Keady v TAC
[2012] VCC 49
•28 February 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
Case No. CI-10-04985
| GERALD KEADY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 January – 1 February 2012 | |
DATE OF JUDGMENT: | 28 February 2012 | |
CASE MAY BE CITED AS: | Keady v TAC | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 49 | |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident – Leave to bring common law proceedings – Plaintiff victim of an assault which included use of a motor vehicle – Whether injuries caused by assault or by motor vehicle – Whether serious injury – Credit issues – Transport Accident Act 1986 (Vic), sub-ss.93(1),(3),(4),(6) and (17)(a) and (c) – Humphries and Poljak (1992) 2 VR 129 – Mobilio v Balliotis [1998] 3 VR 833 – Haden Engineering Pty Ltd v Mc Kinnon [2010] VSCA 69 – Application pursuant to s.93(17) (a) refused – Application pursuant to s.93(17)(c) granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms N. Wolski | Riordan Legal Pty Ltd |
| For the Defendant | Mr S. Smith | Transport Accident Commission (TAC) |
HER HONOUR:
The Application
1. This is an application pursuant to s.93(4)(d) of the Transport Accident Act 1986 (Vic) (“the Act”) for leave to commence proceedings to recover damages for injuries suffered by the plaintiff as a result of a transport accident that occurred on 13 June 2003.
2. Section 93(6) of the Act provides that a court must not grant leave under section 93(4)(d) unless it is satisfied that the injury is a serious injury. Section 93(17) contains the definition of “serious injury” which relevantly includes “(a) serious long-term impairment or loss of body function” or “(c) severe long-term mental or severe long-term behavioural disturbance or disorder.”
3. Within the meaning of paragraph (a) of the definition of serious injury, the plaintiff alleges that he suffered serious long-term impairment or loss of body function of his pelvis and hip, and more specifically, “the impairment of function of the pelvis resulting in bilateral pelvic pain, pain involving the hip joints and thoracolumbar back.”
4. Within the meaning of paragraph (c), the plaintiff alleges that as a result of the transport accident he sustained a severe long-term mental or severe behavioural disturbance or disorder in particular Post-Traumatic Stress Syndrome.
Issues in the case
5. While the defendant accepts that in the course of the assault on 13 June 2003, a motor vehicle (“the 4WD”) made contact with the plaintiff, the point of impact and extent of the injuries caused by the collision is disputed. It is also disputed that any injuries suffered by the plaintiff as a result of the involvement of the 4WD in the assault/accident are “serious” (the physical injuries) or “severe” (the mental injury).
6. The plaintiff’s credit is a major issue in this case. This is because the defence case is that he is a thoroughly unreliable witness to the extent that his evidence falls into the category of evidence that the court should not accept, unless it is corroborated by an independent source.
Plaintiff’s background
7. In support of his application the plaintiff swore two affidavits dated 14 July 2010 (“the first affidavit”) and 19 January 2012 (“the second affidavit”). When the plaintiff gave his evidence, he adopted these affidavits as being true and correct. However, the plaintiffs background prior to the assault/accident was not without incident and while the affidavits include details of his previous injuries and convictions for various offences, it is fair to say that they do not present a complete and accurate picture of his pre-accident state.
8. The plaintiff was born on 3 December 1962 and is 47 years old. He was educated up to Year 11 at Shepparton South Technical School. After leaving school he undertook a four year apprenticeship as a boilermaker and worked both as an employee and on a sub-contract basis. From 2000-2002 he worked for DGR Plastics making gates, hay feeders and farm appliances.
9. The plaintiff claimed that at the time of the assault/accident he was employed as a boilermaker with Calandro Engineering and that he had been so employed for approximately three months prior to this. However, records produced by the defendant revealed that he was only employed there for one month and that he was on social security at the time of the assault/accident.
10. In his first affidavit the plaintiff admitted to being in prison for various periods between 1985 and 1990 for car theft, fraud and possession of drugs. In cross-examination he admitted to the following convictions:
· 1992 – taking drugs into prison, theft and going equipped to steal;
· 1994 – using a drug of dependence, behaving in a riotous manner in a public place and damaging Commonwealth property at the Centrelink office;
· 1995 – assaulting police, resisting police, threat to damage property and wilfully damaging property.
11. While he was in prison in 1985, he was stabbed and sustained an abdominal injury requiring surgical repair. At that time he suffered from nightmares and flashbacks for some years. While the plaintiff claimed that he ultimately made a complete recovery from his physical and psychological injuries, it was disputed that he had recovered from a Post-Traumatic Stress Disorder resulting from this incident.
12. The plaintiff had also been involved in several minor motor bike accidents in the past. When he was approximately 17 to 20 years old, he sustained a fracture of his left ankle, right wrist and right ankle. Although there was no mention of it in his affidavits, records produced by the defendant revealed that the plaintiff had also injured his left arm badly in 1993 and as a result had time off work.
13. In addition, although there was no mention of his drug use in the affidavits, it became apparent in the hearing that the plaintiff had used amphetamines, heroin and marijuana and he has been diagnosed with hepatitis C.
The Transport Accident
14. Moving on to the assault/accident which has led to this claim. It is not disputed that over a period of hours on 13 June 2003, the plaintiff was savagely assaulted by three men (Adam McLennan, Brian Cross and Michael Poynter) who in the process used a claw hammer and baseball bat on his jaw, head and legs. The plaintiff was then thrown in the back of Adam McLennan’s 4WD and transported to the Goulburn River/Moira National Park where he was tied to a tree, assaulted with a baseball bat and left there.
15. A couple of hours later Adam McLennan returned to the scene and the plaintiff alleges that he drove the 4WD into him when he was tied to a tree and that the bull bar made contact with his abdomen to his ankles. The three men were subsequently charged and convicted of a number of serious indictable offences and sentenced to various terms of imprisonment as a result of the assault/accident.
16. As a result of the involvement of the 4WD in the assault/accident, the plaintiff claims that he sustained multiple injuries including an abdominal injury with the rupture of his left kidney, a comminuted fracture of the left half of the pelvis involving all of the wing of the left ilium, an injury to his thoracolumbar spine with an anterior wedge fracture at T9, abrasions and lacerations, post-traumatic stress disorder, adjustment disorder, anxiety and depression.
17. However, the defence case is that these injuries are as a result of the assault rather than the 4WD being driven into him and that the only impact was to the plaintiff’s legs. Other injuries which had been originally claimed as being a result of the transport accident, including a large haematoma on the right side of the plaintiff’s neck and a compound fracture of the middle third of his right tibia and fibula, were agreed by the plaintiff to have been caused by the assault.
Treatment following the assault/accident
18. Following the assault/accident, the plaintiff was taken by ambulance to the Goulburn Valley Hospital and then airlifted to the Alfred Hospital where he remained for three weeks. The plaintiff underwent several operative procedures while he was there, including debridement, open reduction and internal fixation of his right leg fracture and repair of his knee injury. In addition, an open reduction and internal fixation of his mandibular fracture.
19. A CT scan of his abdomen and pelvis taken at the Alfred on 14 June 2003 revealed a fracture through the left iliac bone involving a fragment of approximately 12 centimetres. On 19 June 2003, an x-ray of the thoracic spine revealed a T9 compression fracture. There was “very mild loss of the vertebral height of T9 with mild acute angulation of the anterior cortex suggestive of mild compression fracture. The other vertebral bodies demonstrated normal height and disc spaces were normal.”
20. On or about 2 July 2003 the plaintiff was discharged from hospital to a friend’s home. After his discharge from hospital he required the use of a wheelchair for approximately three months and crutches for six months. He received follow-up treatment in the outpatient clinic at the Alfred Hospital and then continued under the care of his family doctor, Dr Ruth Smith, at Princess Park Clinic in Shepparton. The plaintiff also underwent physiotherapy treatment for approximately one year.
21. From March 2004 to August 2004, the plaintiff attended five counselling sessions with Lorraine Walker, a psychologist. In October 2004 he returned to the hospital for the removal of the pin from his right leg. He has not had any further treatment for his injuries since that time, except for occasional massage.
22. In June 2006, the plaintiff began working one day a week as a driver at the Cosgrove municipal tip. He did so for 20 weeks as part of his Centrelink requirements. However, he claims that he was forced to cease work after 20 weeks because he found truck driving was aggravating his pain.
23. In late 2006 the plaintiff obtained another truck driving job with a friend and drove once a fortnight for two months. In 2007 he did some caretaking work at the Percy Green Centre (a drug and alcohol centre in Shepparton) for two to three months. He is presently on a disability pension and caring for his son.
Subsequent injuries
24. It is apparent that life has not been exactly been a bed of roses for the plaintiff as in the period since the assault/accident he has been assaulted on two further occasions. He was assaulted again in April 2004 but has no memory of this assault. In December 2008 he was assaulted yet again, this time by his ex-partner’s brother who struck him on the head with a hammer leading to a depressed fracture of the skull. He spent 10 days in an induced coma at the Alfred Hospital and required neurosurgery. After this assault he had problems with memory and concentration and became more anxious.
25. Then in April 2009 the plaintiff suffered an injury to his back in a fall which may have been caused by a seizure resulting from the assault in 2008. A discharge summary from the Sir Charles Gairdner Hospital in Perth revealed that the plaintiff had been found unconscious in the bathroom on 17 April 2010. He had been agitated and confused when he awoke and had bitten his tongue.
26. An x-ray of the plaintiff’s lumbar spine revealed a crush fracture of the L3 vertebrae. The plaintiff was managed conservatively for this injury and discharged from hospital on 19 April 2010. The plaintiff was referred to Dr Brighton-Knight, who on 5 August 2010 reported to Dr Ekanayake that surgery was not indicated and the fracture was uniting and stable in a brace. Although there were three outpatient appointments at Dandenong hospital made for him, the plaintiff did not attend any of these appointments.
Medical opinion of physical injuries relied on by the plaintiff
27. In his report of 14 June 2003, Dr McDonald stated that “this man was admitted to the Alfred Hospital with injuries sustained in an assault when he was allegedly hit with a hammer and a baseball bat.” He listed the injuries as follows:
1. A closed head injury
2. A compound fracture of the shaft of the right tibia
3. Facial fractures
4. A left renal haematoma
5. A laceration to the right knee
6. Bruising to the neck and back
7. A fractured left iliac
28. Dr MacDonald reported that the plaintiff’s post-operative progress was satisfactory. His last contact with the Alfred had been when he was reviewed at the Facio-Maxillary Clinic on 8 August 2003. No treatment was ordered and a further review was to take place four weeks later but the appointment was not kept.
29. As the plaintiff had complained of diminished libido and erectile dysfunction after the assault/accident, his solicitors sought the opinion of a Urologist, Dr Kennedy. In his report of 5 August 2009, Dr Kennedy’s opinion was that the plaintiff’s condition was not organic and might be related to the Post-Traumatic Stress Disorder and depression. He also expressed the opinion that “it would appear that most of the plaintiff’s injuries could have been related to the transport accident in question. The possible exception being the fractured mandible, which was likely to have been used by the claw hammer allegedly used.”
30. Michael Ratcliff, a physiotherapist, reported on 1 February 2010 that the plaintiff had attended for physiotherapy on three occasions in early 2009. The plaintiff had complained mainly of right lower back pain with no specific referred leg pain. He had given Mr Radcliffe a history that he had sustained “a back injury in a car accident many years ago” and that the “circumstances surrounding the injury were quite complex involving an assault.” He also reported that it had taken some time for liability to be accepted for his back.
31. As to whether there would be a permanent restriction as a result of the injury, Mr Ratcliff’s opinion was that:
“it is difficult to say with non-specific low back pain. It has been some time since the injury and he does have a restriction of movement but it was not significant. Low back pain can be problematic for many years” (p. 39 of the plaintiff’s court book (“PCB”))
32. The plaintiff relies, in particular, on the opinion of Mr King. Mr King provided the plaintiff’s solicitors with four reports and attended court for cross-examination. In essence his opinion was that, with the exception of the plaintiff’s facial fracture, “the greater bulk, if not all” of the plaintiff’s current injuries and impairment from the neck downwards were due to “the effects of being crushed between the front bumper bar of a four wheel drive vehicle and the tree to which he was tied” (p. 111 PCB; Report of 23 October 2009).
In summary, in this report, Mr King’s conclusions were that:
· the major degree of trauma was caused by the plaintiff being crushed by the front bumper bar of a four wheel drive when tied to a tree;
· such a crushing force represented a very major degree of generalised trauma, not only to the whole of the plaintiff’s thoracolumbar spine and pelvic regions, but also to the abdominal content and to all the soft tissues between his lower thorax and lower limbs;
· the generalised trauma to the whole of the spine would have involved cervical, thoracic and lumbar discs and associate ligamentous structures at multiple levels with a minor wedge fracture at T9 and extensive cervical crushing trauma to the pelvis, with disruption of the left iliac bone and what was assumed to have been a major trauma to the left sacroiliac joint, probably to the right as well;
· it was very probable that he sustained trauma to the articular surfaces of both hip joints considering the nature of the force applied to the pelvis, such crushing force damaging articular surfaces in the hip joints would explain his mild residual irritability in both hip joints;
· he has been left with a major long-term impairment in terms of quite severe constant thoracolumbar back pain and bilateral pelvic pain involving both hip joints and these symptoms represent his major problem;
· he is permanently unfit to go back to work as a boilermaker or any other sort of heavy work which involves standing, walking, bending or lifting and his prognosis was poor.
34. At the time Mr King wrote his report of 13 December 2011, the plaintiff had given Mr King an x-ray dated 3 May 2010. This x-ray revealed a fracture at L3 which Mr King put down to the 4WD and he stated that “it was consistent with what I perceived to be the very severe nature of the crushing injuries to his lower trunk, lumbar spine and pelvis at the time of my first examination” (p. 117 PCB; Report of 13 December 2011).
35. However, Mr King resiled from this opinion after receiving the formal radiology report of Professor Ken Thompson (films taken at the Alfred Hospital on 18 June 2003) confirming that there was no fracture at L3 at the time. In his report of 18 January 2012, Mr King accepted that the fracture at L3 must have occurred as a result of the fall in a toilet suffered by the plaintiff in Perth.
36. When he was cross-examined, with the exception of the L3 fracture, Mr King’s opinion remained the same as in his report’s referred to above. He gave evidence that the injury to the plaintiff’s pelvis could not have been caused by a baseball bat. In addition, with respect to the force involved to cause injury to the plaintiff’s pelvis and a fracture at T9, he stated:
“I do know from his injuries that something caused hyperflexion of his thoracic spine as he got a fracture of T9 but also most importantly there was a massive force applied to his pelvis because you cannot get a comminuted fracture of the ileum bone without a massive crushing force” (transcript p. 149).
37. With respect to the consequences of the injury to the plaintiff’s back and pelvis, in his opinion, the plaintiff was “chronically and severely disabled by his back and pelvis pains which markedly limit his activities, disturb his sleep and require strong analgesics on a regular basis and the symptoms being severe enough to prevent him working in any capacity over the last year” (report of 13 December 2011).
Medical opinion of physical injuries relied on by the defendant
38. Dr Elder’s opinion is in stark contrast to that of Mr King. In his report dated 29 March 2009, Dr Elder noted with respect to the plaintiff’s pelvic injury, that he had “no evidence before (him) that this injury and the resulting medical conditions resulted from any interaction with a motor vehicle at all” (p. 24 of the defendant’s court book (“DCB”); P. 2 of the report).
In Dr Elder’s analysis of findings, he stated that:
“I have not been able to elicit any history or objective evidence of a motor vehicle involvement in this alleged assault. Whilst I would accept that the (plaintiff) may have mild pelvic dysfunction giving rise to buttock/low back discomfort, there is no clinical evidence of any significant pathology.” (DCB p. 27,p. 5 of the report).
40. His conclusion was that:
“I therefore do not believe that there is any significant medical condition that would preclude a normal vocational activity.”
41. However, in a supplementary report prepared on 22 April 2009, on the basis that “the Magistrate” (I presume he meant Her Honour Judge Wilmoth who sentenced McLennan) had found that the plaintiff’s pelvis was injured by the 4WD, Dr Elder was of the opinion that the pelvic fracture had healed with no residual deformity. He stated:
“I did accept that the (plaintiff) may have had some mild pelvic discomfort but I was of the opinion that this does not result in any residual disability. I am still of that opinion having examined the (plaintiff)” (DCB p. 33; P. 6 of the report).
42. Dr Elder noted that the plaintiff had not had any treatment for the last five years and was of the opinion that any treatment the plaintiff now required (physically) was due to the effects of the serious assault.
43. The defendant also relied on Mr Fogarty’s report of 29 March 2010 (DCB p. 34), in which his diagnosis was that the injuries resulting from the motor vehicle aspect of the assault, occurring on 13 June 2003, were “the closed fracture of the right ilium of the pelvis” and he believed it likely that the “relatively minor wedge compression fracture (less than 25%) of the T9 vertebral body was also caused by this aspect of the assault.”
44. Mr Fogarty’s prognosis was that the medical condition of the plaintiff’s low back “had impacted slightly on his daily living activities,” and that he had a “minor permanent impairment of the musculoskelatal system.” He was also of the opinion that there had “probably been a significant psychological impact of the injury”(DCB p. 38, report p. 5).
45. The defendant also relies on a letter from Dr Ekanayake in 2010 (PCB p. 79) in which he reported that the plaintiff had “not been with the Wyndham House Clinic for a number of years, prior to recent consultations and that he was “currently being treated for another back injury, not related to previous injury.”
Medical opinion of psychological injuries relied on by the plaintiff
46. A report from Dr Lee of the Princes Park Clinic reveals that the plaintiff saw Dr Ruth at the clinic on 11 July 2003, when he gave her a history of being assaulted on 13 June 2003 with a baseball bat and hammer. The plaintiff was put on anti-depressants (Avanza and Efexor), and also anti-anxiety medication (Diazepam) and a sleeping tablet (Temaze), due to “depression and stress and not sleeping post-injuries”. He was also taking Panadeine Forte for pain.
47. The plaintiff attended five counselling sessions with Lorraine Walker in Shepparton between March 2004 and August 2004. In her report of 8 February 2005, Ms Walker was of the opinion that the plaintiff had recovered to some extent from the effects of a “traumatic experience” (the assault/accident), but that he endured ongoing problems, impaired mobility, chronic pain and loss of confidence.
Her diagnosis was that the plaintiff:
“displayed classic symptoms of post-traumatic stress disorder, in particular, very substantial and abiding sense of threat. Memories are very painful and emotionally disturbing and are likely to remain so in the foreseeable future”.
49. Dr Michael Epstein provided the plaintiff’s solicitors with three medico-legal reports (6 August 2009, 1 September 2009 and 22 December 2011) and attended court for cross-examination. On 6 August 2009 (PCB p. 91) Dr Epstein reported that the plaintiff told him that he had frequent nightmares and flashbacks to the assault and was very frightened, even in hospital. He claimed that he slept for about four hours and had “frequent flashbacks of the assault, of being burnt and being hit by the four-wheel drive vehicle that woke him and occurred most nights” (at p. 7).
50. The plaintiff told Dr Epstein that he felt hopeless, helpless, useless, worthless and tearful. His self-esteem and self confidence had dropped. He was bored, restless, frustrated, lonely, isolated, irritable, exhausted and agitated. He also had problems with memory and concentration. His libido remained low and he had infrequent sexual activity. He had little interest in his appearance but he did not feel suicidal.
In Dr Epstein’s opinion:
“ following the assault in 2003 he has significant physical problems, including low back pain, facial pain and pain extending into his pelvis. In addition, he has developed symptoms of a post-traumatic stress disorder characterised by recurrent intrusive thoughts about the assault, distress with reminders of it, increased concerns with regard to his own safety and security, hypervigilance, emotional withdrawal and a sense of bleakness.”
52. With respect to the previous assault, when the plaintiff was imprisoned in 1985 and was stabbed repeatedly in the abdomen, Dr Epstein stated that the plaintiff told him that he had “nightmares and flashbacks to the assault and recurrent intrusive thoughts about it ,and those symptoms took years to settle.“ In the opinion section of his report, Dr Epstein’s view was that the plaintiff “appeared to have developed a Post Traumatic Stress Disorder at the time, that did not have any treatment and settled over some years.”
53. In his opinion, following the assault in June 2003, the plaintiff had developed Post Traumatic Stress disorder which was contributed to by the effects of both the physical injury and nature of the assault itself. The plaintiff’s work capacity was limited by his physical condition and partly by his psychiatric state. He needed continuing psychological treatment (report p. 9).
54. In his most recent report of 22 December 2011 (PCB, p. 127), Dr Epstein assessed the plaintiff’s psychiatric impairment at 25 percent. The impairment from the assault was 20 percent. The other 5 percent related to a more recent assault in December 2008.
55. The 20 percent impairment arising from the assault related both to the physical effects of the physical injury and the psychological effects arising directly from the accident. The psychological effects had caused his Post-Traumatic Stress Disorder and this currently constituted an impairment of 10 percent. The impairment that was not secondary to physical injury was therefore 10 percent of which half related to the transport accident itself, that is, five percent (PCB, p. 133).
The role of the motor vehicle in the assault
56. The defence case is that the plaintiff has exaggerated the role played by the 4WD in the assault/accident for the purpose of the TAC claim. The defendant relied on the relevant records which revealed that the plaintiff did not inform the following people of the involvement of the 4WD in the assault/accident:
· the man who found him not long after the assault;
· the ambulance staff;
· the staff who treated him at the Goulburn Hospital;
· the staff who treated him at the Alfred Hospital (on multiple occasions there were references to being hit with a baseball bat and a claw hammer and to having aerosol spray used as a form of weapons);
· the psychiatrist who attended the plaintiff at the Alfred hospital on 23 June 2003;
· Ms Walker a psychiatrist who had treated him on five occasions after he left the hospital;
· the doctors at the Princes Park Clinic who commenced treating him one month after the assault through until October 2004 (15 months of treatment).
57. It was submitted that although the plaintiff had an opportunity on all of the above occasions to discuss the involvement of the motor vehicle in the assault/accident he had restricted his descriptions to talking about the involvement of a claw hammer and a baseball bat.
58. When the plaintiff was cross-examined about not mentioning the 4WD to the ambulance officers, he replied “It might be. I can’t remember” (transcript p. 32) and “I don’t remember any of this. I wasn’t in a state to remember. I was in a bad state.”
59. With reference to not telling any one at the Goulburn and Alfred Hospitals, his answers included that:
· “I’m not real sure but pretty sure that I told them something about it”…. “somewhere between being admitted and being let out I did” (transcript p. 31)
· “I might have forgot at the time I don’t know” (transcript p. 31)
· “I was probably in no state to tell them about that at the time” (transcript p. 32)
· “I don’t remember anything for at least a couple of weeks” (transcript p. 33)
60. The clinical notes from a psychiatrist at the Alfred Hospital dated 20 June 2003 contained a history that he was tied to a tree and beaten with baseball bat after being abducted by three men but there was no mention of a car being involved. The plaintiff’s explanation as to this absence included:
· “Look, I remember telling them and they just didn’t record it” (transcript p. 34)
· “I probably forgot. I can’t remember” (transcript p. 34)
61. When it was suggested to him that there were numerous entries from the Alfred Hospital about him being hit with a baseball bat, hit with hammers, having the spray used, but nothing about the 4WD his response was that he “was in so much pain that it probably did not seem important at the time” (transcript p. 35).
62. When it was put to him that he had not told the doctors at the Princess Park Clinic about being hit by the 4WD, the plaintiff’s response was that he believed that he would have told them “somewhere along the line but if there was no record then maybe (he) didn’t” (transcript p. 38).
63. While the defendant accepted that a fracture of the plaintiff’s pelvis was diagnosed by the Alfred Hospital and that this diagnosis was supported by radiological evidence, the defendant relied on the fact that it was never suggested in any of the records from the hospital that this injury was inconsistent with the plaintiff being hit with a baseball bat, a claw hammer and punched and kicked repeatedly.
64. In support of their case that the plaintiff had exaggerated the role played by the 4WD in the assault/accident, the defendant also relied on differences between the description given by the plaintiff to the police (less than a week after the assault/accident) with the description given by him on other occasions (in the criminal trial of his assailants, to the Medico legal experts, in his affidavit’s and in his evidence to this court).
65. The description given by the plaintiff in his police statement (20 June 2003) was as follows:
“The rope was tied around my head, eyes, neck, chest, knees and ankles. The tree wasn’t that big because they drove the car towards me and pushed the bumper bar against my legs and the tree moved and then they drove off.”
66. However, the plaintiffs evidence-in-chief in the criminal trial (20 September 2005) was that after he had been tied to the tree and assaulted, Adam McLennan returned to the scene in his car and drove into him. The plaintiff described the incident as follows:
“It wasn’t going very fast, a couple of kilometres an hour, maybe, and it just touched into me, like it didn’t hit me flat out or anything. It hit me hard enough to –it broke my pelvis, well my pelvis was broken in amongst it all, I daresay that’s where it happened”(criminal trial (“CT”) transcript p. 33).
67. The plaintiff agreed with the Prosecutor’s suggestion that the 4WD driving into him was a “like a nudging sort of” and his evidence was that he felt pain in his pelvis area “straight away”(CT transcript p. 38).
68. In his first affidavit, in support of this claim, the plaintiff’s account of the 4WD’s involvement in the assault /incident was that:
“part of the assault included one of the assailants tying me to a tree and driving a motor vehicle into me. The vehicle was driven directly into my stomach and hip regions. I immediately felt excruciating pain in my pelvis and heard a crack. I then felt a burning sensation and started to scream.”
69. In this court the plaintiff’s evidence was in essence that the car was driven at a “very gentle pace” and “pushed into his legs and up to where the bull bar was.” When giving this evidence the plaintiff held his hand against his abdomen just below his ribcage. He stated that the top of the bull bar was there and the bottom was just below his ankles. It was at this stage that he felt the crack and excruciating pain in his pelvis (transcript p. 22).
70. The plaintiff had made some minor amendments to his first police statement before signing it. He was cross-examined about not amending his description of the assault/accident to include the description referred to immediately above. In addition, about the fact that he had not made any such amendment in his later statement to the police on 18 March 2004. The plaintiff’s response to this line of questioning was that he thought he had somewhere in his statement (transcript p. 23).
71. With respect to the difference in his statement to the police compared to his later descriptions he said:
“It was early on in the thing, they had me on that much drugs in the hospital I probably didn’t remember bits and pieces.”
72. The defendant also relied on the plaintiff’s delay in bringing a claim. The plaintiff did not make a claim against the TAC until November 2005, approximately two and a half years after the assault/accident. The defence case is essentially that if the motor vehicle was involved in the assault/accident to the extent now claimed, the plaintiff would not have delayed in bringing a claim.
73. The plaintiff put his claim in two days after Adam McLennan was convicted. The plaintiff’s explanation for the delay was that he spoke to someone who gave him the wrong advice and thought that he could not make a claim until Adam McLennan was convicted of using the car to injure him (transcript p. 26). In addition, his evidence was that he did not know that the TAC scheme is no fault (transcript p. 29).
74. However, it was submitted for the defendant that if the plaintiff had seen a solicitor (there was a reference to him seeing one in Dr Lee’s notes), it was improbable that any solicitor would have given him such advice.
Finding regarding the role of the motor car in the assault
75. The first issue I have to determine is whether the plaintiff’s claimed injuries were caused by the involvement of the 4WD in the assault/accident on 13 June 2003.
76. I accept on the balance of probabilities that the plaintiff’s pelvic fracture and the T9 fracture occurred when Mr McLennan drove the 4WD into the plaintiff while he was tied to the tree. As the plaintiff’s credit is an issue, in making this decision, I have looked carefully at his evidence and the objective evidence in this case.
77. While I accept that there was no mention by the plaintiff of the 4WD’s involvement in the assault/accident to the man who found him, the ambulance drivers and the treating professionals, I consider that it is important that in his first description of the assault/accident the plaintiff informed the police that the 4WD was involved.
78. While the plaintiff also did not discuss the involvement of the 4WD with those involved in his treatment after the accident, I accept his evidence, at least with respect to the early stages of his treatment, that he was in no condition to discuss the fine details of the assault/accident (paragraph 59). With respect to the fact that he did not change or elaborate on his Police statement, at this stage the plaintiff was still in hospital, and I accept he was focused on his recovery rather than the role played by the 4WD in the assault/accident.
79. While the absence of any reference to the 4WD by the plaintiff in the later stages of his treatment is more difficult to understand, I accept that given the horrific circumstances of the assault/accident that until he was required to focus on the details for the purpose of giving evidence at the trial, he simply put it out of his mind. I note in this respect that Dr Epstein’s evidence was that people with Post-Traumatic Stress Disorder often forget important parts of the trauma (transcript. p. 188).
80. The defence case was that the medical professionals would have queried the cause of the plaintiff’s injuries if they thought that they were inconsistent with the assault minus involvement of the 4WD. However, I consider that given the savage nature of the attack on the plaintiff, the medical professionals would not have thought to query the cause of his injuries.
81. I accept that the point of impact by the 4WD was around the plaintiff’s abdomen area below the rib cage to just above his ankles. Although in his police statement the plaintiff referred to the bumper bar pushing against his legs, this statement was made when he was still suffering the affects of the assault/accident and recovering from his injuries. The plaintiff had been subjected to a savage and terrifying attack and at this stage it is unlikely that he would be concentrating on the specifics of what part of his body the 4WD impacted with. The plaintiff’s evidence was that the 4WD had a bull bar (transcript p. 21) and a photograph of the vehicle in the defendants court book confirms this (DCB p. 136). I consider that the area of impact to the plaintiff’s body is consistent with impact from this bull bar.
82. The plaintiff’s evidence is supported by objective medical evidence in that the scan taken at the time at the Alfred Hospital revealed a comminuted pelvic fracture and a T 9 fracture. I accept the evidence of Mr King, that you cannot get a comminuted pelvic fracture without massive crushing force, such as a motor vehicle accident (transcript p. 159, lines 14-16) and that such an injury could not be caused by a baseball bat (transcript p. 144, lines 1-8). I also accept his evidence that the T9 injury was an hyperflection injury consistent with the plaintiff being hit by the vehicle in the area of his body between mid-chest and his legs.
83. Mr King’s evidence is supported by the evidence given at the criminal trial of the plaintiff’s assailants by Dr Cecilia Tu Hong Wee, who in June 2003 was working at the Alfred Hospital. Dr Wee’s evidence was, in effect, that the pelvis/hip area was very hard bone and a lot of force would need to be applied to that area to cause such a fracture. Although she could not quantify the force it would take to break the bone, she accepted that it was possible that a car travelling at a slow speed and nudging into that area could cause that sort of injury (DCB, p. 464).
84. Mr King’s opinion is also supported by Mr Fogarty, at least to the extent that he considered the injuries resulting from the motor vehicle aspect of the assault were a closed fracture of the ilium and a minor wedge compression fracture at T9 (report of 29 March 2010).
85. In addition to this medical evidence, I have taken into account that in her sentencing remarks Her Honour Judge Wilmoth stated that “at some point” Mr McLennan drove his car into the plaintiff “breaking his pelvis” (DCB, p. 267). I consider it unlikely that Her Honour would have made such a statement without being satisfied on the evidence that this was the case.
Physical consequences of the injuries
86. The plaintiff is now on a disability pension and in his first affidavit (p. 12), he claimed that he “would love to get back to full-time work” and that he “really enjoyed his job.” In addition that his intention had been to work for as long as possible and he had “no doubts” that he would have worked until at least 65 years of age prior to sustaining the injury.
87. In his second affidavit, the plaintiff claims that he continues to experience daily pain in his pelvis and hips, worse on the right hand side. The pain also radiates into his groin. He has restricted range of movement in his hips. His pelvic and hip pain is aggravated when he has to sit, stand or walk for prolonged periods in cold weather. He also suffers from cramps. He continues to suffer daily from low back pain which fluctuates in severity depending upon the activities which he undertakes. The low back pain he experiences from the transport accident is there all the time although it fluctuates in severity and is on both sides of the lower back.
88. With respect to his recreational pursuits, the plaintiff claims that due to his injuries he is no longer able to enjoy riding trail bikes in the bush, hang gliding, playing football with his son, playing cricket, gardening and riding his Harley Davidson for long distances without stopping frequently.
89. However, the case for the defendant is that I should not accept the plaintiff’s claims as to the alleged consequences of his injuries. It was submitted that he was a man who had led a significantly impaired life right up until the time of the assault and that his affidavits did not present an accurate picture of his life prior to the assault /accident.
Finding –s. 93(17)(a)
90. In determining whether the injury constitutes a “serious injury” with the meaning of s. 93(17) of the Act, the Court has to assess the consequences of the injury to the plaintiff. In doing so, regard may be had to pain and suffering and pecuniary disadvantage. Assessment of the consequences to the plaintiff requires comparison of his position before and after the transport accident.
91. The injury will be serious if, as at the date of the hearing, the impairment resulting from the injury when judged by comparison with other cases in the range of possible impairments or losses can be fairly described at least as “very considerable” and certainly more than “significant” or “marked.”[1]
[1]Humphries v Poljak [1992] 2 VR 129 at 140-1; Mobilio v Balliotis [1998] 3 VR 833
92. While I accept that the plaintiff experiences some pain in his pelvis and hips due to the transport accident, in comparing the plaintiff’s condition before and after the assault/accident I am not satisfied on the balance of probabilities that in terms of both pain and suffering and pecuniary loss that the consequence of the physical injuries are serious in the relevant sense.
93. I found the plaintiff’s evidence with respect to his life prior to the assault/accident to be unreliable and I accept that his affidavits do not present a complete and accurate picture of his life prior to this event. In coming to this decision I have, in particular, taken into account the matters set out below:
· The plaintiff claimed that prior to the accident he had worked for three months at Caloundra Engineering, working 44 hours a week but Exhibit 1 (the hours and wage records from Calandro Engineering) showed that he had worked there for less than four weeks and never more than 31 hours a week. In fact, he finished work some seven or eight days before the assault/accident and had been in receipt of a Newstart Allowance at the time.
· There were no records or tax returns to prove that he had worked as a boilermaker or in any other capacity in the four year period that preceded the work with Caloundra Engineering. The plaintiff’s explanation was that he didn’t think he had to file a tax return as he was never given a group certificate (transcript p. 96).
· In his claim form to the TAC, the plaintiff had been asked if he had ever taken four weeks off work due to injury. He failed to reveal that he had injured his left arm in 1993 when he fell through a window. He severed most of the nerves in the left forearm and it was the opinion of the doctor at the time that he would be unable to work effectively as a boilermaker due to the pain and weakness in his left arm (DCB p. 602).
· In cross-examination the plaintiff admitted that through the second half of 2002 (30 June – 31 December 2002), he was unfit to work by reason of a fracture of a bone in his foot, hepatitis C and pneumonia (transcript p. 110).
· The records from the Princess Park Clinic recorded on 19 August 2003 that the plaintiff was going well in his recovery, he was walking without crutches and he was on Diazepam and Effexor. After that date there were at least ten other consultations, none of which recorded that the plaintiff made any complaint about his hip, pelvis or back pain.
· Although the plaintiff’s evidence was that he had transferred from Princess Park to Wyndam Clinic, the only letter from that clinic related to back pain which Dr Ekanakake described as being due to the significant L3 fracture the plaintiff suffered in Perth (PCB p. 79).
· While the plaintiff claimed that he was playing cricket for the Pine Lodge cricket team up to the summer of 2003, medical certificates showed that at least until November – December 2002 he was unfit for work because of a fracture in his right foot.
· Regarding his claim that he could no longer play football with his son, the plaintiff’s son was only two or three years old at the time of the accident.
· With respect to hang gliding, the plaintiff admitted that he had not been hang gliding for three to four years before the assault (transcript p. 187).
· Mr Fogarty’s opinion was that the plaintiff has a “minor permanent of the musculo-skelatal system” and that the medical condition of his back pelvis and back “has impacted slightly” on his daily living activities. On examination he found that the plaintiff could bend forward to 90 degrees.
· Mr Elder’s history in 2009 was that the plaintiff could drive a car and was unrestricted in the activities of everyday living. His finding on examination was that the plaintiff had full range of movement with his back. The plaintiff told him that he was only occasionally taking Nurofen plus and had not had any medical care for 5 years (report of 30 March 2009 at p. 3).
94. I accept the opinions of Dr Elder and Mr Fogarty with respect to the consequences of the plaintiff’s physical injury, rather than that of Dr King. I consider that the history the plaintiff provided to Dr King was inconsistent with his lack of treatment since August 2003. I am satisfied that the treatment and medication the plaintiff told Dr King he was receiving is related to the L3 fracture that the plaintiff received in Perth. This finding is supported by the letter from Dr Ekanayake referred to in paragraph 45 of this judgement (PCB p. 79).
95. In addition, my finding is supported to some extent by the plaintiff’s own affidavit in that it appears that although for some time after the accident he was taking Oxycotin and Endone, he was eventually weaned off this medication. He then regularly took Panandiene Forte when the pain was severe. However, as a consequence of the back injury received when he was in Perth, at the time of swearing the affidavit (14 July 2010), he was taking Oxycontin, Endone and Panadiene Forte (PCB pp. 9-10).
Psychological consequences
96. The plaintiff claims that as a result of the involvement of the motor vehicle in the assault accident he suffers from Post Traumatic Stress Disorder
97. In his first affidavit he claims that:
· he used to be an outgoing person with a good sense of humour but he is now socially withdrawn;
· he feels nervous and anxious most of the time;
· he is depressed, cautious and fearful of going out at night;
· he has difficulty sleeping and has bad dreams and nightmares;
· at night he sees the whole assault/accident over and over;
· his relationship with his de facto partner broke down due to her being unable to cope with the way the assault and accident affected him both physically and psychologically.
98. When describing the nightmares, the plaintiff claims that he sees “flashes of light” coming towards him and thinks he is going to die. When the car finally crashes into him, he usually wakes up in a hot sweat and is unable to go back to sleep. In his second affidavit he claims that he wakes up religiously at 4am every night and that a good nights sleep would be 5 hours.
99. However, while the psychiatrist at the Alfred Hospital diagnosed the plaintiff as suffering from Post-Traumatic Stress, the history the plaintiff gave him was of having nightmares of having the rope around his neck and being beaten by the perpetrators. There was no reference to the 4WD.
100. In addition, when the plaintiff saw Ms Walker on 16 March 2004 for psychological problems due to the assault, he did not inform her about experiencing flashbacks and nightmares as a result of a car approaching him as described above (at paragraph 98). This was despite the fact that when cross-examined about not mentioning the 4WD, the plaintiff agreed that by this stage he was having nightmares in which the headlights of the 4WD were “featuring prominently” (transcript p. 39).
101. The defence case is that these claims have been made in the context of the claim for compensation and that any psychiatric/mental problems the plaintiff suffers from are as a result of his prior drug use, unresolved Post-Traumatic Stress Disorder related to the stabbing in 1985, and the very violent nature of the 13 June 2003 assault which he encountered at the hands of his perpetrators by way of the use of weapons.
102. With respect to the case that the plaintiff had not recovered from Post-Traumatic Stress Syndrome connected to the stabbing in goal in 1985 the defendant relied on:
· a record of a consultation with Dr Lee at Princess Hill Clinic on 24 July 2001 (approx 2 years before the assault/accident) which stated ”nightmares badly for 18 months, 10 years since being stabbed in goal x 20 in stomach, legs, arms and back when in re car theft max security.” Prescribed Lovan and Temaze;
· the Alfred Hospital notes of 20 June 2003 (DCB, p. 630) which stated “whilst in prison he sustained stabbing injuries approx 20 times and has never addressed these issues with professional guidance. He frequently had nightmares about this and also witnessing stabbings murder whilst in prison” ;
· the fact that the general practitioner’s records indicated a that prescription for anti-depressants was provided for the plaintiff in July 2001;
103. However, when it was suggested to him in cross-examination that he was having problems with nightmares and flashbacks about the stabbing incident right up to the time of the assault/accident, the plaintiff disagreed (transcript p. 53, lines 24-26).
104. As further proof that the plaintiff had prior psychological problems, the defendant relied upon his attendance with Dr Percival, Psychiatrist, in Shepparton on 17 October 1995. Dr Percival reported (DCB, p. 605) that the plaintiff described himself as having experienced a lowered mood and a pattern of broken sleep with frank early morning waking before 5am, of relatively impaired memory and markedly impaired concentration.
105. In his summary, Dr Percival stated:
“we are dealing with a man who may have been suffering from a rumbling low grade depressive illness but equally who may have been suffering from a simply adjustment reaction and regardless of the exact diagnosis, experiencing an increasing difficulty with what has always been a basically poor level of impulse control as a secondary consequence of one or other of the primary phenomena”.
106. While the plaintiff denied that he ever had a problem with anger control the defendant relied on the following matters:
· in 1993 he was drunk and abusive to a member of hospital staff after putting his arm through a plate glass window;
· he had a conviction for behaving in a riotous manner in public place in June 1994 and on the same date damaging Commonwealth property down at the Centre link office after they refused to give him Centrelink benefits;
· in October 1995 he was convicted of assaulting police, resisting police, a threat to damage property and wilfully damaging property; and
· at one stage his de facto had taken out a restraining order.
107. With respect to the plaintiff’s drug use, although there was no reference to drug use in the plaintiff’s affidavit, the defendant relied on the Alfred Hospital records (DCB, pp. 626-668) which revealed that:
· the plaintiff had used amphetamines, marijuana and heroin;
· although in cross-examination the plaintiff had denied using heroin in 2003, he had used heroin with his partner two weeks prior to the assault/accident;
· he had been involved in discussions with a social worker regarding drug rehabilitation;
· before the assault/accident he had received a placement in accommodation for people with mental health and alcohol issues;
· the plaintiff had told Dr Epstein that he had not used heroin since the 1990’s, and amphetamines only from 1989-1993;
· notes from a social worker taken on 17 June 2003 stated that only two weeks ago he had separated from his partner Kathy Ross and their son Kaine (transcript p. 93).
Finding
108. I accept that the plaintiff was not entirely frank about his prior problems in his affidavit or when giving evidence. At one stage in cross-examination, he said that for the last 10-15 years before the assault he had been “pretty cruisey” (transcript p. 54). However, given his problems with drugs and the other matters referred to above this would appear to be a view through rose coloured glasses.
109. I accept that the plaintiff suffered from a poly-substance abuse disorder prior to the assault/accident. In addition, that he had suffered from mild depression, anger management problems and Post-Traumatic Stress Disorder with regard to the stabbing in 1985. I also accept the evidence in the nursing notes from the Alfred Hospital that at the time of the assault/accident he had already separated from his de facto partner.
110. However, I accept that due to his drug use and prior mental problems (in particular the fact that he had previously suffered from Post-Traumatic Disorder), the plaintiff was likely to be much more vulnerable to being re-traumatised as a consequence of the assault /accident which was also the opinion of Dr Epstein (transcript p. 184).
111. I accept that the traumatic circumstances of the assault/accident in 2003, including the involvement of the 4WD, were sufficient to cause him to suffer a further Post-Traumatic Disorder and I accept the diagnosis of Dr Epstein to this effect. I have also taken into account that, although she did not have the history of the involvement of the 4WD, Ms Walker’s diagnosis was the same. In addition, that in Mr Fogarty’s opinion, there had “probably been a significant psychological impact of the injury.”
112. With respect to the plaintiff’s failure to mention the 4WD to the psychiatrist at the Alfred Hospital or to Ms Walker, I accept that at this stage, the assault with the claw hammer and baseball bat were in the forefront of his mind. This does not necessarily mean that the plaintiff later exaggerated the role of the 4WD. Given the nature of Post-Traumatic Stress Disorder, the role played by the 4WD could well have been back of his mind and only re-surfaced when he had to recount all the circumstances of the assault/accident at the trial. With respect to this view, I refer again to Dr Epstein’s evidence that “when you read the diagnostic criteria (for Post-Traumatic Stress Disorder), people often forget important parts of the trauma” (transcript p. 186).
113. While the defendant relied on the fact that in cross-examination, Dr Epstein had accepted that, minus the 4WD, all the various features of the assault (including a threat to castrate the plaintiff) were sufficient to explain the plaintiff’s current presentation (transcript p. 180), in re-examination he said:
“I think every one agrees it was a very nasty incident where he was beaten over along period of time, tied to a tree and the car then driven at him when he was tied to the tree is one part of the overall incident, is it possible to separate off the car part from all the rest ---I think it’s---in one sense it’s impossible but I also think that the impression I got was that he thought they going to kill me now. They’re going to drive the car into me and kill me. I think the other incidents involving weapons that were certainly intended to hurt him but may not—and cause him considerable pain but may not have been intended to kill him “(transcript p. 184).
114. I accept that the plaintiff’s flashbacks and nightmares include the fear of death when he sees the flashes of lights coming towards him and he thinks that he is going to die. While his Post-Traumatic Stress Disorder was contributed to by the whole horrific incident, the 4WD played an important role. In other words, while the involvement of the 4WD is not the only cause of the plaintiff’s condition, his Post-Traumatic Stress Disorder is as a result of a transport accident.
115. In Mobillo v Balliotis (1998) 3 VR 833, the Ccourt held that the word “severe” should be contrasted with and was a stronger word than “serious.” In Turner v Love (1995) 21 MVR 314, Ashley and Hedigan JJ stated, at p. 323, with respect to the consequences of a psychiatric injury for a injured person, that:
“those consequences should include the need for treatment, its type, frequency and any past or future potential side effects it might have so it might be that treatment would be in some cases the principle long term consequence of the psychiatric illness”.
116. While the plaintiff had suffered from mental health problems in the past, at the time of the accident, his problem’s appeared to be largely drug related. There was no evidence that at the time of the assault/accident he was suffering from sleep deprivation or any of the other symptoms referred to in paragraph 97-119 herein. He was not taking anti-depressants or receiving psychiatric treatment.
117. After the assault/accident the plaintiff was placed on anti-depressants and anti-anxiety agents due to “depression and not sleeping post the assault/accident” (PCB, p. 31; Report of Dr Lee from 24 July 2005). While he went off anti-depressants in 2007, Dr Epstein is of the opinion that he needs continuing psychiatric treatment.
118. One of the plaintiffs symptoms is sleep loss and I note that in Hayden Engineering v McKinnon [2010] VSCA 69 Maxwell J, at paragraph 45, said:
“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. Mr McKinnon often experiences multiple painful awakenings in the course of a single night. As his counsel repeated, that he properly to be regarded as constituting a very considerable diminution of Mr McKinnon’s enjoyment of life to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”
119. In his report of 6 August 2009, Mr Epstein described the plaintiff’s symptoms of Post-Traumatic Stress Disorder as follows:
“recurrent intrusive thoughts about the assault, distress with reminders of it increased concerns with regard to his own safety and security hypervigilance, emotional withdrawal, and a sense of bleakness. His post traumatic Stress disorder continues to trouble him, in part at least because he suspects he may be the subject of further assaults. He continues to have problems with his physical symptoms”.
120. The plaintiff suffers from diminished libido and Mr Kennedy was of the opinion that there was no organic basis, but that it might be related to his Post-Traumatic Stress Disorder (PCB p. 89).
121. Insofar as the plaintiff’s subsequent injuries are concerned, I accept the history the plaintiff gave to Dr Epstein, which was that he did not remember the assault in 2004 and that after the assault in 2008, he had more problems with anxiety and depression and problems with memory and concentration. I also accept that the plaintiff suffers from pain due to the injury he received as a result of the fall in Perth in 2009.
122. While these subsequent injuries may contribute to any anxiety and depression suffered by the plaintiff, I accept that his Post-Traumatic Stress Disorder is a separate and discrete injury which includes the symptoms described by Dr Epstein above. I also accept that his diminished libido is related to his Post-Traumatic Stress Disorder.
123. In considering whether the mental disturbance is severe, in accordance with Richards v Wylie [2000] VSCA 50 ( at pp. 17 and 28), I have also taken into account the physical symptoms suffered by the plaintiff as a result of the collision. Most importantly, I accept that the plaintiff’s enjoyment of life has been significantly affected by the symptoms of his Post-Traumatic Stress Disorder and that his poor sleeping pattern would make any full-time employment difficult.
124. In all the circumstances of this case, I am satisfied that the plaintiff has suffered a mental impairment or behavioural disturbance or disorder which is severe and long term within the meaning of s. 93(17)(c) and I allow his application to commence proceedings for damages.
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