Kinman v TAC

[2010] VCC 408

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT LATROBE VALLEY
CIVIL DIVISION
DAMAGES COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-09-01980

PAUL DOUGLAS KINMAN	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	His Honour Judge Ginnane
WHERE HELD:	Morwell
DATE OF HEARING:	3-4 May 2010
DATE OF JUDGMENT:	13 May 2010 Revised 20 May 2010
CASE MAY BE CITED AS:	Kinman v. TAC
MEDIUM NEUTRAL CITATION:	[2010] VCC 0408

REASONS FOR JUDGMENT

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Catchwords: TRANSPORT ACCIDENT- serious injury – application to commence proceedings- pain and suffering – left ankle- consequences for plaintiff- relevance of plaintiff’s continued work and absence of ongoing medical treatment- risk of further ankle surgery –leave granted: Transport Accident Act 1986 s.93(4),(17).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P.F. O'Dwyer SC	Slater & Gordon
Mr J.F. Goldberg
For the Defendant	Mr P.D. Elliott QC	Minter Ellison
Mr J.L. Batten
HIS HONOUR:

1 By originating motion filed 30 April 2009 the plaintiff seeks leave to issue proceedings for the recovery of damages pursuant to s.93(4)(d) of the Transport Accident Act 1986, for injuries sustained in a transport accident occurring on 14 December 2003.

2          On 14 December 2003, the plaintiff was riding his trail bike to an area of vacant land in Dandenong. As he rode around a right-hand bend a car, coming in the opposite direction, veered onto the incorrect side of the road and into his path. He took evasive action, but in doing so struck the gutter and had to jump clear of the motor bike. His foot hit part of the bike and he ended up lying on the ground with pain in his left foot and knee. The other car did not stop.

3          The plaintiff was taken to Dandenong Hospital and x-rayed, he was diagnosed with a fracture to the left ankle, to the medial and lateral malleoli. Open reduction and internal fixation was performed using bone graft and metal plate and screws. He was discharged on 17 December 2003 on crutches.

4          The plaintiff also suffered some injury to his left knee and on 27 March 2004, Mr Owen, an orthopaedic surgeon, performed an arthroscope on it. On 24 June 2004, the metal rod in the plaintiff's leg was removed.

5          This application requires consideration of both the present effects, and the likely future effects , of the ankle injury on the plaintiff.

6          The plaintiff is now aged 38 and is married with a ten year old son.

7          Professor John Hart, an orthopaedic surgeon, who provided a medico-legal assessment on behalf of the defendant, stated that the plaintiff had demonstrated an incredible ability to return to work soon after the various medical procedures had been carried out.

8           The plaintiff returned to work in June 2004 and continued to work, until he was involved in a further accident on 26 April 2007, when he suffered a tibial fracture, which required left knee surgery.

9          On that occasion, the plaintiff was forced to jump out of his truck and injured his left knee. He had further surgery but he developed an infection in his left knee which took 20 months to resolve. He may require further surgery as a result of that injury and there is a suggestion that he may require some form of knee replacement.

10        The particulars of injury relied on in respect of the matter before the court, as described in the particulars that have been filed, are a serious long-term impairment, or loss of function of, the lower left extremity. In the course of the development of the case, senior counsel for the plaintiff confirmed that the part of the lower left extremity relied on was the ankle and that the plaintiff did not rely on the knee injury that occurred in December 2003.[1]

[1] T 11.

11        Prior to the accident in December 2003, the plaintiff had been working fulltime driving a milk truck for Dairy Farmers. This was an eight ton refrigerated van delivering packaged milk to outlets in suburban Melbourne. Because of the accident the plaintiff was unable to continue in that job.

12        However, he returned to work as I have stated, in June 2004, soon after having the metal rod removed from his ankle. Soon after he commenced his own business under the name, Paul Kinman Pty Ltd, and built a business achieving gross income increasing from $69,304 in 2005, to $155,554 gross in 2007, in which year the second injury occurred.

13        As part of the development of this business, Mr Kinman purchased two trucks, the first was a Ford Louisville, a tip truck, a manual truck with a Road Ranger device, in which gears could be changed without using the clutch. The use of the clutch apparently is only required at the commencement and conclusion of a particular journey. Mr Kinman did sub-contract tipper work delivering crushed rock from quarries, where front end loaders would load the rock and he would deliver it to road works and concrete plants, where he would tip the rock into bins and hoppers. He had to get out of the truck to do paper work and to sweep the draw bar of his truck.

14        Mr Kinman also purchased a Scania P124 truck with a dog-trailer, with a combined length of 18.5 metres. He purchased that truck with sub-contract work from Boral, transporting crushed rock. On this truck he had to use the clutch for every gear change, but he said it was an air assisted clutch, so it was very soft.

15         He also maintained both trucks, doing what he described as little jobs like greasing, to save money. He would work up to 60 hours a week and at least a minimum of 20 hours. He gave evidence that a lot of the times it was very quiet.

16        In the 2007 accident, he wrote off one of the trucks and subsequently sold the other. He was off work for nearly six months. He then took up interstate truck driving as an agency casual, driving to Sydney, or halfway to Tarcutta, for changeovers and also to Adelaide. He described this work as "quick-hitch work", meaning that he would reach a depot, have a rest and while he was resting, the depot workers would hook up a pair of trailers, so that he could depart once his rest was completed.

17        He continued in this work for a significant period of time, with a break doing some tandem work with Deisel Richards. At some point prior to 14 February 2008, he commenced work for Matthews Quarries. On that date he was involved in a further truck accident, and suffered some glass cuts, shock and chest pains. He then returned to interstate work as a fill-in, as an agency casual and then took up commercial work driving dump trucks until November 2008. He also did some work for a business called RTL, driving dump trucks.

18        Thereafter Mr Kinman had about 18 months work, with Dyers Gippsland Transport, doing general freight work as a fulltime casual driver, driving a refrigerated vehicle between Melbourne and Morwell. He drove semitrailers and B-doubles, which were loaded and unloaded by forklifts and had what were described as tautliners, which require the driver to throw the straps over them to secure the load. In this employment, Mr Kinman worked for up to 60 hours a week. This continued until 8 April 2010 when he ceased that employment.

19        However, he continues to work, at present, with a firm called Coal Valley Seeds, for about four days a week, at the moment transporting bins of potatoes for up to 8 to 10 hours a day from Kilmany, back to Traralgon or down to Hallam, and return. He drives a Sterling prime mover with a flat top trailer. He said he struggles with this work.

20        The plaintiff gave evidence, both in two affidavits and orally and was cross- examined. He was the only witness in the proceeding.

21         The plaintiff's affidavit evidence included that following the initial surgery on his ankle he continued to have pain in the left ankle and the left knee. He commenced physiotherapy treatment in Morwell. He attended the Mid Valley Family Clinic, where he was given pain killers, including Panadeine Forte for the pain in his left ankle and knee.

22        In his first affidavit sworn on 7 January 2009, Mr Kinman swore that after the accident he found his ankle to be stiff if he stood too long and that increased the pain in his ankle and also in his left knee. He found that certain twisting movements were difficult and caused pain. Prior to the 2003 accident he had been active, enjoying outdoor activities such as camping, shooting and motor cycle riding. He said that because of the difficulties with his ankle, he basically gave up the hobbies of camping and shooting. He returned to motor cycle riding, but found it difficult.

23        He then gave evidence about a further accident on his motor bike, when he suffered a hairline fracture of his right thumb and required plaster for about six weeks. At that stage he gave up motor bike riding and sold the bike.

24        In his very recent affidavit of 3 May 2010, Mr Kinman swore that he continued to experience discomfort and pain in his left ankle, that the symptoms of discomfort and pain were worse in the early morning and in cold weather and frequently made worse when walking and undertaking physical tasks, including driving and operating a truck. His left ankle is painful at the end of a working day.

25        He swore that there were many tasks in the course of his work as a truck driver, where he was required to stand, crouch or squat and such activities caused discomfort and increasing pain in his left ankle. Also, he said he had difficulty walking on sloping, undulating, broken or uneven surfaces and frequently his actions in negotiating such surfaces cause acute flare ups of pain, making it difficult for him to continue walking. He found that he needed to pace himself.

26        As a result Mr Kinman stopped going camping, shooting and hunting. He found such activities beyond him. He relieves the discomfort and pain experienced in his left ankle with rest. He swore that he believes that the recovery from the effects of the ankle injury has been affected by the injury to the left knee in the accident.

27        In his oral evidence-in-chief, the plaintiff stated that his ankle gets worse in cold weather in the winter and at the end of the day. He finds that he has to elevate the ankle to try and relieve it. He takes Panadeine for his ankle a few nights every week, at least, and uses Tiger Balm, or other heat rubs, on it most nights. He stated that his ankle gave way on uneven ground and he had to look at where he was going to step next. He said that his ankle was getting worse slowly.

28        I note that the plaintiff has suffered from gout since about the age of 20, which particularly affected his toe and his ankle and sometimes his left knee and he takes medication for that and has in the past been referred to a rheumatologist.

29        There was limited medical evidence presented to the Court and that was a matter relied on by the defendants as suggesting that the injury to the ankle was not as significant as the plaintiff indicated.

30        The plaintiff's case involved the submission that he has shown a high degree of resilience, bouncing back after each of his injuries as doctors have observed.

31        As I previously stated, Mr Kinman has received treatment from general practitioners at the Mid Valley Family Clinic, but there has been little treatment recorded that can be attributed to his ankle. Indeed, the particular consultation referring to the ankle that does appear from the medical notes occurred on 2 June 2008, when he was treated by Dr Navaratnarajah, who recorded that:

"Had fracture of lt ankle 4 years ago. Complains of pain in left ankle on and
off for the last 2/12. No trauma.

O/E
Lt ankle, no swelling, full range of movements. No tenderness."

32        The other area of medical evidence was the medico-legal reports provided to the Court. There was a degree of similarity between the conclusions of both Mr Stanley O'Loughlin, an orthopaedic surgeon and Professor John Hart, also an orthopaedic surgeon and a Clinical Associate Professor of Surgery, but I will refer in some details to the particular observations that both those doctors provide. Neither doctor gave oral evidence.

33        Mr O'Loughlin in his first report of 11 November 2008, after setting out the details of the medical treatment Mr Kinman received in December 2003, gave the following diagnosis and opinion:

"These plates and screws have since been removed and he has developed some early osteoarthritic change in his left ankle, which is post-traumatic in origin."

After referring to the left knee, Mr O'Loughlin continued:

"With respect to his left ankle, he has already developed post-traumatic osteoarthritis in his ankle and therefore, in answer to your question it is more likely that he will develop significant osteoarthritis of his left ankle in the future.

He is likely therefore to require further surgery, which may be an arthrodesis

or an ankle arthroplasty."

34        Both ankle arthrodesis, which I understand to be a stiffening of the joint so it becomes immobile, or a fusion of the bone joint in the ankle, and ankle arthroplasty, which I understand to be a remodelling or reconstruction of the bone joint or, of the surface of the bone in the ankle, are significant surgical procedures. The plaintiff placed considerable reliance on Mr O'Loughlin's opinion about the likelihood of that further surgery.

35        In Mr O'Loughlin's more recent report of 16 February 2010, he stated under

the heading, "Current clinical status":

"Mr Kinman has soreness in his left ankle, especially when he is weight bearing for any length of time. The ankle is often stiff, particularly first thing in the morning and tends to loosen up as he moves around. Occasionally the ankle will give way and occasionally there is swelling."

Mr O'Loughlin then went on to describe Mr Kinman's main problem as his left knee.

36        Under the heading, "Diagnosis and Opinion" with reference to the left ankle,

Mr O'Loughlin stated that:

"Mr Kinman had sustained two serious injuries:

- a fracture dislocation of the left ankle, as a result of the motorbike accident on 14 December 2003 this has healed but has resulted in the development of post-traumatic osteoarthritis."

Mr O’Loughlin gave the following opinion, in answer to the question posed to

him:

"With respect to the left ankle condition, Paul has developed post-traumatic osteoarthritis in his left ankle. He is likely to require surgery in the future, although this would not be done unless his symptoms became more significant. At the moment he has reasonable movement of the ankle and he is able to function.

It is not possible for me to determine when he will require surgery, this could be any time from 12 months to 10 years. Whilst he does have post-traumatic osteoarthritis, the development or deterioration of this is not accurately predictable.

I do not consider that any further X-rays of the ankle are indicated at the moment as the movements of the ankle and assessment of the ankle showed no significant deterioration when compared to my assessment on 11 November 2008."

37        As previously stated, the medico-legal assessment provided on behalf of the defendant, was provided by Professor John Hart, an orthopaedic surgeon. It is dated 28 February 2010, but was based on a consultation with Mr Kinman on 26 October 2009.

38        Professor Hart, under the heading, "Current Status", recorded that:

"Mr Kinman complains of intermittent pain in the left ankle and occurs in the early morning and in cold weather. The pain improves with walking and activity. He rates the pain at 5/10. He has minimal swelling, but the ankle feels stiff. There has been no giving way. The ankle aches at the end of the day."

39        Under the heading, "Physical Evaluation", Professor Hart stated:

" Left Ankle Dorsiflexion was to 10 degrees and plantar flexion 20 degrees. There was no instability. Inversion of the hindfoot was 20 degrees and eversion, 10 degrees. He had 40 degrees of dorsiflexion and 20 degrees of plantar flexion at the first metatarsophalangeal joint. There was 40 degrees of flexion at the interphalangeal joint. He had bilateral hallax vulgus. There was good extension at the lesser metatarsophalangeal joints.

His leg circumference was 39 cm compared with 41 cm on the right."

40        Professor Hart then noted the effect of the imaging of the left ankle, which

showed that:

"The joint space between the tibia and the dome of the talus, appeared to be well maintained, but this could not be measured, because these images were on disc. There appeared to be some narrowing of the medial and lateral compartments. Osteophytes were present on the medial malleolus and the anterior tibial margins.

An X-ray of the left ankle requested by his local doctor on 3 June 2008, showed mild to moderate degenerative changes which reduce lateral joint space."

41        Under the heading, "Lifestyle evaluation", Professor Hart stated that:

" Mobility -Mr Kinman can walk 500 metres. He is unable to run. He can drive a motor vehicle for unlimited distances. He can ascend stairs one by one, but requires the rail. He is able to use public transport."

He then refered to aspects of Mr Kinman's lifestyle, the evaluation of which are consistent with the matters in Mr Kinman's affidavits and evidence that I previously referred to.

42        Under the heading, "Summary", Professor Hart stated in respect of the ankle:

"In the first accident he suffered a fractured dislocation to the left ankle treated by open reduction and internal fixation. He has residual stiffness in both the ankle and subtalar joints. The most recent x-ray indicates mild early degenerative changes in the left ankle."

He also stated:

"The plates have now been removed from both his ankle and knee, but he has a significant problem with both his ankle and knee. Despite this Mr Kinman has been able to return to fulltime work as a truck driver and appears to have relatively minimal pain, considering the severity of the joint changes in the knee and ankle."

43        Professor Hart also recorded:

“He also has stiffness of the left ankle and is developing arthritis in the ankle and possibly the subtalar joint. There is certainly limited movement in the subtalar joint. This also is an area of concern and may require further surgery."

Then further:

"His ankle is entirely due to the transport accident injury. His knee is related to both the transport accident injury and the work related injury, but the work related injury was the more major injury, and the one that has resulted in infection and severe damage to the tibial plateau."

44         Professor Hart did not describe the surgery that Mr Kinman may require, but the fact that it appears that he envisaged that it would be directed at addressing the limited movement in the subtalar joint suggests that it might be significant surgery.

45        I have described previously the injury to Mr Kinman’s knee in 2007, as his main problem. That description reflects the approach in the medico- legal assessments and the submissions of counsel. However, that description does not of itself determine whether the ankle injury is a serious injury within the statutory definition. It is necessary for me to put the evidence about the knee injury in 2007 to one side in determining whether, as a result of the 2003 accident, the plaintiff suffered a serious injury to his left ankle.

46        The plaintiff's case was put along the following lines: that he faced a general deterioration of his ankle with increasing pain, until at some point in the future he would undergo significant ankle surgery, with arthrodesis or arthroplasty the likely procedures. At the point when surgery was likely the plaintiff might still be in his 40s, at an age when such procedures would severely restrict his lifestyle, not least in his family life and such common, but important activities, as playing sport with his son.

47        Next, the general deterioration of his ankle was inevitable, and the procedures that the doctors, particularly Mr O'Loughlin, had nominated were serious surgical procedures. Next, that the plaintiff can only walk a certain distance. His ankle may give way, he has an ache all the time and it sometimes gets worse.

48        It was also put that his work activities after the 2003 injury were nothing special, by which was meant that they were not significant factors working against a determination in his favour. This was put because of the picture painted of the plaintiff by consideration of all the evidence, including his work history after the serious 2007 injury. Putting the matter another way, the case was put that the plaintiff was the sort of person, who whatever happens, will continue to bounce back and work.

49        The same sort of argument was put in respect of the plaintiff's lack of medical treatment for the ankle, and it was argued that when one considered the limits of the treatment he had received, particularly from general practitioners, after the April 2007 injury, that the failure to seek regular medical treatment following the ankle injury was not determinative.

50        Finally, it was put that the Court needed to bear in mind the likely consequences to the plaintiff of the kind of surgery that particularly Mr O'Loughlin indicated may well be required.

51        The plaintiff relied on the observations of Ashley JA in Dwyer v. Calco

Timbers Pty Ltd (No.2)[2] that:

"Whether the consequences of compensable injury for an applicant satisfy the test is to be assessed having regard to the spectrum of all cases, not simply those which end up in litigation. The latter may be supposed to be - which is not to say they are - cases in which the consequences are not glaringly apparent one way or the other."

[2] [2008] VSCA 260 at [7].

52        The defendant’s case was that the plaintiff did not suffer, or did not satisfy, the very considerable test in respect of the left ankle injury. This was apparent when one looked at his work history since that injury, the way in which he had built a business and operated two trucks, and the general way in which the plaintiff had conducted his life in the positive sense since December 2003. Secondly, the plaintiff had not received medical treatment for his ankle and this indicated that he did not require it.

53        Thirdly, the evidence suggested that the source of much of the plaintiff's problems was the knee injury that he had suffered in April 2007. Fourthly, that Mr O'Loughlin's report of February 2010 indicated that there had not been a deterioration in the ankle in the last two years and any osteoarthritis was relatively minor. Fifthly, attention was paid to the plaintiff's ability to engage in robust outdoor sports, such as motorbike riding, after the 2003 injury, which actually had only ceased because of the fracture to the thumb.

54 The Court is required to apply the definition of serious injury in s.93(17) of the

Transport Accident Act, meaning serious long- term impairment or loss of a

body function. In doing so the court is required to bear in mind the approach

to that section in Humphries v. Poljak[3] where Crockett and Southwell JJ said:

"In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?"

[3] [1992] 2 V.R. 129,140.

55        The plaintiff bears the onus of proof.

56        I am required to focus on the impairment relied on and reach a conclusion as to its effect on the plaintiff.

57        I accept the truth of the evidence that Mr Kinman gave.

58        I will proceed to consider the effects of the ankle injury that Mr Kinman experiences and the effects of it that he is likely to experience in the future.

59        As a result of the accident on 14 December 2003, the plaintiff suffered a fracture to his left ankle and damage to the medial and lateral malleoli, and an injury to his fibular. As I have described, the plaintiff's left ankle was pinned and plated. The plaintiff has developed post-traumatic osteoarthritis in his left ankle. As Mr O'Loughlin stated, it is more likely that he will develop significant osteoarthritis of the left ankle in the future.

60        There is some slight restriction in the movement of his left ankle, but at the moment he has reasonable movement in it.

61        The immediate effects on the plaintiff, as I see them from the evidence, are as follows. The first effect is that the plaintiff has a stiff left ankle, in which he has a dull pain much of the time and a more significant pain at particular parts of the day and the week.

62        Secondly, that the injury to his left ankle makes a range of day to day activities difficult, basically anything that requires him to stand for too long. These will increase the pain in his left ankle. This places restrictions on both his working life and his non-working life. The symptoms of stiffness and discomfort and pain are worse in the early morning and in cold weather, and worse when walking and undertaking physical tasks, driving and operating a truck. His left ankle is also painful at the end of the day. He experiences difficulty at work when required to stand. On the other hand I have to balance that evidence against the extensive truck driving that the plaintiff has been able to accomplish right up to the present.

63        Another effect is the difficulty that the plaintiff suffers in walking on sloping, undulating, broken or uneven surfaces. He is restricted in outdoor activities and as a result does not engage in activities like camping, shooting and hunting in the manner in which he did prior to the injury. He relieves the discomfort and pain in his left ankle with rest and with, where necessary, the application of heat balms and Panadeine.

64        As I have indicated, the plaintiff has been able to work as a truck driver, although it does appear he has given up the more active duties that were associated with his role as a milk truck driver. I do note and take into account that he was able to ride his trail bike even after the 2003 accident.

65        Now, as I have also remarked, the plaintiff is obviously a man of considerable resilience. It is sometimes said that the injury suffered by a stoical plaintiff is not to be viewed any the less seriously merely because he manages to remain more active than might have been expected given the level of pain. That observation was made most recently in Haden Engineering Pty Ltd v. McKinnon [4]. That comment has some application to a case such as the present, where the plaintiff has shown resilience, although the issue here is not primarily related to disabling pain, but more a combination of pain, stiffness and the consequent effects of those conditions.

[4] [2010] VSCA 69 at [13].

66        The plaintiff has had little ongoing medical treatment. I think it is significant that the plaintiff is 38, and therefore in the normal course, would have many potential working years ahead. Professor Hart describes the consequences of this factor well, in my opinion, when in a passage to which I have previously referred in part he stated:

"Mr Kinman has demonstrated throughout these injuries an incredible ability to return to work soon after the various procedures have been carried out and he is still working fulltime as a truck driver. How long this situation will continue is difficult to say, but he clearly has a high pain threshold. He has limited movement in his ankle and knee and this maybe a factor in preventing him from continuing his work as a truck driver."

67        That passage captures the balance of the evidence in this case, in that the Court is required to make findings as to the present and future effects of the ankle injury on Mr Kinman.

68        I have discussed the present effects above.

69        So far as the future effects are concerned, I accept Mr O'Loughlin's statement, that the plaintiff is likely to require further surgery at some stage in the future on his left ankle. The kinds of surgical procedure referred to by Mr O'Loughlin, namely an arthrodesis, or an arthroplasty, are significant. However, the medical evidence does not describe the risks of, or possible outcomes, of those operations, and there is no way of precisely knowing when these procedures will be required. That question involves reflection and speculation on the medical evidence about the existing condition of the ankle. On the other hand, there is no suggestion that the pain, and discomfort that the plaintiff experiences will resolve. There was no suggestion of ameliorative treatment for the plaintiff. His condition is long term.

70        I consider that on the medical evidence, that the plaintiff has established the probability of developing significant osteoarthritis in his left ankle, and with it increasing restrictions on his ability to work, and a deterioration in the condition of his ankle with effects on the quality of his life generally. This deterioration is likely to be accompanied by increasing pain and discomfort in the left ankle.

71         Secondly, I consider that the plaintiff has established the probability that significant surgical procedures to his left ankle will be required at a point in the future, when he is still well within his working life.

72        Having made those findings I hold that the plaintiff has established, on the balance of probabilities, that the consequences of the injury to his left ankle, when judged by comparison with other cases in the range of possible impairments, can be fairly described at least as very considerable and certainly more than significant or marked.

73 I find that the injury the plaintiff suffered to his left ankle was a serious long term impairment within the definition of serious injury in s.93 (17) of the Transport Accident Act 1986, and pursuant to s 93 (4)(d) I grant leave to the plaintiff to bring proceedings for the recovery of damages in respect of injuries suffered by him in the accident occurring on 14 December, 2003.

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