10
[66]T10 and T12
[67]PCB 9-10
53 As well as the level of daily pain there are other consequences that, of themselves, are very considerable in terms of his enjoyment of life. The low back pain interferes with sleep. He generally wakes at night. He sleeps with a pillow between his legs. Sometimes he needs narcotics to get back to sleep.[68] The effect of sleep deprivation has been commented on:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep”.[69]
[68]PCB 11
[69]Haden Engineering Pty Ltd v Barry McKinnon (supra) at paragraph 45
54 Its impact on enjoyment of life and the activities of daily living is a very considerable consequence in this case.
55 Similarly, the loss of the capacity to sit for as long as one wants is easily taken for granted. The plaintiff is limited by pain if he has to sit for periods that are not even very long, such as 30 to 40 minutes.[70] A number of doctors refer to this and the need to change posture.[71] The impact of this consequence is not only apparent in a work context but sitting is a large part of daily life whether at work, driving or just relaxing. It is a very considerable consequence of the impairment of the function of the spine.
[70]PCB 10 and 12
[71]PCB 25, 33, 71 and 80; DCB 50
56 For the reasons I have mentioned, I grant leave to the plaintiff to bring proceedings for the recovery of damages.
57 I will hear the parties as to costs.
0
10
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